56. The Recommendation (Principle V.1) recalls the need for lawyers to establish in each jurisdiction an independent and self-governing association, recognised by the law, which is able to represent their interests, promote their continuing education and training and protect their professional integrity. Moreover, it would be appropriate for the executive body of these associations to be elected by its members, in order for them to carry out their functions without any external interference.
57. In countries which do not provide for compulsory membership, the legislation governing the legal profession should enable all lawyers to become members of these associations, if they so wish, and if they fulfil the required professional standards members of these associations, in order for the latter to be able to strengthen and safeguard both the independence and interests of lawyers. Indeed, lawyers can only fully play their role in a State based on the Rule of Law, if Bar associations are independent, in particular from the State and economic pressure group (Principle V.2). However, Bar associations and other lawyers' professional associations should endeavour to co-operate with governments in order to ensure
that every person has effective and equal access to legal services and that lawyers can counsel and assist their clients, in accordance with the law and established professional standards, without any improper interference.
58. The Recommendation (Principle V.3) further recognises the prominent role of Bar associations in upholding and defending the independence of lawyers against any improper restrictions or infringements.
59. Moreover, the Recommendation contains (Principle V.4, sub-paragraphs (a) to (g)) a non-exhaustive list of functions of Bar associations which should contribute to the independence of the legal profession and integrate their role in the society.
60. In view of the importance of the independence of lawyers for their clients and for the public, and in order to enable Bar associations to fulfil their functions of preserving and promoting the independence of lawyers, the Recommendation underlines (Principle V.5, sub-paragraphs (a) to (e)) the need for the latter to have the possibility to take any necessary action to defend lawyers' interestsin case of restrictions of lawyers rights and freedoms.
61. Sub-paragraph (d) of Principle V.5 refers, in particular, to the seizure of materials (and not only documents) in lawyers' possession as in most cases lawyers keep relevant information in an electronic form, such as floppy disk or CD-Rom.
62. If one of the situations referred to under sub-paragraphs (a) to (g) arise, Bar associations should be entitled to make representations to the competent authorities.
63. In conclusion, it should be underlined that Principle V is without prejudice to the proper role of governments to intervene in regulation of lawyers where that is really necessary in order to safeguard the public interest. Moreover, it should be stressed that self-regulation is only one model for ensuring that the independence of practitioners from the government is not infringed. Indeed, the regulation of the profession is a matter in which governments or other bodies may have a perfectly proper role to play.
Principle VI – Disciplinary proceedings
64. The Recommendation recalls the need for Bar associations and other lawyers' professional associations to establish and implement freely a code of professional conducts for lawyers. In case of non-respect by lawyers of their professional standards, as established in codes of professional conduct, disciplinary proceedings can be adopted and applied by Bar associations or other bodies which acts independently of State bodies (Principle VI.1). Bar associations and/or other lawyer's associations should be entitled to be represented if such a separate and independent body is set up (Principle VI.2). Courts, the public prosecutor or any other public authority, or as appropriate, a private individual may report a case to the competent body in order for it to start a disciplinary proceeding. The role of the public
prosecution office should be limited in initiating and participating in this proceeding. The
provisions of Principle VI apply without prejudice to possible sanctions imposed by the court for professional misconduct
65. Disciplinary proceedings should fully respect the requirements of fair procedures and, in particular, the provisions of Article 6 of the ECHR, including the possibility for lawyers to lodge an appeal to the competent authority against any adverse decision (Principle VI.3).
66. In particular, for the purpose of this Recommendation, lawyers' rights include, inter alia:
- the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. This does not preclude lawyers from asking that the hearing be heard in camera;
- the right to be informed promptly of the charge and of the nature of the evidence against them;
- the right to have adequate time to prepare their defence;
- the right to defend themselves in person or by a lawyer of their choice;
- the right to be present throughout the hearing.
67. In this context, reference should be made to the relevant case-law of the European Court of Human Rights (see, for instance, the judgements of H. V. Belgium, of 30 November 1987, A N° 127-B et W.R. V. Austria of 21 December 1999), which is accessible on its internet site.
68. Finally, the Recommendation underlines (principle VI.5) the need to respect the rule of proportionality when determining sanctions for disciplinary offences. Therefore, a balance should be found between the gravity of the offence committed and the negative consequences of any sanctions adopted against the lawyer concerned.