Ethics 2000 Public Hearing February 2001 - Center for Professional Responsibility

ABA Mid-Year Meeting
Ethics 2000, Public Hearing
San Diego, 15 February 2001

Oral testimony of

Ramon Mullerat, O.B.E.
Lawyer of Barcelona and Madrid, Spain
Avocat à la Cour de Paris, France
Honorary Member of the Bar of England & Wales
Honorary Member of the Law Society of England and Wales
Former President of the Council of the Bars and
Law Societies of the European Union (CCBE)
Member of the Academy of Jurisprudence and Legislation of Catalonia
Member of the American Law Institute (ALI)
Member of the American Bar Foundation (ABF)
Co-Chair of the Institute of Human Rights of the International Bar Association (IBA)

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Firstly, I would like to congratulate the Ethics 2000 commission for its excellent Report November 2000, which analyses the proposed amendments to the Model Rules of Professional Conduct of the American Bar Association and which I find to be very complete and well thought out.

As a European lawyer and former President of the Council of the Bars and Law Societies of the European Union (CCBE), I take note of all the innovations to be taken into account in order to pass them to the CCBE in view of the next revision of the Code of conduct for lawyers in the European Union 1988, which, as you know, was last revised in 1998.

In a globalised world, where international social and economic relationships increasingly proliferate and the law is constantly becoming more unified or harmonised, we must aim for a "global code of ethics for lawyers". As a consequence, I think that each time national or regional ethical rules for lawyers are revised, we must not lose the North Star of unification as a target.

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I will now take the liberty to make a few suggestions on the Preamble, unless it may be too late.

1. Lawyer as mediator

Through functions such as giving advice and defending clients in court, the lawyer fulfils a most important mission: the defence of the rights and liberties of the citizens. This mission covers a very broad range, since jurisprudence is "divinarum at que humanarum rerum notita, justi atque injusti scientia" (Ulpianus).

Furthermore, as a mediator, the lawyer is an essential figure in a democratic society. As in a two-way escalator, the lawyer explains to the citizens what the state's powers - legislative, judiciary and executive - believe and decide; likewise, he explains - mainly collectively through the Bar - what the citizens think and desire. That is why dictators, such as Henry IV, Napoleon, Hitler, etc., despise lawyers and concur on " the first thing we do: let's kill all the lawyers".

I wonder whether the Preamble should contain a reference to this function of social mediation.

2. The Bar

Bars accomplish a crucial mission in society. Today, not merely as a corporative institution to defend the lawyers' rights and interests, but to promote access to justice and a better administration of justice in the public interest.

The Bar's essence and function should be enhanced.

3. The independence of lawyers

Independence is not a simple attribute of justice, it is the essential characteristic of the judicial function and the cardinal axis of the mission assigned to the judicial operators (judges, lawyers). Independence is the quintessence of the lawyer's profession. There is no free society and no free man without competent and independent lawyers. Without independent lawyers, there could not be impartial judges (1) .

Independence is, at one and the same time, the force, the duty and the entire "raison d'être" of the lawyer (2) . The lawyer must fulfill his duties with absolute independence, free from any pressure, particularly from the state or from other external influences and especially from his own interests.

'Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, harassment or improper interference' (3) .

The Model Rules provide for independence of judgment and independence from government domination. The independence of the lawyer from his own personal interests should be enhanced.

The CCBE Code of Conduct (2.1.1) provides:

"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 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 of third parties."

4. Professionalism versus commercialism

The ABA has rendered an important service to the world legal community to denounce the threat of commercialism since the first report of the Commission on Professionalism (1986) and the important impetus under President Shestack's presidency.

Based on Roscoe Pound's definition, the ABA Report on Professionalism (1996) defined the 'professional lawyer' as 'an expert in law presuming a learned act in service to clients and in the spirit of public service; and engaging in these pursuits as part of a common calling to provide justice and public good'.

The IBA recently resolved (4) :

"1. that lawyers should render their professional services:

a) in an independent, ethical, efficient and high quality manner …;

b) avoiding commercialism, meaning an excessive and inappropriate emphasis on profit; and

c) maintaining professionalism as defined above …

2. that lawyers should ensure that people coming into the profession are educated in the spirit of these ideals; and

3. that Bar Associations and other regulatory authorities should be vigilant in ensuring that core professional values are maintained, and that commercialism, meaning an excessive an inappropriate emphasis on profit, is avoided, and should act vigorously in instances where these ideals are not met."

Bearing in mind the increasingly difficult fight against commercialism, perhaps the Preamble could state the importance of "professionalism".

5. Human rights

Lawyers worldwide are in a unique and insuperable position in their opportunity to enhance and develop human rights.

The protection and promotion of human rights is not a duty applicable to a few criminal lawyers, but to all lawyers, without exception.

If the 20 century discovered human rights, the 21 st century should witness the expansion of human rights.

It could be useful for a Model Rule at the beginning of the 21 st century to contain a reference to the duty of the lawyer to promote and to protect human rights.

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1 Calamandrei, Piero, ibidem, XXVIII: "solo là dove gli avvocati sono independenti, i giudici possono essere imparziali".

2 Martin, Robert, (co-founder and former president of the UIA), " L'indépendence de la Justice", opening speech, 28th Congress of the UIA, 1979: "L'indépendence constitue la caractéristique la plus importante de l'avocat. L'indépendence est à la fois la force, le devoir et la raison d'être de l'avocat". CCBE, Declaration on Multidisciplinary Partnerships, Brussels, 26 November 1993: "The truly essential and crucial special feature of the legal profession is and should inevitably remain the lawyer's genuine independence when advising his client".

3 United Nations, Basic Principles on the Role of Lawyers, 16.

4 IBA Council, Amsterdam, September 2000.

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