The president of the Chamber of Advocates, Peter Fenech, wants to see more effective ways of disciplining both members of the judiciary and lawyers who do not do their duties in a correct manner.
Fenech was interviewed by The Malta Independent on Sunday after he gave his keynote speech at the opening of the new Forensic Year last Tuesday.
Fenech's speech pulled no punches: he called out unnamed members of the judiciary for not doing their duties, spoke against the current system of tariffs for lawyers and said that it's time for lawyers to be regulated.
"The tariffs do not reflect the services being rendered, so you end up with lawyers charging according to what they believe is a fair price for their service. The Chamber understands this because, as I said in my speech, anybody who charges as per the court tariffs might as well close his office and go and do another job because they will not raise a family on those few hundred euros that you get for a three- to five-year court case," Fenech said when asked to elaborate on his words.
"But that doesn't mean that a lawyer should have a free hand. The lawyer has to be transparent with the client," he said, adding that lawyers should utilise letters of engagement to provide all the necessary details about their fees.
However at the end of the day, the legal profession remains just that - a profession. "Yes, you need to be properly remunerated, but it is a profession and I expect lawyers to realise that they should not go out of their way to make a client satisfied if this means going beneath a demarcation line beneath which a lawyer should not go," Fenech said.
Moving onto the judiciary, Fenech said that many of the 60 members work diligently and work very hard. "They try, work hard, and give up their personal time to write decisions, some of them complex; however, like in every profession you find people who don't carry their weight, who rebel, who want to pass a message in their own particular way," Fenech said.
"We have a few members of the judiciary who, I feel - and I relate what my members tell me - that don't respect the clients in front of them, and even less lawyers," he continued.
He said that some members of the judiciary seem almost "frustrated", and this has a knock-on effect in how cases are handled.
"Why should one member of the judiciary be in a position to adjourn every eight to 10 weeks, and another one adjourns every six, nine or 12 months? Something's wrong. Why should a member of the judiciary act as though people don't need to be respected? Why should a member of the judiciary not deliver court decisions?"
He said that these in themselves "are creating an injustice" but they also harm the eco-system of justice, and the reputation of the judiciary.
Fenech explained that there is, in his view, the need for a reform in how members of the judiciary are disciplined. At the moment, only the Minister of Justice or the Chief Justice can commence disciplinary proceedings - even if the Chamber can file complaints.
He doesn't believe that this is right: the Chief Justice will end up in the awkward position of having to discipline an individual while still needing them to take on new work or cover other work, and the element of animosity that may come with this process may affect that.
It is his belief that discipline should be exercised outside the forum of the judiciary itself in the case of complaints, which have been considered as having merit to be investigated.
"Where should the case go to be considered? To a Commissioner for Justice? An ad hoc committee to exercise discipline maybe made up of judiciary members, public officials and a lawyer? That's a political decision," Fenech said.
"But the Chamber believes that we need to beef up discipline so that people know that if they fall out of line they may be made to answer. One cannot just say that they are staying there till retirement and nobody can do anything to them, as happened in the past," Fenech said.
Likewise when it comes to lawyers: Fenech said that the Committee for Advocates and Legal Procurators needs to be beefed up, noting that this is handling 2,400 members - all of whom need to know that if they step out of line they can face justice, discipline and potentially even lose their warrant.
"We need to beef up the committee if we believe in it - if we don't believe in it, we scrap it. However, if we truly believe in it, we need to strengthen it: provide offices, computers, resources, funding, and get it functioning effectively," Fenech said.
Some 100 complaints against lawyers have been received over the past year, a figure which Fenech describes as "very big".
Could the changes come through the Code of Ethics, which in substance hasn't been touched since 2017? "In my opinion we need to set up structures, because without structures it's useless having a Code of Ethics," Fenech replied.
"One potentially can say, yes [that the Ethics Code needs to be revamped], but more importantly we need to see the structure that is going to determine that complaint," he continued.
"We can't expect the judiciary to be disciplined and the lawyers not to be disciplined," he said.
'Justice needs to be permitted to work in serenity'
The courts have been in the public spotlight over the past year, particularly due to certain high profile cases. This is not least due to statements made by people such as the prime minister, where he spoke directly about - and even questioned and, many felt, raised doubts on - members of the judiciary, such as in the Sofia inquiry and the Vitals inquiry.
When asked what message it sends to have a prime minister make such statements about the judiciary, Fenech replied that in an ideal world "we let the judiciary function on its own steam and merit".
"Unfortunately, we live in a small country, everything makes news and everybody wants to comment. The Chamber had issued a statement when there were various comments in the media, not only by politicians, but also by NGOs," Fenech said.
