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Lawyers’ right to strike
Monday 21 May 2012 by Jonathan Goldsmith
As social ties are stretched to breaking point by the economic crisis, an interesting question arises: do lawyers have the right to strike, and if so in what circumstances? The focus here is not on the legal right granted to citizens, including lawyers, by the law of a particular country, but the impact of striking on lawyers’ duties under their professional code of conduct.
In the UK, there have been recent strikes affecting the justice system: there was one a few days ago by staff working in the court service over pensions, and then a de facto strike by court interpreters before that regarding a new outsourcing contract. So far lawyers have not been involved, but the question of a lawyers’ strike has been raised now by a threat from criminal barristers in protest at cuts to legal aid.
In some other European countries, lawyers have been on strike in the last few months. In Greece and Italy, there have been lawyer strikes over proposed changes to the legal system brought about by the economic crisis, and now the French-speaking Bar of Belgium (OBFG) has declared a legal aid strike (close in spirit to what the Criminal Bar Association is threatening). The re-imbursement paid to Belgian lawyers for legal aid has dropped in value while the number of legal aid cases has gone up, and the Bar feels it is getting nowhere with the government. No more legal aid cases will be taken on, apart from those deemed urgent (for instance, relating to the mentally ill, minors and a few other categories).
I can’t find much literature on lawyers’ strikes. What there is comes from India, where the courts have declared clearly that lawyers do not have the right to strike. According to Indian courts, lawyers would be committing a breach of professional duties if they failed to attend court at a scheduled hearing, and would be liable to suffer the consequences. The court could not refuse to hear the matter as otherwise it would be tantamount to the court becoming privy to the strike. Retaining a brief and at the same time abstaining from appearing in court is considered unprofessional and unbecoming of the status of a lawyer.
The court said that a lawyer’s duty is boldly to ignore a call for strike or court boycott, and it declared that there are other methods of protest, like giving press statements, TV interviews, carrying banners and placards (out of court), wearing black or white or any colour arm bands, peaceful protest marches outside and away from court premises, going on fasts etc. Well, I don’t see any UK lawyers going on a fast any time soon.
However, the Indian cases all concern court work and court appearances. They are also specific to the legal system in India - for instance, in some countries going on strike (presumably also for lawyers) is an unfettered constitutional right. The cases do not appear to address, either, the Belgian situation of refusing to take on legal aid cases. Nor do they address solicitors’ non-transactional work. I know it might be ludicrous to envisage, but what would be the ethical position of solicitors in a big City firm, working in the banking department say, going on strike? Obviously, their employer would have something to say, but what would the Solicitors Regulation Authority say?
It seems to me that, for solicitors the matter is a question of the interpretation of the SRA’s principles, particularly the first six: '1. uphold the rule of law and the proper administration of justice; 2. act with integrity; 3. not allow your independence to be compromised; 4. act in the best interests of each client; 5. provide a proper standard of service to your clients; 6. behave in a way that maintains the trust the public places in you and in the provision of legal services.'
The Council of Bars and Law Societies of Europe (CCBE) has no position on strikes by lawyers. (I must say nor do I, and - as I have indicated above - I assume that it might be different in different legal systems, because of varying constitutional and ethical frameworks.) I just wonder whether bars will have to confront this issue more explicitly in the future, as the social assumptions underpinning European legal systems creak and crack under the stresses of the economic crisis. Let the debate begin!