What are the 5 principles of the legal profession

CHARTER OF BASIC PRINCIPLES OF EUROPEAN LAWYERS AND PROFESSIONAL RULES OF EUROPEAN LAWYERS

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1 CHARTER OF BASIC PRINCIPLES OF THE EUROPEAN LAWYERS AND PROFESSIONAL RULES OF THE EUROPEAN LAWYERS Conseil des barreaux européens - Council of Bars and Law Societies of Europe association international sans but lucratif Avenue de la Joyeuse Entrée 1-5, B-1040 Bruxelles (040 Brussels - Tel ) Fax. +32 (0) /

2 Edition 2008 CCBE Editor in charge: Jonathan Goldsmith Avenue de la Joyeuse Entrée, B-1040 Brussels Tél .: +32 (0) Fax: +32 (0) /

3 The main task of the Council of European Bar Associations (CCBE) is the representation of its member chambers and associations, both full members (i.e. the bar associations and legal associations of the European Union, the European Economic Area and the Swiss Confederation) and members with associate or observer status, in all matters of common interest in relation to the practice of the legal profession, the development and application of the rule of law, in relation to the administration of justice and important developments in law itself, both at European and international level (Art. III 1.a. of the statutes of the CCBE). This makes the CCBE the official representative of the bar associations and bar associations, which have more than members in Europe. The CCBE is based on two documents which are the subject of this brochure. The texts complement each other, but at the same time are of a very different nature. The more recent of the two texts is the Charter of Basic Principles of European Lawyers, which was adopted at the CCBE General Assembly on November 24, 2006 in Brussels. The charter is not to be understood as a professional set of rules. It should apply across Europe, beyond the CCBE member states with full membership, associate or observer status. The charter contains ten basic principles that are common to all national and international professional rules for the legal profession. Among other things, the charter aims to help those chambers and associations struggling to gain recognition for their independence; it continues to aim to promote understanding among lawyers of the importance of their role in society; it is aimed both at lawyers themselves and at decision-makers and the general public. The Code of Conduct for European Lawyers was adopted on October 28, 1988. They have been updated three times so far, the last time at the General Assembly on May 19, 2006 in Porto. The rules are binding for all member states: every lawyer who is a member of a chamber or an association in one of these countries (regardless of whether the respective organization is a full member, associate member or member with observer status) must comply with these rules for cross-border activities in the Follow the European Union, the European Economic Area and the Swiss Confederation as well as the associated and observer states. Both texts are explained in a comment. Needless to say, the importance of the norms set out in the two documents, which form the basis of the deontology of the European legal profession and which help to shape the image of the European lawyer and legal profession. 31 January

4 CONTENTS Charter of Basic Principles of European Lawyers ... 5 Commentary on the Charter of Basic Principles of European Lawyers ... December 2002 in Dublin) Liability for fee claims among colleagues Advanced training Dispute settlement between colleagues from different Member States ... 21 Explanatory commentary on the CCBE - Professional rules

5 CHARTER OF FUNDAMENTAL PRINCIPLES OF EUROPEAN LAWYERS 1 In a society founded on respect for the law, the lawyer has a particularly important function. His task is not limited to the conscientious execution of an order within the framework of the law. The lawyer must ensure that both the rule of law and the interests of the person seeking justice, whose rights and freedoms he represents, are safeguarded. The lawyer is obliged not only to stand up for his client's cause, but also to be his client's advisor. Respect for the role associated with the legal profession is an indispensable prerequisite for a constitutional state and a democratic society. - CCBE professional rules for European lawyers, Art. 1.1 There are certain basic principles that are common to all lawyers in Europe, even if these principles are slightly different in the individual legal circles. These basic principles form the basis for the various national and international codes that regulate the conduct of lawyers. European lawyers heed these basic principles, which are essential for the administration of justice, access to justice and the right to a fair trial, as required by the European Convention on Human Rights. Bar and bar associations, courts, lawmakers, governments and international organizations should strive to uphold and protect these principles in the public interest. In particular, the basic principles are: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) the independence of the lawyer and the freedom of the lawyer to deal with the cause of his client to accept; the right and duty of the lawyer to treat all matters relating to the client confidentially and to maintain professional secrecy; Avoidance of conflicts of interest, both between different clients and between lawyer and client; the dignity and honesty of the legal profession and the integrity and good reputation of the individual lawyer; Loyalty to the client; fair structuring and billing of the fee; the professional competence of the lawyer; Respect for colleagues; Respect for the rule of law and the administration of justice and the self-government of the legal profession. 1 Adopted at the CCBE General Assembly on

