Lawyer independence - both of the individual lawyer as practitioner, and the regulation of lawyers collectively - has never been consigned to the wings in all the time I have been qualified. But now it has grabbed the microphone to sing. Regrettably, it is a shaky version of that old chestnut I Will Survive.
Here are two current examples. First, for individual lawyers, there is the never-ending saga of in-house counsel. EU member states are divided on the issue, with half including in-house counsel within the bar, sometimes subject to special rules, and half insistent that they are not - and can never be considered - independent. There is an appeal before the European Court of Justice, following a rejection by the General Court in Case T-226/10 of an appeal by Polish telecoms regulator UKE against a European Commission decision vetoing its regulation of the Polish market for IP-peering. The first appeal was rejected on the grounds that the telecoms authority had put forward its in-house counsel to plead the case, rather than an external counsel. Here we go again.
Regarding lawyer regulation, the Irish government has recently published its Legal Services Regulation Bill, within the framework of the economic bailout and continuing supervision by the troika (EU, European Central Bank and IMF). The bill allows for direct regulation of the legal profession by a Legal Services Regulatory Authority, which will have 11 members - seven non-lawyers, four lawyers - all of whom, even the lawyer members, will be appointed by the government. This is not oversight of regulation as in the case of the Legal Services Board of England and Wales, where the Law Society is the front-line regulator. Rather it is direct regulation, with the Law Society of Ireland no longer a regulator at all it seems. Alarm bells ring about independence.
In an attempt to silence the noise, the bill says ‘the authority shall be independent in the performance of its functions’ and shall encourage an independent legal profession. But what does independence mean when the government appoints all the regulators?
Here at home we have alternative business structures. ‘Encouraging an independent, strong, diverse and effective legal profession’ scrapes in at number six out of eight regulatory objectives in the Legal Services Act 2007, although it is number one of the act’s professional principles. There is an interesting debate around the relative importance of independence over other regulatory objectives such as the public interest and the rule of law, and whether the latter two can have full meaning without the first.
So what does independence mean? It is easier to say what it does not mean. It does not mean absolute independence, whether for individual lawyers or their regulators. There is no such thing, probably for anyone anywhere, but certainly not for lawyers. Lawyers depend in their individual dealings on clients and their instructions and payments; and on courts, regulators and the law. And as for regulation, there is no purely independent self-regulation anywhere in Europe - the government or the courts play a part in agreeing the codes of ethics, or in laying down the procedures that bars and law societies must follow in governing the profession. Independence is a partial concept.
It also does not necessarily mean one kind of model. In Europe, we have been used to a self-regulatory structure, but in the US lawyers are regulated by the courts, and no one believes that US lawyers are any less independent than ours. The problems begin only if the courts (in the US model) or the bars (in the European model) are not themselves independent of the state, as is the case in a number of countries outside the US and EU.
To move to a more positive definition, others have done it better than I can. Here is the explanatory note from the Council of Bars and Law Societies of Europe’s Charter of Core Principles, where ‘the independence of the lawyer, and the freedom of the lawyer to pursue the client’s case’ appear as the first basic principle, and are described as: ‘A lawyer needs to be free - politically, economically and intellectually - in pursuing his or her activities of advising and representing the client. This means that the lawyer must be independent of the state and other powerful interests, and must not allow his or her independence to be compromised by improper pressure from business associates.
'The lawyer must also remain independent of his or her own client if the lawyer is to enjoy the trust of third parties and the courts. Indeed, without this independence from the client there can be no guarantee of the quality of the lawyer’s work. The lawyer’s membership of a liberal profession and the authority deriving from that membership helps to maintain independence, and bar associations must play an important role in helping to guarantee lawyers’ independence. Self-regulation of the profession is seen as vital in buttressing the independence of the individual lawyer. It is notable that in unfree societies lawyers are prevented from pursuing their clients’ cases, and may suffer imprisonment or death for attempting to do so.’
Governments, at national and EU level, are being buffeted by forces beyond their control. We can all see that. The independence of lawyers and their regulation might therefore feature rather low on government agendas, or even be seen as something to be sacrificed lightly. No! Independence is unseen and taken for granted, but ‘independent, unbiased professional judgment in advising a client, including as to the likelihood of success of the client’s case’ (from the International Bar Association’s first International Principle on Conduct for the Legal Profession) is a foundation stone of the rule of law.
Unseen. Unsung. Let us all join in the chorus, however much we are tired of the song: ‘I’ve got all my life to live, I’ve got all my love to give, and I’ll survive, I will survive.’
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs