We must take great care when arguing that lawyers are ‘special’.
The European Court of Justice gave a ruling a few days ago in a preliminary reference from a Lithuanian court, in Šiba v Devenas (Case C‑537/13). It is an addition to a sub-group of cases that I follow very closely, and which I intend to make my specialist subject when I appear on Mastermind: ‘Lawyers Finding Out That They Are Also Ordinary Citizens’.
There is a history to be written of the legal profession trying to escape rules that apply to other citizens and businesses. Putting it that way makes it sound as if I support those who wish to reduce the nature of being a lawyer to that of following any other trade or business. I do not.
But I have also been at meetings attended by representatives of other liberal professions – doctors, vets, notaries, pharmacists – where they have each said that they are the ones who are special. The lesson is that we have to think carefully about why we are different, to be sure that we do not over-use the argument and so undermine our strength when we really need to rely on some specific aspect.
The facts of Šiba v Devenas are simple. Ms Šiba was a client of Mr Devenas, a lawyer. Lawyer and client concluded a standard‑form contract, in which the arrangement for payment of fees was not clear. Since Šiba did not pay the fees within the period stipulated by Devenas, he went to court to seek an order (for three cases, the amount was altogether around £3,300). The first court upheld the lawyer’s claim and the client’s first appeal was also dismissed. But she appealed again.
She argued that the lower courts did not take account of her status as a consumer, so that, contrary to the relevant provisions of national legislation, they failed to interpret the contracts in a manner favourable to her.
The preliminary reference to the Court of Justice centred on whether Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts should be interpreted as applying to a standard-form contract for legal services with a client who is not in a trade, business or profession. In other words, is a lawyer a ‘seller or supplier’, and is a contract for legal services a consumer contract with all the relevant safeguards?
You might think the answer is easy. Yes, of course the unfair contract terms directive applies. The court also seemed to think so, since the judgment is brief. But there are traces of how the lawyer struggled to escape the clutches of the directive. Would the application of the directive not undermine the public nature of a lawyer’s work? What about independence, code of ethics, confidentiality? No, no, no, said the court.
This line of EU cases includes both lawyers and their bars. Reyners (Case 2/74) started everything over 40 years ago. The Belgian bar refused to allow a Dutch lawyer with a local Belgian qualification from becoming a member of the Belgian bar because he was Dutch and not Belgian. The bar said that being a lawyer involved the exercise of official authority, and so was exempt from the free movement provisions of the treaty. No, said the court.
Contacts with courts do not constitute the exercise of official authority; consultation, legal assistance and representation, even when the presence of a lawyer is compulsory, are not the exercise of official authority.
The list of bar cases is long: Klopp (Case 107/83) for instance, where the court struck down the Paris bar’s requirement that a lawyer must have only one place of business, which would have meant a German lawyer could not be established both in Germany and France; or the very significant JCJ Wouters v Algemene Raad van de Nederlandse Orde van Advocaten (Case 309/99), where the court held that the Dutch bar, contrary to the line of argument it ran, was an association of undertakings and so subject to EU competition law.
There are important differences between lawyers and everyone else. Our job is in the main to defend liberties, to resolve conflicts and to protect property rights, in ways often regulated by the state. Others might claim to be able to do this, too, but our core values of independence, confidentiality and absence of conflicts of interest are enforced by a professional body with the power to set standards for our work and to discipline wrongdoers, including removal from the profession.
That is what makes us special, and we should take great care that we advance the specific nature of our role only in cases where the core values are properly threatened.
By the time I get on to Mastermind, there might be too many cases for me to remember them all.
Jonathan Goldsmith is a consultant and former secretary-general at 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