Graduate lawyers told to declare ‘mental health problems’

Lawyers may have to divulge any serious physical or mental health problems as part of a controversial test to obtain their warrant, MaltaToday has learnt.

The ‘fit and proper’ test was drawn up by a committee under the purview of the Commission for the Administration of Justice, a constitutional body.

However, sources said the test is at the heart of a stand-off between the committee and Justice Minister Jonathan Attard, who is objecting to some of the invasive questions.

The impasse is holding back the warranting process for more than 100 lawyers and legal procurators, some of who approached this newspaper with concerns over the delay.

The proposed test, seen by this newspaper, contains a section on health issues in which lawyers are expected to declare current and past physical or mental health problems spanning a 10-year period.

Another probing question is whether they have a drug, alcohol or gambling addiction, or whether they had one in the previous 10 years, irrespective of whether they have recovered.

Although the guidelines upon which the test is based say that applicants with mental, physical or other health conditions or disabilities are encouraged to enter legal practice, they insist on full disclosure and urge applicants to seek “medical or psychological” help before seeking admission to the profession.

“Willingness to seek professional help counts in one’s favour,” the guidelines suggest. They also ask applicants who want to show that their condition or disability is appropriately managed, to produce a medical certificate confirming this.

Sources within the legal profession told this newspaper some aspects of the questionnaire are highly questionable: “Since when has an individual’s personal health circumstances become a matter of relevance as to whether the individual should possess a warrant to practice law?”

The test is over and above the written and oral exams that lawyers are required to undertake to obtain their warrant and was introduced last year after changes to the law.

The test is based on guidelines drafted by the committee, which is chaired by former chief justice Silvio Camilleri and is composed of a representative of the Attorney General, the State Advocate, the Chamber of Advocates or the Chamber of Legal Procurators, depending on whether the issue at hand concerns their respective profession, and a veteran civil servant appointed by the government.

Ministry raised several concerns

Justice Minister Jonathan Attard confirmed with this newspaper that his ministry has raised several concerns about the guidelines but did not elaborate.

The committee was vested with the power to prepare and publish rules and guidelines for the ‘fit and proper’ test and these have to be approved by the minister.

“These said rules and guidelines were sent for my approval according to law. The Justice Ministry reviewed the guidelines extensively and reverted them to the committee with amendments. Concerns were raised in regard to certain information requested by the committee and the ministry is now waiting for the finalised rules and guidelines,” Attard said.

He said it was the ministry’s intention to hold the warrants ceremony for lawyers and legal procurators who passed the bar exam, “as soon as possible”.

“As the minister responsible for justice, I believe that the profession should be strengthened but not in a way that places labels or puts valid candidates in a disadvantaged position,” Attard said.

Disciplinary action, freemasonry and criminal offences

This is the first time the ‘fit and proper’ test is being used as an additional tool to assess a candidate’s suitability for the legal profession.

A section dealing with good character asks lawyers to declare whether they have “ever been subject to disciplinary action of any sort”, including as a student.

It also asks whether they are aware of any “current outstanding complaints or disciplinary action” against them and whether they are involved “in any litigation”.

Some of the more pertinent questions ask whether the applicant has ever been a member of a masonic lodge, is in arrears with any taxes, in default of family maintenance obligations, unable to pay debts and has ever been found guilty of a criminal offence.

“You should disclose any criminal charges or conviction – including spent convictions – for any offence whatsoever, even if the charge was subsequently withdrawn or you were acquitted,” the guidelines suggest.

The committee says it may still consider the candidate suitable for admission to the profession after a period of six years after they would have received a caution, or a period of 11 years following a conviction. However, it adds that each case will be treated on its own merits.

The guidelines also urge lawyers to make a full disclosure that is ‘honest’, ‘candid’ and ‘frank’.