There have been two cases before the Court of Justice of the European Union (CJEU) on the subject of lawyer independence in the last few months. One has just been decided, and the other will be dealt with soon.
As we know, independence is one of the core values of the legal profession, universally shared but interpreted variously in different countries. What we take as obviously right, others reject.
In the decided case, the Court ruled that an application was inadmissible because the lawyer appearing before it was not independent (Case T‑137/16, available only in French and Polish).
The matter was brought by a university in Wroclaw, Poland against the EU’s executive agency for research in a dispute over money owed to the agency. The lawyer representing the university also worked at the university, but the university denied that that interfered with his independence.
He had had two distinct periods of involvement with the university. First, he was an employee for over 20 years, when he combined research with running conferences.
Then, some months before the case was submitted by the lawyer on behalf of the university, his status changed. He was no longer on an employment contract, but on ‘a civil law contract’ for teaching international private law, holding seminars, and organising examinations. In parallel, he had also established a lawyer’s professional practice outside the university, and the university said that the case was submitted through that professional practice. The ‘civil law contract’ implied no subordination of the lawyer to the dictates of the university when practising his profession through his own firm.
The court was presided over on this occasion by Anthony Collins, an Irish judge from a common law jurisdiction. In line with its previous decisions on similar facts, the court gave short shrift to the university’s argument. There is a long history of CJEU jurisprudence stating that only independent lawyers can represent claimants such as the university before it. The Court repeated that rules on representation of clients before it are made at Court level, regardless of individual national rules, which may vary.
It went on to say that independence does not have only a positive aspect, implied through (say) professional discipline, but also a negative one, implied by an absence of any employment link. A strictly formal employment relationship may have been absent on this occasion, but there was still a risk that the professional opinion of the lawyer might be influenced, at least in part, by his overall professional environment.
Therefore, the application by the university was considered inadmissible, because it was not submitted by an independent lawyer.
The second case raises independence in a different way (C-431/17). Brother Eirinaios is a Greek monk who qualified as a lawyer in Cyprus and then wished to register as a lawyer under his home Cypriot title with the Athens Bar under the Establishment Directive (98/5/EC). But the Athens Bar refused, because, according to Greek rules, monks cannot become lawyers. A number of reasons were given, including lack of independence.
For instance, the refusal stated that monks are subject to ecclesiastical tribunals which can discipline them – although Brother Eirinaious stated that, for matters of his legal practice, only the disciplinary organs of the bar would have competence.
Then, the rules of the bar require a lawyer to have an address and an office, but Brother Eirinaious said that he could acquire those, even if he were to continue living in a monastery. The other reasons covered fears about whether he would devote himself wholly to the exercise of the law, whether he could cope with conflict, and whether he would provide his services only for free.
When this case comes to decision, the court does not have any decision-making power over national rules to become a lawyer, but is asked whether Brother Eirinaious has the right to have his Cypriot title recognised in order to be recognised as practising under that title in Greece.
There are some reading this who will say: ‘Roll on Brexit - it is time to free ourselves of this madness.’ It is obvious that we have very different ideas of lawyer independence in this jurisdiction. But the EU – through its directives and court - obliges us to confront others’ ways of acting in a way that an ordinary trade agreement will never do. We do not always agree with other Europeans, and they certainly do not always agree with us. But without plurality, there will be no progress.
I know that we are about to enter a brave new world of proliferating trade agreements. But we will never live so closely with another group of countries again, and we may in time miss the advantages, even in cases like these where we think we know better.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council.