"The Chamber believes that justice, as the third pillar, needs to be permitted to work in serenity, so it does speak out. We try to avoid speaking out every time because we aren't a noticeboard, but there are occasions where we feel that limits have been surpassed and that we should speak," he added.
The courts being in the public spotlight has also led to those who are maybe more unfamiliar with court proceedings following live coverage of what happens in the court rooms.
A point frequently mentioned is on certain tactics used by lawyers, particularly those where defence lawyers seem to try to employ every technicality in the book, leading to long, drawn-out sittings.
"Every lawyer has to programme and plan his or her strategy for the defence of their own client, and the Chamber will not comment on what strategy one chooses," Fenech said when asked to comment on people's thoughts in this regard - particularly within the context that the sheer length of time of court proceedings is frequently mentioned.
"You do understand that in certain circumstances you have a witness on the stand and unless you break their credibility you might have a problem in defending your client, so it is natural in a democratic process that lawyers seem to be difficult people when doing their job. But ultimately they are doing their job," he said.
Fenech said that he is the first person to condemn delays, whether they come from the way the court process is being handled, because the judiciary doesn't handle its diary properly, or whether they come because lawyers put spokes in the wheels of the whole process.
"So as a Chamber we have to speak out against unnecessary delays. However, these are high-profile cases that must be handled with the same care as any other, but greater attention is required because they are being covered live by the media. It's important to recognise that we're not accustomed to such procedures, and also some lawyers may maybe seize the opportunity to bring the media behind them."
One point brought to the fore in the news cycle, over the last year due to the Vitals inquiry, was the cost of experts used by magistrates in the course of their inquiries. The Vitals inquiry cost around €10 million, with the bulk of that being spent on foreign experts - a figure questioned by defence lawyers, and mentioned by Justice Minister Jonathan Attard in a call for reform on how experts are appointed.
Fenech says that this isn't a new issue: he points towards articles he himself had written in The Malta Independent some 12 to 15 years ago criticising the methodology of how experts are appointed to illustrate this.
For him and the Chamber, the key is transparency.
He observed that the law has become more specialised, cases have become more complex and technical, and one cannot expect any member of the judiciary to be able to know absolutely everything - irrespective of how hard working or intelligent they may be.
"We need to assist, firstly in a transparent and professional manner, and in a time-costly fashion," he said.
"We are suggesting: don't leave a skeleton in the cupboard - let's bite the bullet and address the fact that we need to see what experts are required, what the new areas of expertise that we require are - digital information, signatures, information retrieval - and that expertise should not be the possession of the few," he continued.
"There should be a call so anyone can give the expertise they have, and there should be a system for how they are appointed and how they are remunerated. We cannot have people remunerated just because nobody knows how much this person should be charged per hour. Shouldn't that be transparent?" he said.
'I hope this won't fall on deaf ears'
On the topic of reforms, Fenech was asked about Justice 2030 - an idea he had first mentioned during his opening speech in 2023, and which he said has since developed into a set of ideas split across 20 slides which analyse the current justice system and adapt it to what it should be operating within the European context by 2030.
He said that this plan encapsulates things such as footfall, case loads, laws which need to be changed, how many members of the judiciary are required, and what court space is required. For example, he explained, there are laws which, in the Chamber's opinion, one can be de-penalised and hence release magisterial capability.
It was presented to the Justice Ministry in the hope of starting a discussion, even if there are disagreements.
"I cannot say that things are not being done, but the criticism which I referred to in my speech is that it's useless tackling by crisis; we need a holistic plan and not tackle things today for today," he said.
"I hope that after this week's speech it won't fall on deaf ears," he added.
If there is one thing that has to be rectified as a matter of absolute priority within the legal system today, what would it be? Fenech says that there are many changes that can be made. He cites the updating of some laws as one thing that definitely needs addressing, but settles on digitalisation as the most urgent.
"I think the digitalisation which is coming, is unavoidable, and will bring with it a major revamp of procedure. I don't think we can avoid or delay this further; we need to start training every lawyer with the new processes that we will be following," he said.
Today's court process is paper-based - one needs to physically go to the court registry, be it civil or criminal, and manually submit the necessary paperwork. "There are times, payments and volumes of papers changing hands on a daily basis, with the risk that papers can get lost and the loss of time to get things organised," Fenech said.
He said that the Chamber has been "given an idea" that in the near future a new system will be introduced which will handle the submittal of applications, payments, communication, case tracking, signatures and scanning so that the courts can ultimately move to a paperless system, which Fenech hopes will then allow resources dedicated to paperwork to be re-deployed elsewhere within the courts, to achieve a better overall outcome.
Finally, Fenech said that "we need to raise the standards of the services rendered by lawyers".
"By doing so automatically you are raising the reputation of lawyers which in turn creates a better working environment," he concluded.