Recommended Links

CODE OF CONDUCT FOR EUROPEAN LAWYERS


CODE OF CONDUCT FOR EUROPEAN LAWYERS
For European Lawyers The Code of Conduct

Représentant les avocats d’Europe
Representing Europe’s lawyers
Conseil des barreaux européens - Council of Bars and Law Societies of Europe
association internationale sans but lucratif
Avenue de la Joyeuse Entrée 1-5 B-1040 Bruxelles - Tel. +32 (0)2 234 65 10 - Fax. +32 (0)2 234 65 11/12 - Email. ccbe@ccbe.org - www.ccbe.org
 
CODE OF CONDUCT FOR EUROPEAN LAWYERS
This Code of Conduct for European Lawyers was originally adopted at
the CCBE Plenary Session held on 28 October 1988, and subsequently
amended during the CCBE Plenary Sessions on 28 November 1998,
6 December 2002 and 19 May 2006. The Code includes an Explanatory
Memorandum which was updated during the CCBE Plenary Session on
19 May 2006.
Editor : CCBE
Avenue de la Joyeuse Entrée, 1-5 – B-1040 Brussels
Tél. : +32 (0)2 234 65 10 - Fax : +32 (0)2 234 65 11/12
E-mail : ccbe@ccbe.org - http://www.ccbe.org
 
CONTENTS
1. PREAMBLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
1.1. The Function of the Lawyer in Society . . . . . . . . . . . . . . . . . . . . . . .5
1.2. The Nature of Rules of Professional Conduct . . . . . . . . . . . . . . . . .5
1.3. The Purpose of the Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
1.4. Field of Application Ratione Personae . . . . . . . . . . . . . . . . . . . . . .6
1.5. Field of Application Ratione Materiae . . . . . . . . . . . . . . . . . . . . . .7
1.6. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
2. GENERAL PRINCIPLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.1. Independence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.2. Trust and Personal Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.3. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.4. Respect for the Rules of Other Bars and Law Societies . . . . . . . . .9
2.5. Incompatible Occupations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.6. Personal Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.7. The Client’s Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
2.8. Limitation of Lawyer’s Liability towards the Client . . . . . . . . . . . .10
3. RELATIONS WITH CLIENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
3.1. Acceptance and Termination of Instructions . . . . . . . . . . . . . . . .10
3.2. Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
3.3. Pactum de Quota Litis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
3.4. Regulation of Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
3.5. Payment on Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
3.6. Fee Sharing with Non-Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
3.7. Cost of Litigation and Availibility of Legal Aid . . . . . . . . . . . . . . .12
3.8. Client Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
3.9. Professional Indemnity Insurance . . . . . . . . . . . . . . . . . . . . . . . . . .13
5
4. RELATIONS WITH THE COURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
4.1. Rules of Conduct in Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
4.2. Fair Conduct of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
4.3. Demeanour in Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
4.4. False or Misleading Information . . . . . . . . . . . . . . . . . . . . . . . . . . .14
4.5. Extension to Arbitrators etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
5. RELATIONS BETWEEN LAWYERS . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
5.1. Corporate Spirit of the Profession . . . . . . . . . . . . . . . . . . . . . . . . . .14
5.2. Co-operation among Lawyers of Different Member States . . . .14
5.3. Correspondence between Lawyers . . . . . . . . . . . . . . . . . . . . . . .15
5.4. Referral Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
5.5. Communication with Opposing Parties . . . . . . . . . . . . . . . . . . . . .15
5.6. (Deleted by decision of the Plenary Session in Dublin on
6 December 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
5.7. Responsibility for Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
5.8. Continuing Professional Development . . . . . . . . . . . . . . . . . . . . .16
5.9. Disputes amongst Lawyers in Different Member States . . . . . . . .16
EXPLANATORY MEMORANDUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
1. PREAMBLE
1.1. The Function of the Lawyer in Society
In a society founded on respect for the rule of law the lawyer fulfils
a special role. The lawyer’s duties do not begin and end with
the faithful performance of what he or she is instructed to do so
far as the law permits. A lawyer must serve the interests of justice
as well as those whose rights and liberties he or she is trusted to
assert and defend and it is the lawyer’s duty not only to plead the
client’s cause but to be the client’s adviser. Respect for the
lawyer’s professional function is an essential condition for the rule
of law and democracy in society.
A lawyer’s function therefore lays on him or her a variety of legal
and moral obligations (sometimes appearing to be in conflict with
each other) towards:
- the client;
- the courts and other authorities before whom the lawyer
pleads the client’s cause or acts on the client’s behalf;
- the legal profession in general and each fellow member of it
in particular;
- the public for whom the existence of a free and independent
profession, bound together by respect for rules made by the
profession itself, is an essential means of safeguarding human
rights in face of the power of the state and other interests in
society.
1.2. The Nature of Rules of Professional Conduct
1.2.1. Rules of professional conduct are designed through their willing
acceptance by those to whom they apply to ensure the proper
performance by the lawyer of a function which is recognised as
essential in all civilised societies. The failure of the lawyer to
observe these rules may result in disciplinary sanctions.
1.2.2. The particular rules of each Bar or Law Society arise from its own
traditions. They are adapted to the organisation and sphere of
activity of the profession in the Member State concerned and to
its judicial and administrative procedures and to its national legislation.
It is neither possible nor desirable that they should be taken
out of their context nor that an attempt should be made to give
general application to rules which are inherently incapable of
such application.
1.5. Field of Application Ratione Materiae
Without prejudice to the pursuit of a progressive harmonisation of
rules of deontology or professional practice which apply only
internally within a Member State, the following rules shall apply to
the cross-border activities of the lawyer within the European Union
and the European Economic Area. Cross-border activities shall
mean:
(a) all professional contacts with lawyers of Member States
other than the lawyer’s own;
(b) the professional activities of the lawyer in a Member State
other than his or her own, whether or not the lawyer is physically
present in that Member State.
