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Testimony of Ramon Mullerat - Proposal for a broadening of the concept of lawyers’ independence in the Model Rules of Professional Conduct - Center for Professional Responsibility

American Bar Association

ABA Commission on Evaluation of the Rules of Professional Conduct

"Ethics 2000"

Public Hearing: Atlanta, August 5, 1999

Testimony of

Ramon Mullerat,

Lawyer from Barcelona, Spain
Avocat à la Cour de Paris, France
Former President of the Council of the Bars and
Law Societies of the European Community (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)

July 12, 1999

Proposal for a broadening of the concept of lawyers’ independence in the Model Rules of Professional Conduct

  1. The lawyer and the principle of independence
  2. The independence of the lawyer is the quintessence of the legal profession. The lawyer has the right and the duty to be independent.

    Independence is not a simple attribute of justice, it is the constitutional characteristic of the judicial function and the fundamental axis of the mission assigned to participants in the judicial process (judges, lawyers).

    The intrinsic feature of the lawyer is his or her independence. There is no free society and no free person without competent and independent lawyers. Without independent lawyers, there could not be impartial judges.

    Independence constitutes the most important characteristic of the lawyer. It is the force, the duty and the "raison d’être" of the lawyer. The lawyer must carry out his duties with absolute independence, free from any pressure, particularly from the state or from other external influences and particularly from his own interests.

    The lawyer must, therefore, avoid any impairment of his independence and be careful not to compromise such independence in order either to please his client, the court, or third parties. Governments must ensure that lawyers are able to perform all of their professional functions without intimidation, harassment or improper interference.

  3. The concept of "independence" in the Model Rules

The Model Rules deal with both the independence of the legal profession and the independence of the lawyer.

The independence of the legal profession as a collectivity is referred to in the Preamble [10] (independence from government domination ) and [11] (self-government).

The independence of the lawyer as an individual is always linked to the concept of the independence of the lawyer’s judgment:

Rule 2.1. (Advisor)

"In representing a client, a lawyer shall exercise independent professional judgment and render candid advice… "

Rule 5.4. (c) (Professional independence of a lawyer)

  1. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.
  2. A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: …
  1. A nonlawyer has the right to direct or control the professional judgment of the lawyer".

The comments to both rules confirm that the way the Model Rules conceive lawyer’s "independence" is always related to his professional judgment:

Comment to Rule 2.1: "[1] A client is entitled to straightforward advice expressing the lawyer’s assessment… However, the lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client"

Comment to Rule 5.4: "[1]…These limitations are to protect the lawyer’s independence of judgment. …As stated in paragraph (c), such arrangements should not interfere with the lawyer’s professional judgment"

  1. The independence of the lawyer is a broader concept not limited to judgment
  2. If a "judgment" is an opinion that someone gives after thinking carefully about something, it would seem that independence of judgment is to some extent limited to this intellectual activity on the part of the lawyer.

    The independence of the lawyer is a broader, absolute and unrestricted concept. The lawyer must not only be independent in his judgment. He must also be independent in the way he practices law, independent in deciding whether to accept instructions from a client and in accepting and withdrawing from a case, independent in giving advice or defending the case, independent in choosing the arguments he wants to use, independent in agreeing his or her fees with the client, etc.

    Independence must be complete: physical, spiritual, moral and also material. The lawyer needs to be able to live honestly by means of the profession. Lack of means threatens his or her independence in deciding .

  3. Independence in the different codes of ethics

The rules of ethics of all jurisdictions recognize the principle of independence. The majority recognize the principle in an unqualified absolute manner and not limited to independence of judgment. For instance:

  • " Règlement Intérieur de l’Ordre des Avocats à la Cour de Paris" (art. 1.3):

"La profession d’avocat est une profession libérale et indépendante… L’essence de la profession à titre libéral, … la dignité, la conscience, l’ indépendance, … sont d’impérieux devoirs pour l’avocat et constituent ensemble les Principes Essentiels de la profession d’avocat".

  • Guide to the Professional Conduct of Solicitors of the Law Society of England and Wales (Practice Rule 1):

"A solicitor shall not do anything in the course of practising as a solicitor … which compromises or impairs… any of the following: the solicitor’s independence or integrity; …

  • Spanish Lawyers General Statute (arts. 8 and 42):

"La abogacía es una profesión libre e independiente …"

"El abogado, en cumplimiento de su misión, actuará con toda libertad e independencia…"

  • CCBE Code of Conduct (art. 2.1)

"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 personal 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".

  • International Code of Ethics of the International Bar Association (rule 3):

"Lawyers shall preserve independence in the discharge of their professional duty…"

As we can see, the aforementioned rules refer to the independence of the lawyer in a general manner, before, during and after the giving of legal advice, and not restricted to the judgment or the lawyer, but covering all the lawyer’s professional activity.

  1. Corollaries of the independence

In the same manner as God’s ten commandments are summarized in two, most of the specific lawyer’s ethical rules can be encapsulated in the principle of independence. Thus, it constitutes the axiomatic principle of the lawyer’s function.

Bearing in mind that independence informs the legal profession, the vast majority of the lawyer’s ethical rules derive precisely from the principle of independence, for instance:

  • Right to accept or refuse instructions from any client.
  • Prohibition of contingency fees. In Europe such arrangements ( pacta de quota litis) are prohibited as contrary to the proper administration of justice because they are deemed to encourage speculative litigation and they are liable to be abused.
  • Lawyers masters of argument. Lawyers are the masters of the arguments they present to the court even if their conception of the case is different from that of the client .
  • Prohibition of subordination. A lawyer cannot be subordinated to any nonlawyer.
  • Conflict of interest. A lawyer shall not represent a client if the representation of that client will be directly adverse to another client. He must cease to act for both clients when a conflict of interest arises between those clients and also whenever his independence may be impaired.
  • Incompatible occupations. The 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 CCBE Code of Conduct (art. 2.5.1) provides as follows: "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".
  • Multidisciplinary partnerships (MDPs). MDPs between lawyers and nonlawyers should not be permitted due to the need to preserve independence, confidentiality and avoidance of conflict of interests. MDPs between lawyers and accountants are not particularly possible since the impartiality of auditors (like that of judges) is incompatible with the essential partiality of the lawyer (defender of one party’s interests).
  • Professionalism versus commercialism. The lawyer cannot accept a purely commercial concept of the practice of law which equates the profession to a mere business concern and leaves behind his professional principles. This is because his or her is the exercise of a liberal and independent profession.
  1. Proposed text

The founder and president of the International Union of Lawyers (UIA), Robert Martin, said that independence constitutes the most important characteristic of the lawyer and that independence is, at one and the same time, the force, the duty and the entire "raison d’être" of the lawyer.

If absolute and unlimited independence is a fundamental principle of the legal profession, if such independence characterizes the lawyer and constitutes an essential element of his or her identity, if such independence is the source of most of the lawyer’s ethical rules, the author respectfully suggests that the Model Rules clearly and adequately recognize this as a principle of principles.

Therefore, the proposal is to introduce, either in the Preamble or in the Rules (but, if in the Rules, in a general chapter because the issue of independence arises at the same time for the client-lawyer relationship, as counselor, advocate, etc.) a provision along the following lines:

"The public mission and the functions of the lawyer require his absolute and complete independence, free from all other influence especially such as may arise from his personal interests or external pressure. Independence is a fundamental right and a duty of the lawyer. 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 such independence in order to please his client, the court or third parties"

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