RECOMMENDATION No R (2000) 21of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer(Adopted by the Committee of Ministers on 25 October 2000 at the 727th meeting of the Ministers' Deputies) |
The Committee of Ministers, under the terms of Article 15b of the Statute of the Council of Europe,
Having regard to the provisions of the European Convention on Human Rights;
Having regard to the United Nations Basic Principles on the Role of Lawyers, endorsed by the General Assembly of the United Nations in December 1990;
Having regard to Recommendation No R (94) 12 on the independence, efficiency and role of judges, adopted by the Committee of Ministers of the Council of Europe on 13 October 1994;
Underlining the fundamental role that lawyers and professional associations of lawyers also play in ensuring the protection of human rights and fundamental freedoms;
Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the Rule of Law, in which lawyers take part, in particular in the role of defending individual freedoms;
Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter or for any reason;
Aware of the desirability of ensuring a proper exercise of lawyers' responsibilities and, in particular, of the need for lawyers to receive sufficient training and to find a proper balance between their duties towards the courts and those towards their clients;
Considering that access to justice may require persons in an economically weak position to obtain the services of lawyers,
Recommends the governments of member States to take or reinforce, as the case may be, all measures they consider necessary with a view to the implementation of the principles contained in this Recommendation.
For the purpose of this recommendation, "lawyer" means a person qualified and authorised according to the national law to plead and act on behalf of his or her clients, to engage in the practice of law, to appear before the courts or advise and represent his or her clients in legal matters.
GENERAL PRINCIPLES ON THE FREEDOM OF EXERCISE OF THE PROFESSION OF LAWYER
1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights.
2. Decisions concerning the authorisation to practice as a lawyer or to accede to this profession, should be taken by an independent body. Such decisions, whether or not they are taken by an independent body, should be subject to a review by an independent and impartial judicial authority.
3. Lawyers should enjoy freedom of belief, expression, movement, association and assembly, and, in particular, should have the right to take part in public discussions on matters concerning the law and the administration of justice and suggest legislative reforms.
4. Lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards.
5. Lawyers should have access to their clients, including in particular to persons deprived of their liberty, to enable them to counsel in private and to represent their clients according to established professional standards.
6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the Rule of Law.
7. Lawyers should not be refused access to a court before which they are qualified to appear and should have access to all relevant files when defending the rights and interests of their clients in accordance with their professional standards.
8. All lawyers acting in the same case should be accorded equal respect by the court.
LEGAL EDUCATION, TRAINING AND ENTRY INTO THE LEGAL PROFESSION
1. Legal education, entry into and continued exercise of the legal profession should not be denied in particular by reason of sex or sexual preference, race, colour, religion, political or other opinion, ethnic or social origin, membership of a national minority, property, birth or physical disability.
2. All necessary measures should be taken in order to ensure a high standard of legal training and morality as a prerequisite for entry into the profession and to provide for the continuing education of lawyers.
3. Legal education, including programmes of continuing education, should seek to strengthen legal skills, increase awareness of ethical and human rights issues, and train lawyers to respect, protect and promote the rights and interests of their clients and support the proper administration of justice.
ROLE AND DUTY OF LAWYERS
1. Bar associations or other lawyers' professional associations should draw up professional standards and codes of conduct and should ensure that, in defending the legitimate rights and interests of their clients, lawyers have a duty to act independently, diligently and fairly.
2. Professional secrecy should be respected by lawyers in accordance with internal laws, regulations and professional standards. Any violation of this secrecy, without the consent of the client, should be subject to appropriate sanctions.
3. The duties of lawyers towards their clients should include:
a. advising them on their legal rights and obligations, as well as the likely outcome and consequences of the case, including financial costs;
b. endeavouring first and foremost to resolve a case amicably;
c. taking legal action to protect, respect and enforce the rights and interests of their clients;
d. avoiding conflicts of interest;
e. not taking up more work than they can reasonably manage.
4. Lawyers should respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards. Any abstention by lawyers from their professional activities should avoid damage to the interests of clients or others who require their services.
ACCESS FOR ALL PERSONS TO LAWYERS
1. All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers.
2. Lawyers should be encouraged to provide legal services to persons in an economically weak position.
3. Governments of member States should, where appropriate to ensure effective access to justice, ensure that effective legal services are available to persons in an economically weak position, in particular to persons deprived of their liberty.
4. Lawyers' duties towards their clients should not be affected by the fact that fees are paid wholly or in part from by public funds.
ASSOCIATIONS
1. Lawyers should be allowed and encouraged to form and join professional local, national and international associations which, either alone or with other bodies, have the task of strengthening professional standards and safeguarding the independence and interests of lawyers.
2. Bar associations or other professional lawyers' associations should be self-governing bodies, independent of the authorities and the public.
3. The role of Bar associations or other professional lawyers' associations in protecting their members and in defending their independence against any improper restrictions or infringements should be respected.
4. Bar associations or other professional lawyers' associations should be encouraged to ensure the independence of lawyers and, inter alia, to:
a. promote and uphold the cause of justice, without fear;
b. defend the role of lawyers in society and, in particular, to maintain their honour, dignity and integrity;
c. promote the participation by lawyers in schemes to ensure the access to justice of persons in an economically weak position, in particular the provision of legal aid and advice;
d. promote and support law reform and discussion on existing and proposed legislation;
e. promote the welfare of members of the profession and assist them or their families if circumstances so require;
f. co-operate with lawyers of other countries in order to promote the role of lawyers, in particular by considering the work of international organisations of lawyers and international intergovernmental and non-governmental organisations;
g. promote the highest possible standards of competence of lawyers and maintain respect by lawyers for the standards of conduct and discipline.
5. Bar associations or other professional lawyers' associations should take any necessary action, including defending lawyers" interests with the appropriate body, in case of:
a. arrest or detention of a lawyer;
b. any decision to take proceedings calling into question the integrity of a lawyer;
c. any search of lawyers themselves or their property;
d. any seizure of documents or materials in a lawyers' possession;
e. publication of press reports which require action on behalf of lawyers.
DISCIPLINARY PROCEEDINGS
1. Where lawyers do not act in accordance with their professional standards, set out in codes of conduct drawn up by Bar associations or other associations of lawyers or by legislation, appropriate measures should be taken, including disciplinary proceedings.
2. Bar associations or other lawyers' professional associations should be responsible for or, where appropriate, be entitled to participate in the conduct of disciplinary proceedings concerning lawyers.
3. Disciplinary proceedings should be conducted with full respect of the principles and rules laid down in the European Convention on Human Rights, including the right of the lawyer concerned to participate in the proceedings and to apply for judicial review of the decision.
4. The principle of proportionality should be respected in determining sanctions for disciplinary offences committed by lawyers.