LOUIS DE GABRIELE

The Lawyers Act will be a key mile­stone, but not the only one

The Malta Independent on Sunday - - FRONT PAGE -

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

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