1.6. Definitions
In this Code:
"Member State” means a member state of the European Union or
any other state whose legal profession is included in Article 1.4.
"Home Member State” means the Member State where the
lawyer acquired the right to bear his or her professional title.
"Host Member State” means any other Member State where the
lawyer carries on cross-border activities.
"Competent Authority” means the professional organisation(s) or
authority(ies) of the Member State concerned responsible for the
laying down of rules of professional conduct and the administration
of discipline of lawyers.
"Directive 77/249/EEC” means Council Directive 77/249/EEC of
22 March 1977 to facilitate the effective exercise by lawyers of
freedom to provide services.
"Directive 98/5/EC” means Directive 98/5/EC of the European
Parliament and of the Council of 16 February 1998 to facilitate
practice of the profession of lawyer on a permanent basis in a
Member State other than that in which the qualification was
obtained.
7
The particular rules of each Bar and Law Society nevertheless are
based on the same values and in most cases demonstrate a
common foundation.
1.3. The Purpose of the Code
1.3.1. The continued integration of the European Union and European
Economic Area and the increasing frequency of the cross-border
activities of lawyers within the European Economic Area have
made necessary in the public interest the statement of common
rules which apply to all lawyers from the European Economic
Area whatever Bar or Law Society they belong to in relation to
their cross-border practice. A particular purpose of the statement
of those rules is to mitigate the difficulties which result from the
application of "double deontology”, notably as set out in Articles
4 and 7.2 of Directive 77/249/EEC and Articles 6 and 7 of Directive
98/5/EC.
1.3.2. The organisations representing the legal profession through the
CCBE propose that the rules codified in the following articles:
- be recognised at the present time as the expression of a consensus
of all the Bars and Law Societies of the European Union
and European Economic Area;
- be adopted as enforceable rules as soon as possible in accordance
with national or EEA procedures in relation to the crossborder
activities of the lawyer in the European Union and
European Economic Area;
- be taken into account in all revisions of national rules of deontology
or professional practice with a view to their progressive
harmonisation.
They further express the wish that the national rules of deontology
or professional practice be interpreted and applied whenever
possible in a way consistent with the rules in this Code.
After the rules in this Code have been adopted as enforceable
rules in relation to a lawyer’s cross-border activities the lawyer will
remain bound to observe the rules of the Bar or Law Society to
which he or she belongs to the extent that they are consistent with
the rules in this Code.
1.4. Field of Application Ratione Personae
This Code shall apply to lawyers as they are defined by Directive
77/249/EEC and by Directive 98/5/EC and to lawyers of the
Observer Members of the CCBE.
6
2.4. Respect for the Rules of Other Bars and Law Societies
When practising cross-border, a lawyer from another Member
State may be bound to comply with the professional rules of the
Host Member State. Lawyers have a duty to inform themselves as
to the rules which will affect them in the performance of any particular
activity.
Member organisations of the CCBE are obliged to deposit their
codes of conduct at the Secretariat of the CCBE so that any
lawyer can get hold of the copy of the current code from the
Secretariat.
2.5. Incompatible Occupations
2.5.1. In order to perform his or her functions with due independence
and in a manner which is consistent with his or her duty to participate
in the administration of justice a lawyer may be prohibited
from undertaking certain occupations.
2.5.2. A lawyer who acts in the representation or the defence of a client
in legal proceedings or before any public authorities in a Host
Member State shall there observe the rules regarding incompatible
occupations as they are applied to lawyers of the Host
Member State.
2.5.3. A lawyer established in a Host Member State in which he or she
wishes to participate directly in commercial or other activities not
connected with the practice of the law shall respect the rules
regarding forbidden or incompatible occupations as they are
applied to lawyers of that Member State.
2.6. Personal Publicity
2.6.1. A lawyer is entitled to inform the public about his or her services
provided that the information is accurate and not misleading,
and respectful of the obligation of confidentiality and other core
values of the profession.
2.6.2. Personal publicity by a lawyer in any form of media such as by
press, radio, television, by electronic commercial communications
or otherwise is permitted to the extent it complies with the
requirements of 2.6.1.
9
2. GENERAL PRINCIPLES
2.1. Independence
2.1.1. The many duties to which a lawyer is subject require the lawyer’s
absolute independence, free from all other influence, especially
such as may arise from his or her 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 or her independence and
be careful not to compromise his or her professional standards in
order to please the 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 the client has no value
if the lawyer gives it only to ingratiate him- or herself, to serve his
or her personal interests or in response to outside pressure.
2.2. Trust and Personal Integrity
Relationships of trust can only exist if a lawyer’s personal honour,
honesty and integrity are beyond doubt. For the lawyer these traditional
virtues are professional obligations.
2.3. Confidentiality
2.3.1. It is of the essence of a lawyer’s function that the lawyer should
be told by his or her client things which the client would not tell to
others, and that the lawyer should be the recipient of other information
on a basis of confidence. Without the certainty of confidentiality
there cannot be trust. Confidentiality is therefore a primary
and fundamental right and duty of the lawyer.
The lawyer’s obligation of confidentiality serves the interest of the
administration of justice as well as the interest of the client. It is
therefore entitled to special protection by the State.
2.3.2. A lawyer shall respect the confidentiality of all information that
becomes known to the lawyer in the course of his or her professional
activity.
2.3.3. The obligation of confidentiality is not limited in time.
2.3.4. A lawyer shall require his or her associates and staff and anyone
engaged by him or her in the course of providing professional
services to observe the same obligation of confidentiality.
8
3.2. Conflict of Interest
3.2.1. A lawyer may not advise, represent or act on behalf of two or
more clients in the same matter if there is a conflict, or a significant
risk of a conflict, between the interests of those clients.
