Advocate and his professional independence

Advocate

Lawyers are entitled to recognition by Judges of the importance of their role in judicial proceedings, for they are actors in those proceedings whose presence ensures a fair trial

TURIN PRINCIPLES OF PROFESSIONAL CONDUCT FOR THE LEGAL PROFESSION

Function of the Lawyer

The Function of the Lawyer in Society In a society founded on respect for the rule of law the lawyer fulfils a special role. The lawyer’s duties do not begin and end with the faithful performance of what he or she 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 or she is trusted to assert and defend and it is the lawyer’s duty not only to plead the client’s cause but to be the client’s adviser. Respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society. A lawyer’s function therefore lays on him or her a variety of legal and moral obligations (sometimes appearing to be in conflict with each other) towards:

– the client;
– the courts and other authorities before whom the lawyer pleads the client’s cause or acts on the client’s behalf;
– the legal profession in general and each fellow member of it in particular;
– 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.

The lawyer’s role, whether retained by an individual, a corporation or the state, is as the client’s trusted adviser and representative, as a professional respected by third parties, and as an indispensable participant in the fair administration of justice. By embodying all these elements, the lawyer, who faithfully serves a client’s interests and protects the client’s rights, also fulfils the functions of the lawyer in society – which are to forestall and prevent conflicts, to ensure that conflicts are resolved in accordance with recognised principles of civil, public or criminal law and with due account of rights and interests, to negotiate and draft agreements and other transactional necessities, to further the development of the law, and to defend liberty,
justice and the rule of law

The International Principles consist of ten principles common to the legal profession worldwide. Respect for these principles is the basis of the right to a legal defence, which is the cornerstone of all other fundamental rights in a democracy. [IBA International Principles on Conduct for the Legal Profession-2019]

Independence of Lawyers

The many duties to which a lawyer is subject require the lawyer’s absolute independence, free from all other influence, especially such as may arise from his or her personal interests or external pressure. Such independence is as necessary to trust in the process of justice as the impartiality of the judge. A lawyer must therefore avoid any impairment of his or her independence and be careful not to compromise his or her professional standards in order to please the client, the court or third parties. This independence is necessary in non-contentious matters as well as in litigation. Advice given by a lawyer to the client has no value if the lawyer gives it only to ingratiate him- or herself, to serve his or her personal interests or in response to outside pressure.  [The Code of Conduct for European Lawyers]

A lawyer needs to be free – politically, economically and intellectually – in pursuing his or her activities of advising and representing the client. This means that the lawyer must be independent of the state and other powerful interests, and must not allow his or her independence to be compromised by improper pressure from business associates. The lawyer must also remain independent of his or her own client if the lawyer is to enjoy the trust of third parties and the courts. Indeed without this independence from the client there can be no guarantee of the quality of the lawyer’s work. The lawyer’s membership of a liberal profession and the authority deriving from that membership helps to maintain independence, and bar associations must play an important role in helping to guarantee lawyers’ independence. Self-regulation of the profession is seen as vital in buttressing the independence of the individual lawyer. It is notable that in unfree societies lawyers are prevented from pursuing their clients’ cases, and may suffer imprisonment or death for attempting to do so.[Charter of Core Principles of the European Legal Profession]

Personal Publicity

A lawyer is entitled to inform the public about his or her services provided that the information is accurate and not misleading, and respectful of the obligation of confidentiality and other core values of the profession.
Personal publicity by a lawyer in any form of media such as by press, radio, television, by electronic commercial communications or otherwise is permitted to the extent it complies with the Rules.

Core principles

There are core principles which are common to the whole European legal profession, even though these principles are expressed in slightly different ways in different jurisdictions. The core principles underlie the various national and international codes which govern the conduct of lawyers. European lawyers are committed to these principles, which are essential for the proper administration of justice, access to justice and the right to a fair trial, as required under the European Convention of Human Rights. Bars and Law Societies, courts, legislators, governments and international organisations should seek to uphold and protect the core principles in the public interest.

The core principles are, in particular:

(a) the independence of the lawyer, and the freedom of the lawyer to pursue the client’s case;
(b) the right and duty of the lawyer to keep clients’ matters confidential and to respect professional secrecy;
(c) avoidance of conflicts of interest, whether between different clients or between the client and the lawyer;
(d) the dignity and honour of the legal profession, and the integrity and good repute of the individual lawyer;
(e) loyalty to the client;
(f) fair treatment of clients in relation to fees;
(g) the lawyer’s professional competence;
(h) respect towards professional colleagues;
(i) respect for the rule of law and the fair administration of justice; and
(j) the self-regulation of the legal profession.

Basic Principles on the Role of Lawyers endorsed by the UN General Assembly in 1990

According to which:

– the Lawyer plays an essential role in defending individuals in the courts, by guaranteeing them an absolute right to the effective assistance of counsel and a defence without prejudice or discrimination, in complete independence and freedom, including but not limited to freedom of association, religion, speech and opinion.

