The Chamber of Advocates remains disappointed with the amendments that have been made to the Code of Organisation and Civil Procedure after the enactment of the Legal Profession (Reform) Act. It reiterates that the few amendments made were merely a frail attempt to pay lip service to the regulation of the profession and the bill, as it is, remains unfit for purpose.
We are mostly aggrieved that, for reasons yet unknown and which remain inexplicable to the common sense of most, only a few of the chamber’s exhaustive list of proposals were taken on board, bits and pieces which were meshed in the law and created an outdated and redundant legislative framework, which not only goes absolutely nowhere, but leaves the profession in the same predicament.
It becomes increasingly evident that this bill was not driven by a genuine need or desire to regulate the profession but rather by the need to meet the impending deadlines of MoneyVal. It is indeed very unfortunate that, after having pursued this objective for the last 12 years, the end result is a law that is still unfit for purpose. Particularly since the chamber had emphasised on more than one occasion that its own proposals would still have clearly and unequivocally addressed the concerns that had been expressed by MoneyVal.
Among its many flaws, this new law fails to regulate the way prospective law trainees are to conduct their practice before becoming eligible to sit for their warrant examinations; fails to clearly state who will be responsible for conducting the warrant examination; and fails to impose Continued Professional Development, thus confirming Malta’s legal profession as probably the only one in the rest of Europe where CPD is not mandatory.
Although there are some references in the code of ethics and the old code of police laws, the law also fails to determine and define what legal services are and fails to regulate their provision.
The chamber is also mystified about the role of the committee for lawyers and legal procurators. If the intention was of making this committee the ultimate regulator of the profession, then the law falls seriously short of such an objective.
Notwithstanding that there seemed to be clear consensus at parliament level regarding the evolution of the legal profession and on how, with the development of Malta as a business centre, advocates have transitioned from traditional litigation lawyers to transactional lawyers and trusted advisors, the law certainly does not reflect these sentiments and fails to recognise and acknowledge this notable evolution of the profession.
Today’s reality is that most lawyers are not court lawyers- Louis de Gabriele
That we continue to consider advocates simply as litigators in court and all regulation of the profession is intended to deal only with this aspect of being a lawyer is an approach that is today redundant, outdated and obsolete. Today’s reality is that most lawyers are not court lawyers. Therefore, retaining the regulation of the profession within the precincts of the Code of Organisation and Civil Procedure is simply wrong in principle and does not reflect the reality of the profession.
We need a law which recognises and acknowledges the role of the lawyer/advocate in a modern society as a trusted advisor to clients and not simply as the advocate in court; a law which indeed gives recognition to the work non-court lawyers are involved in. We need a stand-alone legal instrument which consolidates the regulatory framework of the profession; which takes into account the significant evolution within the profession; which considers issues such as limitation of liability; modern structures of law firms; mandatory continued professional development; and a well-resourced and committed regulator.
These are just some of the main deficiencies in the law we now have to deal with as a profession. The amendments to the COCP are, with some exceptions, inadequate and fundamentally flawed.
The chamber will not be deterred from pursuing a more adequate regulatory framework for the profession. It strengthens its resolve to pursue its object, now enshrined in these amendments themselves: to safeguard and protect the dignity, honour and reputation of the profession of advocate; to encourage an independent, strong, diverse and effective legal profession; and to do so with greater vigour.
The chamber remains determined in its view that this law is shallow, lacks focus and purpose and does little for the proper regulation of the profession in the 21st century. We shall vigorously pursue a deeper and more meaningful regulatory framework the profession and the public deserve.
Now that the MoneyVal deadline seems to have been attained, the chamber once again calls upon the minister of justice to commence serious discussions on a proper regulatory framework for the profession without having to wait another 12 years for any progress to be made.
Louis de Gabriele, president, Chamber of Advocates