Code of Conduct for Lawyers in the European Union
Conseil
des Barreaux de l’Union Européenne - Council of the Bars and
Law Societies of the European Union
Représentant les avocats d’Europe
Representing Europe’s lawyers
This Code of Conduct for Lawyers in the European Union was originally adopted
at the CCBE Plenary Session held on 28 October 1988, and subsequently amended
during the CCBE Plenary Sessions on 28 November 1998 and 6 December 2002.
CONTENTS
1.
PREAMBLE
1.1.
The Function of the Lawyer in Society
1.2. The Nature of Rules of Professional
Conduct
1.3. The Purpose of the Code
1.4. Field of Application Ratione Personae
1.5. Field of Application Ratione Materiae
1.6. Definitions
2.
GENERAL PRINCIPLES
2.1.
Independence
2.2. Trust and Personal Integrity
2.3. Confidentiality
2.4. Respect for the Rules of Other Bars
and Law Societies
2.5. Incompatible Occupations
2.6. Personal Publicity
2.7. The Client's Interest
2.8. Limitation of Lawyer's Liability
towards his Client
3.
RELATIONS WITH CLIENTS
3.1.
Acceptance and Termination of Instructions
3.2. Conflict of Interest
3.3. Pactum de Quota Litis
3.4. Regulation of Fees
3.5. Payment on Account
3.6. Fee Sharing with Non-Lawyers
3.7. Cost Effective Resolution and Availability
of Legal Aid
3.8. Clients funds
3.9. Professional Indemnity Insurance
4.
RELATIONS WITH THE COURTS
4.1.
Applicable Rules of Conduct in Court
4.2. Fair Conduct of Proceedings
4.3. Demeanour in Court
4.4. False or Misleading Information
4.5. Extension to Arbitrators Etc
5.
RELATIONS BETWEEN LAWYERS
5.1.
Corporate Spirit of the Profession
5.2. Co-operation Among Lawyers of Different
Member States
5.3. Correspondence Between Lawyers
5.4. Referral Fees
5.5. Communication with Opposing Parties
5.6. (Deleted by decision of the CCBE
Plenary Session in Dublin on December 6th, 2002)
5.7. Responsibility for Fees
5.8. Training Young Lawyers
5.9. Disputes amongst Lawyers in Different
Member States
1. PREAMBLE
1.1. The
Function of the Lawyer in Society
In a society founded on respect for the rule of law the lawyer fulfils a special
role.
His duties do not begin and end with the faithful performance of what he 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 is trusted to assert
and defend and it is his duty not only to plead his client's cause but to
be his adviser.
A lawyer's function therefore lays on him 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
his client's cause or acts on his 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.
1.2.
The Nature of Rules of Professional Conduct
1.2.1.
Rules of professional conduct are designed through their willing acceptance
by those to whom they apply to ensure the proper performance by the lawyer
of a function which is recognised as essential in all civilized societies.
The failure of the lawyer to observe these rules must in the last resort result
in a disciplinary sanction.
1.2.2.
The particular rules of each Bar or Law Society arise from its own traditions.
They are adapted to the organisation and sphere of activity of the profession
in the Member State concerned and to its judicial and administrative procedures
and to its national legislation. It is neither possible nor desirable that
they should be taken out of their context nor that an attempt should be made
to give general application to rules which are inherently incapable of such
application.
The particular rules of each Bar and Law Society nevertheless are based on
the same values and in most cases demonstrate a common foundation.
1.3.1.
The continued integration of the European Union and European Economic Area
and the increasing frequency of the cross-border activities of lawyers within
the European Economic Area have made necessary in the public interest the
statement of common rules which apply to all lawyers from the European Economic
Area whatever Bar or Law Society they belong to in relation to their cross-border
practice. A particular purpose of the statement of those rules is to mitigate
the difficulties which result from the application of «double deontology
» as set out in Article 4 of the E.C. Directive 77/249 of 22nd March
1977.
1.3.2.
The organisations representing the legal profession through the CCBE propose
that the rules codified in the following articles:
be recognised at the present time as the expression of a consensus of all
the Bars and Law Societies of the European Union and European Economic Area;
be adopted as enforceable rules as soon as possible in accordance with national
or EEA procedures in relation to the cross-border activities of the lawyer
in the European Union and European Economic Area; be taken into account in
all revisions of national rules of deontology or professional practice with
a view to their progressive harmonisation.
They further express the wish that the national rules of deontology or professional
practice be interpreted and applied whenever possible in a way consistent
with the rules in this Code.
After the rules in this Code have been adopted as enforceable rules in relation
to his cross-border activities the lawyer will remain bound to observe the
rules of the Bar or Law Society to which he belongs to the extent that they
are consistent with the rules in this Code.
1.4.
Field of Application Ratione Personae
The following rules shall apply to lawyers of the European Union and the European
Economic Area as they are defined by the Directive 77/249 of 22nd March 1977.
1.5.
Field of Application Ratione Materiae
Without prejudice to the pursuit of a progressive harmonisation of rules of
deontology or professional practice which apply only internally within a Member
State, the following rules shall apply to the cross-border activities of the
lawyer within the European Union and the European Economic Area. Cross-border
activities shall mean:
(a) all professional contacts with lawyers of Member States other than his
own;
(b) the professional activities of the lawyer in a Member State other than
his own, whether or not the lawyer is physically present in that Member State.
In
these rules:
"Home Member State" means the Member State of the Bar or Law Society
to which the lawyer belongs.
"Host Member State" means any other Member State where the lawyer
carries on cross-border activities.
"Competent authority" means the professional organisation(s) or
authority(ies) of the Member State concerned responsible for the laying down
of rules of professional conduct and the administration of discipline of lawyers.
2.1.1.
The many duties to which a lawyer is subject require his absolute independence,
free from all other influence, especially such as may arise from his
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 independence and be careful not
to compromise his professional standards in order to please his client, the
court or third parties.
2.1.2. This independence is necessary in non-contentious matters as well as
in litigation.
Advice given by a lawyer to his client has no value if it is given only to
ingratiate himself, to serve his personal interests or in response to outside
pressure.
2.2.
Trust and Personal Integrity
Relationships of trust can only exist if a lawyer's personal honour, honesty
and integrity are beyond doubt. For the lawyer these traditional virtues are
professional obligations.
2.3.1.
It is of the essence of a lawyer's function that he should be told by his
client things which the client would not tell to others, and that he should
be the recipient of other information on a basis of confidence. Without the
certainty of confidentiality there cannot be trust. Confidentiality is therefore
a primary and fundamental right and duty of the lawyer.
The lawyer’s obligation of confidentiality serves the interest of the
administration of justice as well as the interest of the client. It is therefore
entitled to
special protection by the State.
2.3.2.
A lawyer shall respect the confidentiality of all information that becomes
known to him in the course of his professional activity.
2.3.3.
The obligation of confidentiality is not limited in time.
2.3.4.
A lawyer shall require his associates and staff and anyone engaged by him
in the course of providing professional services to observe the same obligation
of confidentiality.
2.4.
Respect for the Rules of Other Bars and Law Societies Under the laws of the
European Union and the European Economic Area a lawyer from another Member
State may be bound to comply with the rules of the Bar or Law Society of the
Host Member State. Lawyers have a duty to inform themselves as
to the rules which will affect them in the performance of any particular activity.
Member organisations of CCBE are obliged to deposit their codes of conduct
at the Secretariat of CCBE so that any lawyer can get hold of the copy of
the current code from the Secretariat.
2.5.1.
In order to perform his functions with due independence and in a manner which
is consistent with his duty to participate in the administration of justice
a lawyer is excluded from some occupations.
2.5.2.
A lawyer who acts in the representation or the defence of a client in legal
proceedings or before any public authorities in a Host Member State shall
there observe the rules regarding incompatible occupations as they are applied
to lawyers of the Host Member State.
2.5.3.
A lawyer established in a Host Member State in which he wished to participate
directly in commercial or other activities not connected with the practice
of the law shall respect the rules regarding forbidden or incompatible occupations
as they are applied to lawyers of that Member State.
2.6.1.
A lawyer is entitled to inform the public about his services provided that
the information is accurate and not misleading, and respectful of the obligation
of confidentiality and other core values of the profession.
2.6.2.
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 requirements of 2.6.1.
2.7.
The Client's Interest
Subject to due observance of all rules of law and professional conduct, a
lawyer must always act in the best interests of his client and must put those
interests before his own interests or those of fellow members of the legal
profession.
2.8.