3.2.2. A lawyer must cease to act for both or all of the clients concerned
when a conflict of interests arises between those clients and also
whenever there is a risk of a breach of confidence or where the
lawyer’s independence may be impaired.
3.2.3. A lawyer must also refrain from acting for a new client if there is a
risk of breach of a confidence entrusted to the lawyer by a former
client or if the knowledge which the lawyer possesses of the affairs
of the former client would give an undue advantage to the new
client.
3.2.4. Where lawyers are practising in association, paragraphs 3.2.1 to
3.2.3 above shall apply to the association and all its members.
3.3. Pactum de Quota Litis
3.3.1. A lawyer shall not be entitled to make a pactum de quota litis.
3.3.2. By "pactum de quota litis” is meant an agreement between a
lawyer and the client entered into prior to final conclusion of a
matter to which the client is a party, by virtue of which the client
undertakes to pay the lawyer a share of the result regardless of
whether this is represented by a sum of money or by any other
benefit achieved by the client upon the conclusion of the matter.
3.3.3. "Pactum de quota litis” does not include an agreement that fees
be charged in proportion to the value of a matter handled by the
lawyer if this is in accordance with an officially approved fee
scale or under the control of the Competent Authority having
jurisdiction over the lawyer.
3.4. Regulation of Fees
A fee charged by a lawyer shall be fully disclosed to the client,
shall be fair and reasonable, and shall comply with the law and
professional rules to which the lawyer is subject.
3.5. Payment on Account
If a lawyer requires a payment on account of his or her fees
and/or disbursements such payment should not exceed a reasonable
estimate of the fees and probable disbursements involved.
11
2.7. The Client’s Interest
Subject to due observance of all rules of law and professional
conduct, a lawyer must always act in the best interests of the
client and must put those interests before the lawyer’s own interests
or those of fellow members of the legal profession.
2.8. Limitation of Lawyer’s Liability towards the Client
To the extent permitted by the law of the Home Member State
and the Host Member State, the lawyer may limit his or her liabilities
towards the client in accordance with the professional rules to
which the lawyer is subject.
3. RELATIONS WITH CLIENTS
3.1. Acceptance and Termination of Instructions
3.1.1. A lawyer shall not handle a case for a party except on that party’s
instructions. The lawyer may, however, act in a case in which he
or she has been instructed by another lawyer acting for the party
or where the case has been assigned to him or her by a competent
body.
The lawyer should make reasonable efforts to ascertain the identity,
competence and authority of the person or body who
instructs him or her when the specific circumstances show that the
identity, competence and authority are uncertain.
3.1.2. A lawyer shall advise and represent the client promptly, conscientiously
and diligently. The lawyer shall undertake personal responsibility
for the discharge of the client’s instructions and shall keep
the client informed as to the progress of the matter with which the
lawyer has been entrusted.
3.1.3. A lawyer shall not handle a matter which the lawyer knows or
ought to know he or she is not competent to handle, without cooperating
with a lawyer who is competent to handle it.
A lawyer shall not accept instructions unless he or she can discharge
those instructions promptly having regard to the pressure
of other work.
3.1.4. A lawyer shall not be entitled to exercise his or her right to withdraw
from a case in such a way or in such circumstances that the
client may be unable to find other legal assistance in time to prevent
prejudice being suffered by the client.
10
the client funds in a client account be available to defray money
owed by the lawyer to the bank.
3.8.4. Client funds shall be transferred to the owners of such funds in the
shortest period of time or under such conditions as are authorised
by them.
3.8.5. The lawyer cannot transfer funds from a client account into the
lawyer’s own account for payment of fees without informing the
client in writing.
3.8.6. The Competent Authorities in Member States shall have the
power to verify and examine any document regarding client
funds, whilst respecting the confidentiality or legal professional
privilege to which it may be subject.
3.9. Professional Indemnity Insurance
3.9.1. Lawyers shall be insured against civil legal liability arising out of
their legal practice to an extent which is reasonable having
regard to the nature and extent of the risks incurred by their professional
activities.
3.9.2. Should this prove impossible, the lawyer must inform the client of
this situation and its consequences.
4. RELATIONS WITH THE COURTS
4.1. Rules of Conduct in Court
A lawyer who appears, or takes part in a case, before a court or
tribunal must comply with the rules of conduct applied before
that court or tribunal.
4.2. Fair Conduct of Proceedings
A lawyer must always have due regard for the fair conduct of proceedings.
4.3. Demeanour in Court
A lawyer shall while maintaining due respect and courtesy
towards the court defend the interests of the client honourably
and fearlessly without regard to the lawyer’s own interests or to
any consequences to him- or herself or to any other person.
13
Failing such payment, a lawyer may withdraw from the case or
refuse to handle it, but subject always to paragraph 3.1.4 above.
3.6. Fee Sharing with Non-Lawyers
3.6.1. A lawyer may not share his or her fees with a person who is not a
lawyer except where an association between the lawyer and the
other person is permitted by the laws and the professional rules to
which the lawyer is subject.
3.6.2. The provisions of 3.6.1 above shall not preclude a lawyer from
paying a fee, commission or other compensation to a deceased
lawyer’s heirs or to a retired lawyer in respect of taking over the
deceased or retired lawyer’s practice.
3.7. Cost of Litigation and Availibility of Legal Aid
3.7.1. The lawyer should at all times strive to achieve the most cost
effective resolution of the client’s dispute and should advise the
client at appropriate stages as to the desirability of attempting a
settlement and/or a reference to alternative dispute resolution.
3.7.2. A lawyer shall inform the client of the availability of legal aid
where applicable.
3.8. Client Funds
3.8.1. Lawyers who come into possession of funds on behalf of their
clients or third parties (hereinafter called "client funds”) have to
deposit such money into an account of a bank or similar institution
subject to supervision by a public authority (hereinafter called a
"client account”). A client account shall be separate from any
other account of the lawyer. All client funds received by a lawyer
should be deposited into such an account unless the owner of
such funds agrees that the funds should be dealt with otherwise.
