Charter of Fundamental Principles European Law

Charter of Fundamental Principles European Law

Charter of Fundamental Principles of the Legal Profession in Europe

"In a society founded on respect for the Rule of Law, the lawyer has a special role. The lawyer's duties do not begin and end with an honest performance by him/her of the duties in the manner and to the extent determined by law. The lawyer must serve the interests of justice and the rights and freedoms of those clients who are entrusted to serve and protect them, and it is the lawyer's duty not only to defend the client's case/cause but also to be the client's advisor. to him/her."

CCBE's Code of Conduct for European Lawyers, article 1.1

There are basic principles in the exercise of the legal profession which are similar throughout Europe, although there are small differences in the way they are expressed in different jurisdictions. The basic principles are underlined in the national or international codes which regulate the behavior 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 legal process as required by the European Convention on Human Rights. Bars and legal associations, courts, legislatures, governments and international organizations must be guided by and protect these fundamental principles in the public interest.

    • The basic principles are, in particular:


  • (a) Independence of the lawyer, and freedom of the lawyer to pursue the client's case.
  • (b) The right and obligation of the lawyer to keep his client's affairs confidential and to respect professional secrecy.
  • (c) Avoiding conflicts of interest between his clients, or the client and the lawyer.
  • (d) Dignity and respect for the legal profession, integrity and good reputation of the lawyer.
  • (e) Customer Loyalty.
  • (f) Fair treatment of customers regarding payments.
  • (g) Professional competence of the lawyer.
  • (h) Respect for the professionalism of colleagues.
  • (i) Respect for the rule of law and the administration of justice, and self-regulation of the legal profession.

Approved at the CCBE Plenary Session on 25.11.2006.

A Commentary on the Charter of Fundamental Principles of the European Legal Profession

1. On November 24, 2006, the CCBE unanimously approved a "Charter of Fundamental Principles of the European Legal Profession". The Charter contains a list of ten common principles on the European legal profession. Respecting these principles is the basis of the right to legal protection, where the latter is the cornerstone of all fundamental rights in democracy.

2. The basic principles articulate the common basis which is underlined by all the national and international rules which regulate the conduct of European Lawyers.

3. The charter is based on and takes into account:

  • The national professional rules of European countries, including the rules of those countries that are not members of the CCBE, which share these common principles of the European legal profession.
  • Principles of General Application in the International Code of Ethics of the International Bar Association.
  • Recommendation Rec (2000) 21 of October 25, 2000 of the Committee of Ministers of the Council of Europe for member states regarding the freedom to exercise the profession of lawyer.
  • Basic Principles on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Prisoners, August 27 - September 7, 1990.
  • The jurisprudence of the European Court of Human Rights and the European Court of Justice, in particular the judgment of 19 February 2002 of the European Court of Justice on the case of Wouters v. Algemene Raad van de Nederlandse Orde van Advocaten (C-309/99).
  • The Universal Declaration of Human Rights, the European Convention on Human Rights, and the Charter of the European Union on Fundamental Rights.
  • Resolution of the European Parliament on legal professions and the general interest in the functioning of legal systems of March 23, 2006.

4.The charter is designed to serve as a pan-European document, so it can be applied beyond the CCBE member or observer countries. It is hoped that the Charter will be a help, for example, to the bars that are fighting to create their independence in European countries that seek to establish and develop a democratic system.

5.It is hoped that the Charter will increase (understanding) among lawyers, decision-makers, and the public about the importance of the lawyer's role in a Society, and how the principles that regulate the lawyer's role support this role.

6.The role of the lawyer, held by an individual, law firm or state, is as a trusted advisor and representative of the client, as a professional who is respected by third parties, and as a key participant in the administration of justice. Representing all these elements, the lawyer, who honestly serves the interests of the client and protects the rights of his client, also fulfills the functions of the lawyer in the Company, which are the prediction and prevention of conflicts, the assurance that conflicts are resolved in accordance with the accepted principles of civil, public or criminal law and taking into account the rights and interests, to further develop the law, and to protect freedom, justice and the rule of law.

