Sri Lanka Needs an Independent Legal Profession Regulator: Is It Time to Establish a  Lawyers Regulatory Authority?

Beyond Professional Representation: Why Sri Lanka Should Consider an Independent Statutory Regulator for Lawyers

COLOMBO — Sri Lanka's legal profession is facing a fundamental institutional question: who regulates the lawyers who exercise professional authority over the public, and where can an ordinary citizen obtain an independent record of a lawyer's professional status and disciplinary history?

The question has become increasingly relevant as lawyers and professional organisations become involved in constitutional, legislative and public-policy debates.

At the centre of the discussion is the distinction between a professional association and a statutory regulatory authority.

The Bar Association of Sri Lanka (BASL) is an important professional organisation representing members of the legal profession. But the Government and Parliament may now need to consider whether Sri Lanka should establish a separate, independent body whose principal statutory responsibility is regulation of the legal profession in the public interest.

Such a reform would not necessarily diminish the role of the BASL. Instead, it could clearly separate professional representation, professional regulation and disciplinary oversight.

What would an independent regulator do?

A modern legal-services regulator could maintain a publicly accessible national register containing basic information about every authorised lawyer or solicitor.

For example, members of the public could be able to establish:

• whether a lawyer is currently authorised to practise;
• the lawyer's practising status;
• the firm or organisation in which the lawyer is authorised to practise;
• areas of recognised professional practice;
• practising certificates or equivalent authorisation;
• disciplinary findings, where legally publishable;
• suspensions or restrictions;
• whether a lawyer has been removed from practice;
• previous regulatory sanctions;
• conflicts-of-interest restrictions where applicable; and
• the identity of the organisation responsible for supervising the lawyer.

This would transform the relationship between the public and the legal profession.

A person considering instructing a lawyer would not have to depend entirely upon recommendations, reputation or information supplied by the lawyer's own professional network.

The regulator's register would become the authoritative public source.

The United Kingdom provides an important model

The United Kingdom has developed a number of specialist legal regulators rather than relying exclusively upon a professional association.

In England and Wales, for example, the Solicitors Regulation Authority (SRA) regulates solicitors and law firms within its statutory framework.

The SRA maintains publicly searchable information about regulated solicitors and firms and publishes regulatory decisions and disciplinary information in appropriate circumstances.

The underlying principle is straightforward:

A lawyer is not merely a member of a profession; a lawyer is also a person exercising a regulated professional activity involving significant public trust.

That principle deserves serious consideration in Sri Lanka.

The objective would not be to copy the British system word-for-word. Sri Lanka could design a regulatory model suited to its own constitutional structure, legal profession and judicial system.

BASL and the question of regulatory authority

The distinction between a professional body and a statutory regulator is particularly important.

The BASL has a legitimate role as a professional association and as a voice for lawyers. It can make representations on legislation, constitutional proposals and matters affecting the administration of justice.

But that role should not automatically be confused with the powers of an independent statutory regulator.

A regulator derives its authority from legislation and operates according to legally defined powers, duties, procedures and accountability mechanisms.

That distinction becomes particularly important when a professional association intervenes publicly in major constitutional or legislative controversies.

Recent interventions by the BASL have generated debate about the extent to which a professional body should participate in constitutional reform and public policy.

The answer is not necessarily to prevent lawyers from speaking.

Quite the opposite.

Lawyers must be free to express professional opinions.

But the public should also be able to distinguish between:

“This is the position of a professional association”

and

“This is the determination or regulatory position of an independent statutory authority.”

Those are fundamentally different things.

The danger of regulatory ambiguity

If there is uncertainty in the public mind about who actually regulates lawyers, that uncertainty itself becomes an institutional problem.

A professional association may represent the collective interests of its members.

A regulator, by contrast, must be capable of asking difficult questions about its own members.

That includes questions concerning professional misconduct, conflicts of interest, client money, competence, misleading conduct, disciplinary breaches and fitness to practise.

