Of the Committee of Ministers to member States

Explanatory memorandum on Recommendation Rec(2000) 21

on the freedom of exercise of the profession of lawyer

Introduction

1. The exercise of the profession of lawyer has always been strictly connected with the cultural, social, political and historical environment of any society and, in any democratic society, lawyers have an essential role to play in the administration of justice, in the avoidance and resolution of disputes, as well as in the protection of human rights and fundamental freedoms. The Code of Conduct for Lawyers in the European Community adopted by the Council of the Bars and Law Societies of the European Community (CCBE) on 28 October 1988, states that “rules of professional conduct are designed through their willing acceptance by those to whom they apply to ensure the proper performance by the lawyer of a function which is recognised as essential in all civilised societies”.

2. The practice of the law has changed considerably in the last decades and practitioners are being obliged to adopt a more commercial approach to their activity. However, they are members of an independent profession and must respect rules which ensure that they comply with their duties to the court and to their clients and other persons (see paragraphs 3 and 36 below) and maintain certain professional standards. It is essential to ensure that legal services of the highest quality are provided and that without discrimination.

3. It is clear that lawyers should serve not only the interests of their clients, but also those of the justice system as a whole. In the CCBE Code of Conduct (revised 28 November 1998) it is underlined that:

“In a society founded on respect for the rule of law the lawyer fulfils a special role. His duties do not begin and end with the faithful performance of what he is instructed to do so far as the law permits. A lawyer must serve the interests of justice as well as those whose rights and liberties he is trusted to assert and defend and it is his duty not only to plead his client's cause but to be his adviser.

A lawyer's function therefore lays on him a variety of legal and moral obligations (sometimes appearing in conflict with each other) towards:

- the client;

- the courts and other authorities before whom the lawyer pleads his client's cause or acts on his behalf;

- the legal profession in general and each fellow member of it in particular; and

- the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society”.

4. Various steps have been undertaken at an international level to create internationally agreed standards for the exercise of the profession of lawyer.

5. The United Nations has prepared principles concerning the role of lawyers, which contain uniform provisions for the practice of this legal profession at an international level. The 8^th UN Congress on the Prevention of Crime and the Treatment of Offenders (Cuba, 27 August-7 September 1990) adopted the Basic Principles on the Role of Lawyers. These Principles have been prepared to assist States in their task of promoting and ensuring the proper role of lawyers in the society. In its Resolution 45/121 of December 1990, the General Assembly of the UN “welcomed” this instrument adopted by the Congress and invited governments “to be guided by them in the formulation of appropriate legislation and policy directives and to make efforts to implement the principles contained therein[…]in accordance with the economic, social, legal, cultural and political circumstances of each country”.

6. At a European Union level, important developments have occurred as regards the exercise of the profession of lawyer. First the Council of the European Communities adopted Directive 77/249/EEC, which permits a lawyer to provide services in another member State of the European Union on an occasional or temporary basis. Next, the Council of the European Communities adopted Directive 89/48/EEC on a general system for the recognition of higher-education diplomas (which requires lawyers either to sit an aptitude test or to complete an adaptation period before they can establish themselves in another member State of the European Union on the basis of the recognition of their diploma). Then, on 16 February 1998, the European Parliament and the Council of the European Union adopted Directive 98/5/EC which will enable lawyers to practise permanently under their original professional title, in another member State of the European Union, on the same basis as that country's own lawyers.

7. As a result of these important developments in the European Union States including the adoption of the CCBE Code of Conduct it is even more necessary throughout Europe for lawyers to have clear guidelines about the professional standards in the States in which they are practising.

8. It should be noted that an important aspect of a legal system in any democratic society is that the rights of individuals be protected and that they receive a fair and public hearing of their case – within a reasonable time - by an independent and impartial tribunal established by law (Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms – hereinafter referred to as “the ECHR”). This implies, inter alia, the right to have access to evidence and witnesses, as well as the right to legal services at all stages in the proceedings. All member States of the Council of Europe, having ratified the ECHR, should provide for legal remedies to be used.

9. The European Court of Human Rights has rendered numerous judgments on questions relating, directly or indirectly, to lawyers. In particular, these cases have dealt with questions relating to effective assistance of counsel[1][1] and trial in absentia[2][2][3][3], confidential communication with counsel[4][4], appointment of counsel “where the interests of justice so require” [5][5].

10. Therefore, as it is essential to the protection of Human Rights, as well as to the maintenance of the Rule of Law, that there be an organised legal profession free to manage its own affairs, the Council of Europe, which has as fundamental aims the protection of Human Rights, as well as the establishment and promotion of the Rule of Law at a pan-European level, could not remain insensible to the need for the legal profession to be able to exercise freely its activities, without any undue pressure from any quarter.

11. Indeed, in the framework of its activities of legal co-operation with Central and Eastern European Countries (Demo-Droit and Themis programmes), the Council of Europe has organised various Multilateral Meetings on the theme “The role and responsibility of the lawyer in a society in transition”.

12. In the Conclusions of the 1997 Multilateral Meeting on this subject (Budapest, 9-11 December 1997) organised by the Council of Europe in co-operation with the Hungarian Bar Association, the Council of the Bars and Law Societies of the European Community (CCBE) and INTERIGHTS, it was noted – in the part relating to the organisation and administration of the profession of lawyer - that “lawyers in all societies are bound by the following general principles: independence, moral integrity, confidentiality, respect for ethical rules, avoidance of conflicts of interest, avoidance of activities incompatible with the independent discharge of their duties, advertising and personal publicity (taking into account Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms), protection of the client's interests and respect for the courts”[6][6].

13. Moreover, in the framework of its intergovernmental activities, the Committee of Ministers of the Council of Europe has adopted numerous Resolutions and Recommendations, dealing with questions relating to justice which also include matters concerning the role and the profession of lawyer[7][7].

14. In particular, Recommendation No. R(94)12 on the independence, efficiency and the role of judges (hereinafter referred to as "the 1994 Recommendation") deals with some basic principles to safeguard judicial independence, in the light of the principle that everyone is entitled to a fair and public hearing within a reasonable time, by an independent and impartial tribunal established by law, in accordance with Article 6 of the ECHR.

15. In the light of the 1994 Recommendation, the Council of Europe decided to prepare a similar Recommendation concerning lawyers, which would take account of all the existing instruments and the case-law of the European Court of Human Rights.

16. Therefore, within the framework of its efforts to improve fairness and efficiency of justice and, in particular, to reduce undue delays in judicial proceedings (in accordance with Article 6 of the ECHR), the CJ-EJ was requested by the European Committee on Legal Co-operation (CDCJ) to prepare a draft Recommendation on the freedom of exercise of the profession of lawyer.

Date: 2015-12-24; view: 823