The Chamber of Advocates has recently become aware that on the 4 December 2020 the Minister of Justice presented a Bill to amend the Code of Organization and Civil Procedure and the Commission for the Administration of Justice Act with provisions purportedly aimed at regulating the profession. The Chamber has already had the opportunity of expressing its divergence on the proposed Bill with the Minister.
The Chamber must express its utter dissatisfaction that following all the efforts that it has placed in making proposals for the better regulation of the profession, the bill which has been presented in parliament is a far cry from the proposals which the profession believes will properly address the issues which need to be addressed for enhanced standards and effective regulation of the profession.
Up to a couple of months or so ago, the GoM for the first time, provided the Chamber with a draft of the Lawyers’ Bill based on the original draft prepared by the Chamber, but which contained amendments to some of the main provisions in that Bill, principally dealing with a number of matters on the regulatory architecture to be adopted. The Chamber considered those amendments with an open mind, and in principle accepted the policy shift proposed by the GoM. In this context the Chamber is amazed that now, the GoM has made a complete volte face and decided to go down a completely different route, on which the Chamber was never consulted. The reasons for this sudden and radical change in approach remain unexplained and indeed inexplicable.
It is evident, even by simply reading the objects and reasons of the bill, that what is driving the changes being proposed by the GoM in this bill is not the regulation of the profession in the manner that is most suitable for the profession and its further development as a strong and independent profession, but rather compliance with, what it considers to be the minimum possible, to conform to the dictates of the Moneyval report.
Conversely, the bill proposed by the Chamber is driven primarily by the proper regulation of the profession first and foremost. That in itself also satisfies the requirements of Moneyval and satisfies the requirements of the Fifth Money-Laundering Directive. The Chamber is fully sensitised to the outcome of the Moneyval assessment and it will be the last organ that will in any manner stand in the way of ensuring that Malta makes the required standard. But what as a Chamber we are after is effectively making that standard and not embarking on an exercise of window dressing without any effective in-roads made within the profession at all.
The Chamber believes that what is being proposed by the GoM in this respect is not fit for purpose, not even the purpose that the bill itself states is to be addressed. All efforts should be placed in a full understanding of the need to regulate the profession, articulated in a law that evidences the genuine desire to do just that, and which as a natural consequence addresses the shortcomings highlighted by Moneyval.
For some reason the scant regulation of the profession contained in the proposed bill, is being dealt with as an amendment to the Code of Organization and Civil Procedure thus perpetuating the idea of the inherent association of lawyers and courts, and diminishing or not recognising the significant role of lawyers in work which is not court related. That we continue to consider advocates simply as litigators in court and that all regulation of the profession is intended to deal solely with this aspect of being a lawyer, is an approach that is today obsolete. It denounces the outdated approach of the GoM, and those advising it on this matter, that seems to have completely lost touch with the reality of the profession in the 21st Century and its role and attendant risks.
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 only as the advocate in court; a law which indeed gives recognition to the work non-court lawyers are involved in. More has to be done to ensure a proper regulatory framework for the profession, which is not designed exclusively by reference to court work, but which effectively acknowledges the state of the profession today and the role of the profession in society.
The Bill as proposed is a half-hearted attempt to deal with Malta’s quest to make it through the Moneyval assessment. There is no genuine desire to regulate the profession in a manner which will enhance the profession in the public interest and in the interest of a stronger, and independent profession.
The Chamber remains open to engage with the Government in finding a solution to the current divergence on this matter. We will do so with an open mind with a view to pursue a properly designed regulatory framework which will address, as comprehensively as possible, the needs of the profession today, acknowledging the structural changes within the profession, and pursuing the setting of higher standards for the profession, that effectively addresses the shortcomings in the regulatory architecture for the profession as a whole.
Chamber of Advocates
December 10, 2020