Respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society.[1]

 

Abstract

When discussing professionalism, the highest standards of professional conduct seem inherent to lawyers and their extraordinary role in our societies.  Whether in the Courtroom or if drafting a pleading, I see lawyers as guardians of professionalism and integrity. Simple as that: due to the nature of our profession and all it stands for.

The legal profession in Bosnia and Herzegovina faces the lack of uniformity in determining and regulating rules of professional conduct. The enforcement of relevant Codes of Conducts as well as the awareness by the legal professionals on their significance represent additional challenges.

Hence, this Article will analyse to what extent can European Union standard of professionalism with its Code of Conduct serve as a role model for the transitional Balkan countries, with focus on Bosnia and Herzegovina (BiH). Since BiH will be examined as a case study for the purpose of this article, the overview of the country’s legal framework complexities and the level of its preparedness for the reform of professionalism standards will be examined.

Introduction

This Article analyses the significance of Code of Conducts for lawyers and whether the European Union (EU) has set a solid foundation for its current and future Member States. In particular, the necessity for enforcement of such Code of Conduct in Bosnia and Herzegovina (BiH) is discussed. Precisely, the aim is to raise awareness on the matters of professional conduct for lawyers as well as to review core principles of professionalism in the EU. This article represents a small contribution for the very purpose of understanding and enhancing BiH lawyer’s patterns of conduct in line with the highest ethical and professional values.

Code of Conduct for Lawyers in the European Union

The CCBE, as an association representing bar associations of the EU Member and Observer States, has designed the Charter of Core Principles of the European Legal Profession[2] and Code of Conduct for European Lawyers. It is important to note that these instruments are intended to harmonize the ethical principles within the EU legal profession.

The Code of Conduct represents a compilation of the ethical principles aimed to serve lawyers in performing their function. Namely, the Code specifies that its core purpose is to facilitate integration within the Union and European Economic Area, for the common set of rules to be applicable to all lawyers. Importantly, drafters have indicated that the application and interpretation of national rules of deontology or practice shall be in the light of the Code.

In its preamble, the Code stresses the role of lawyers in the society and set of obligations towards: clients, courts, the profession itself and the general public. With reference to the general principles laid out, they include but are not limited to integrity, independence and confidentiality as well as other fundamental rights and duties of every lawyer. Interestingly, the provision on lawyer’s independence refers specifically to maintaining professional standards and ‘absolute independence’ from pleasing the interests of the client, courts and the profession itself.[3]

However, the Section 2.7. is contradictory in this sense, as it requires lawyers to act always in the client’s best interest, meaning their interests shall precede lawyer’s and legal profession’s interests. It is reasonable to inquire who sets the limitations for balancing these interests and to what extent shall the client’s interests have primate?

The significance of confidentiality in the lawyer-client relationship has been acknowledged as one of lawyers’ primary and fundamental principles. Furthermore, several conflict of interest types are enlisted, such as lawyer’s duty not to represent the client in the case of conflict of interest or significant risk of such, duty to cease to act if breach of confidence arises and the undue advantage scenario. Yet, although the Code aims to prescribe rules to apply in the cross-border practice, the conflict of interests’ scenarios may pose a great risk for differing jurisdictions in the Union and divergent rules that may not be easily reconciled.

By reviewing the section on lawyers’ relations with clients, it appears that lawyer’s duty to act diligently is defined in a bit stringent manner. For instance, it is explicitly mentioned in the Article 3.1.4 of the Code[4]that the lawyer shall not withdraw from the case if the client might be prejudiced or unable to obtain legal assistance. One might inquire what would happen in the case of work overload and whether the specific case can be referred to some of the colleagues from the profession? Seemingly, there is no reference to the option of case referral, which might be considered as a beneficial and flexible option for the lawyer himself, if for numerous reasons s/he is impeded to provide legal assistance.

For instance, in terms of effective legal assistance as an ultimate aim and the workload management, it is reasonable to inquire whether lawyers who are impeded to handle cases promptly may refer to the colleague who meets the requirements. Accordingly, the Code might have referred to circumstances where the lawyer can be exempted, thus opening up a possibility for referring the case to other legal professional – particularly if the client finds it challenging to obtaining legal assistance.

