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CCBE CODE OF CONDUCT

FOR LAWYERS IN THE EUROPEAN

 COMMUNITY

 

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 a 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; and
    –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 recognized 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 organization and sphere of activity of the profession in the Member Sate concerned and to its judicial and administrative procedures and to its national legislation. It is neither possible more 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. The Purpose of the Code
  • 1.3.1. The continued integration of the European Community and the increasing frequence of the cross-border activities of lawyers within the Community have made necessary in the public interest the statement of common rules which apply to all lawyers from the Community 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 organizations representing the legal profession through the CCBE propose that the rules codified in the following articles:
    • –to be recognized at the present time as the expression f a consensus of all the Bars and Law Societies of the European Community;
    • –be adopted as enforceable rules as soon as possible in accordance with national or Community procedures in relation to the cross-border activities of the lawyer in the European Community;
    • –be taken into account in all revisions of national rules of deontology or professional practice with a view to their progressive harmonization.
  • 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 of 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 Community 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 harmonization 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 Community. Cross-border activities shall mean:

     

      • (a) all professional contacts with lawyers of Member States other than his own; and
      • (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.
  • 1.6. Definitions
  •  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 organization(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. ab GENERAL PRINCIPLES

     

  • 2.1. Independence
  • 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. Confidentiality
  • 2.3.1. It is 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.
  • 2.3.2. A lawyer shall accordingly respect the confidentiality of all information given to him by his client, or received by him about his client or others in the course of rendering services to his client.
  • 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 Community Law (in particular under the Directive 77/249 of 22nd March 1977) a lawyer from another Member State may be bound to comply with the rules of the Br 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.

     

  • 2.5. Incompatible Occupations
  • 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 defense or [sic] 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 wishes 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 lawyer of that Member State.
  • 2.6 Personal Publicity
  • 2.6.1. A lawyer should not advertise or seek personal publicity where this is not permitted.
  • In other cases a lawyer should only advertise or seek personal publicity to the extent and in the manner permitted by the rules to which he is subject.
  • 2.6.2. Advertising and personal publicity shall be regarded as taking place where it is permitted, if the lawyer concerned shows that it was placed for the purpose of reaching clients or potential clients located where such advertising or personal publicity is permitted and its communication elsewhere is incidental.
  • 2.7. The Client's Interests
  • 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.

     

    3. ab 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.
  • 3.1.2. A lawyer shall advise and represent his client promptly [sic] 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 mater 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 cooperating with a lawyer who is competent to handle it
  • 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. Conflict of Interest
  • 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 clients when a conflict of interest arise 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 confidences entrusted to the lawyer by a former client or if the knowledge which the lawyer possess of the affairs of the former client would give an undue advantage to the new client.
  • 3.2.4. Where lawyers are practicing in association, paragraphs 3.2.1 to 3.2.3 above shall apply to the association and all it members.
  •  

  • 3.3. Pactum de Quota Litis
  • 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 the 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 jurisdiction over the lawyer.
  • 3.4. Regulation of Fees
  • 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 applies to members of the Bar or Law Society to which he belongs. If he belongs to more than one Bar of 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 3.21.4 above.

     

     

  • 3.6. Fee Sharing with Non-Lawyers
  • 3.6.1. Subject as aftermentioned a lawyer may not share his fees with a person who is not a lawyer.
  • 3.6.2. The provisions of paragraph 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 Legal Aid
  • A lawyer shall inform his client of the availability of legal aid where applicable.

     

  • 3.8. Clients, Funds
  • 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 "clients' funds") it shall be obligatory:
  • 3.8.1.1. That clients' funds shall always be held in an account in 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 clients' 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 clients' 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 clients' funds held by the lawyer.

     

    3.8.1.4. That all clients' funds should be available for payment to clients on demand or upon such conditions as the client may authorize.

     

    3.8.1.5. That payments made from clients' 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 and
      • b) payment of the lawyer's fees, be prohibited except to the extent that they are permitted by law or 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 clients's funds and distinguishing clients' 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 lawyers' clients' 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 paragraph 3.8.1 above, a lawyer who holds clients funds in the course of carrying on practice in any Member State must comply with the rules relating to holding accounting for clients, 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 States 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 to an extent which is reasonable having regard to the nature and extent of the risks which lawyers incur in practice.

