In Malta, members of the legal professions seem to find no problem with being lawyers, magistrates or judges – and businessmen at the same time.
Only in Malta. Anywhere else in civilised Europe it is prohibited for a lawyer or a member of the judiciary to engage in any trade or commerce. A barrister, avvocato, maitre or Rechtsanwalt who wishes to carry on acts of business is perfectly entitled to do so, provided he surrenders his warrant to practise law. If he feels the urge to bite at both cherries concurrently, his bar association will soon disabuse him: the penalty for trying to be a lawyer-businessman can be disbarment.
Malta has, for centuries, modelled its laws and legal traditions on Roman law, mediated through the wisdom of the great Italian jurists and their codes. When Malta fell under British rule, we took on board a lot of what was positive in the British tradition too, so that our present juridical order is meant to be a mix of what is best in the civil law of Europe and of the common law of the United Kingdom. Those two are our models, our mentors, our gospels.
Both the British and the Italian systems directly or indirectly restrain lawyers and members of the judiciary from exercising acts of trade. Veto, period.
In Italy, this veto is not by tradition or through a code of ethics, but by express provision of the law: “The exercise of the legal profession is incompatible with the exercise of any business activity, carried out in the lawyer’s own name or in the name or on behalf of others” (Article 18, Law 274, December 31, 2012). This only repeated a norm that had existed on the Italian statute book and in Europe for ages.
The situation in England is, in theory, more nuanced, but in practice the bottom line is similar: barristers will not risk undertaking business activities. The core duties of barristers to maintain their independence, and to refrain from anything that may bring the legal profession into disrepute, has always been read to mean that a lawyer will not take those risks associated with business, like bankruptcy, insolvency, obligations towards lenders and creditors, taints of money laundering, exposures to trading overdrafts, and so forth. It is the ethical imperative of refraining from any activity tending to diminish the trust and confidence of the public that translates into a factual veto. (The Bar Standards Board Handbook, 2017).
To see how right Europe is to ban lawyers from engaging in trade and commerce, just go through the names of the lawyers who, in Malta, have brought the profession into disrepute. By far, the absolute majority were lawyer-businessmen. And the discredited members of the judiciary? Virtually all judges and magistrates with one paw in the business honeypot.
All Europe agrees that it is honourable to succeed as a businessman or be a reputable jurist, but the most adroit juggler would not even dream of trying to be both
Coincidences? Hardly. This does not mean that all members of the legal professions who also have active business interests are disreputable. But it certainly means the opposite: almost all disreputable lawyers, magistrates and judges also happened to have been businessmen. That should flash some very blinding red lights. When, over 50 years ago, the Chamber of Advocates tried to introduce a code of ethics for the legal profession, I raised this issue in a general meeting of the Chamber. I had done my homework quite thoroughly, going through several codes of ethics for lawyers in various countries in Europe, finding the non-compatibility rule directly or indirectly embedded in each and every one of them. To be truthful, I did not check Azerbaijan.
My suggestion was received with some incredulity, irritation rather – what, let anything stand in the way of the normalisation of greed? Dr Gius G. Gatt, the Chamber’s charismatic president, replied to me that there was no need to introduce a formal ban – lawyers would know how to regulate themselves according to their conscience. Now they did, didn’t they? How many of them are today 50 per cent lawyers, 50 per cent businessmen and 100 per cent dysfunctional? Ditto judges and magistrates.
Europe’s lawyers did not impose this ban because they found that self-harming the legal profession was unbearably amusing. All Europe, Malta excepted, considers the autonomy and independence of lawyers to be a supreme value in a democracy, indispensable for the effective defence and the safeguarding of the rights of persons. It identifies the overriding profit motive inherent in business, its hazards and jeopardy as obstacles against this autonomy and independence, and an increased risk of bringing the profession into disrepute. It sees doing what is inherently incompatible as incompatible with the rule of law.
All Europe agrees that it is honourable to succeed as a businessman or be a reputable jurist, but the most adroit juggler would not even dream of trying to be both. But then it has always been the folly of Europe not to follow the made-in-Malta model. We’ve mastered the art of turning two blind eyes to conflicts of interest; we’ve established that the pinnacle of fashion is wearing two hats at one go. Perhaps one could suggest a joint membership to the Chamber of Commerce and the Chamber of Advocates – with an attractive discount, naturally.
Do we want to remain at the tail-end of Europe where professional standards are concerned? Are we happy to perpetuate the calamity of yes, but not in Malta? Seeing Europe’s reluctance to align itself with the ethical standards of Malta, should Parliament intervene to align Malta with the ethical standards of Europe?
Ah, I almost forgot. Dr G.G. Gatt had reassured me that lawyers would be guided by their conscience and they need no external constraints to keep them on the straight and narrow. Now, do they.
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