The regulator must ultimately be capable of saying to a lawyer:

You are not permitted to practise.

That power must be accompanied by transparent procedures, appeal rights, judicial oversight where appropriate and strong safeguards against arbitrary action.

This is why regulation should not simply become another mechanism through which lawyers regulate lawyers without meaningful external accountability.

Should Parliament establish the regulator?

The most serious question for the Sri Lankan Government and Parliament is therefore whether the country should establish an independent Legal Services Regulatory Authority through legislation.

One possible model would involve an Act of Parliament establishing a regulator with clearly defined statutory powers.

Another possibility could involve constitutional safeguards guaranteeing the regulator's institutional independence while leaving detailed regulatory powers to legislation.

Any constitutional amendment, however, would require careful consideration of judicial independence, the constitutional position of the Supreme Court and Court of Appeal, the Attorney-General's Department, the rights of advocates, and Parliament's legislative authority.

The purpose should not be to place the judiciary or lawyers under political control.

The purpose should be the opposite:

to create transparent, independent and accountable regulation.

A public register could change the profession

Imagine a Sri Lankan public website where a member of the public could enter a lawyer's name and immediately establish:

AUTHORISED TO PRACTISE — YES

CURRENT STATUS — ACTIVE

PRACTISING ORGANISATION — [REGISTERED FIRM]

PRACTICE AREAS — [LISTED AREAS]

DISCIPLINARY HISTORY — [WHERE PUBLICATION IS REQUIRED BY LAW]

RESTRICTIONS — [IF APPLICABLE]

That would provide an entirely different level of public confidence.

It would also protect legitimate lawyers.

A lawyer falsely accused of being suspended, banned or otherwise restricted could point to the official regulatory register.

In other words, regulation would protect both the public and the profession.

The regulator must also regulate the regulators

There is another essential principle.

The proposed authority itself must be independently accountable.

Its governing board should not simply become another closed professional club.

Sri Lanka could consider a mixed governance structure involving legal professionals, senior independent figures, consumer or public-interest representatives and persons with expertise in regulation, compliance and governance.

There should also be:

• published regulatory standards;
• transparent disciplinary procedures;
• independent investigation mechanisms;
• appeal mechanisms;
• annual reports;
• audited finances;
• parliamentary accountability;
• conflict-of-interest rules;
• publication of regulatory decisions where appropriate; and
• meaningful public complaints procedures.

The public should know who regulates the regulator.

This is not an attack on lawyers

The proposal for independent regulation should not be characterised as an attack on the legal profession or on the BASL.

Sri Lanka needs strong lawyers.

It needs an independent judiciary.

It needs professional legal representation.

And it needs a strong professional association capable of defending the legitimate interests of lawyers and the administration of justice.

But these objectives can coexist with an independent regulator.

Indeed, the separation could strengthen the profession.

The BASL could remain the professional voice of lawyers while an independent statutory authority assumes responsibility for licensing, professional standards, disciplinary regulation and public protection.

A national debate is overdue

The question Sri Lanka should now ask is not whether lawyers should be regulated.

They already operate within a legal and professional framework.

The more important question is whether the existing framework provides the transparent, independent and publicly accessible regulatory architecture expected of a modern legal system.

If the answer is no, Parliament should examine the alternatives.

Sri Lanka has undergone major constitutional, economic and institutional changes.

The legal profession should not be excluded from that conversation.

The country could establish a modern regulatory authority with a publicly searchable register, transparent disciplinary procedures and clearly separated responsibilities between professional representation and statutory regulation.

The debate should therefore move beyond personalities and individual organisations.

It should ask a much bigger institutional question:

Who regulates Sri Lanka's lawyers — and can the public independently verify that regulation?

If the answer cannot be found quickly, transparently and authoritatively, perhaps the time has come for Parliament to consider creating a Sri Lankan Legal Services Regulatory Authority, by the Government. 

That would not weaken the legal profession.

It could be the reform that makes the profession more transparent, more accountable and ultimately more trusted by the public.