     

    3.9.2.1. Subject as aftermentioned, a lawyer who provides services or carries on practice in a Member State 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 on practice in any Host Member State shall use his best endeavors to obtain insurance cover on the basis required in his Home Member State extended to services which he provides or practice which he carries on 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 on 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 an equivalent basis 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, she shall take reasonable steps to draw that fact to the attention of such of his clients as might b affected in the vent of a claim against him.

     

    3.9.2.5. A lawyer who carries on practice or provides services in a Host Member Sate 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 Sate must comply with the rules of conduct applied before that court or tribunal.

     

  • 4.2. Fair Conduct of Proceedings
  • A lawyer must always 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 to the lawyer on the other side unless such steps are permitted under the relevant rules of procedure.

     

  • 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 in a way which he considers will be to the client's best advantage within the limits of the law.

     

  • 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 as 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. It can never justify setting the interests of the profession against those of justice or of those who seek it.
  • 5.1.2. A lawyer should recognize all other lawyers of Member States as professional colleagues and act fairly and courteously towards them.
  • 5.2. Cooperation 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 Sate not to accept instructions in a matter which he is not competent to undertake. He should be prepared to help his colleague to obtain the information necessary to enable him to instruct a lawyer who is capable of providing service asked for.
  • 5.2.2. Where a lawyer of a Member State cooperates 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 organizations [sic] competencies and obligations of lawyers in the Member State concerned.
  • 5.3. Correspondence Between Lawyers
  • 5.3.1. If a lawyer sending a communication to a lawyer in another Member State wishes it to 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. Referral Fees

     

  • 5.4.1. A lawyer may not demand or accept from another lawyer or any other person, i.e., commission or any other compensation for referring or recommending 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

     

  • 5.6.1. A lawyer who is instructed to represent a client in substitution for another lawyer in relation to a particular matter should inform that other lawyer and, subject to paragraph 5.6.2. below, should not begin to act until he has ascertained that arrangements have been made for the settlement of the other lawyer's fees and disbursements. This duty does not, however, make the new lawyer personally responsible for the former lawyer's fees and disbursement.
  • 5.6.2. If urgent steps have to be taken in the interests of the client before the conditions in paragraph 5.6.1. above can be complied with, the lawyer may take such steps provided he informs the other lawyer immediately.
  •  

     

  • 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 onset 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.

     

    5.9. 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 paragraph 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.
  •  

     

    EXPLANATORY MEMORANDUM AND

    COMMENTARY ON THE CCBE CODE OF

    CONDUCT FOR LAWYERS IN THE

    EUROPEAN COMMUNITY

     

     

    This explanatory Memorandum and Commentary is prepared at the request of the CCBE Standing Committee by the CCBE's Deontology Working Party, who were responsible for the drafting of the Code of Conduct itself. It seeks to explain the origin of the provisions of he Code, to illustrate the problems which they are designed to resolve, particularly n relation to cross-border activities, and to provide assistance to the competent authorities in the Member States in the application of the Code. It is not intended to have any binding force in the interpretation of the Code.

     

    The original versions of the Code are in the French and English languages. Translations into other Community languages are being prepared under the authority of the National Delegations concerned.

     

    1. PREAMBLE

     

  • 1.1. abThe Function of the Lawyer in Society
  • The Declaration of Perugia, adopted by CCBE in 1977, laid down the fundamental principles of professional conduct applicable to lawyers throughout the European Community. The provisions of Article 1.1. reaffirm the statement in the Declaration of Perugia of the function of the lawyer in society which forms the basis for the rules governing the performance of that function.

     

    1.2. The Nature of Rules of Professional Conduct

     

    These provisions substantially restate the explanation in the Declaration of Perugia of the nature of rules of professional conduct and how particular rules depend on particular local circumstances but are nevertheless based on common values.

     

    1.3. The Purpose of the Code

     

    These provisions introduce the development of the principles in the Declaration of Perugia into a specific Code of Conduct for Lawyers throughout the European Community, with particular reference to their cross-border activities (defined in Article 1.5 below).