Limitation of Lawyer's Liability towards his Client To the extent permitted
by the law of the Home Member State and the Host Member State, the lawyer
may limit his liabilities towards his client in accordance with rules of the
Code of Conduct to which he is subject.
3.
RELATIONS WITH CLIENTS
3.1.
Acceptance and Termination of Instructions
3.1.1.
A lawyer shall not handle a case for a party except on his instructions. He
may, however, act in a case in which he has been instructed by another lawyer
who himself acts for the party or where the case has been assigned to him
by a
competent body.
The lawyer should make reasonable efforts to ascertain the identity, competence
and authority of the person or body who instructs him when the specific circumstances
show that the identity, competence and authority are uncertain.
3.1.2.
A lawyer shall advise and represent his client promptly, conscientiously and
diligently. He shall undertake personal responsibility for the discharge of
the instructions given to him. He shall keep his client informed as to the
progress of the matter entrusted to him.
3.1.3.
A lawyer shall not handle a matter which he knows or ought to know he is not
competent to handle, without co-operating with a lawyer who is competent to
handle it.
A lawyer shall not accept instructions unless he can discharge those instructions
promptly having regard to the pressure of other work.
3.1.4.
A lawyer shall not be entitled to exercise his right to withdraw from a case
in such a way or in such circumstances that the client may be unable to find
other legal assistance in time to prevent prejudice being suffered by the
client.
3.2.1.
A lawyer may not advise, represent or act on behalf of two or more clients
in the same matter if there is a conflict, or a significant risk of a conflict,
between the interests of those clients.
3.2.2.
A lawyer must cease to act for both client when a conflict of interests arises
between those clients and also whenever there is a risk of a breach of confidence
or where his independence may be impaired.
3.2.3.
A lawyer must also refrain from acting for a new client if there is a risk
of a breach of confidence entrusted to the lawyer by a former client or if
the knowledge which the lawyer possesses of the affairs of the former client
would give an undue advantage to the new client.
3.2.4.
Where lawyers are practising in association, paragraphs 3.2.1 to 3.2.3 above
shall apply to the association and all its members.
3.3.1.
A lawyer shall not be entitled to make a pactum de quota litis.
3.3.2.
By «pactum de quota litis» is meant an agreement between a lawyer
and his client entered into prior to final conclusion of a matter to which
the client is a party, by virtue of which the client undertakes to pay the
lawyer a share of the result regardless of whether this is represented by
a sum of money or by any other benefit achieved by the client upon the conclusion
of the matter.
3.3.3.
The pactum de quota litis does not include an agreement that fees be charged
in proportion to the value of a matter handled by the lawyer if this is in
accordance with an officially approved fee scale or under the control of competent
authority having jurisdiction over the lawyer.
3.4.1.
A fee charged by a lawyer shall be fully disclosed to his client and shall
be fair and reasonable.
3.4.2.
Subject to any proper agreement to the contrary between a lawyer and his client
fees charged by a lawyer shall be subject to regulation in accordance with
the rules applied to members of the Bar or Law Society to which he belongs.
If he belongs to more than one Bar or Law Society the rules applied shall
be those with the closest connection to the contract between the lawyer and
his client.
3.5.
Payment on Account
If a lawyer requires a payment on account of his fees and/or disbursements
such payment should not exceed a reasonable estimate of the fees and probable
disbursements involved.
Failing such payment, a lawyer may withdraw from the case or refuse to handle
it, but subject always to paragraph 3.1.4 above.
3.6. Fee Sharing with Non-Lawyers
3.6.1. Subject as after-mentioned a lawyer may not share his fees with a person
who is not a lawyer except where an association between the lawyer and the
other person is permitted by the laws of the Member State to which the lawyer
belongs.
3.6.2.
The provisions of 3.6.1 above shall not preclude a lawyer from paying a fee,
commission or other compensation to a deceased lawyer’s heirs or to
a retired lawyer in respect of taking over the deceased or retired lawyer’s
practice.
3.7.
Cost Effective Resolution and Availability of Legal Aid
3.7.1.
The lawyer should at all times strive to achieve the most cost effective resolution
of the client’s dispute and should advise the client at appropriate
stages as to the desirability of attempting a settlement and/or a reference
to alternative dispute resolution.
3.7.2.
A lawyer shall inform his client of the availability of legal aid where applicable.
3.8.1.