7.The CCBE is confident that judges, parliamentarians, governments and international institutions will do everything they can, together with the bars, to preserve the principles provided for in the Charter.

8.The preamble of the Charter is an extract from the preamble of the Code of Conduct for European Lawyers, including the statement that:

"Respecting the professional function of the lawyer is a fundamental criterion for the rule of law and democracy in society."

The rule of law is closely related to democracy, according to the current meaning in Europe.

9.The introductory paragraph of the Charter defines that the principles of the Charter are fundamental for the right administration of justice, access to justice and the right to a fair legal process, defined by the European Convention on Human Rights. Lawyers and their law chambers will continue to be at the forefront to protect these rights in countries with new or consolidated democracies in Europe, if these rights are threatened.

Principle (a) - the independence of the lawyer, and the freedom of the lawyer to follow the client's case:

A lawyer needs to be free - politically, economically and intellectually - in pursuing his/her activities for advising and representing the client. This means that the lawyer is independent from the state and other influential interests, and must not allow his/her independence to be compromised by improper pressure from business associations. The lawyer must also be independent from his/her client in order to enjoy the trust of third parties and the courts. In fact, without this independence of the lawyer from his client, there can be no guarantee in the quality of the lawyer's work. The lawyer's membership in a free profession and the authority that comes from this membership helps to preserve the independence, and in this case the bar chambers should play an important role to help and guarantee the lawyer's independence. The self-regulation of the profession is seen as a vital aspect in strengthening the independence of the lawyer who exercises the profession individually. It should be noted that in countries/society where freedom/democracy is lacking, lawyers are not allowed to follow clients' cases, and they can be sentenced to imprisonment or death if they try to practice their profession.

Principle (b) - the right and obligation of the lawyer to keep the client's affairs/information confidential and to respect professional secrecy:

It is of great importance for the function of the lawyer that he/she is told by his/her client things that the client should not tell others - the most intimate personal details or the most important business secrets - and that the lawyer be the recipient of information on the basis of belief. Without assurance of confidentiality, there can be no trust. The charter emphasizes the dual nature of this principle - confidentiality supervision is not only the lawyer's duty - it is a fundamental human/client right. In some jurisdictions the right to confidentiality is considered to belong only to the client, while in other jurisdictions "professional secrecy" may require the lawyer to keep secret from his/her client communications from other parties received on the basis of confidence/confidentiality . Principle (b) includes all these interrelated concepts – legal professional privilege, professional confidentiality and secrecy. The lawyer's obligation to his client continues even after the lawyer has stopped acting for his client.

Principle (c) – avoiding conflicts of interest, between different clients or between the client and the lawyer:

For a lawyer it is important to avoid conflict of interest in order to practice his/her profession properly. So, a lawyer cannot work for two clients for the same matter if there is a conflict, or there is a risk of conflict, between the interests of these clients. The same situation is when the lawyer should not act on behalf of a new client if he has confidential information from a current or previous client. Also, the lawyer cannot agree to act for a client if there is a conflict of interest between him and the client. If the conflict of interest appears during the exercise of the lawyer's duty in defense of his client, then the lawyer must withdraw from the case. As can be seen, this principle is related to the principles of (b) (confidentiality), (a) (independence) and (e) honesty/loyalty).

Principle (d) – the dignity and respect of the legal profession, and the integrity and good reputation of the individual lawyer:

In order to have the trust of clients, third parties, courts and the state, the lawyer must show that he deserves this trust. This belief is achieved through membership in an honorable profession; the result is that the lawyer should not do anything that damages his/her reputation or the reputation of the profession as a whole and the public's trust in this profession. This does not mean that the lawyer is a perfect individual, but the meaning is that he should not engage in discretizing/disgraceful behavior, such as during the exercise of the legal profession or during business activities or in private life, in a way and to an extent that they would disgrace the profession. Inappropriate/disgraceful behavior may lead to sanctions, such as expulsion from the profession in the most severe cases.