     

    The provisions of Article 1.3.2. lay down the specific intentions of the CCBE with regard to the substantive provisions in the Code.

     

    1.4. Field of Application Ratione Personae

     

    The rules are here stated to apply to all the lawyers of the European Community as defined in the Lawyers Services Directive of 1977. This includes lawyers of the Member States which subsequently acceded to the Treaty, whose names have been added by amendment to the Directive. It accordingly applies to all the lawyer represented on the CCBE, namely:

     

    Belgium  Avocat/Advocaat/Rechtsanwalt

    Denmark  Advokat

    France   Advocat

    Germany  Rechtsanwalt

    Greece  Dikigoros

    Ireland  Barrister

       Solicitor

    Italy   Avvocato

       Procuratore

    Luxembourg  Avocat-Avoué/Rechtsanwalt

    Netherlands  Advocaat

    Portugal  Advogado

    Spain   Abogado

    United Kingdom  Advocate

       Barrister

       Solicitor

     

    Although the competence of the CCBE extends only to Member States, representatives of the observer delegations to the CCBE from European States which are not members of the community (Austria, Norway, Sweden, Switzerland, Finland and Cyprus) have participated in the work on the Code. It is believed that its provisions are acceptable in those States and it is hoped that the Code can be applied as between them and the Member States by appropriate conventions. It is also hoped that the Code will be acceptable to the legal profession of other non-Member States in Europe and elsewhere so that it could also be applied in the same way between them and the Member States.

     

  • 1.5. Field of Application Ratione Materiae
  • The rules are here given direct application only to "cross-border activities", as defined, of lawyers within the European Community. (See also on Article 1.4 above as to possible extensions in the future to lawyers of other States). The definition of cross-border activities would, for example, include contacts in State A even on a matter of law internal to State A between a lawyer of State A and a lawyer of State B; it would exclude contacts between lawyers of State A in State A on a matter arising in State B, provided that none of their professional activities takes place in State B; it would include any activities of lawyers of State A in State B, even if only in the form of communications sent from State A to State B.

     

  • 1.6. Definitions
  • This provision defines 3 terms used in the Code, "home Member State", "host Member State" and "competent authority". The references to "Member State" include, where appropriate, separate jurisdictions within a single Member State. The reference to "the bar or law society to which the lawyer belongs" includes a bar or law society responsible for exercising authority over the lawyer. The reference to "where the lawyer carries on cross-border activities" should be interpreted in the light of the definition of "cross-border activities" in Article 1.5, in particular Article 1.5(b).

     

    2. GENERAL RULES

     

  • 2..1. Independence
  • This provision substantially reaffirms the general statement of principle in the Declaration of Perugia.

     

  • 2.2. Trust and Personal Integrity
  • This provision also relates a general principle contained in the Declaration of Perugia.

     

  • 2.3 Confidentiality
  • This provision first relates, in Article 2.3.1., general principles laid down in the Declaration of Perugia and recognized by the European Court of Justice in AM&S Case (155/79). It then, in Articles 2.3.2/4, develops them into a specific rule relating to the protection of confidentiality. Article 2.3.2. contains the basic rule requiring respect for confidentiality. Article 2.3.3. confirms that the obligation remains binding on the lawyer even if he ceases to act for the client in question. Article 2.3.4. confirms that the lawyer must no only respect the obligation of confidentiality himself but must require all members and employees of his firm to do likewise.

     

  • 2/4 Respect for the Rules of Other Bars and Law Societies
  • Article 4 of the Lawyers Services Directive of 1977 contains the provisions with regard to the rules to be observed by a lawyer from one Member State providing services by virtue of Article 59 of the Treaty in another Member State as follows:

     

    • 1. abActivities relating to the representation of a client in legal proceedings or before public authorities shall be pursued in each host Member State under the conditions laid down for lawyers established in that State, with the exception of any conditions requiring residence, or registration with a professional organization, in that State.
    • 2. abA lawyer pursuing these activities shall observe the rules of professional conduct of the host Member State, without prejudice to his obligations in the Member State from which he comes.
    • 3. abWhen these activities are pursued in the United Kingdom, "rules of professional conduct of the host Member State" means the rules of professional conduct applicable to solicitors, where such activities are reserved for barristers and advocates. Otherwise the rules of professional conduct applicable to the latter shall apply. However, barristers from Ireland shall always be subject to the rules of professional conduct applicable in the United Kingdom to barristers and advocates.
    • When these activities are pursued in Ireland "rules of professional conduct of the host Member State" means, in so far as they govern the oral presentation of a case in court, the rules of professional conduct applicable to barristers. In all other cases the rules of professional conduct applicable to solicitors shall apply. However, barristers and advocates from the United Kingdom shall always be subject to the rules of professional conduct applicable in Ireland to barristers.
    • 4. abA lawyer pursuing activities other than those referred to in paragraph 1 shall remain subject to the conditions and rules of professional conduct of the Member State from which he comes without prejudice to respect for the rules, whatever their source, which govern the profession in the host Member State, especially those concerning the incapability of the exercise of other activities in that Sate, professional secrecy, relations with other lawyers, the prohibition on the same lawyer acting for parties with mutually conflicting interests and publicity. The latter rules are applicable only if they are capable of being observed by a lawyer who is not established in the host Member State and to the extent to which their observance is objectively justified to ensure, in that Sate, the proper exercise of a lawyer's activities, the standing of the profession and respect for the rules concerning incompatibility.
    • In most cases not covered by this Directive, the obligations of a lawyer under Community law to observe the rules of other bars and law societies are a matter of interpretation of the applicable provisions of the Treaty or any other relevant Directive. A major purpose which may arise from "double deontology", that is the application of more than one set of potentially conflicting national rules to a particular situation (see on Article 1.3.1. above).

       

  • 2.5. Incompatible Occupations
  • There are differences both between and within Member States on the extent to which lawyers are permitted to engage in other occupations, for example in commercial activities. The general purpose of rules excluding a lawyer from other occupations is to protect him from influences which might impair his independence or his role in the administration of justice. The variations in theses rules reflect different local conditions, different perceptions of the proper function of lawyers and different techniques of rule-making. For instance in some cases there is a complete prohibition of engagement in certain named occupations, whereas in other cases engagement in other occupations is generally permitted, subject to observance of specific safeguards for the lawyer's independence.

     

    Articles 2.5.2. and 2.5.3. make provision for different circumstances in which a lawyer of one Member State is engaging in cross-border activities (as defined in Article 1.5) in a host Member State when he is not a member of the host State legal profession.

     

    Article 2.5.2. imposes observation of host State rules regarding incompatible occupations on the lawyer acting in national legal proceedings or before national public authorities in the host State. This applies whether the lawyer is established in the host State or not.

     

    Article 2.5.3. on the other hand, imposes "respect" for the rules of the host State regarding forbidden or incompatible occupations in other cases, but only where the lawyer who is established in the host Member State wishes to participate directly in commercial or other activities not connected with the practice of law.

     

  • 2.6. Personal Publicity
  • The term "personal publicity" covers publicity by firms of lawyers, as well as individual lawyers, as opposed to corporate publicity organized by bars and law societies for their members as a whole. The rules governing personal publicity by lawyers vary considerably in the Member States. In some there is a complete prohibition of personal publicity by lawyers; in others this prohibition has been (or is in the process of being) relaxed substantially. Article 2.6 does not therefore attempt to lay down a general standard on personal publicity.

     

    Article 2.6 requires a lawyer not to advertise or seek personal publicity in a territory where this is not permitted to local lawyers. Otherwise he is required to observe the rules on publicity laid down by his own or law society.

     

    Article 2.6.2 contains provisions clarifying the question of the place in which advertising and personal publicity is deemed to take place. For example, a lawyer who is permitted to advertise in his home Member State may place an advertisement in a newspaper published there which circulates primarily in that Member State, even though some issues may circulate in other Member States where lawyers are not permitted to advertise. He may not, however, place an advertisement in a newspaper whose circulation is directed wholly or mainly at a territory where lawyers are not permitted to advertise in that way.

     

  • 2.7. The Client's Interests
  • This provision emphasizes the general principle that the lawyer must always place the client's interests before his own interests or those of fellow-members of the legal profession. 