6 COMMENTARY ON THE CHARTER OF BASIC PRINCIPLES OF EUROPEAN LAWYERS 2 1. On November 25, 2006, the CCBE unanimously adopted a Charter of Basic Principles for European Lawyers. The Charter contains a list of ten principles that are common to all lawyers in Europe. Respect for these principles is the basis for the right to defense, one of the most important cornerstones of all other fundamental rights in a democracy. 2. These principles are an expression of the common basis on which all national and international professional rules are built to which European lawyers are subject. 3. The charter was drawn up taking into account: - the national professional rules from countries across Europe, including countries that are not CCBE members but share the common principles of the European legal profession 3, - the CCBE professional rules for European lawyers, - of the general principles in the International Code of Ethics of the International Bar Association 4, - Recommendation Rec (2000) 21 of 25 October 2000 of the Committee of Ministers of the Council of Europe 5 to the member states on the freedom to practice lawyers, - The Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana (Cuba), August 27th - September 7th, - the case law of the European Court of Human Rights and the European Court of Justice, in particular the ECJ ruling of 19 February 2002 in Wouters v. Algemene Raad van de Nederlandse Orde van Advocaten (C-309/99) 7, - the Universal Declaration of Human Rights 8, the European Convention on Human Rights 9 and the Charter of Fundamental Rights of the European Union 10, - the resolution of the European Parliament on the legal professions and the general interest in the functioning of legal systems of 23 March The Charter is conceived as a pan-European document that should extend beyond the borders of the CCBE member states and its observer countries. The CCBE hopes that the charter will, for example, help those bar associations and legal associations fighting for independence in Europe's young democracies. 2 Adopted at the CCBE General Assembly on The national professional rules can be found here: DocId = 370286 & Usage =

7 5. The purpose of the Charter is to promote an understanding among lawyers, decision-makers and the general public of the importance of the role of the lawyer in society and of how the principles governing the legal profession support that role. 6. The role of the lawyer, regardless of whether he is acting on behalf of an individual legal seeker, a corporation or for the state, is that of the trustworthy advisor and representative of his client, respected as a professional by third parties, whose cooperation is indispensable for the proper administration of justice is. By amalgamating these three elements, the lawyer, who represents his client's interests and protects their rights, also fulfills a function in society that consists of preventing and preventing conflicts; ensure that conflicts are resolved under civil, criminal or public law, taking into account all rights and interests; to promote the advancement of law and to defend freedom, justice and the rule of law. 7. The CCBE hopes that judges, lawmakers, governments and international organizations will work with the bar and bar associations to advocate the principles of this Charter. 8. The charter is preceded by an excerpt from the foreword to the professional rules of European lawyers, in which it is stated: Respect for the function associated with the legal profession is an indispensable prerequisite for a constitutional state and a democratic society. The rule of law is closely linked to the European understanding of democracy of our time. 9. The introduction to the Charter states that the principles are of vital importance with regard to the administration of justice, access to justice and the right to a fair trial, as required by the European Convention on Human Rights. Lawyers and their professional organizations will continue to fight for these rights at the forefront, be it in the young democracies of Europe or the more established democracies where these rights may be threatened. 7th