Principle (e) – customer loyalty:

Loyalty to the client is an essential issue in the lawyer's duty. The client must be able to trust the lawyer as an advisor and as a representative. To be loyal to the client, the lawyer must be independent (see principle (a)), must avoid conflict of interest (see principle (c)), and must maintain client confidentiality (see principle (b)). Some of the most delicate problems in the practice of the profession are due to the interaction between the principle of loyalty to the client and the principles that define the duties of the lawyer in a broader way - principle (d) (dignity and honor), principle (h) (respect for professional colleagues), and especially principle (i) (respect for the rule of law and the right administration of justice). Faced with these issues, the lawyer must explain to the client that the lawyer cannot compromise his/her duties with the court or the administration of justice in order to bring forward a dishonest case on behalf of his client.

Principle (f) - fair treatment of customers in relation to fees:

A fee set by the lawyer must be made known and transparent to the client, must be fair and reasonable, and must be in accordance with the law and the professional rules to which the lawyer is subject. Although the Professional Codes (and principle (c) in this Charter) emphasize the importance of avoiding the conflict of interests between the lawyer and the client, the issue of the lawyer's fees seems to constitute a natural risk for this type of conflict. As a result, the principle dictates the need for professional adjustments to check that the client has not overpaid.

Principle (g) – professional competence of the lawyer:

A lawyer cannot effectively advise or represent his client if he does not have the proper professional education and training. Currently, post-qualification training (continuing professional development) has gained increasing importance in response to rapid changes in legislation and practice, and in the economic and technological environment. Professional rules often state that a lawyer should not take over a case when he/she is not competent to deal with that case.

Principle (h) – respect for colleagues in the profession:

This principle represents more than a statement of the need to be polite/polite – although this is important in the highly sensitive and contentious matters in which lawyers are often involved on behalf of their respective clients. This principle is related to the role of the lawyer as a mediator, who is believed to tell the truth, respect/act in accordance with professional rules and keep his/her promises. The proper administration of justice requires lawyers to behave with respect to each other so that debatable issues are resolved in a civilized manner. Similarly, it should be in the general interest of lawyers to behave in good faith towards each other. Mutual respect between colleagues of a profession helps the proper administration of justice, helps to resolve conflicts by agreement, and is in the interest of the client.

Principle (i) - respect for the rule of law and the right administration of justice:

We have characterized part of the lawyer's role as a participant in the right administration of justice. The same idea is sometimes expressed by describing the lawyer as "employee of the court" or as "minister of justice". A lawyer must never provide false or incorrect information to the court, and must never lie to third parties during the exercise of his/her professional activities. These prohibitions often go against the immediate interests of the lawyer's client, and the management of this apparent conflict between the client's interests and the interests of justice presents delicate problems that the lawyer is professionally trained to solve. The lawyer has the right to request the support of the Bar Association on these problems. But as a final analysis, the lawyer can successfully represent his/her client if the lawyer can be supported by the courts and third parties as a trusted intermediary and participant in the right administration of justice.

Principle (j) – self-regulation of the legal profession:

Partial or complete control of the legal profession or advocacy activities by the state is characteristic of non-democratic societies. Most European legal professions envisage a combination of state regulation with self-regulation. In many cases, the state recognizes the importance of fundamental principles, drafting legislation to support these principles – eg by giving statutory support to confidentiality, or by giving the bar statutory power to set professional rules. CCBE is convinced that only a strong element of self-regulation can guarantee the professional independence of lawyers vis-à-vis the state, and without a guarantee of independence it will be impossible for lawyers to fulfill their professional and legal role.

Approved at the CCBE Plenary Session on 11.05.2007.