The need for further regulation of lawyers in Malta : a comparative analysis

Abstract

The pivotal role of lawyers in the administration of justice and thus, in society as a whole, is undeniable. However, unlike numerous professions in Malta governed by ad hoc legislation, lawyers practice under a fragmented framework, assembled over time and deemed insufficient. In view of sporadic attempts at reform and limited revisions to the COCP through Act XIX of 2021, the time has come for a holistic re-evaluation of the existing Maltese regulatory framework. This dissertation tackles this critical issue by first providing some introductory insights in Chapter 1, namely an evaluation of the terminology ‘advocate’ and ‘lawyer’ and the underlying rationale for regulating professions in general. Chapter 2 proceeds to delineate the current regulatory landscape governing lawyers in Malta, assessing relevant provisions in the COCP and the CAJA, with particular emphasis on the 2021 amendments. Additionally, it looks at past attempts at reform, predominantly unsuccessful, alongside their respective critiques. Building upon this foundation, Chapter 3 conducts a comparative analysis of regulatory paradigms governing lawyers in Germany and England and Wales. This Chapter assesses key facets of the regulation of lawyers: admission; continued legal training; the provision of legal services; law firms, MDPs and ABSs; professional indemnity insurance; and discipline. The comparison is particularly insightful due to divergent regulatory ideologies, albeit both jurisdictions boast of comprehensive frameworks. Chapter 4 synthesises the findings of the preceding chapters, culminating in suggestions for reform tailored to address the regulatory deficiencies identified in Malta. To avoid making this Chapter overly subjective, the author considers: the existing regulatory structure in Malta and the Maltese legal system as a whole; the shortcomings of the assessed jurisdictions in Chapter 3; EU and CCBE recommendations; and the UN’s Basic Principles on the Role of Lawyers. Malta’s status as an EU Member State minimally impacts this chapter, given the lack of harmonisation at EU level.