No ‘firm conclusion’ in Chamber’s discussion on lawyers in business

The Chamber of Advocates has to date reached “no firm conclusion” on whether lawyers should be banned from participating in business, according to chamber president George Hyzler.

“The issue of the extent that lawyers should be permitted to participate in business is a subject that the Chamber of Advocates is currently debating in the context of a revised code of ethics and no firm conclusion has been reached to date,” said Hyzler when contacted by MaltaToday.

The issue was thrust into prominence by retired European Court of Human Rights judge Giovanni Bonello, who, in an opinion piece entitled ‘Lawyers and business just don’t mix’, argued that practising lawyers should be banned from engaging in trade activities.

Bonello argued that across “civilised Europe”, there were legal provisions that precluded lawyers from also being businessmen, adding that the “absolute majority” of lawyers who have brought the profession into disrepute were “lawyer-businessmen”.

Hyzler explained that currently, the only restriction on lawyers engaging in business activities, is “based on the principle of avoidance of conflict of interest and other rules of ethics, such as not bringing the profession into disrepute”, adding that once the chamber reached a common position on the matter it would be making it public.

The chamber’s current code of ethics requires advocates to safeguard the good repute of the profession, to be in a position to give objective and frank advice to clients “free from any external or adverse pressures or interests which would weaken” the lawyer’s independence, and not to act where there is a conflict of interest between the lawyer and the prospective client, amongst other provisions.

Lawyers who spoke with MaltaToday agreed with the gist of Bonello’s piece, however many stressed that the issue was a lot more nuanced than simply introducing a ban. Moreover, it was pointed out that the introduction of financial services, igaming, trusts, and other corporate services blurred the lines between what constituted business involvement.  

One lawyer said it was important to draw a distinction between shareholding, and being involved in the running of a company.

“As long as you are a shareholder and you are not responsible for the running of a company, I find nothing wrong with that.”

The lawyer added that he did not agree with Bonello’s assertion that the taint of money laundering was associated with business, and stressed that lawyers who find themselves facing a conflict of interest should declare it and refuse to take the case in question.

“Though, when you see certain cases, you can’t really say Bonello is not right. If, unfortunately, as a profession we are in a situation where these things have to be put in writing then, we should do it,” they concluded.

Lawyer Anna Mallia on the other hand said she was in complete agreement with Bonello. She said that it made perfect sense for advocacy and business to be segregated, adding that this should also be extended to other professions such as the notarial profession.

“I have seen cases where someone sells a property, and the notary sneaks behind the client’s back and snatches the same property at a bargain price,” she said.

Speaking to MaltaToday, Law Commissioner and criminal lawyer Franco Debono insisted he did not think lawyers should be banned from having business interests, adding that it would be excessive to outright ban lawyers from doing business.

“While I do think there should be the necessary safeguards to avoid conflicts of interest, I don’t think banning lawyers from doing business is the way to do things,” he said.

Debono emphasised his belief that the problem Malta faces concerns business in politics, and not the legal profession.

The outspoken lawyer insisted that the only reason the country was debating the issue, was because of recent revelations about Nationalist Party leadership contender Adrian Delia’s business interests. He said that it wasn’t the fact that Delia was both a lawyer and a businessman that was the problem, but rather that he was a businessman with a history in the construction industry who could find himself in a position where he must face “huge conflicts of interest”, especially when it comes to environmental issues.