3.8.2. The lawyer shall maintain full and accurate records showing all
the lawyer’s dealings with client funds and distinguishing client
funds from other funds held by the lawyer. Records may have to
be kept for a certain period of time according to national rules.
3.8.3. A client account cannot be in debit except in exceptional circumstances
as expressly permitted in national rules or due to
bank charges, which cannot be influenced by the lawyer. Such
an account cannot be given as a guarantee or be used as a
security for any reason. There shall not be any set-off or merger
between a client account and any other bank account, nor shall
12
5.3. Correspondence between Lawyers
5.3.1. If a lawyer intends to send communications to a lawyer in another
Member State, which the sender wishes to remain confidential
or without prejudice he or she should clearly express this intention
prior to communicating the documents.
5.3.2. If the prospective recipient of the communications is unable to
ensure their status as confidential or without prejudice he or she
should inform the sender accordingly without delay.
5.4. Referral Fees
5.4.1. A lawyer may not demand or accept from another lawyer or any
other person a fee, commission or any other compensation for
referring or recommending the lawyer to a client.
5.4.2. A lawyer may not pay anyone a fee, commission or any other
compensation as a consideration for referring a client to him- or
herself.
5.5. Communication with Opposing Parties
A lawyer shall not communicate about a particular case or matter
directly with any person whom he or she knows to be represented
or advised in the case or matter by another lawyer, without
the consent of that other lawyer (and shall keep the other
lawyer informed of any such communications).
5.6. (Deleted by decision of the Plenary Session in Dublin on
6 December 2002)
5.7. Responsibility for Fees
In professional relations between members of Bars of different
Member States, where a lawyer does not confine him- or herself
to recommending another lawyer or introducing that other
lawyer to the client but instead him- or herself entrusts a correspondent
with a particular matter or seeks the correspondent’s
advice, the instructing lawyer is personally bound, even if the
client is insolvent, to pay the fees, costs and outlays which are due
to the foreign correspondent. The lawyers concerned may, however,
at the outset of the relationship between them make special
arrangements on this matter. Further, the instructing lawyer may
at any time limit his or her personal responsibility to the amount of
15
4.4. False or Misleading Information
A lawyer shall never knowingly give false or misleading information
to the court.
4.5. Extension to Arbitrators etc.
The rules governing a lawyer’s relations with the courts apply also
to the lawyer’s relations with arbitrators and any other persons
exercising judicial or quasi-judicial functions, even on an occasional
basis.
5. RELATIONS BETWEEN LAWYERS
5.1. Corporate Spirit of the Profession
5.1.1. The corporate spirit of the profession requires a relationship of trust
and co-operation between lawyers for the benefit of their clients
and in order to avoid unnecessary litigation and other behaviour
harmful to the reputation of the profession. It can, however, never
justify setting the interests of the profession against those of the
client.
5.1.2. A lawyer should recognise all other lawyers of Member States as
professional colleagues and act fairly and courteously towards
them.
5.2. Co-operation among Lawyers of Different Member States
5.2.1. It is the duty of a lawyer who is approached by a colleague from
another Member State not to accept instructions in a matter
which the lawyer is not competent to undertake. The lawyer
should in such case be prepared to help that colleague to obtain
the information necessary to enable him or her to instruct a lawyer
who is capable of providing the service asked for.
5.2.2. Where a lawyer of a Member State co-operates with a lawyer
from another Member State, both have a general duty to take
into account the differences which may exist between their
respective legal systems and the professional organisations, competences
and obligations of lawyers in the Member States concerned.
14
EXPLANATORY MEMORANDUM
This Explanatory Memorandum was prepared at the request of the CCBE
Standing Committee by the CCBE’s deontology working party, who were
responsible for drafting the first version of the Code of Conduct itself. It
seeks to explain the origin of the provisions of the Code, to illustrate the
problems which they are designed to resolve, particularly in relation to
cross-border activities, and to provide assistance to the Competent
Authorities in the Member States in the application of the Code. It is not
intended to have any binding force in the interpretation of the Code. The
Explanatory Memorandum was updated on the occasion of the CCBE
Plenary Session on 19 May 2006.
The original versions of the Code are in the French and English languages.
Translations into other Community languages are prepared under the
authority of the national delegations.
Commentary on Article 1.1 – The Function of the Lawyer in Society
The Declaration of Perugia, adopted by the CCBE in 1977, laid down the
fundamental principles of professional conduct applicable to lawyers
throughout the EC. The provisions of Article 1.1 reaffirm the statement in
the Declaration of Perugia of the function of the lawyer in society which
forms the basis for the rules governing the performance of that function.
Commentary on Article 1.2 – The Nature of Rules of Professional Conduct
These provisions substantially restate the explanation in the Declaration of
Perugia of the nature of rules of professional conduct and how particular
rules depend on particular local circumstances but are nevertheless
based on common values.
Commentary on Article 1.3 – The Purpose of the Code
These provisions introduce the development of the principles in the
Declaration of Perugia into a specific Code of Conduct for lawyers
throughout the EU and the EEA, and lawyers of the Observer Members of
the CCBE, with particular reference to their cross-border activities (defined
in Article 1.5). The provisions of Article 1.3.2 lay down the specific intentions
of the CCBE with regard to the substantive provisions in the Code.
17
the fees, costs and outlays incurred before intimation to the foreign
lawyer of the instructing lawyer’s disclaimer of responsibility
for the future.
5.8. Continuing Professional Development
Lawyers should maintain and develop their professional knowledge
and skills taking proper account of the European dimension
of their profession.
