Independent lawyers, a necessity

"On the morning of 13 October, a bomb exploded in front of an Amsterdam law firm. The lawyers working there practise social advocacy, known to us as pro bono. We are in the dark about the background to the events, but the threat it poses is palpable. Harassment of lawyers is a serious problem that requires constant attention.

Today, 25 October, is European Lawyers' Day, this year dedicated to the independence of the profession. For a lawyer to be worthy of his professional title, he must be independent. What does that mean and why is it important?

The professional rules of the legal profession could not be clearer: lawyers must be independent. This means that they are not guided by pressure from their own interests or those of other parties: only the client's interest counts. Outside influences are inadmissible.

The lawyer only cares about the client's interest and looks at the problem from a certain distance. Only then can the lawyer properly advise and defend his client. The lawyer is the trusted guide in hard times, even when all others have abandoned the client. It is to the lawyer that the client confides his best kept secrets, without fear of leaks. The lawyer is not there to please others, not even the judge. The lawyer goes for his client and only for his client.

If the lawyer were to be guided by others' interests, his advice would become unreliable and therefore worthless.

Would we be better off socially if the government supervised lawyers? The answer to that question is: no. What is special about our profession is that we are completely independent from governments. Lawyers should be able to advise and speak freely, without fear of government reprisals. A fearful lawyer is simply not a lawyer.

That principle is a rule that the legal profession has traditionally imposed on itself. We are not alone in this. As recently as 29 July 2024, the European Court of Justice in Luxembourg(case C-623/22) confirmed it: the lawyer's task includes 'the requirement, recognised as important in all Member States, that every person subject to the law must have the opportunity to consult freely a lawyer, whose profession it is essentially to give independent legal advice to anyone who needs it.'

Unfortunately, governments do not always take this independence seriously. Lawyers who expose abuses are bread-and-butter but unloved. In regimes that do not uphold human rights, lawyers are pressured, physically threatened or persecuted. Just because they are doing their job of defending their clients. Excesses of this kind in countries like Iran, Belarus, Russia, Tunisia or China sometimes make the press. Unfortunately, habituation develops so that other serious abuses remain under the radar. That is worrisome.

Equally worrying is that, closer to us, even at home, lawyers are being intimidated. There are cases where lawyers have been arrested, resulting in enormous personal suffering, because they were wrongly identified with their clients' actions. Fortunately, we live in a country where such malpractices remain scarce, but vigilance is still required.

More recently, the crime syndicate has also begun to target lawyers. That worrisome phenomenon hit a low point in 2019, as startling as it was horrifying, with the murder of lawyer Derk Wiersum. The danger of being influenced by criminals is very concrete these days, even among us. Safeguarding the lawyer's independence is therefore a topic that requires everyone's unfailing attention.

For lawyers to be able to fully advocate for their clients in complete independence, they must be able to fall back on an equally independent Bar Association. A Bar Association supervised by the government would no longer be able to guarantee lawyers' independence. In numerous cases, citizens face the government. In criminal cases it is always so, and in tax or administrative cases too, think of disputes over building or other permits. Very often, the citizen brings the liability of the government into question, because of mistakes or omissions. Lawyers should be able to act in these cases against all authorities without hindrance or fear, without discrimination.

It is for this reason that the Orders of Lawyers act 'self-regulatory', this means without government interference. The importance of this was underlined by the European Court of Human Rights in the Jankauskas (2) and Namazov cases. Even judges do not have to instruct lawyers on how they perceive the defence of their clients. If citizens want effective legal protection, then government supervision over the legal profession is out of the question.

Let there be no mistake: lawyers are not above the law. They should not help their clients break the law. If they do, they can be prosecuted. But incidentally, it is the profession itself that judges their conduct, through disciplinary law. In the past 2 years, in Flanders alone, disciplinary boards have struck off 26 lawyers for deontological misconduct. Nothing to be proud of, except for the thoroughness of the staff holders, the disciplinary councils and self-regulation.

Independence of the legal profession is, without any exaggeration, a foundation of democracy."