Last Updated on Thursday, 2 December, 2021 at 1:13 pm by Andre Camilleri
The Chamber has for the past 13 years been fighting for the better regulation of the profession through a more robust regulatory framework.
In terms of practical goals, not much has been achieved; however, certain principles on which we may have had a push back some years back, have today received some form of acceptance. Indeed, the debate over such a long period of time has allowed both parties to fully absorb the other side’s thinking.
The underlying objective of our proposals for an ad hoc law to regulate the legal profession is driven principally by the need to ensure a strong and independent profession in line with the demands of 21st century realities of a changing economic, social and technological environment while consolidating the professional values of integrity, competence and diligence to ensure the highest standards of professional conduct expected of us.
Besides addressing the increased negative public perception of the profession generally, the ultimate aim is to devise a regulatory framework that respects the independence and autonomy of the legal profession, which ensures that the professional and ethical standards of the profession are indeed adequate and relevant to deal with the issues of a modern society and to regenerate the credibility of the profession and its members as a whole.
Without a real and substantive reform that would signify a regeneration of the profession we would only be making a disservice to our profession by deepening the gap that already exists between the state of our profession and Malta’s social and economic realities.
A new reformed profession must guarantee the highest levels of professionalism and competence to create the lawyer of the future. Skill and competence are no longer enough. The complexity of the economic and juridical organisation of modern society and the levels of technical know-how required for an efficient and effective understanding and knowledge of laws require that the profession is not only exercised by those who are properly qualified and competent but also that professionals dedicate themselves either exclusively or predominantly to it. Anything short would be a disservice to the profession and to the public.
Today, the profession has changed significantly where lawyers are involved, both in pure advocacy as well as in advisory and consultative roles or in-house counsel roles. Numbers indicate that there are by far more of our peers involved in either advisory/consultative roles or in employment than there are lawyers predominantly involved in litigation. The increasing number of lawyers in employment as in-house counsel also needs to be addressed.
As of last April, there is a clear statutory recognition of the role and function of the Chamber as a recognised professional body for the profession together withrevisions endowing the Committee of Advocates and Legal Procurators with further regulatory functions – not only determining ethical and disciplinary complaints made against advocates but also to screen applicants for a warrant to become advocates.
However, a number of valid changes made in this respect in April, seemed to risk being undermined by further legislation proposed a few months later in Bill 217, which seems to have been shelved. But let me take a cue from that Bill.
The Chamber is aware that although there is still demand for lawyers who wish to work in court, there is an increasing number of those who wish to work in advisory or consultative work without practising advocacy, effectively exempting themselves from having to undertake their warrant examination in the laws of procedure and practices of the court.
The Chamber’s position remains clear. We can never accept that any person with a law degree may be allowed to practise law as an advisor or consultant without a warrant or that anyone working in this area does not belong to the profession or is not regulated by the same ethical standards and rules.
The Chamber’s proposal suggests the option for a two-pronged profession – having advocates, who would be able to practise in court and also in advisory work, and legal counsellors, who would be able to practise the profession through counselling and advice but would not be able to practise in court. Both would be subjected to obtaining a warrant, both would belong to the same profession and be subject to the same regulation and ethical standards.
The only difference is that those wishing to practise advocacy would be required to sit for a warrant examination in procedure and court practices over and above substantive law and ethics, while those who wish to work in advisory and consultative work would need to be tested only in the substantive law and ethics.
Another challenge is to dispel the mistaken idea that anyone who obtains a law degree from university automatically becomes an advocate. Obtaining a law degree is only a test in so far as academic qualification is concerned.
The profession must ensure that the time of prattika is proper and indeed useful for law graduates. The proposed law will ensure a tighter conduct both for lawyers offering prattika and students who are undertaking prattika as this is a crucial time when law graduates need to be converted to advocates.
For the first time, our proposals will also recognise and regulate lawyers employed with entities other than law firms because while a lawyer should be free to decide to work for a firm other than a law firm, that choice brings with it certain important consequences; primarily, that his employer does not become a law firm simply by employing that lawyer and therefore the employer cannot be allowed to provide legal services simply by employing lawyers.
Finally, acknowledging the way that life for lawyers has become much more complex, the Chamber has made proposals related to continued professional development and limitation of liability for lawyers.
With patience and perseverance, we have made inroads but now we await government’s reaction to our latest proposals because the proof of the pudding is in the eating!