Ghana’s legal profession stands at an important crossroads.
For more than six decades, the General Legal Counsel [GLC] has been the principal institution responsible for regulating the legal profession, including professional conduct and discipline.
Established under the Legal Profession Act [Act 32], the GLC has played an important role in maintaining standards within the profession.
But after more than 60 years, serious questions arise as to whether the existing regulatory architecture remains adequate for the demands of a modern legal profession.
The Attorney General’s proposal to establish a Legal Practitioners’ Standards Board together with an Independent Disciplinary Committee presents an opportunity for meaningful reform.
The proposed legislation would separate disciplinary functions from licensing and standard-setting and introduce lay and professional representation, security of tenure and time-bound procedures.
One of the concerns with the existing system is the concentration of regulatory functions within the GLC.
The Council has responsibilities extending across legal education, professional standards, licensing and discipline.
The legal profession itself gives the GLC responsibility for appointing the disciplinary committee.
There is nothing wrong with lawyers participating in the regulation of their profession.
Expertise
Legal expertise is indispensable to effective regulation.
The difficulty, however, is the perception of self-regulation.
A modern regulatory system must balance professional expertise with independent public oversight.
The regulator must not only be independent, it must also be seen to be independent.
The disciplinary process presents perhaps the most pressing concern.
The GLC’s published procedure contains numerous stages and safeguards because a lawyer facing disciplinary proceedings is entitled to due process.
However, ‘due process’ should never become ‘interminable process’ and the GLC’s own disciplinary records illustrate the problem, containing a substantial number of cases marked ‘pending’, including complaints dating back years.
The Attorney General has now expressly acknowledged that delays in resolving complaints frustrate both complainants and lawyers who are the subject of the complaints.
Delay has consequences for everyone.
For the client, a complaint may concern money, property, or the failure to properly handle a case.
Waiting years for an outcome can compound the original grievance.
For the lawyer, a pending allegation can cast a shadow over professional regulation and cause continuing uncertainty even before the allegation has been proved.
For the public, prolonged disciplinary proceedings can create the perception that lawyers are insufficiently accountable for professional misconduct.
The answer is not harsher punishment. Effective regulation must also be preventative.
Lawyers need professional standards, continuing education, monitoring and mechanisms that promote compliance before misconduct occurs.
The Attorney General has raised concerns about challenges confronting young lawyers, including inadequate institutional support, limited continuing professional development and inadequate professional indemnity cover.
Competence
This points to another weakness in traditional approaches to legal regulation: the lack of emphasis on continuing professional competence.
Being called to the Bar should not be regarded as the end of professional education.
Law is constantly changing, particularly with developments in technology, AI, cybercrime, data protection and alternative dispute resolution.
Ghana can draw useful lessons from England and Wales.
The Bar Standards Board [BSB] is an independent regulator of barristers and specialised legal services.
Its Board combines barristers and lay members and has a lay majority and lay chair.
Its independent decision-making body also includes lay and professional members, with panels having a lay majority.
The lesson is not that Ghana should copy the English system wholesale.
Rather, it demonstrates the value of institutional separation - lay participation and independent decision-making.
A Ghanaian regulator should similarly have clear statutory objectives centred on public protection, professional competence and ethical conduct.
Complaints should be investigated and determined within clearly defined time limits.
Regulatory decisions and disciplinary statistics should be published so that the regulator is also accountable.
But independence must operate in both directions.
An independent regulator must be protected not only from professional self-interest but also from government interference.
Lawyers frequently represent unpopular clients, challenge governmental decisions and defend constitutional rights.
The regulation of lawyers must therefore never become a means of controlling the legal profession politically.
The proposed reform should seek to achieve a delicate balance: independence from government, independence from professional self-interest and accountability to the public.
The GLC’s six decades of service should be acknowledged.
Reform should not be interpreted as an indictment of the many lawyers and other professionals who have served the Council. Institutions, however, must evolve with changing circumstances.
Ghana now has an opportunity to build a regulatory system fit for the 21st century, one that protects clients, safeguards lawyers' rights, promotes professional competence, ensures timely discipline and commands public confidence.
The writer is a lawyer.
E-mail:
