Independence of the lawyer: what exactly does it mean? Lessons from the Inez Weski-case
In the case of former lawyer Inez Weski, the court in Rotterdam has handed down a verdict. Weski was found guilty and given a prison sentence.
We do not take a position on this verdict. However, the case does give us cause to reflect on a fundamental principle of the legal profession: lawyer independence. What exactly does that principle entail?
What does independence mean?
The lawyer assists his client, gives advice and defends his interests. In doing so, he deploys all relevant factual and legal arguments to achieve the best possible result for the client. That is his legal mission.
But defending interests is not the same as simply adopting the client's interests. A lawyer must maintain sufficient professional distance. This means that he does not simply do everything a client asks. Just as a doctor himself assesses which treatment is appropriate, a lawyer must assess whether a request is legally permissible, feasible and sensible. If it is not, he must refuse or adjust.
Some limits are obvious. A lawyer may not commit acts that are themselves punishable, nor may he become an accomplice to his client's crimes. He also may not, for example, pass on confidential information to third parties, pass on messages from a criminal client to co-perpetrators, or knowingly use false documents in proceedings. These are not details, but hard limits of the profession.
Independence under pressure
In theory, this seems simple, but in practice it often is not. Especially in serious crime cases, lawyers can come under intense pressure, sometimes even threats or intimidation. Such cases require not only legal knowledge, but also coolness, common sense, judgement and moral fortitude.
Suppose a lawyer tries to do his job correctly, but a client from the criminal community pressures him to pass on suspicious messages. If this includes threats of reprisals against his family, the situation is clear: the lawyer must withdraw from the case. In such a case, the lawyer can also seek advice from the President of the Bar, who plays an important guiding role within the Bar for this very purpose.
Why that independence protects the rule of law
There is a second dimension to lawyer independence. Those who comply with professional rules and perform their duties properly cannot be accused of defending their client - even when that client is suspected of very serious facts. Everyone has the right to a defence, even those who are seen as completely unsympathetic by the public.
Therein lies a vital importance for the rule of law. Only when even hated clients are given a free and vigorous defence can society say with its head held high that justice has been done. Without a lawyer who is allowed to dispute evidence, denounce procedural errors or other abuses and independently defend his client, a trial risks becoming a sham.
Therefore, a lawyer should not be identified with his client: he is not the one on trial, but the one guarding the right to defence. Without that right of defence, justice itself becomes suspect or untrustworthy, and nobody wants that.
Peter Callens, President of Advocaat.be