With reference to regulation of lawyers’ fees, the Code specifies them to be determined as per the reasonableness of the nature of work, as well as in accordance with applicable laws and rules. Yet, for lawyers being engaged in the cross-border practice, jurisdiction-specific requirements and limitations might become an issue. This specifically applies to the fees that are not entitled to lawyers under the Code. Those are contingent fees or pactum de quota litis agreement, referral fees or even sharing fees with non-lawyers. Hence, comprehensive research shall be conducted on other countries and their regulations as some of these fees might be public policy matter.

The next, third section of the Code covers the lawyers’ relations with the Court and they are pretty straight-forward. They reflect respect to the Court, compliance with its rules, and representation of the clients’ interests with truthfulness and accuracy of the information.

Lastly, and most interestingly, the final section is on strengthening “corporate spirit of the profession’’ as well as continued professional development.[5] In particular, the Section 5.8. on continued professional development stating that “lawyers should maintain and develop their professional knowledge and skills taking proper account of the European dimension of their profession’’[6] is significant for the purpose of this article.

In a very succinct, but yet thorough manner, the Code serves not only as a guidance for lawyers, but as a tool of strengthening their European legal identity and common understanding of the most fundamental principles of their profession and professional conduct.

Significantly, it prescribes disciplinary action for every disciplinary offences.

Nevertheless, the Code in overall shall be more specific as it strongly accentuates on the countries’ mutual understanding and cooperation, that might be hindered in the case an issue arises. Although the Code represents a solid foundation, it is very important to have clear rules for lawyers to follow in their own jurisdiction. This is where the issue lies when it comes to Bosnia and Herzegovina.

Code(s) of Conduct for Bosnian lawyers

The issue to be addressed is whether and to what extent are these professional standards applied by our domestic lawyers. It is a very legitimate question for Bosnia and Herzegovina, due to its EU accession pathway and eventual integration of its lawyers to the new market. One might argue that we have very similar Code of Conduct for our legal professionals, as we have adopted this Code at national level.

However, the understanding and application of these standards represent an issue because it is unclear who sets the standards of professionalism for BiH lawyers. The first challenge to be discerned is the unregulated legal profession in Bosnia and Herzegovina at the state level. But this stands pretty much for the entire system, as the actual power lies with entities and not the state. We are very (un) lucky to have even two Code (s) of Conducts that currently regulate the lawyers’ conduct in Bosnia and Herzegovina. The Code of Professional Ethics for attorneys in the Federation of Bosnia and Herzegovina and Lawyers Ethics Code of the Bar Association of Republic of Srpska. [7]

The reasoning behind the overly complex administrative model is 1995 General Framework Agreement for Peace in BiH or the “Dayton Peace Accords”[8], ending one of the most horrendous chapters in the history of Bosnia and Herzegovina. Namely, decentralized administrative structure consists of two entities (Federation of Bosnia and Herzegovina and the Republic of Srpska), ten cantons in the Federation and Brčko District. The court system of post – Dayton Bosnia and Herzegovina reflects the constitutional complexity and peculiarity to the greater extent. The division is more than obvious – each entity has Constitutional Court, Supreme Court and municipal/basic/district courts with Brčko District’s courts as a separate structure.

In this context, Bar Associations, each entity with its own Bar Association have adopted the EU Code of Conduct at their level. The wide autonomy that entities enjoy and the political unwillingness are predominant reasons for the existing bureaucratic judiciary’’ and failure to establish state judicial system. That said, it is significant to mention that only two state courts are established, yet still without the Supreme Court of Bosnia and Herzegovina as the ultimate state instance. Resultantly, there is no state institution regulating the lawyer’s profession in Bosnia and Herzegovina; however; the establishment of High Judicial Prosecutorial Council (HJPC) and the role of international actors on strengthening rule of law shall not be underestimated.