When lawyers at any time in the course of their practice come into possession
of funds on behalf of their clients or third parties (hereinafter called «client’s
funds») it shall be obligatory:
3.8.1.1.
That client’s funds shall always be held in an account of a bank or
similar institution subject to supervision of Public Authority and that all
clients’ funds received by a lawyer should be paid into such an account
unless the client explicitly or by implication agrees that the funds should
be dealt with otherwise.
3.8.1.2.
That any account in which the client’s funds are held in the name of
the lawyer should indicate in the title or designation that the funds are
held
on behalf of the client or clients of the lawyer.
3.8.1.3.
That any account or accounts in which client’s funds are held in the
name of the lawyer should at all times contain a sum which is not less
than the total of the client’s funds held by the lawyer.
3.8.1.4.
That all funds shall be paid to clients immediately or upon such conditions
as the client may authorise.
3.8.1.5. That payments made from client’s funds on behalf of a client to any other person including:
a) payments made to or for one client from funds held for another client;
b) payment of the lawyer’s fees, be prohibited except to the extent that they are permitted by law or are ordered by the court and have the express or implied authority of the client for whom the payment is being made.
3.8.1.6. That the lawyer shall maintain full and accurate records, available
to each client on request, showing all his dealings with his client’s
funds
and distinguishing client’s funds from other funds held by him.
3.8.1.7.
That the competent authorities in all Member States should have powers to
allow them to examine and investigate on a confidential basis the
financial records of lawyer’s client’s funds to ascertain whether
or not the rules which they make are being complied with and to impose sanctions
upon lawyers who fail to comply with those rules.
3.8.2.
Subject as aftermentioned, and without prejudice to the rules set out in 3.8.1
above, a lawyer who holds client’s funds in the course of carrying on
practice in any Member State must comply with the rules relating to holding
and accounting for client’s funds which are applied by the competent
authorities of the Home Member State.
3.8.3.
A lawyer who carries on practice or provides services in a Host Member State
may with the agreement of the competent authorities of the Home and Host Member
State concerned comply with the requirements of the Host Member State to the
exclusion of the requirements of the Home Member State. In that event he shall
take reasonable steps to inform his clients that he complies with the requirements
in force in the Host Member State.
3.9.
Professional Indemnity Insurance
3.9.1.
Lawyers shall be insured at all times against claims based on professional
negligence of an extent which is reasonable having regard to the nature and
extent of the risks which each lawyer may incur in his practice.
3.9.2.
When a lawyer provides services or carries out practice in a Host Member State,
the following shall apply:
3.9.2.1. The lawyer must comply with any Rules relating to his obligation to insure against his professional liability as a lawyer which are in force in his Home Member State.
3.9.2.2. A lawyer who is obliged so to insure in his Home Member State and
who provides services or carries out practice in any Host Member State shall
use his best endeavours to obtain insurance cover on the basis required in
his Home Member State extended to services which he provides or practice which
he carries out in a Host Member State.
3.9.2.3.
A lawyer who fails to obtain the extended insurance cover referred to in paragraph
3.9.2.2 above or who is not obliged so to insure in his Home
Member State and who provides services or carries out practice in a Host Member
State shall in so far as possible obtain insurance cover against his
professional liability as a lawyer whilst acting for clients in that Host
Member State on at least a basis equivalent to that required of lawyers in
the Host Member State.
3.9.2.4.
To the extent that a lawyer is unable to obtain the insurance cover required
by the foregoing rules, he shall inform such of his clients as might
be effected.
3.9.2.5.
A lawyer who carries out practice or provides services in a Host Member State
may with the agreement of the competent authorities of the Home and Host Member
States concerned comply with such insurance requirements as are in force in
the Host Member State to the exclusion of the insurance requirements of the
Home Member State. In this event he shall take reasonable steps to inform
his clients that he is insured according to the
requirements in force in the Host Member State.
4.
RELATIONS WITH THE COURTS
4.1.
Applicable Rules of Conduct in Court
A lawyer who appears, or takes part in a case before a court or tribunal in
a Member State, must comply with the rules of conduct applied before that
court or tribunal.
4.2.
Fair Conduct of Proceedings
A lawyer must always have due regard for the fair conduct of proceedings.
He must not, for example, make contact with the judge without first informing
the lawyer acting for the opposing party or submit exhibits, notes or documents
to the judge without communicating them in good time to the lawyer on the
other side unless such steps are permitted under the relevant rules of procedure.
