Legal profession: one and indivisible

In his 'Talking Point' yesterday, Dr José Herrera said that in the light of the recommendation made by the Commission for the Administration of Justice in regard to Dr André Camilleri "Parliament should therefore be invited to review the relative clause in our Constitution".

This is in connection with the constitutional requisite that a member of the legal profession may be called to serve to the Bench only after the advocate would have "practised the legal profession in Malta" for at least 12 years.

Dr Herrera put forward the recommendation after making a very forceful analysis of the fast-changing physiognomy of the legal profession.

He very correctly indicates that "over the past 20 years, we have seen the evolution of a new breed of lawyers who no longer follow the traditional role and yet are still regarded as prominent and respected members of the bar".

Absolutely so.

Dr Herrera's point indicates the importance to re-establish clarity in the criteria required to establish the 12-year professional practice threshold.

First of all, it is pertinent to point out that the Commission for the Administration of Justice has within its structure a committee for advocates which in terms of the law "shall have competence in all matters falling under the functions of the commission relating to the professional conduct of advocates and legal procurators and to the exercise of the profession in general". (Article 3 (5) of Chapter 369 of the Laws of Malta).

Since its competence therefore refers also to "the exercise of the profession in general" and not just to matters of professional conduct, there could already exist a body recognised by the Constitution which could inquire into the subject matter of what type of practice qualifies a lawyer to the Bench. Consultation could be indicated, particularly since its composition is such as to be representative of the legal profession.

This is being said since in terms of the Constitution, professional conduct is regulated by a code of ethics which has the force of law, and is interpreted and enforced by the very same committee. In this regard, and to reinforce the point made by Dr Herrera, the code of ethics is binding on the professional behaviour of all lawyers exercising the legal profession.

The important point to note is that this code has a chapter dedicated to "the advocate in employment" who is expressly bound "by the norms of professional conduct in the same manner as an advocate in private practice" (Rule 1 of Chapter II).

To my mind therefore the code of ethics of the Commission recognises as an advocate both a lawyer 'in private practice' and 'an advocate in employment' as an advocate exercising the legal profession subject to the very same rules of professional conduct 'lock, stock and barrel'.

The profession therefore is one and indivisible.

To my mind therefore the true question does not concern the requisite affecting the years of practice, but, rather, the manner in which the assessment of whether a lawyer in employment or for that matter a lawyer in private practice has the required competence and experience to serve successfully as a member of the Bench.

This is a far more delicate question since it involves a case-by-case approach which transcends the strict constitutional requisite of the 12-year period of practice.

No doubt can exist that an advocate who would have served for years as a litigation lawyer and who would enjoy a very good reputation among the legal profession would represent the solid credentials for the Bench. Should these however remain the only ones to be considered as eligible?

There can exist no guarantee that a lawyer in private practice and one who would attend regularly the law courts need necessarily have the competence and professional experience to serve as a judge. Nor should it be assumed that advocates in employment, in this day and age of specialisation, even from the legal aspect, could not be considered as candidates to the Bench if they enjoyed a good reputation so far as their legal work would warrant.

If Dr Camilleri's case will lead to a modern evaluation of the qualities necessary for an advocate to serve as a member of the Bench, then he would have rendered a service to the Bench all the same!