8 Principle (a) - the independence of the lawyer and the freedom of the lawyer to take care of his client's case: a lawyer must be free to advise and represent his client politically, economically and intellectually. This means that the lawyer must be independent of the state and any other influence and that he must not allow his independence to be compromised by undue pressure from business partners. The lawyer must also maintain independence from his own client if he wants to be respected by third parties and the courts. Without the independence from the client, a quality guarantee for the lawyer's work would actually be impossible. The fact that the lawyer belongs to a liberal profession and the authority that arises from it help to maintain independence. The chambers and associations must make a significant contribution to ensuring legal independence. Self-government plays a vital role in maintaining the independence of each individual lawyer. It is noticeable that lawyers in non-free societies are prevented from exercising their mandate and that if they try to do so they risk imprisonment or even their lives. Principle (b) - the right and the duty of the lawyer to treat all matters relating to the client confidentially and to maintain professional secrecy: It is in the nature of the legal profession that the client tells his lawyer things that he would not entrust to anyone else, for example very personal information or trade secrets of great value and that the lawyer must treat this and other information confidentially. A relationship of trust is impossible if confidentiality is not ensured. The charter emphasizes the duality of this principle: maintaining confidentiality is not only a duty of the lawyer, it is also a fundamental right of the client. According to the rules of professional secrecy, it is forbidden to use the communication between lawyer and client against the client. In some countries the view is that the right to confidentiality resides only with the client, while professional secrecy in other countries may also require the lawyer to keep confidential communications by the other lawyer secret from his client. Principle (b) encompasses all related concepts of professional secrecy, confidentiality and legal professional privilege. The attorney's duty of confidentiality towards the client remains in place even after the mandate has ended. Principle (c) - Avoidance of conflicts of interest, both between different clients and between lawyer and client: In order to be able to carry out his profession properly, the lawyer must avoid conflicts of interest. Thus, the lawyer may not act for two clients on the same matter if there is a conflict of interest or there is a risk of a conflict of interest. Likewise, a lawyer may not take on a new mandate if he has confidential information that he has received from another current or previous client. A lawyer is also not allowed to take on a mandate if the interests of the client in question collide with his own. Enter 8

9 If there is a conflict of interest in the course of a mandate, the lawyer must resign from the mandate. This principle is closely related to principles (b) (confidentiality), (a) (independence) and (e) (loyalty). Principle (d) - the dignity and honesty of the legal profession as well as the integrity and good reputation of the individual lawyer: in order to win the trust of clients, third parties, courts and the state, the lawyer must prove himself worthy of this trust. This is also achieved by belonging to an honorable profession; It follows from this that the lawyer may not do anything that could damage his own reputation or the reputation of the profession or the public's trust in the legal profession as a whole. However, this does not mean that the lawyer has to be perfect. Rather, it means that he does not behave in professional practice, in other activities or in private life in such a way that it could discredit the profession. Dishonorable behavior can result in sanctions and, in the worst case, lead to exclusion from the legal profession. Principle (s) - Loyalty to the client: Loyalty to the client is in the essence of the lawyer's function. The client must be able to trust the lawyer as his advisor and representative. In order to be loyal, the lawyer must be independent (principle (a)), avoid conflicts of interest (principle (c)) and treat confidential communications from his client confidentially (principle (b)). With regard to deontology, the most difficult situations are usually those that arise in the area of ​​tension between loyalty to the client and the broader obligations of the lawyer, principle (d) (dignity and honesty), principle (h) (respect for colleagues) and, in particular, principle (i) (Respect for the rule of law and the administration of justice). In these questions, the lawyer must make it clear to the client that he cannot compromise his duties towards the court and the administration of justice in order to initiate an incorrect procedure for the client. Principle (f) fair structuring and billing of the fee: The fee required by a lawyer must be fully disclosed to the client, it must be fair and reasonable and comply with the law and the professional rules to which the lawyer is subject. Even if the professional rules (and the present charter in principle (c)) emphasize the importance of avoiding conflicts of interest between lawyer and client, the question of the fee harbors such a risk. Thus, this principle requires a professional regulation so that the client is not charged an excessive fee. Principle (g) the professional competence of the lawyer: Of course, a lawyer can only effectively advise and represent his client if he has completed the appropriate professional training. In recent years, training has become more and more important to keep up with the pace of changes in the 9th