To the extent not prohibited by law a lawyer must not divulge or submit to
the court any proposals for settlement of the case made by the other party
or its lawyer without the express consent by the other party’s lawyer.
4.3.
Demeanour in Court
A lawyer shall while maintaining due respect and courtesy towards the court
defend the interests of his client honourably and fearlessly without regard
to his own interests or to any consequences to himself or to any other person.
4.4.
False or Misleading Information
A lawyer shall never knowingly give false or misleading information to the
court.
4.5.
Extension to Arbitrators Etc.
The rules governing a lawyer’s relations with the courts apply also
to his relations with arbitrators and any other persons exercising judicial
or quasi-judicial functions, even on an occasional basis.
5.
RELATIONS BETWEEN LAWYERS
5.1.
Corporate Spirit of the Profession
5.1.1.
The corporate spirit of the profession requires a relationship of trust and
cooperation between lawyers for the benefit of their clients and in order
to avoid unnecessary litigation and other behaviour harmful to the reputation
of the profession. It can, however, never justify setting the interests of
the profession against those of the client.
5.1.2.
A lawyer should recognise all other lawyers of Member States as professional
colleagues and act fairly and courteously towards them.
5.2.
Co-operation Among Lawyers of Different Member States
5.2.1.
It is the duty of a lawyer who is approached by a colleague from another Member
State not to accept instructions in a matter which he is not competent to
undertake. He should in such case be prepared to help his colleague to obtain
the information necessary to enable him to instruct a lawyer who is capable
of providing the service asked for.
5.2.2.
Where a lawyer of a Member State co-operates with a lawyer from another Member
State, both have a general duty to take into account the differences which
may exist between their respective legal systems and the professional organisations,
competences and obligations of lawyers in the Member States concerned.
5.3.
Correspondence Between Lawyers
5.3.1.
If a lawyer sending a communication to a lawyer in another Member State wishes
it remain confidential or without prejudice he should clearly express this
intention when communicating the document.
5.3.2.
If the recipient of the communication is unable to ensure its status as confidential
or without prejudice he should return it to the sender without revealing the
contents to others.
5.4.1.
A lawyer may not demand or accept from another lawyer or any other person
a fee, commission or any other compensation for referring or recommending
the lawyer to a client.
5.4.2.
A lawyer may not pay anyone a fee, commission or any other compensation as
a consideration for referring a client to himself.
5.5.
Communication with Opposing Parties
A lawyer shall not communicate about a particular case or matter directly
with any person whom he knows to be represented or advised in the case or
matter by another lawyer, without the consent of that other lawyer (and shall
keep the other lawyer informed of any such communications).
5.6.
(Deleted by decision of the CCBE Plenary Session in Dublin on December 6th,
2002)
5.7.
Responsibility for Fees
In professional relations between members of Bars of different Member States,
where a lawyer does not confine himself to recommending another lawyer or
introducing him to the client but himself entrusts a correspondent with a
particular matter or seeks his advice, he is personally bound, even if the
client is insolvent, to pay the fees, costs and outlays which are due to the
foreign correspondent. The lawyers concerned may, however, at the outset of
the relationship between them make special arrangements on this matter. Further,
the instructing lawyer may at any time limit his personal responsibility to
the amount of the fees, costs and outlays incurred before intimation to the
foreign lawyer of his disclaimer of responsibility for the future.
5.8.
Training Young Lawyers
In order to improve trust and co-operation amongst lawyers of different Member
States for the clients' benefit there is a need to encourage a better knowledge
of the laws and procedures in different Member States. Therefore, when considering
the need for the profession to give good training to young lawyers, lawyers
should take into account the need to give training to young lawyers from other
Member States.
5.9.
Disputes amongst Lawyers in Different Member States
5.9.1.
If a lawyer considers that a colleague in another Member State has acted in
breach of a rule of professional conduct he shall draw the matter to the attention
of his colleague.
5.9.2.
If any personal dispute of a professional nature arises amongst lawyers in
different Member States they should if possible first try to settle it in
a friendly way.
5.9.3.
A lawyer shall not commence any form of proceedings against a colleague in
another Member State on matters referred to in 5.9.1 or 5.9.2 above without
first informing the Bars or Law Societies to which they both belong for the
purpose of allowing both Bars or Law Societies concerned an opportunity to
assist in reaching a settlement.