– the Lawyer has both the right and the duty to ensure the spread of the rule of law and to participate in its development.

– the Lawyer must practice the profession in a spirit of service and humanism, in accordance with the code of legal ethics and professional responsibility, especially the attorney-client privilege.

– the fundamental task of professional associations of lawyers is to ensure compliance with the standards and norms governing the practice of law, to defend their members against any unwarranted interference or restraint, to ensure free access by all to legal services and to cooperate with all other institutions which serve the cause of justice. 

Recognition of the Lawyer’s Role

Lawyers are entitled to recognition and protection of their role by society and any authority, be it
legislative, executive or judicial, as their role must be considered an essential instrument in the
administration of justice and the organisation of Society.

Lawyers have the duty to do everything in their power to ensure that such recognition is preserved by maintaining quality and fairness in rendering their services, whilst acting in accordance with the highest ethical standards and cultural norms.

Lawyers must therefore be allowed access by all authorities and governmental agencies, in each and every case, to the clients and documents they need to defend the interests entrusted to their care.

Lawyers have the right to practise their profession freely and independently, without being subjected to pressure or discrimination of any kind whatsoever.

Lawyers have the duty to preserve their independence by avoiding any situation in which their actions could be compromised by interests inconsistent with those of their client.

Lawyers have the right to practice their profession without prejudice or restraint, shielded by total professional immunity, which precludes any unlawful search of the Lawyer’s office.

Lawyers have the duty to do everything in their power to ensure that their clients’ rights are protected and that their clients receive a fair trial in any court or before any other authority.

Lawyers are entitled to recognition by Judges of the importance of their role in judicial proceedings, for they are actors in those proceedings whose presence ensures a fair trial.

Lawyers have the duty to act in an honourable and dignified manner towards Judges and to fight to ensure the independence of the judiciary

Connection with Bar

Depending on the country, a Lawyer has the duty or the right to be a member of a Bar or Law Society and to ensure that the profession is governed by rules laid down by the representative bodies of which he or she is a member, and that they are observed.

Provided that the Bar observes the principles set out in the Basic Principles on the Role of Lawyers endorsed by the UN, Lawyers have the duty to recognise the Bar’s right to establish such rules and to ensure compliance by conforming their conduct to the rules laid down by their own Bar and those of the other jurisdictions in which they practise.

The representatives of the legal profession must be able to contribute to the development of legislation, case law and jurisprudence. [Turin principles-n October 27th, 2002]

Often the courts or statutory bodies are assisted by bar associations established on a private basis. The various systems for the organisation and regulation of the legal profession should ensure not only the independence of practicing lawyers but also administration of the profession in a manner that is itself in line with the Rule of Law. Therefore, decisions of the Bars should be subject to an appropriate review mechanism.
There is an ongoing debate as to the extent to which governmental and legislative interference with the administration and conduct of the legal profession may be warranted. Lawyers and bars should strive for and preserve the true independence of the legal profession and encourage governments to avoid and combat the challenges to the Rule of Law [BA International Principles on Conduct for the Legal Profession-2019]

  • UN Basic Principles on the Independence of the Judiciary
  • Charter of Core Principles of the European Legal Profession which was adopted at the plenary session in Brussels on 24 November 2006. 
  • The Code of Conduct for European Lawyers dates back to 28 October 1988.
  • Turin principles-October 27th, 2002
  • IBA International Principles on Conduct for the Legal Profession-2019

Terminology ADVOCATE

Austria -Rechtsanwalt;
Belgium -avocat / advocaat / Rechtsanwalt;
Bulgaria- advokat;
Croatia -odvjetnik;
Cyprus- dikegóros;
Czech Republic- advokát;
Denmark -advokat;
Estonia- vandeadvokaat;
Finland asianajaja / advokat;
Macedonia- advokat;
France- avocat;
Germany- Rechtsanwalt;
Greece- dikegóros;
Hungary- ügyvéd;
Iceland- lögmaður;
Ireland -barrister, solicitor;
Italy -avvocato;
Latvia- zvērināts advokāts;
Liechtenstein- Rechtsanwalt;
Lithuania- advokatas;
Luxembourg- avocat / Rechtsanwalt;
Malta- avukat, prokuratur legali;
Netherlands- advocaat;
Norway -advokat;
Poland -adwokat, radca prawny;
Portugal -advogado;
Romania -avocat;
Slovakia- advokát / advokátka;
Slovenia- odvetnik / odvetnica;
Spain -abogado / advocat / abokatu / avogado;
Sweden -advokat;
Switzerland -Rechtsanwalt / Anwalt / Fürsprech / Fürsprecher / avocat / avvocato /advokat;
Turkey- avukat;
Ukraine- advocate;
United Kingdom- advocate, barrister, solicitor


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