  • 3. abRELATIONS WITH CLIENTS
  • 3.1. Acceptance and Termination of Instructions
  • The provisions of Article 3.1.1 are designed to ensure that a relationship is maintained between lawyer and client and that the lawyer in fact receives instructions from the client, even though these may be transmitted through a duly authorized intermediary. It is the responsibility of the lawyer to satisfy himself as to the authority of the intermediary and the wishes of the client.

     

    Article 3.1.2. deals with the manner in which the lawyer should carry out his duties. The provisions that he shall undertake the personal responsibility for the discharge of the instructions given to him means that he cannot avoid responsibility by delegation to others. It does not prevent him from seeking to limit his legal liability to the extent that this is permitted by the relevant law or professional rules.

     

    Article 3.1.3 states a principle which is of particular relevance in cross-border activities, for example when a lawyer is asked to handle a matter on behalf of a lawyer or client from another State who may be unfamiliar with the relevant law and practice, or when a lawyer is asked to handle a matter relating to the law of another State with which he is unfamiliar.

     

    A lawyer generally has the right to refuse to accept instructions in the first place, but Article 3.1.4. state that, having once accepted them, he has an obligation not to withdraw without ensuring that the client's interests are safeguarded.

     

  • 3.2. Conflict of Interest
  • The provisions of Article 3.2.1. do not prevent a lawyer acting for two or more clients in the same matter provided that their interests are not in fact in conflict and that there is not significant risk of such a conflict arising. Where a lawyer is already acting for two or more clients in this way and subsequently there arises a conflict of interests between those clients or a risk of a breach of confidence or other circumstances where his independence may be impaired, then the lawyer must cease to act for both or all of them.

     

    There may, however, be circumstances in which differences arise between two or more clients for whom the same lawyer is acting where it may be appropriate for him to attempt to act as a mediator. It is the lawyer in such cases to use his own judgment on whether or not there is such a conflict of interest between them as to require him to cease to act. If not, he may consider whether it would be appropriate for him to explain the position to the clients, obtain their agreement and attempt to act as mediator to resolve the differences between them, and only if this attempt to mediate should fail, to cease to act for them.

     

    Article 3.2.4 applies the foregoing provisions of Article 3 to lawyers practicing in association. For example, a firm of lawyers should cease to act when there is a conflict of interest between two clients of the firm, even if different lawyers in the firm are acting for each client. On the other hand, exceptionally, in the "chambers" form of association used by English barristers, where each lawyer acts for clients individually, it is possible for different lawyers in the association to act for clients with opposing interests.

     

  • 3.3. Pactum de Quota Litis
  • These provisions reflect the common position in all Member States that an unregulated agreement for contingency fees (Pactum de Quota Litis) is contrary to the proper administration of justice because it encourages speculative litigation and is liable to be abused. The provisions are not, however, intended to prevent the maintenance or introduction of arrangements under which lawyers are paid according to results or only if the action or matter is successful, provided that these arrangements are under sufficient regulation and control for the protection of the client and the proper administration of justice.

     

  • 3.4. Regulation of Fees
  • Article 3.4.1 lays down a general standard of disclosure of a lawyer's fees to the client and requirement that they should be fair and reasonable in amount. Article 3.4.2. deals with the question of the machinery for regulating the lawyers' fees. In many Member States such machinery exists under law or rules of conduct, whether by reference to a power of adjudication by the "Bâtonnier" or otherwise. Article 3.4.1. applies to the rules of the bar or law society to which the lawyer belongs (see Article 1.6. above) unless this has been varied by an agreement between lawyer and client which is in accordance with the relevant law or rules of conduct. It goes on to provide a "choice of law" rule to deal with cases when the lawyer belongs to more than one bar or law society.

     

  • 3.5. Payment on Account
  • Article 3.5. assumes that a lawyer may require a payment on account of his fees and/or disbursements, but sets a limit by reference to a reasonable estimate of them. See also Article 3.1.4. regarding the right to withdraw.

