The Chamber of Advocates (the “Chamber”) has become aware that a new Bill number 217 entitled, a bill to amend various laws regulating the legal profession was presented in parliament, proposing to amend, amongst others, the Code of Police laws and the Code of Organization and Civil Procedure.
This paper sets out, in principle rather than any form of detail, the principal misgivings of the Chamber with respect to the proposed amendments and generally the concerns of the Chamber with respect to the piecemeal approach being taken to the regulation of the profession. The idea is to widen the debate to all members of the profession in advance of a remote meeting that will be held for all lawyers on Wednesday the 16th June 2021.
A Comprehensive Approach
The Chamber is concerned about the piecemeal approach that is being adopted with respect to the regulation of the profession. It is clear, that there is no comprehensive plan or vision for the regulation of the profession and the amendments that are being proposed do not follow any well-defined strategy. The fact that Bill 217 proposes to amend and even delete a number of provisions introduced in the code of organization and civil procedure, only a few weeks ago (20 April 2021) through the enactment of Act no. XIX of 2021, is ample evidence of the absence of any well thought-out and considered strategy to regulate the profession.
The Chamber has already expressed the view and would like once more to reiterate its appeal that it is time for a serious effort of all stakeholders concerned, foremost of which the Chamber and the Ministry of Justice, to commence discussions with a view to set out a clearly defined plan for a well-considered design of a regulatory framework to regulate the profession, within the realities of the 21st century. There should be consensus as to the principal aim, which is to have a strong, independent legal profession, properly regulated in the public interest, where we strive to heighten standards of competence and service delivery to the general public and proper accountability of the profession within a suitably regulated environment. We may have different views as to how we can get there and what would be the most desirable way of attaining this objective, but I am sure that like all reasonable mature professionals we can find common ground to achieve the objective.
It is in this light that the Chamber once again appeals to you to suspend any further amendments to any of the laws which Bill 217 is aimed at implementing and, instead, to launch a common project with the Chamber aimed at a comprehensive analysis of what is required to put in place a well-considered regulatory architecture for the profession.
The Chamber has tried to understand what, in effect, Bill 217 is intended to achieve in terms of how it is calculated to benefit and strengthen the profession and its accountability in terms of regulation. There are a number of issues of principle that need to be re-visited.
First, Bill 217 introduces a completely new concept and seems to be dividing the profession between advocates and what are being termed as “providers of legal services”. A reading of the Bill does not give the Chamber any comfort as to the compelling reason for this dichotomy. I have to admit that it was a complete surprise for the Chamber that over the past few years a number of law graduates from the University of Malta have elected not to sit for their warrant exam, accordingly they have not qualified as advocates and should not be considered as such. Nonetheless, it seems that a number of them, and we understand that this is quite a sizeable number, have employed themselves with companies and even the Government of Malta in positions where they are required to give legal advice and provide other services which technically should only be provided by duly warranted advocates. We disagree that this situation should now be legitimised simply by creating a new class of “professional” termed providers of legal services, particularly when it is remains unclear what the term legal services means or includes.
There is a distinction between a law graduate and an advocate. This distinction has been clear in the minds of long-standing and seasoned advocates, but it seems that as time has gone by, this distinction seems to have become more blurred, and not just at the edges. The principle remains simple and cogent today as ever and can be restated as follows:
- A university degree in law is an academic qualification awarded by a university. It is an important pre-requisite, only in terms of knowledge and competence in the law, for anyone who wishes to be admitted to the legal profession, along with other prerequisites. But only a pre-requisite – it is not equivalent to, nor does it or should it automatically entitle the holder of that degree to admission in the profession or to carry the title of advocate.
- A holder of that degree, or such other academic qualification as may be considered appropriate, together with the satisfaction of a number of other criteria such as fitness and properness etc, would then entitle that graduate to sit for the warrant examination. It is the successful completion of that examination that would then entitle the individual concerned to be admitted to the profession of advocate and to be registered as such. This is the professional qualification as opposed to the academic qualification.
It is indeed the conferment of the warrant by the state that would entitle someone to be called advocate and to authorise that person to provide legal services for consideration to third parties. This remains today the general rule and whilst one may wish to create exceptions to the rule with respect to very circumscribed situations, they should always remain exceptions, and not the rule. Anyone who wishes to provide legal services ought to be subjected to the same rules and warrant examination as an advocate, save for European Union rules in connection with the mutual recognition of qualifications. The general public ought to have certainty and the assurance that any person purporting or holding him/herself out as providing legal advice or guidance to others has gone through the proper tests and has successfully met the proper requirements before such person is allowed by the state to provide such guidance and advice.
The Chamber believes that this is a significant change to the profession’s structure and requires further discussion and debate before it is simply adopted. It is a matter that should be discussed as part of the debate on a comprehensive strategy for the regulation of the profession and should not be addressed in a piecemeal fashion. Our concern is that this will have significant repercussions some of which may well be unintended. The Chamber has therefore appealed to the Government to suspend these amendments until such time and opportunity are allowed to devise a comprehensive strategy going forward.
There are, of course, other issues that emanate from Bill 217 with which the Chamber disagrees. The following are some of them:
- The dilution of the role of the Committee for advocates and legal procurators from the role that was attributed to it, particularly in the ability to make rules for the purpose of article 81(a)(b) and (c) of the COCP. This was an amendment which was approved in Act XIX of 2021 with both sides of the house committee voting in favour and with the assent of the State Advocate. The Chamber sees no reason for its removal.
- The deletion of article 84A of the COCP, again an amendment which was approved in Act XIX of 2021, only a few weeks ago, with both sides of the house committee voting in favour and with the assent of the State Advocate. The Chamber sees no reason for its removal indeed the Chamber must express its objection to the deletion of this article.
- The definitions of advocate and law firm need to be refined and updated.
- The degree of Doctor of Laws which is no longer awarded by the university has again found itself in the text of article 81 of the COCP.
- A definition of legal services is required.
Once again, and in conclusion, the Chamber reiterates its firm commitment to provide all the assistance required for a joint effort to be launched to devise a well-considered, comprehensive architecture for the regulation of the profession, and in the meantime to suspend the legislative process on Bill 217, which will only create uncertainty and concern within the profession, when a more suitable alternative is available with the commitment and goodwill of all concerned to achieve a common objective. The Chamber is therefore prepared to immediately offer its participation for a joint team to review and propose appropriate and comprehensive legislation to regulate the profession.
The Chamber trusts that the Government of Malta will find the above proposal acceptable and that together we can work towards a stronger legal profession.
Louis de Gabriele
10 June 2021