5.9. Disputes amongst Lawyers in Different Member States
5.9.1. If a lawyer considers that a colleague in another Member State
has acted in breach of a rule of professional conduct the lawyer
shall draw the matter to the attention of that colleague.
5.9.2. If any personal dispute of a professional nature arises amongst
lawyers in different Member States they should if possible first try to
settle it in a friendly way.
5.9.3. A lawyer shall not commence any form of proceedings against a
colleague in another Member State on matters referred to in 5.9.1
or 5.9.2 above without first informing the Bars or Law Societies to
which they both belong for the purpose of allowing both Bars or
Law Societies concerned an opportunity to assist in reaching a
settlement.
16
It is also hoped that the Code will be acceptable to the legal professions
of other non-member states in Europe and elsewhere so that it could also
be applied by appropriate conventions between them and the Member
States.
Commentary on Article 1.5 – Field of Application Ratione Materiae
The rules are here given direct application only to "cross-border activities”,
as defined, of lawyers within the EU and the EEA and lawyers of the
Observer Members of the CCBE - see above on Article 1.4, and the definition
of "Member State” in Article 1.6. (See also above as to possible
extensions in the future to lawyers of other states.) The definition of crossborder
activities would, for example, include contacts in state A even on
a matter of law internal to state A between a lawyer of state A and a
lawyer of state B; it would exclude contacts between lawyers of state A in
state A of a matter arising in state B, provided that none of their professional
activities takes place in state B; it would include any activities of
lawyers of state A in state B, even if only in the form of communications
sent from state A to state B.
Commentary on Article 1.6 – Definitions
This provision defines a number of terms used in the Code, "Member
State”, "Home Member State”, "Host Member State”, "Competent
Authority”, "Directive 77/249/EEC” and "Directive 98/5/EC”.
The reference to "where the lawyer carries on cross-border activities”
should be interpreted in the light of the definition of "cross-border activities”
in Article 1.5.
Commentary on Article 2.1 – Independence
This provision substantially reaffirms the general statement of principle in
the Declaration of Perugia.
Commentary on Article 2.2 – Trust and Personal Integrity
This provision also restates a general principle contained in the
Declaration of Perugia.
19
Commentary on Article 1.4 – Field of Application Ratione Personae
The rules are stated to apply to all lawyers as defined in the Lawyers
Services Directive of 1977 and the Lawyers Establishment Directive of 1998,
and lawyers of the Observer Members of the CCBE. This includes lawyers
of the states which subsequently acceded to the Directives, whose names
have been added by amendment to the Directives. The Code accordingly
applies to all the lawyers represented on the CCBE, whether as full
Members or as Observer Members, namely:
Austria Rechtsanwalt;
Belgium avocat / advocaat / Rechtsanwalt;
Bulgaria advokat;
Croatia odvjetnik;
Cyprus dikegóros;
Czech Republic advokát;
Denmark advokat;
Estonia vandeadvokaat;
Finland asianajaja / advokat;
FYROMacedonia advokat;
France avocat;
Germany Rechtsanwalt;
Greece dikegóros;
Hungary ügyvéd;
Iceland lögmaður;
Ireland barrister, solicitor;
Italy avvocato;
Latvia zvērināts advokāts;
Liechtenstein Rechtsanwalt;
Lithuania advokatas;
Luxembourg avocat / Rechtsanwalt;
Malta avukat, prokuratur legali;
Netherlands advocaat;
Norway advokat;
Poland adwokat, radca prawny;
Portugal advogado;
Romania avocat;
Slovakia advokát / advokátka;
Slovenia odvetnik / odvetnica;
Spain abogado / advocat / abokatu / avogado;
Sweden advokat;
Switzerland Rechtsanwalt / Anwalt / Fürsprech /
Fürsprecher / avocat / avvocato /advokat;
Turkey avukat;
Ukraine advocate;
United Kingdom advocate, barrister, solicitor.
18
always be subject to the rules of professional conduct applicable
in Ireland to barristers; and
(d) a lawyer pursuing activities other than those referred to in (a)
above shall remain subject to the conditions and rules of professional
conduct of the Member State from which he or she comes
without prejudice to respect for the rules, whatever their source,
which govern the profession in the Host Member State, especially
those concerning the incompatibility of the exercise of the activities
of a lawyer with the exercise of other activities in that state,
professional secrecy, relations with other lawyers, the prohibition
on the same lawyer acting for parties with mutually conflicting
interests, and publicity. The latter rules are applicable only if they
are capable of being observed by a lawyer who is not established
in the Host Member State and to the extent to which their
observance is objectively justified to ensure, in that state, the
proper exercise of a lawyer’s activities, the standing of the profession
and respect for the rules concerning incompatibility.
The Lawyers Establishment Directive contains the provisions with regard to
the rules to be observed by a lawyer from one Member State practising
on a permanent basis in another Member State by virtue of Article 43 of
the consolidated EC treaty, as follows:
(a) irrespective of the rules of professional conduct to which he or she
is subject in his or her Home Member State, a lawyer practising
under his home-country professional title shall be subject to the
same rules of professional conduct as lawyers practising under the
relevant professional title of the Host Member State in respect of
all the activities the lawyer pursues in its territory (Article 6.1);
(b) the Host Member State may require a lawyer practising under his
or her home-country professional title either to take out professional
indemnity insurance or to become a member of a professional
guarantee fund in accordance with the rules which that
state lays down for professional activities pursued in its territory.
