LOUIS DE GABRIELE
The Lawyers Act will be a key milestone, but not the only one
Your predecessor said that the appointment of members of the Judiciary was a step in the right direction but still needed to be improved in the sense that the government will not have the final word. Do you agree with him?
The framework put in place for the appointment of members of the Judiciary is certainly a step in the right direction, but it also needs further improvement. This is a matter on which the Chamber of Advocates has published a position paper setting out what it considered to be the ideal position for judicial appointments. That paper, which can be viewed on the Chamber’s website, is still as valid today as it was when it was published.
What is your vision for the Chamber?
The vision is clear – we need to secure a profession that will be in a position to meet the significantly different challenges it faces today and those of the future in what is a highly volatile environment, to enhance our standards both in professional and technical development as well as in ethical conduct and to deserve the trust and public confidence that the profession stands for.
Ours is a profession that has an important legacy – we need to ensure that we protect that legacy and that we have a strong and independent profession worthy of the trust that our clients place in us.
We must, however, not become so ingrained in that legacy that we miss what is happening here and now. We are experiencing different socio-economic challenges in a highly volatile and ever-changing environment that exposes the profession to new and different tests and risks than it has ever faced before. We must face those challenges and address them. We need to embrace change within the profession rather than resist it. As a profession, we need to acknowledge those challenges without, however, losing sight of our core values of integrity, independence and professionalism.
We can no longer perceive the profession in the same way as our predecessors: the challenges to the profession are different and they are significant. We need to step up our efforts to create the right framework in which the profession can meet those challenges. The first step in this direction will be what has been colloquially termed the ‘Lawyers’ Act’, which will see a completely new dimension in regulating a profession that has so far remained largely unregulated. The Chamber will take on a new role as the stalwart of es- tablishing and maintaining high standards of conduct within the profession in the light of these new challenges. It will itself be accountable to the Commission for the Administration of Justice insofar as it meets the basic regulatory standards that will be established by law.
The Lawyers Act will be a key milestone but not the only one. It is an enabler, and the Chamber itself has to work tirelessly to ensure that it delivers to the public and the consumers of legal services consummate professionals, well-versed and prepared technically, who abide by strict rules of ethics and professional conduct.
The Chamber is a professional body for the whole of the profession but, unfortunately, the perception remains among a number of lawyers that it is only representative of court lawyers. This is a perception which is not completely misplaced, but one that we need to address and, indeed, change. We need to understand that today the profession is composed of members who do not work in litigation – indeed never go to court, but rather practise their profession in an advisory capacity.
I myself come from that background, although I also litigate in court, but most of my professional time is spent on advisory work. Going forward, the complexities of the law will require more and more specialisation, and there will be more and more members of the profession who will elect not to be litigators. I hope that I can bridge this gap and make the Chamber more relevant to non-litigators.
I think that the Chamber needs to fulfil another role, that of acting as a bridge to convert law graduates into advocates, in which law graduates actually stop being and thinking like students and adopt the mind-set of an advocate. Training to prepare law graduates to become lawyers is, in my view, a key aspect that should further enhance both ethical as well as professional standards. The Chamber notes with satisfaction that, during their last year at University, students are given some insight into practising law. This is a significant move, in principle, towards creating better lawyers.
In practice, I think there is a need for more collaboration between the Faculty of Laws and the Chamber in this respect to ensure a curriculum that more closely reflects the requirements of the profession today, an area in which the Chamber certainly has more experience and can contribute significantly. I look forward to collaboration with the Faculty in this respect.
Ultimately, the vision remains to have a strong and independ- ent profession that provides a professional service to its clients, that conducts itself with integrity and that deserves the confidence of the general public as a significant pillar of society.
Will you be pushing for the Lawyers Act to be implemented?
Absolutely. As I said, this is key for a profession that must raise the bar to meet the challenges of the 21st century. The Chamber itself needs to enhance its own infrastructure and resources in order to be able to implement certain matters required by the Act. We need resources to implement a change programme both at a strategic and administrative level.
The role of the Chamber following the enactment of the Lawyers Act will be significantly different. It will take on important and challenging regulatory functions and it will be accountable to the Commission for the exercise of such functions. It will be a completely new era for the Chamber itself. The Act as such will place the profession in a new dimension – a dimension that is better placed to enable the profession to meet new challenges.
Chief Justice Joseph Azzopardi, in his speech at the opening of the forensic year, expressed his disappointment at the “small number” of
Ours is a profession that has an important legacy we need to ensure – that we protect that legacy and that we have a strong and independent profession worthy of the trust that our clients place in us
lawyers who do everything they can so that a case never ends, even after a final verdict has been delivered by the Court of Appeal. It had, he said, recently become the fashion for the lawyer of the losing party to ask for the case having already taken years – to be heard again from scratch. – When this is refused, the lawyer says that their right to a fair hearing has been breached and proposes a Constitutional case. If they lose again, they then appeal to the EU Court. When this happens, it causes harm to the other party who will have to wait even longer for justice, while also wasting the court’s time. Because of this, other cases take longer to decide as well, he said, adding that such action should result in the suspension of the lawyer’s warrant, as happens elsewhere. Do you agree with him?
Lawyers have an obligation to their clients to make their case diligently, fairly and honestly. To the extent that a lawyer fairly and honestly assiduously pursues all legal avenues open to his client, then that lawyer is simply doing what he is obliged to do. Indeed, doing less than that would be to short-change his client.
I am pretty sure that this is not what the Chief Justice had in mind. It is when lawyers abuse the system – when they cannot possibly fairly and honestly make an arguable case for their client and therefore their efforts are focused on simply delaying what should be an obvious adverse outcome – that they would not be acting in line with what the correct ethical standards dictate. It is this abuse of the system that I think the Chief Justice was referring to and in that respect he is right – even though suspending a warrant seems to be too draconian a measure. I also think that there is much that judges themselves can do when advocates habitually resort to such obvious delaying tactics in pleading before the courts.
From a professional perspective, there are other measures that one can take that need not be the suspension or revocation of a warrant but, above all, I think we need to invest in training, in creating a mind-set within the profession whereby lawyers do not abuse the system, where lawyers, as required by our Code of Ethics, actually give their clients frank and objective advice regarding their rights: indeed, our clients are not always right and we as lawyers need to be sufficiently professional to tell them so.
Do you think the retirement age for the Judiciary will be increased or optional for them?
A mandatory retirement age of 65 may seem somewhat young by today’s standards and there is merit in the argument that it should be raised. However, this needs to be evaluated in a much broader picture.
Should the role of the AG be divided into two and not remain as it is today?
Whether the role of the AG should or should not be divided is, in my view, an over-simplification of the issue. The real issue is to have in-built mechanisms of checks and balances and an adequate control environment within the AG’s office. While at face value, a division of the office may seem to be a way of achieving that, it is not necessarily the only one.
Your predecessor, Dr George Hyzler, said that every lawyer should undertake a psychometric test. Do you agree and, if so, should this be one of the things for which you will be pushing?
I fully endorse any initiative that is aimed at enhancing the standards of the profession, including psychometric testing if it can be shown that this will improve the admission of people into the profession. As advocates, we are vested with public trust and our warrant to practice is the state’s confirmation to the general public that an advocate who is admitted to the profession is not only competent and academically qualified but also worthy of public trust.
There are a number of initiatives that may be taken in order to render this a more robust process, and psychometric tests are simply one of them. The main issue that we need to address in this respect is the distinction between being a law graduate and becoming an advocate – which seems to be unclear in the minds of some people.
President of the Chamber of Advocates Louis de Gabriele