10 law and legal practice to keep pace with modern technology and the economy. The professional rules often emphasize that a lawyer may not take on a case if he does not have the necessary competence in the matter. Principle (h) Respect for Colleagues: This principle is about more than a reminder of the necessary courtesy, although it is also important given the extremely delicate and controversial issues that lawyers often deal with on behalf of their clients.This principle relates to the lawyer's role as a mediator who can be trusted to tell the truth, comply with the code of conduct, and keep his promise. The good administration of justice requires lawyers to be polite with colleagues so that disputes can be resolved in a civilized manner. It is also in the public interest if lawyers act among themselves to the best of their conscience and do not betray one another. Mutual respect benefits the administration of justice, facilitates the amicable settlement of disputes and is in the interests of the client. Principle (i) - Respect for the rule of law and the administration of justice: Part of the lawyer's role, as described above, is his or her role as a participant in the proper administration of justice. This idea is sometimes expressed in the description of the lawyer as an officer of the court or minister of justice. A lawyer may never deliberately give false or misleading information to the court or lie to third parties in the course of his professional activity. These prohibitions often run counter to the immediate interests of the client. This conflict between the interests of the client and the interests of the judiciary poses problems for the lawyer, the solution of which is part of his training. The lawyer can turn to his chamber or bar association to solve such problems. Ultimately, however, the lawyer can only successfully represent his client if the courts and third parties can rely on the lawyer as a trustworthy mediator and as a participant in the proper administration of justice. Principle (j) the self-government of the legal profession: It is characteristic of a non-free society that the state, be it openly or in secret, controls the legal profession and legal practice. In most European countries, the legal profession is subject to a combination of state and self-government. In many cases, the state, which recognizes the importance of the core values, underpins it by law, for example by a law in support of professional secrecy or by authorizing the legal profession to issue professional rules by law. The CCBE is convinced that only strong self-government can guarantee the independence of lawyers from the state. Without a guarantee of independence, lawyers cannot fulfill their professional and legal functions. 10

11 PROFESSIONAL RULES OF EUROPEAN LAWYERS Originally adopted by the CCBE General Assembly on October 28, 1988, amended by the CCBE General Assemblies on November 28, 1998, December 6, 2002 and May 19 passed an extraordinary general assembly on August 20, 2007, is also taken into account in these professional rules. 1. PRESENTATION 1.1. The lawyer in society In a society founded on respect for the law, the lawyer has a particularly important function. His task is not limited to the conscientious execution of an order within the framework of the law. The lawyer must ensure that both the rule of law and the interests of the person seeking justice, whose rights and freedoms he represents, are safeguarded. The lawyer is obliged not only to stand up for his client's cause, but also to be his client's advisor. Respect for the role associated with the legal profession is an indispensable prerequisite for a constitutional state and a democratic society. In carrying out his mandate, the lawyer is therefore subject to numerous legal and professional obligations (some of which seem to contradict one another) towards: - the client. - Courts and authorities to which the lawyer assists and represents his client, - his profession in general and every colleague in particular, - society, for which a free, independent and self-imposed rules of integrity profession are an essential means of defense the rights of the individual vis-à-vis the state and interest groups is the subject of professional law. Voluntary submission to the professional rules of all those to whom they apply serves the purpose of ensuring that the lawyer properly performs his duties, which are indispensable for the community. If the lawyer does not observe the professional rules, this can ultimately lead to disciplinary measures. Each legal profession has its own rules based on its particular tradition. These correspond to the organization of the profession and the legal field of activity, the proceedings before the courts and authorities as well as the laws of the Member State concerned. It is neither possible nor 11