Nevertheless, a lawyer practising under his or her home-country
professional title shall be exempted from that requirement if the
lawyer can prove that he or she is covered by insurance taken
out or a guarantee provided in accordance with the rules of the
Home Member State, insofar as such insurance or guarantee is
equivalent in terms of the conditions and extent of cover. Where
the equivalence is only partial, the Competent Authority in the
Host Member State may require that additional insurance or an
additional guarantee be contracted to cover the elements which
are not already covered by the insurance or guarantee contracted
in accordance with the rules of the Home Member State
(Article 6.3); and
21
Commentary on Article 2.3 – Confidentiality
This provision first restates, in Article 2.3.1, general principles laid down in
the Declaration of Perugia and recognised by the ECJ in the AM&S case
(157/79). It then, in Articles 2.3.2 to 4, develops them into a specific rule
relating to the protection of confidentiality. Article 2.3.2 contains the basic
rule requiring respect for confidentiality. Article 2.3.3 confirms that the obligation
remains binding on the lawyer even if he or she ceases to act for
the client in question. Article 2.3.4 confirms that the lawyer must not only
respect the obligation of confidentiality him- or herself but must require all
members and employees of his or her firm to do likewise.
Commentary on Article 2.4 – Respect for the Rules of Other Bars and Law
Societies
Article 4 of the Lawyers Services Directive contains the provisions with
regard to the rules to be observed by a lawyer from one Member State
providing services on an occasional or temporary basis in another
Member State by virtue of Article 49 of the consolidated EC treaty, as follows:
(a) activities relating to the representation of a client in legal proceedings
or before public authorities shall be pursued in each
Host Member State under the conditions laid down for lawyers
established in that state, with the exception of any conditions
requiring residence, or registration with a professional organisation,
in that state;
(b) a lawyer pursuing these activities shall observe the rules of professional
conduct of the Host Member State, without prejudice to the
lawyer’s obligations in the Member State from which he or she
comes;
(c) when these activities are pursued in the UK, "rules of professional
conduct of the Host Member State” means the rules of professional
conduct applicable to solicitors, where such activities are not
reserved for barristers and advocates. Otherwise the rules of professional
conduct applicable to the latter shall apply. However,
barristers from Ireland shall always be subject to the rules of professional
conduct applicable in the UK to barristers and advocates.
When these activities are pursued in Ireland "rules of professional
conduct of the Host Member State” means, in so far as
they govern the oral presentation of a case in court, the rules of
professional conduct applicable to barristers. In all other cases
the rules of professional conduct applicable to solicitors shall
apply. However, barristers and advocates from the UK shall
20
Commentary on Article 2.6 – Personal Publicity
The term "personal publicity” covers publicity by firms of lawyers, as well
as individual lawyers, as opposed to corporate publicity organised by Bars
and Law Societies for their members as a whole. The rules governing personal
publicity by lawyers vary considerably in the Member States. Article
2.6 makes it clear that there is no overriding objection to personal publicity
in cross-border practice. However, lawyers are nevertheless subject to
prohibitions or restrictions laid down by their home professional rules, and
a lawyer will still be subject to prohibitions or restrictions laid down by Host
State rules when these are binding on the lawyer by virtue of the Lawyers
Services Directive or the Lawyers Establishment Directive.
Commentary on Article 2.7 – The Client’s Interest
This provision emphasises the general principle that the lawyer must
always place the client’s interests before the lawyer’s own interests or
those of fellow members of the legal profession.
Commentary on Article 2.8 – Limitation of Lawyer’s Liability towards the
Client
This provision makes clear that there is no overriding objection to limiting a
lawyer’s liability towards his or her client in cross-border practice, whether
by contract or by use of a limited company, limited partnership or limited
liability partnership. However it points out that this can only be contemplated
where the relevant law and the relevant rules of conduct permit -
and in a number of jurisdictions the law or the professional rules prohibit or
restrict such limitation of liability.
Commentary on Article 3.1 – Acceptance and Termination of Instructions
The provisions of Article 3.1.1 are designed to ensure that a relationship is
maintained between lawyer and client and that the lawyer in fact
receives instructions from the client, even though these may be transmitted
through a duly authorised intermediary. It is the responsibility of the
lawyer to satisfy him- or herself as to the authority of the intermediary and
the wishes of the client.
Article 3.1.2 deals with the manner in which the lawyer should carry out his
or her duties. The provision that the lawyer shall undertake personal
responsibility for the discharge of the instructions given to him or her
23
(c) a lawyer registered in a Host Member State under his or her homecountry
professional title may practise as a salaried lawyer in the
employ of another lawyer, an association or firm of lawyers, or a
public or private enterprise to the extent that the Host Member
State so permits for lawyers registered under the professional title
used in that state (Article 8).
In cases not covered by either of these Directives, or over and above the
requirements of these Directives, the obligations of a lawyer under
Community law to observe the rules of other Bars and Law Societies are a
matter of interpretation of any relevant provision, such as the Directive on
Electronic Commerce (2000/31/EC). A major purpose of the Code is to
minimise, and if possible eliminate altogether, the problems which may
arise from "double deontology”, that is the application of more than one
set of potentially conflicting national rules to a particular situation (see
Article 1.3.1).
Commentary on Article 2.5 – Incompatible Occupations
There are differences both between and within Member States on the
extent to which lawyers are permitted to engage in other occupations, for
example in commercial activities. The general purpose of rules excluding
a lawyer from other occupations is to protect the lawyer from influences
which might impair the lawyer’s independence or his or her role in the
administration of justice. The variations in these rules reflect different local
conditions, different perceptions of the proper function of lawyers and different
techniques of rule-making. For instance in some cases there is a
complete prohibition of engagement in certain named occupations,
whereas in other cases engagement in other occupations is generally
permitted, subject to observance of specific safeguards for the lawyer’s
independence.
Articles 2.5.2 and 3 make provision for different circumstances in which a
lawyer of one Member State is engaging in cross-border activities (as
defined in Article 1.5) in a Host Member State when he or she is not a
member of the Host State legal profession.
Article 2.5.2 imposes full observation of Host State rules regarding incompatible
occupations on the lawyer acting in national legal proceedings or
before national public authorities in the Host State. This applies whether
the lawyer is established in the Host State or not.