     

  • 3.6. Fee Sharing with Non-Lawyers
  • In some Member States lawyers are permitted to practice in association with members of certain other approved professions, whether legal professions or not. The provisions of Article 3.6.1. are not designed to prevent fee sharing within such an approved form of association. Nor are the provisions designed to prevent fee sharing by the lawyers to whom the Code applies (see on Article 1.4 above) with other "lawyers", for example, lawyers from non-Member States or members of other professions in the Member States such as notaries or conseils juridiques.

     

     

     

  • 3.7. Legal Aid
  • Article 3.7. requires a lawyer to inform his client of the availability of legal aid where applicable. There are widely differing provisions in the Member States on the availability of legal aid. In cross-border activities a lawyer should have in mind the possibility that the legal aid provisions of a national law with which he is unfamiliar may be applicable.

     

  • 3.8. Client's Funds
  • The provisions of Article 3.8.1 reflect the Recommendation adopted by the CCBE in Brussels in November 1985 on the need for minimum regulations to be made and enforced governing the proper control and disposal of clients' funds held by lawyers within the Community. In some Member States such regulations have not yet been introduced for internal purposes. Article 3.8.2-7 lays down minimum standards to be observed, while not interfering with the details of national systems which provide fuller or more stringent protection for clients' funds.

     

    The provisions of Article 3.8.2 and 3.8.3. deal with questions which arise where the rules on clients' funds of more than one Member State may be applicable.

     

  • 3.9. Professional Indemnity Insurance
  • Article 3.9.1 reflects a Recommendation, also adopted by the CCBE in Brussels in November 1985, on the need for all lawyers in the Community to be insured against the risks arising from professional negligence claims against them.

     

    Again in some Member States such an obligation has not yet been introduced for internal purposes. Article 3.9.2 deals with questions which arise when the risks to be insured relate to more than one Member State.

     

    4. ab RELATIONS WITH THE COURTS

     

  • 4.1. Applicable Rules of Conduct in Court
  • This provision applies the principle that a lawyer is bound to comply with the rules of the court or tribunal before which he practices or appears.

     

  • 4.2. Fair Conduct of Proceedings
  • This provision applies the general principle that in adversarial proceedings a lawyer must not attempt to take unfair advantage of his opponent, in particular by unilateral communications with the judge. An exception however is made for any steps permitted under the relevant rules of the court in question (see also on 4.5. below)).

     

  • 4.3. Demeanour in Court
  • This provision reflects the necessary balance between respect for the court and for the law on the one hand and the pursuit of the clients' best interests on the other.

     

  • 4.4. False or Misleading Information
  • This provision applies the principle that the lawyer must never knowingly mislead the court. This is necessary if there is to be trust between the courts and the legal profession.

     

  • 4.5. Extension to Arbitrators, Etc.
  • This provision extends the preceding provisions relating to courts to other bodies exercising judicial or quasi-judicial functions.

     

    5. RELATIONS BETWEEN LAWYERS

     

  • 5.1. Corporate Spirit of the Profession
  • These provisions, which are based on statements in the Declaration of Perugia, emphasize that it is in the public interest for the legal profession to maintain a relationship of trust and cooperation between its members. However, this cannot be used to justify setting the interests of the profession against those of justice or of clients (see also Article 2.7 above).

     

  • 5.2. Cooperation among Lawyers of Different Member States
  • This provision also develops a principle stated in the Declaration of Perugia with a view to avoiding misunderstanding in dealings between lawyers of different Member States.

     

  • 5.3. Correspondence between Lawyers
  • In certain Member States communications between lawyers (written or by word of mouth) are normally regarded as confidential. This means that lawyers accept that those communications may not be disclosed to others and copies may not be sent to the lawyers' own client. This principle is recognized in Belgium, France, Greece, Italy, Luxembourg, Portugal and Spain. Such communications if in writing are often marked as "confidential" or "sous la foi du Palais".

     

    In the United Kingdom and Ireland the notion of "confidentiality" is different in that it refers not to such communications between lawyers but to the lawyer's right and duty to keep his client's affairs confidential. However communications between lawyers made in order to attempt to settle a dispute are normally not regarded by a court as admissible evidence and the lawyer should not attempt to use them as evidence. If a lawyer wishes to indicate that he regards a document as such a communication he should indicate that it is sent "without prejudice". This means that the letter is sent without prejudice to and under reservation of the client's rights in the dispute.

