by Dr Edric Micallef Figallo – Associate
The COVID-19 pandemic and the resulting measures adopted to counter its spread have left a profound impact on many activities, and it definitely did so for the exercise of the legal professions.
The Courts and most other judicial or quasi-judicial bodies, and their registries, are totally shut save for the exceptions provided under article 3(2) of S.L. 425.17. These exceptions apply exclusively when a Court deems that it has to act “in urgent cases or in cases where it deems that the public interest in having the case heard should prevail”. In our view, this wording is in itself restrictive but given the scope of the legislation it should also suffer to be interpreted restrictively in the public interest.
This however leads us to question our standard practices, and in this article we would like to posit the possibilities of electronic signatures for the legal profession. We have discussed electronic signatures in general in the article published yesterday.
The signatures of legal professionals are legally required in most cases and, or act as proof of their professional involvement and the professional weight attached to the document being signed by them.
While cogent reasons might have prevailed and may be discussed, as things stand, electronic signatures may not be availed of by members of the legal profession and this is so in practically all of their activities. The exhaustive list found at law is quite comprehensive, and basically covers most fields of activities involving public notaries, legal procurators and advocates. This is by virtue of the combined provisions of article 4 and the Fifth Schedule of the Electronic Commerce Act (Chapter 426 of the Laws of Malta, hereinafter “Act”). These provisions work to exclude the applicability of the Electronic Commerce Act and of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (hereinafter “eiDAS Regulation”) for legal professionals.
The eiDAS Regulation itself does not provide for such an exclusion, but in an indirect manner allows Member States to legislate to provide such an exclusion. In relation to legal professionals this was done by virtue of the provisions referred above.
Considering that legal professionals make use or are obliged to make use of handwritten signatures, then for these to take valid electronic form according to the eiDAS Regulation they must qualify as qualified electronic signatures. As discussed in the previous article linked above, the eiDAS Regulation provides a number of requirements to arrive to a valid qualified electronic signature, which in our view should be required from legal professionals.
Given the COVID-19 situation and to allow for legal professionals to resume part of their activities, perhaps it would be fit to consider changing the local situation. There are legal means to ensure the authenticity of qualified electronic signatures, besides the fact that the Act itself provides for sanctions for any abuse, without prejudice to other possible sanctions related to pertinent criminal offences and the resultant civil claims. However, as said above, Maltese legislation currently excludes the possibility of using electronic signatures for legal professionals, or at least for most of the services provided by legal professionals.
The Ministry responsible for justice is essential in this regard, as any change would also require administrative changes to allow for such changes to bear the desired fruits. In the least, the Ministers responsible for communications and justice should consult and consider the possibilities, in consultation with the appropriate professional bodies, so as to act within their powers under article 4(2) of the Act and extend the applicability of the Act and Regulation accordingly, at least as a trial in these dire times. In this regard it is apt to point out that article 4(2) of the Act indicates explicitly that this widening of applicability may be made subject to conditions and also limited in time.
Should hesitant, prudent conservatism work against change, article 4(2) provides fit possibilities, at least for discussing change. If such a trial would be successful the Minister responsible for communication, in consultation with the Malta Communications Authority, and dare we say with the appropriate professional bodies, could definitely amend the Fifth Schedule of the Act by virtue of article 4(1) so as to allow for more contemporary and expedient technological means for the exercise of the legal professions.
Disclaimer: This article is not to be considered as legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact us on firstname.lastname@example.org.