Article 2.5.3, on the other hand, imposes "respect” for the rules of the Host
State regarding forbidden or incompatible occupations in other cases,
but only where the lawyer who is established in the Host Member State
wishes to participate directly in commercial or other activities not connected
with the practice of the law.
22
Commentary on Article 3.3 – Pactum de Quota Litis
These provisions reflect the common position in all Member States that an
unregulated agreement for contingency fees (pactum de quota litis) is
contrary to the proper administration of justice because it encourages
speculative litigation and is liable to be abused. The provisions are not,
however, intended to prevent the maintenance or introduction of
arrangements under which lawyers are paid according to results or only if
the action or matter is successful, provided that these arrangements are
under sufficient regulation and control for the protection of the client and
the proper administration of justice.
Commentary on Article 3.4 – Regulation of Fees
Article 3.4 lays down three requirements: a general standard of disclosure
of a lawyer’s fees to the client, a requirement that they should be fair and
reasonable in amount, and a requirement to comply with the applicable
law and professional rules.
In many Member States machinery exists for regulating lawyers’ fees
under national law or rules of conduct, whether by reference to a power
of adjudication by the Bar authorities or otherwise. In situations governed
by the Lawyers Establishment Directive, where the lawyer is subject to Host
State rules as well as the rules of the Home State, the basis of charging
may have to comply with both sets of rules.
Commentary on Article 3.5 – Payment on Account
Article 3.5 assumes that a lawyer may require a payment on account of
the lawyer’s fees and/or disbursements, but sets a limit by reference to a
reasonable estimate of them. See also on Article 3.1.4 regarding the right
to withdraw.
Commentary on Article 3.6 – Fee Sharing with Non-Lawyers
In some Member States lawyers are permitted to practise in association
with members of certain other approved professions, whether legal professions
or not. The provisions of Article 3.6.1 are not designed to prevent
fee sharing within such an approved form of association. Nor are the provisions
designed to prevent fee sharing by the lawyers to whom the Code
applies (see on Article 1.4 above) with other "lawyers”, for example
25
means that the lawyer cannot avoid responsibility by delegation to others.
It does not prevent the lawyer from seeking to limit his or her legal liability
to the extent that this is permitted by the relevant law or professional rules
- see Article 2.8.
Article 3.1.3 states a principle which is of particular relevance in cross-border
activities, for example when a lawyer is asked to handle a matter on
behalf of a lawyer or client from another state who may be unfamiliar with
the relevant law and practice, or when a lawyer is asked to handle a matter
relating to the law of another state with which he or she is unfamiliar.
A lawyer generally has the right to refuse to accept instructions in the first
place, but Article 3.1.4 states that, having once accepted them, the
lawyer has an obligation not to withdraw without ensuring that the client’s
interests are safeguarded.
Commentary on Article 3.2 – Conflict of Interest
The provisions of Article 3.2.1 do not prevent a lawyer acting for two or
more clients in the same matter provided that their interests are not in fact
in conflict and that there is no significant risk of such a conflict arising.
Where a lawyer is already acting for two or more clients in this way and
subsequently there arises a conflict of interests between those clients or a
risk of a breach of confidence or other circumstances where the lawyer’s
independence may be impaired, then the lawyer must cease to act for
both or all of them.
There may, however, be circumstances in which differences arise
between two or more clients for whom the same lawyer is acting where it
may be appropriate for the lawyer to attempt to act as a mediator. It is
for the lawyer in such cases to use his or her own judgement on whether
or not there is such a conflict of interest between them as to require the
lawyer to cease to act. If not, the lawyer may consider whether it would
be appropriate to explain the position to the clients, obtain their agreement
and attempt to act as mediator to resolve the difference between
them, and only if this attempt to mediate should fail, to cease to act for
them.
Article 3.2.4 applies the foregoing provisions of Article 3 to lawyers practising
in association. For example a firm of lawyers should cease to act when
there is a conflict of interest between two clients of the firm, even if different
lawyers in the firm are acting for each client. On the other hand,
exceptionally, in the "chambers” form of association used by English barristers,
where each lawyer acts for clients individually, it is possible for different
lawyers in the association to act for clients with opposing interests.
24
Commentary on Article 4.1 – Rules of Conduct in Court
This provision applies the principle that a lawyer is bound to comply with
the rules of the court or tribunal before which the lawyer practises or
appears.
Commentary on Article 4.2 – Fair Conduct of Proceedings
This provision applies the general principle that in adversarial proceedings
a lawyer must not attempt to take unfair advantage of his or her opponent.
The lawyer must not, for example, make contact with the judge without
first informing the lawyer acting for the opposing party or submit
exhibits, notes or documents to the judge without communicating them in
good time to the lawyer on the other side unless such steps are permitted
under the relevant rules of procedure. To the extent not prohibited by law
a lawyer must not divulge or submit to the court any proposals for settlement
of the case made by the other party or its lawyer without the express
consent of the other party’s lawyer. See also on Article 4.5 below.
Commentary on Article 4.3 – Demeanour in Court
This provision reflects the necessary balance between respect for the
court and for the law on the one hand and the pursuit of the client’s best
interest on the other.
Commentary on Article 4.4 – False or Misleading Information
This provision applies the principle that the lawyer must never knowingly
mislead the court. This is necessary if there is to be trust between the courts
and the legal profession.
Commentary on Article 4.5 – Extension to Arbitrators etc.
This provision extends the preceding provisions relating to courts and other
bodies exercising judicial or quasi-judicial functions.
27
lawyers from non-Member States or members of other legal professions in
the Member States such as notaries.
Commentary on Article 3.7 – Cost of Litigation and Availibility of Legal Aid
Article 3.7.1 stresses the importance of attempting to resolve disputes in a
way which is cost-effective for the client, including advising on whether to
attempt to negotiate a settlement, and whether to propose referring the
dispute to some form of alternative dispute resolution.