     

    In Denmark as a general rule, a lawyer has a right and duty to keep his client informed about all important correspondence from a lawyer acting for an opposing party, in practice normally by sending photocopies. This rule applies whether or not the letter is marked "without prejudice" or "confidential". As an exception, lawyers may exchange views - normally by word of mouth only - on a case with a view to finding an amicable settlement, on the mutual understanding that such communications should be kept confidential and not disclosed to the clients. A lawyer is not legally bound by such a confidence, but to break it would prejudice his future participation in such confidential exchanges. Some lawyers do not wish to receive such communications in any form without having the right to inform their clients; in that event they should inform the other lawyer before he makes such a confidential communication to them. As a general rule also, all correspondence between lawyers may be freely produced in court. Normally, however, if such correspondence is marked "without prejudice" or, even if not so marked, it is clearly of a "without prejudice" nature, the court will disregard it and the lawyer producing it will be treated as being in contravention of the rules of Professional Conduct.

     

    In the Netherlands legal recourse based on communications between lawyers may not be sought, unless the interest of the client requires it and only after prior consultation with the lawyer for the other party. If such consultation does not lead to a solution the advice of the Dean should be sought before recourse to law. The content of settlement negotiations between lawyers may not be communication to the court without the permission of the lawyer for the other party, unless the right to do so was expressly reserved when the settlement proposal in question was made. There is however no general rule preventing a lawyer from sending copies of such communications to his client.

     

    In Germany communications between lawyers are not confidential. The lawyer has an obligation to communicate them to his client and they may be admitted as evidence in court.

     

    These differences often give rise to misunderstandings between lawyers of different Member States who correspond with each other. For this reason lawyers should be particularly careful to clarify the basis upon which correspondence with lawyers in other Member States is sent and received. In particular a lawyer who wishes to make a confidential or "without prejudice" communication to a colleague in a Member State where the rules may be different should ask in advance whether it can be accepted as such.

     

  • 5.4. Referral Fees
  • this provision reflects the principle that a lawyer should not pay or receive payment purely for he reference of a client, which would risk impairing the client's free choice of lawyer or his interest in being referred to the best available service. It does not prevent fee sharing agreements between lawyers on a proper basis (see also on Article 3.6 above).

     

    In some Member States lawyers are permitted to accept and retain commissions in certain cases provided the client's best interests are served, there is full disclosure to him and he has consented to the retention of the commission. In such cases the retention of the commission by the lawyer represents part of his remuneration for the service provided to the client and is not within the scope of the prohibition on referral fees which is designed to prevent lawyers from making a secret profit.

     

  • 5.5. Communications with Opposing Parties
  • This provision reflects a generally accepted principle, and is designed both to promote the smooth conduct of business between lawyers and to prevent any attempt to take advantage of the client of another lawyer.

     

  • 5.6. Change of Lawyer
  • This provision is designed to promote the orderly handing over of the business when there is a change of lawyer. It also reflects the commonly accepted principle in Member States that there is some duty on the new lawyer in respect of the settlement of the former lawyer's account. This duty is not, however, generally accepted as being more than a duty to ascertain that arrangements have been made for the settlement.

     

  • 5.7. Responsibility for Fees
  • These provisions substantially reaffirm provisions contained in the Declaration of Perugia. Since misunderstandings about responsibility for unpaid fees are a common cause of difference between lawyers of different Member States, it is important that a lawyer who wishes to exclude or limit his personal obligation to be responsible for the fees of his foreign colleague should reach a clear agreement on this at the outset of the transaction.

     

  • 5.8. Training Young Lawyers
  • This provision is by way of an exhortation emphasizing the general obligations of the members of the legal profession in the European Community to ensure that future generations of lawyers in each Member State have knowledge of the laws and procedures in other Member States.

     

  • 5.9. Dispute Amongst Lawyers in Different Member States
  • A lawyer has the right to pursue any legal or other remedy to which he is entitled against a colleague in another Member State. Nevertheless it is desirable that, where a breach of a rule of professional conduct or a dispute of a professional nature is involved, the possibilities of friendly settlement should be exhausted, if necessary with the assistance of the bars or law societies concerned, before such remedies are exercised.

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