It is desirable to pull them out of this context or to generalize rules that are not suitable for this. However, the individual professional rules of each legal profession are based on the same basic values ​​and are predominantly an expression of a common basic conviction. The aim and purpose of the European professional rules is due to the development of the European Union and the European Economic Area and the increasingly stronger cross-border activity of the lawyer within the European Economic Area It has become necessary in the interests of those seeking law to establish uniform rules applicable to every lawyer in the European Economic Area for this cross-border activity, regardless of which lawyer the lawyer belongs to. The establishment of such professional rules is aimed in particular at the result of the concurrent application of several professional rights - in particular in Articles 4 and 7.2 of Directive No. 77/249 / EEC and Articles 6 and 7 of Directive No. 98/5 / EC is intended - to reduce the resulting difficulties The organizations representing the legal profession, united in the CCBE, express the wish that the following professional rules - already now recognized as an expression of the agreement of all lawyers in the European Union and the European Economic Area - in the shortest possible time be declared binding by national and / or EEA law for cross-border activities of the lawyer in the European Union and the European Economic Area, - be taken into account in every reform of national professional law with a view to its gradual harmonization. They further combine the desire that the national professional rules are interpreted and applied as far as possible in a way that is consistent with the European professional rules. If the European professional rules have become binding with regard to cross-border legal practice, the lawyer is still subject to the professional rules of the legal profession to which he belongs, provided these do not conflict with the European professional rules. 12th

13 1.4. Personal scope of application The following professional rules apply to all lawyers within the meaning of Directive No. 77/249 / EEC and Directive No. 98/5 / EC as well as to lawyers in CCBE member countries with observer status of the nationally applicable professional law, the following professional rules apply to the cross-border activity of the lawyer within the European Union and the European Economic Area. Cross-border activities include: a) any activity with lawyers from other Member States in connection with the practice of a lawyer, b) the professional activity of a lawyer in another Member State, regardless of whether or not he is present there.Definitions The following terms have the following meanings for the following professional rules: a member state of the EU or any other state whose legal profession falls under Article 1.4. Home country "means the member state in which the lawyer has acquired the right to use his professional title. Host country" means the member state in which the lawyer carries out cross-border activities. Competent body "refers to the profession-specific organizations or authorities of the member states that are responsible for issuing professional rules and disciplinary supervision. Directive No. 77/249 / EEC refers to Directive 77/249 / EEC of the Council of March 22, 1977 to facilitate the actual Exercise of the freedom to provide services by lawyers. Directive No. 98/5 / EC refers to Directive 98/5 / EC of the European Parliament and of the Council of February 16, 1998 to facilitate the permanent exercise of the legal profession in a Member State other than the one in which the qualification has been obtained 13

14 2. GENERAL PRINCIPLES 2.1. Independence The multiplicity of duties incumbent on the lawyer presupposes his independence from extraneous influences; this applies in particular to the lawyer's own interests and the influence of third parties. This independence is just as important to the trust in the judiciary as the impartiality of the judge. The lawyer must therefore avoid impairment of his independence and must not disregard professional law as a favor to his client, the judge or a third party. Maintaining independence is just as important for out-of-court work as it is for work in court. Legal advice loses value for the client if it is given out of courtesy, personal interest or under pressure from third parties. Trust and dignity The relationship of trust presupposes that there are no doubts about the honesty, integrity and integrity of the lawyer. These traditional values ​​of the legal profession are for the lawyer at the same time professional duties Professional secrecy It is part of the nature of the professional activity of the lawyer that his client entrusts him with secrets and that he receives other confidential information. If confidentiality is not guaranteed, no trust can arise. For this reason, professional secrecy is both a fundamental right and a fundamental duty of the lawyer of particular importance. The lawyer's duty to maintain professional secrecy serves the interests of the administration of justice as well as the interests of the client. It therefore deserves special protection from the state.The lawyer must maintain the confidentiality of all information that becomes known to him in the course of his professional activity The obligation to maintain professional secrecy is unlimited in time The lawyer ensures that his employees and all persons maintain confidentiality who participate in his professional activity Respect the professional law of other lawyers In the case of cross-border activities, the lawyer may be obliged to observe the professional law of a host country. The lawyer has the duty to inform himself about the professional rules that apply to the exercise of a certain activity. 14th

