The independence of lawyers
In order for legal assistance to be effective, it must be carried out independently. This is recognised in the preface to the UN Basic Principles on the Role of Lawyers (UN Basic Principles), which states that “adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession”.1 To this end, international law establishes certain safeguards aimed at ensuring the independence of individual lawyers as well as of the legal profession as a whole.
Essential guarantees for the functioning of the legal profession
For lawyers to carry out their professional functions in an independent manner, it is necessary for States to protect them from any unlawful interference with their work. This interference can range from obstacles to communicating with their clients to threats and physical attacks.
1- The UN Basic Principles include a set of provisions that establish safeguards in this respect: “Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics”.2
2-The Basic Principles stipulate that “Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities”.3 States shall also take measures to ensure that lawyers involved in the complaint or in the investigation of human rights violations are protected against ill-treatment, intimidations or reprisals.4 The Human Rights Committee has referred on a number of occasions to obstacles faced by lawyers in the discharge of their professional functions.
- When examining a new Law on the Bar in Azerbaijan, the Committee concluded that the said law “may compromise lawyers’ free and independent exercise of their functions,” and recommended the Government to “ensure that the criteria for access to and the conditions of membership in the Bar do not compromise the independence of lawyers”.5
- In the case of Libya, the Committee noted that serious doubts arose as to “[…] the liberty of advocates to exercise their profession freely, without being in the employment of the State, and to provide legal aid services,” and recommended that “measures be taken to ensure full compliance with article 14 of the Covenant as well as with […] the Basic Principles on the Role of Lawyers”.6
International law further recognises the need for lawyers to have access to all the relevant information to a case in which they may be involved. Thus, States must “ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients”.7
Another important provision is related to the secrecy of communications between lawyers and their clients. In order for lawyers to effectively represent their clients, the competent authorities must respect this secrecy, which is the cornerstone of the lawyer-client relationship. To this end, the UN Basic Principles provide that “Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential”.8
A possible obstacle to be faced by lawyers is the lack of recognition as such by official bodies, be they courts or others. Except in cases in which the lawyer has been disbarred or disqualified following the appropriate procedures, such bodies must acknowledge the lawyer’s qualifications. The UN Basic Principles provide for this recognition when they state that “No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles”.9
According to Principle 18 of the UN Basic Principles, “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions”. This rule is extremely important due to the tendency, in certain countries, to assimilate clients’ causes to their lawyers.
- In one report to the UN Commission on Human Rights, the Special Rapporteur on the independence of judges and lawyers noted his concern at “the increased number of complaints concerning Governments’ identification of lawyers with their clients’ causes. Lawyers representing accused persons in politically sensitive cases are often subjected to such accusations”.10 The Special Rapporteur concluded that “Identifying lawyers with their clients’ causes, unless there is evidence to that effect, could be construed as intimidating and harassing the lawyers concerned”.11 According to international law, the Special Rapporteur said, “where there is evidence of lawyers identifying with their clients’ causes, it is incumbent on the Government to refer the complaints to the appropriate disciplinary body of the legal profession”.12
1. United Nations Basic Principles on the Role of Lawyers, doc. cit., Principle 16. Other relevant instruments on the role of lawyers are: the Council of Europe’s Recommendation No. R (2000) 21 of the Committee of Ministers to Member States on the freedom of exercise of the profession of lawyer and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Principle I.
2. Ibid., Principle 16.
3. Ibid., Principle 17.
4. See, for example, Declaration on the Protection of All Persons from Enforced Disappearance, article 13; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Principle 15; Principles on the Effective Investigation and Documentation of Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, Principle 3
5. Concluding Observations of the Human Rights Committee on Azerbaijan, UN document CCPR/CO/73/AZE, para. 14.
6. Concluding observations of the Human Rights Committee on the Libyan Arab Jamahiriya, CCPR/C/79/ Add.101, para. 14.
7. UN Basic Principles, Principle 21. This Principle also stipulates that “Such access should be provided at the earliest appropriate time”. See also, the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, articles 1, 9, 11; Declaration on the Protection of All Persons from Enforced Disappearance, article 13 (4); Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Principle 6; Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Principle 4; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principles 11, 12, 15 and 17; and Standard Minimum Rules for the Treatment of Prisoners, Rule 93.
8. UN Basic Principles on the Role of Lawyers, doc. cit., Principle 22. See also Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principles 18 and Standard Minimum Rules for the Treatment of Prisoners, Rule 93
9. UN Basic Principles on the Role of Lawyers, doc. cit., Principle 19.
10. Report of the Special Rapporteur on the independence of judges and lawyers, UN document E/CN.4/1998/39, para. 179.
12. Ibid., para. 181
Source: International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors,Practitioners Guide No. 1 International Commission of Jurists P.O. Box 91 -33 Rue des Bains -CH-1211 Geneva 8-Switzerland-2007