Principle III – Role and duty of lawyers

40. Every person or group of persons is entitled to call upon the assistance of a lawyer to defend or assert their rights and interests within the law and it is the duty of the lawyer to do so in the best possible way and with integrity and independence. As a consequence, it is implicit that lawyers should not be discriminatedby the authorities on the basis oftheir clients (or their clients' cause).

41. Therefore, the Recommendation recalls the importance of professional standards and codes of conduct to be drawn up by Bar associations or other professional associations of lawyers in order to ensure that, when defending the legitimate rights and interests of their clients, lawyers act independently, diligently and fairly (Principle III.1).This includes duties of fairness towards other persons, such as the duty not to deceive or defraud them, whether for the benefit of the lawyer or the client, as well as the duty to act fairly towards the victims of criminal behaviour for which their clients stand accused.

42. All lawyers have a duty to keep their clients' affairs secret (Principle III.2): this is one of the rights of the defence guaranteed by the ECHR. Some exceptions exist to this rule, in general in connection with criminal acts and fraud, as well as statutory exceptions giving powers to tax authorities. It should be noted that the text of the Recommendation (Principle III.2) states that any breach of confidentiality, without the consent of the client, may give rise to disciplinary sanctions for lawyers.

43. In this connection, different procedures exist in States in the context of a court action, where lawyers are required to produce documents which they deem to be confidential. In certain countries (normally, common law countries), it is for clients to decide whether to produce confidential documents. In other countries (mainly, civil law countries), this decision belongs to lawyers who may decide whether or not to produce confidential documents required in judicial proceedings.

44. Moreover, the Recommendation considers the question of the duties of lawyers towards their clients (Principle III.3, sub-paragraphs a, b, c, d and e). In discharging these duties towards their clients, lawyers should always act diligently and fearlessly within the law, in accordance with the wishes of clients and subject to the established professional and ethical standards.

45. In doing so, lawyers are required first of all to advise their clients of their rights and obligations, as well as of the likely outcome and consequences of the case, including financial costs (Principle III.3.a). In particular, it should be noted that part of the financial costs involved in a case, may arise from lawyers' fees. Therefore, lawyers should inform their clients of the costs involved throughout the proceeding.

46. The Recommendation also requires lawyers, as part of their duties, to endeavour to resolve the case amicably (Principle III.3.b) where it is practical to do so, and to avoid conflicts of interest (Principle III.3.d).

47. Moreover, it should be noted that Principle III.3.e requires lawyers not to take up more work than they can reasonably manage in particular where they could not keep a desirable operational level. Indeed, the evaluation of what lawyers can or cannot reasonable manage is left to their discretion and will depend on the specific circumstances of the case (e.g. types of cases, size of courts, number and experience of lawyers in law-firms). Moreover, clients are free to decide whether or not to seek the services of another lawyer.

48. Furthermore, lawyers should also show proper respect towards the judiciary and contribute to the proper and fair functioning of the judicial system (Principle III.4). This should not prevent lawyers from raising objections, such as questions relating to the jurisdictional competence of a certain judges to decide on the particular case or to the judge's conduct of a hearing.

49. In addition it should be noted in connection with the principle III 4 that, with a view to ensuring a proper performance of the hearing, judges should make use of any sanctions provided for in the national law (e.g. expulsion of lawyers from court rooms, fines on lawyers).

50. It should be underlined that in some member States, strikes of lawyers have become more and more frequent, thereby causing damage in particular to persons needing their services. For this reason, the Recommendation (Principle III.4.), accepting the legitimate right of lawyers to strike, requires these strikes to be limited in time and not to damage the interests of the clients or persons needing their services.

Date: 2015-12-24; view: 766