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PROPOSALS A PATHWAY FORWARD
LAWYERS ACT
INTRODUCTION TO OUR PROPOSALS
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We understand that Bill 181 of 2020, the recently introduced bill to regulate the legal profession has passed third reading stage and will soon become law.
Unfortunately, while this bill is a small step in the right direction, we are of the opinion that it leaves much to be desired. It is clear even from the objects of the bill that the reason behind it is not a genuine desire to better the profession, but rather to address certain issues related to MoneyVal.
Therefore we call on all stakeholders to, in addition to the implementation of the proposals outlined below, codify standalone legislation to provide a framework for the regulation of the legal profession.
PROPOSAL 1: TRAINEE LAWYERS, AND THE PRATTIKA SYSTEM
1. Trainee lawyers, commonly known in Maltese as those aspiring lawyers doing ‘prattika’, are an essential part of the legal education, and pursuing a year of prattika is a requirement in order to be admitted into the profession. 1.1. At the moment there are no official guidelines when it comes to the prattika requirement before being admitted to the profession. A Lawyers’ Act should include provisions which outline who may provide prattika, as well as what that prattika should consist of. 1.2. The Committee of Advocates and Legal Procurators should have a system where those people who are beginning their prattika inform the Committee in writing, noting with whom the prattika shall be undertaken, as well as confirmation of the part of the tutoring advocate that they accept to tutor the pupil. 1.3. The Committee should maintain a register of all trainee advocates who are undertaking pupillage. 1.4. The advocate who is taking in students to do their prattika should be a lawyer who has been in continuous practice for the previous five years, to ensure that they are both experienced as well as in touch with any recent developments in the law. 1.4.1. Provided that lawyers who have ceased practising for an amount of time and therefore do not meet the five years continuous practice requirement should be able to apply to the Committee to be exempted from such requirement on a case by case basis.
LAWYERS ACT
1.4.2. Advocates which have been admonished by the Committee should cease taking on students for a time as to be set by the Committee. 1.4.3. A limit of the number of students per advocate should be in place, so that the advocate will be able to provide individual attention for each pupil. 1.5. If the advocate providing pupillage is not adhering to his duties and is neglecting their pupils, the Committee should institute disciplinary proceedings against the advocate, and if it is satisfied that the advocate was not justified in their actions, the Committee should have the ability to disallow the advocate from taking on more students, either temporarily or perpetually, as the case may be.
PROPOSAL 2: THE REGISTRATION OF LAW FIRMS
2. Provide special provisions to regulate and register law firms. 2.1. Clarification on whether partners are jointly and severally liable for the malpractice of one of the partners. 2.2. An explanation on the relationship between associates of a firm and the firm itself, what acts they may do when representing clients in the name of the firm, etc. 2.3. Recognition of the United Kingdom system of barristers’ chambers, where while a number of advocates are associated together under the same roof, as well as sharing certain expenses, they are ultimately self-employed and do not have a system of profit-sharing as in a law firm proper. 2.4. Protection of certain terms such as ‘advocates’, ‘legal’, and ‘associates’, which should only be used in registered law firms so as not to mislead the public. 2.5. A register of law firms should be maintained by the Committee, with a list of partners and other advocates which form part of such firm.
LAWYERS ACT
3. Bring the provisions found in the Code of Police Laws into the 21st Century by enforcing the law which provides that
certain services should only be provided by warranted
advocates. 3.1. While in principle this law works, it is not being enforced and therefore those who are not warranted legal professionals have been giving legal advice, therefore encroaching on the services which ought to be provided solely by legal professionals. 3.2. The provisions found in the 2012 bill, in theory are a good compromise which reserves certain services solely for warranted professionals, such as representation in the courts or tribunals, as well as the drafting and preparation of any legal document or contract. 3.3. Other legal services are said to be restricted, which would allow other professionals to provide certain legal advice within their area of expertise. An example would be architects who would be permitted to provide legal advice within the sphere of development planning law.
3.3.1. It is crucial however that such restricted professions, while they are providing legal services, should be required to follow the ethical guidelines present for legal professionals. This would include adherence to the Code of Ethics drafted by the Commission for the Administration of Justice, and also require them to be subjected to the jurisdiction of the Committee for Advocates and Legal Procurators (perhaps with an altered membership when dealing with such professions), so that they may respond to any disciplinary proceedings which may arise. 3.3.1.1. In no way however should the professional and client be subject to professional secrecy, as this is a privilege which should not be diluted excessively. 3.3.2. It should also be clear to the client that while the professional in question is allowed to provide certain legal services, they are not legal professionals as such, and therefore it is the client’s right to be informed as much.
LAWYERS ACT
PROPOSAL 4: REFORMING THE CODE OF ETHICS
4. Reform the Code of Ethics, with a look at the punishments which are levied on the contravening of the ethical standards. 4.1. The maximum punishment currently is a penalty which cannot exceed 10% of the annual salary of the Attorney General, which amounts to around six thousand euros. 4.2. We maintain that for serious transgressions, the only acceptable remedy is the disbarment of the offender, so that their actions will not impact the reputation of the profession as a whole. 4.3. Such Code of Ethics should be included as a part of subsidiary legislation, similar to the situation in place when it comes to the Code of Ethics of the notarial profession, which is included under subsidiary legislation of Chapter 55 of the Laws of Malta.
5. Revamp the Committee for Advocates and Legal Procurators 5.1. Under Bill 181 of 2020, the makeup of the Committee is altered to include a more diverse group of advocates, including a balance of three members nominated by the Chamber of advocates, and one member each from the Attorney General, State Advocate, and the Ministry of Justice, with the Chairperson being a retired judge. 5.1.1. While we applaud the effort to diversify the members of the Committee, it is contrary to good governance that a member of the Ministry is present. Every effort to ensure the impartiality and apolitical nature of the Committee should be maintained. Further to this, the seat occupied by the Minister’s representative could be filled by a representative of the Dean of the Faculty of Laws, as the educator of future lawyers. 5.1.2. In the interest of achieving consensus, we believe that the Chairperson should only have a casting vote and not an original vote, in order to act as much as possible as an arbiter between the parties. In the same vain, if there is an impasse between the parties, the matter will be postponed for further discussion, with the casting vote only being used in this subsequent meeting.
LAWYERS ACT
5.2. When it comes to the granting of the warrant, it should be such Committee which advises the President on the warrant, and not the Minister of Justice as the system works at present. 5.3. Bill 181 of 2020 also provides that the Committee must certify that the applicant for the warrant is “fit and proper”. While in principle this is a step in the right direction, an attempt should be made to define what “fit and proper” means in this context, with the ability for the Committee to interview candidates in order for them to be able to explain any possible past transgressions. 5.4. As has already been outlined in the sections relating to law firms and trainee lawyers, the Committee should keep and make available registers of the above, as well as all warranted lawyers, with contact information relating to such professionals.
PROPOSAL 6: ONE WARRANT AT A TIME
6. When it comes to the warrant which enables one to partake in the profession, care should be taken to ensure that a person should only hold one warrant at a time. The holding of multiple warrants simultaneously is an ethical grey area which can leave the client confused as to the capacity of the professional in a particular situation. 6.1. This is particularly relevant with regards the attorney client privilege found within the legal profession. If one is exercising the warrant of an accountant and a lawyer simultaneously, and the client has a meeting with the professional in the capacity of an accountant, surely professional privilege should not apply. It is however not always clear in what capacity one is acting, and therefore it is crucial that people are not allowed to wear multiple hats in this way.
