In 2010-2011 the Slynn Foundation (established by Lord Slynn, the former Law Lord who intended, among other objects, to promote and encourage the rule of law and the protection of human rights in eastern European states) has been working on a Foreign and Commonwealth Office funded project in Albania. The Project is to improve the legal and institutional framework of the ANCA, with particular focus on implementing lawyers’ professional rules of conduct. Part of the aim of the project is to simplify and implement the existing rules relating to the disciplining of lawyers for a failure to follow the Attorney’s Code of Ethics.
Albania and abolishing lawyers
Albania has a proud history. It formed part of the Ottoman Empire between 1481 and 1912, but it has a substantial population of Christians (Mother Theresa was Albanian), Jews (Albania was recently honoured by Israel for Albania’s wartime efforts in refusing to hand over Jewish citizens to Nazi Germany), as well as a majority of Muslims (there are some very impressive Mosques in Tirana). Albania was behind the Iron Curtain for most of the second half of the twentieth century. Its current population is about 3.2 million, but there are substantial groups of expatriate Albanians living in Kosovo, Montenegro, Italy, Greece, and the UK.
There were lawyers in Albania practicing at the time of the Ottoman Empire, but the practice of law advanced rapidly in the early 20th century when Albanian lawyers studied law in Italy (in particular at Florence and Rome) and also France, Romania, Austria, Switzerland and Germany. These lawyers drafted new statutes and brought new practices back to the Courts in Albania. However in 1967 the legal professional was abolished by law. In the place of lawyers there were some legal aid offices. It was not the function of those working at the legal aid offices to defend citizens, but to draft letters or complaints to state institutions. It was not until the constitutional reforms which took place after the collapse of Communism that lawyers were permitted to practice again (from 1990). The relicensing of lawyers created real issues of governance. Who was entitled to be called a lawyer? How were standards to be imposed and maintained?
Current governance of ANCA
The ANCA, which is independent of the State and which has responsibility for the regulation and oversight of the practice of the legal profession in Albania, has been at the forefront of attempts to regulate the legal profession. It has received assistance from lawyers from around the world. There is now a Law (No.9109 of 17 July 2003) on the Legal Profession in the Republic of Albania (as amended by law No.9795 of 23 July 2007 and law No.10047 of 24 December 2008). This is a law passed by the legislature in Albania, and provides for the legal profession, the establishment of the ANCA, and in Chapter VIII for the complaints and disciplinary procedures of the ANCA. There is also a Statute of the National Bar Association in the Republic of Albania. This is an internal statute which was passed by the National Bar Association, which is in fact the same body as the ANCA. It provides for the objects of the ANCA, the bodies of the ANCA, and their functions. The ANCA is governed by a General Council and Management Council. There are regional Chambers of Advocates. There is also an Attorney Ethics Code which was produced by the ANCA. It sets out the general principles governing lawyers, and provides for specific duties.
The quality of the Law on the Legal Profession, Statute and Code is good. It is apparent from meetings with members of the ANCA dealing with this project that there is a genuine and impressive commitment to make the disciplinary structures effective and operational. So why is there a need for this latest project?
No lawyer successfully disciplined
The real and continuing problem in Albania is in trying to make the disciplinary process work. It is intended to achieve this by improving the functioning, accountability and transparency of the ANCA. It is also hoped to create a fair and consistent disciplinary process to deal with lawyers who breach the Code of Ethics. The current difficulties faced by the ANCA are proved by the fact that, since 1990, not one lawyer has ever been successfully disciplined in circumstances where the allegations had been contested. This has adversely affected the reputation and standing of lawyers in Albania.
Inquiries in Albania showed that those complaining about advocates had difficulties in complying with the formal processes. This meant that 70 per cent of complaints were rejected because they were not deemed to be compliant with formalities. The sub-committees to verify complaints were difficult to constitute in practice and productive of delay. This had led to difficulties in complying with the time limits set out in the Law on the Legal Profession. It was generally recognised that it was essential that the disciplinary process should not be allowed to drag on, to the detriment of both the complainant and the advocate who was the subject of the complaint, but the time limits had meant that some apparently valid cases were not able to be pursued.
Helping with a solution
Following a visit to Albania and further discussions it was apparent that some of the practices and procedures employed by the Bar Council (as a matter of history) and the Bar Standards Board (now) might assist. In order to assess these practices and procedures for themselves the ANCA visited London between 28 March and 3 April. They had a full programme of meetings and visits. They visited the offices of the Bar Council and Bar Standards Board on 29 March to meet with Ann Barker, the former Complaints Commissioner. Ann was able to tell the ANCA her experience of assisting complainants to bring valid complaints.
On 30 March the ANCA sat and observed a disciplinary tribunal which was sitting in Middle Temple, and later that day visited Adrian Turner, of the Professional Conduct Department of the Bar Standards Board for talks. They met Chairman of the Bar, Peter Lodder QC and also met Simon Lofthouse QC, Chairman of the Professional Conduct Committee, and observed the meeting of the Committee.
The ANCA team was very grateful to the Bar Council and Bar Standards Board, and to all the persons that they met and observed, for the time, effort, openness and willingness to discuss everything relating to disciplinary matters. They were particularly impressed by the level of professionalism and commitment shown. It seems likely that the project will lead to amended laws in Albania governing the Legal Profession which incorporate, among other things, a Complaints Commissioner.
The Work of the Slynn Foundation
The Slynn Foundation depends on barristers giving their time to work on projects such as these. Klentiana Mahmutaj (who moved from Albania when she was young and practices at the Criminal Bar), Philip Bartle QC (a former member of the Professional Conduct Committee of the Bar), and I have all been involved in this disciplinary part of the project. If you are interested in assisting with the work of the Slynn Foundation please do get in contact with me.
James Dingemans QC
3 Hare Court, Temple
The Slynn Foundation: in 2010-2011 the Slynn Foundation was established by (the former Law Lord)Lord Slynn, to promote and encourage inter alia the rule of law and the protection of human rights in eastern European states.