Article 3.7.2 requires a lawyer to inform the client of the availability of legal
aid where applicable. There are widely differing provisions in the Member
States on the availability of legal aid. In cross-border activities a lawyer
should have in mind the possibility that the legal aid provisions of a national
law with which the lawyer is unfamiliar may be applicable.
Commentary on Article 3.8 – Client Funds
The provisions of Article 3.8 reflect the recommendation adopted by the
CCBE in Brussels in November 1985 on the need for minimum regulations
to be made and enforced governing the proper control and disposal of
clients’ funds held by lawyers within the Community. Article 3.8 lays down
minimum standards to be observed, while not interfering with the details
of national systems which provide fuller or more stringent protection for
clients’ funds.
The lawyer who holds clients’ funds, even in the course of a cross-border
activity, has to observe the rules of his or her home Bar. The lawyer needs
to be aware of questions which arise where the rules of more than one
Member State may be applicable, especially where the lawyer is established
in a Host State under the Lawyers Establishment Directive.
Commentary on Article 3.9 – Professional Indemnity Insurance
Article 3.9.1 reflects a recommendation, also adopted by the CCBE in
Brussels in November 1985, on the need for all lawyers in the Community
to be insured against the risks arising from professional negligence claims
against them.
Article 3.9.2 deals with the situation where insurance cannot be obtained
on the basis set out in Article 3.9.1.
26
basis must express that clearly at the head of the communication or in a
covering letter.
A lawyer who is the intended recipient of such a communication, but who
is not in a position to respect, or to ensure respect for, the basis on which
it is to be sent, must inform the sender immediately so that the communication
is not sent. If the communication has already been received, the
recipient must return it to the sender without revealing its contents or referring
to it in any way; if the recipient’s national law or rules prevent the
recipient from complying with this requirement, he or she must inform the
sender immediately.
Commentary on Article 5.4 – Referral Fees
This provision reflects the principle that a lawyer should not pay or receive
payment purely for the reference of a client, which would risk impairing
the client’s free choice of lawyer or the client’s interest in being referred
to the best available service. It does not prevent fee-sharing arrangements
between lawyers on a proper basis (see also on Article 3.6 above).
In some Member States lawyers are permitted to accept and retain commissions
in certain cases provided the client’s best interests are served,
there is full disclosure to the client and the client has consented to the
retention of the commission. In such cases the retention of the commission
by the lawyer represents part of the lawyer’s remuneration for the service
provided to the client and is not within the scope of the prohibition on
referral fees which is designed to prevent lawyers making a secret profit.
Commentary on Article 5.5 – Communication with Opposing Parties
This provision reflects a generally accepted principle, and is designed
both to promote the smooth conduct of business between lawyers and to
prevent any attempt to take advantage of the client of another lawyer.
Commentary on Article 5.6 – Change of Lawyer
Article 5.6 dealt with change of lawyer. It was deleted from the Code on
6 December 2002.
29
Commentary on Article 5.1 – Corporate Spirit of the Profession
These provisions, which are based on statements in the Declaration of
Perugia, emphasise that it is in the public interest for the legal profession to
maintain a relationship of trust and cooperation between its members.
However, this cannot be used to justify setting the interests of the profession
against those of justice or of clients (see also on Article 2.7).
Commentary on Article 5.2 – Co-operation among Lawyers of Different
Member States
This provision also develops a principle stated in the Declaration of Perugia
with a view to avoiding misunderstandings in dealings between lawyers of
different Member States.
Commentary on Article 5.3 – Correspondence between Lawyers
In certain Member States communications between lawyers (written or by
word of mouth) are normally regarded as to be kept confidential as
between the lawyers. This means that the content of these communications
cannot be disclosed to others, cannot normally be passed to the
lawyers’ clients, and at any event cannot be produced in court. In other
Member States, such consequences will not follow unless the correspondence
is marked as "confidential”.
In yet other Member States, the lawyer has to keep the client fully
informed of all relevant communications from a professional colleague
acting for another party, and marking a letter as "confidential” only
means that it is a legal matter intended for the recipient lawyer and his or
her client, and not to be misused by third parties.
In some states, if a lawyer wishes to indicate that a letter is sent in an
attempt to settle a dispute, and is not to be produced in a court, the
lawyer should mark the letter as "without prejudice”.
These important national differences give rise to many misunderstandings.
That is why lawyers must be very careful in conducting cross-border correspondence.
Whenever a lawyer wants to send a letter to a professional colleague in
another Member State on the basis that it is to be kept confidential as
between the lawyers, or that it is "without prejudice”, the lawyer should
ask in advance whether the letter can be accepted on that basis. A
lawyer wishing that a communication should be accepted on such a
28
Commentary on Article 5.7 – Responsibility for Fees
These provisions substantially reaffirm provisions contained in the
Declaration of Perugia. Since misunderstandings about responsibility for
unpaid fees are a common cause of difference between lawyers of different
Member States, it is important that a lawyer who wishes to exclude
or limit his or her personal obligation to be responsible for the fees of a foreign
colleague should reach a clear agreement on this at the outset of
the transaction.
Commentary on Article 5.8 – Continuing Professional Development
Keeping abreast of developments in the law is a professional obligation.
In particular it is essential that lawyers are aware of the growing impact of
European law on their field of practice.
Commentary on Article 5.9 – Disputes amongst Lawyers in Different
Member States
A lawyer has the right to pursue any legal or other remedy to which he or
she is entitled against a colleague in another Member State. Nevertheless
it is desirable that, where a breach of a rule of professional conduct or a
dispute of a professional nature is involved, the possibilities of friendly settlement
should be exhausted, if necessary with the assistance of the Bars
or Law Societies concerned, before such remedies are exercised.
30

Share this page