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16 3. BEHAVIOR TO THE CLIENTS 3.1. Beginning and end of the mandate The lawyer may only act on behalf of his client. However, the lawyer may also take action in a matter if he has been commissioned by another lawyer representing the client or if the case is transferred to him by a competent body. The lawyer should endeavor to establish the identity, competence and authority of the person or agency commissioning him if the specific circumstances show that the identity, competence and authority are unclear.The lawyer advises and represents his client promptly, conscientiously and carefully. He is personally responsible for the execution of the mandate given to him and informs his client of the progress of the matter assigned to him.The lawyer must refuse a mandate if he knows or needs to know that he lacks the necessary knowledge, unless he is working together with a lawyer who has this knowledge. 16

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18, these funds must always be deposited into an account (hereinafter escrow account) with a credit institute or a similar institution that is subject to public supervision. An escrow account must be kept separate from all other accounts of the lawyer. All client monies received from a lawyer are to be paid into such an account, unless the owner of these monies has approved another use.The lawyer has to keep a complete and accurate record of all transactions relating to the client monies, whereby client monies are added to the lawyer's other assets are separate. The bookkeeping must be kept for a period in accordance with national regulations. Escrow accounts may not be debited, unless there is an exceptional case where this is expressly permitted under national regulations, or there are bank charges that the lawyer is not responsible for Has influence. An escrow account may under no circumstances be used as a guarantee or as security. 4. CONDUCT TO THE COURTS 4.1. Professional law applicable to litigation activities The lawyer appearing before a court of a Member State or participating in proceedings pending before such a court must observe the professional rules applicable before that court. 18th

19 4.2. Maintaining equal opportunities in the process The lawyer must ensure that the proceedings are conducted fairly at all times.Respect for the court As part of the respect and courtesy due to the judicial office, the lawyer conscientiously and fearlessly safeguards the interests of his client, regardless of his own interests and / or any consequences arising for himself or others to be represented Communication of false or misleading facts The lawyer must never deliberately make untrue or misleading information to the court.Application to arbitrators and persons with similar tasks The regulations on the relationship of the lawyer to the judge also apply to his relationship with arbitrators or other persons who are permanent or also only occasionally exercise judicial or quasi-judicial functions. 5. BEHAVIOR TO COLLEAGUES 5.1. Collegiality In the interests of the client and to avoid unnecessary disputes and other behavior that could damage the reputation of the profession, collegiality requires a relationship of trust and a willingness to cooperate between lawyers. However, collegiality must under no circumstances lead to the interests of the lawyers being opposed to those of the client.Every lawyer must recognize lawyers from another Member State as colleagues and act fairly and politely towards them another Member State is obliged not to take action in a matter if he is not sufficiently qualified; In this case he has to help his colleague to find a lawyer who is able to provide the expected service. Do lawyers from different Member States work together, both of which may arise from the different legal systems, professional organizations, competences and professional obligations resulting differences must be taken into account. 19th

20 5.3. December 2002 in Dublin) 5.7. Liability for fee claims among colleagues In professional dealings between lawyers from different Member States, the lawyer who does not limit himself to naming a foreign colleague or mediating the mandate, but instead transfers a matter to a foreign colleague or asks him for advice, is then in person obliged to pay the fees, costs and expenses of the foreign colleague, even if payment cannot be obtained from the client. However, the lawyers concerned can make other arrangements at the beginning of their cooperation. The commissioning lawyer can also limit his personal obligation at any time to the fee and the costs and expenses incurred up to the point in time at which he informs his foreign colleague that he will no longer be liable. 20th