Particularly vital, HJPC acts as an independent body ensuring the independence and professionalism of judges/prosecutors/legal associates, by appointing, training and dismissing them. In overall, the Council may be regarded as a self-regulatory body establishing standards of professionalism for the judicial community in the country. Still, there are some of the reforms left, of relevance to the article, as defined in the last EU Commission Report on BiH (2016)[9]. Those refer to drafting guidelines on conflict of interest, disciplinary provisions and sanctions respectively, enhancing judicial independence from political pressures and advancing trainings. The Action Plan for the implementation of these reforms was adopted at the end of 2017, so it remains to be seen how fruitful and timely the implementation will be.

Apart from the system’s complex architecture and politicizing judiciary, the very enforcement of relevant Codes of Conducts represents another challenge. As the practice demonstrates, the enforcement of the Code of Conduct for any legal professional is undoubtedly lacking. For instance, little or no enforcement exists regarding Code of Ethics for judges and prosecutors.

At the moment, Bosnian Code (s) of Ethics do (es) replicate European. Yet, if we are missing harmonization at the national level, accompanied by the failure to enforce – does it suffice to have polished and copy-pasted Code of Conduct?

If effective enforcement measures of Code (s) fail, or if the state of professionalism is becoming no-man’s land, then I strongly advocate for the judicial community to take proactive approach in the development processes and integration of lawyers by building their skills. Uniform judiciary would be an ideal scenario for regulating the professionalism in BiH, apart from regular challenges every country faces. But, this simply does not seem feasible in a short – term period, whilst lawyers are being inadequately trained for eventual entering EU market. Hence, the role of judiciary in reforming the profession becomes vital, but last resort option too.

Importance of conductorly improvement for our European identity

Sharing values and gaining the European identity is very significant, especially due to necessity to protect lawyers as recent violations of lawyer’s rights demonstrate[10], as well as for the protection of the independence of the legal profession from pressures by any other branch.

As a recommendation, revisiting the legal education in terms of adapting curriculum to developing soft skills of young future lawyers is an initial step. Continuous and mandatory training and mentoring throughout different stages of development is also vital, irrespective of whether the mind-set of a senior professional shall be reshaped or young professional’s mind-set just entering the practice. Openness to learning processes and thrive for professional development are to be encouraged and imbedded in the legal system.

These are indeed some of the strategies of the Bosnia and Herzegovina Justice Sector Reform Strategy for the period 2014-2018[11] referring to the continuous professional development of the judicial office holders and improved perceptions of judiciary more generally. Since we are inevitably aiming to become members of the European family of lawyers, it is important to mention CCBE’s efforts on upcoming Convention on the protection of legal profession, whose ultimate aim is the protection of the profession and the rule of law.

By the time BiH enters EU (apparently, we have sufficient time to understand us, our profession and apply EU principles as of now), the professionalism levels will have to be raised.

As a concluding remark, the overview of European standards regarding professionalism was helpful in determining their purpose and implications. Importantly, the Code aims to harmonize the ethical guidelines and foster corporate spirit between the Member/Observer countries. Still, the diversity of rules and procedures may represent a challenge for the Code’s implementation, especially in few segments as discussed above. Also, peculiar challenges faced by BiH were provided, with the background discussion for the purpose of greater understanding of the entire judicial/political architecture. Lastly, recommendations were provided for the professionalism improvements for BiH lawyers, for the ultimate aim of strengthening their sense of belonging and preparedness for joining EU judicial community.

Bibliography

  • CCBE letter of March 2015, CCBE – Letter of February 2017, and protection of the legal profession, see CCBE letter of March 2017
  • Bosnia and Herzegovina Justice Sector Reform Strategy for the period 2014-2018, Ministry of Justice BiH, November 2013
  • Steering Committee of the Bar Association of the Federation of Bosnia and Herzegovina, 20 October 2009/Assembly of the Bar Association of the Republika Srpska, 26 October 2009
  • Dayton Peace Agreement, General Framework Agreement for Peace in Bosnia and Herzegovina, 21 November 1995
  • European Commission, Bosnia and Herzegovina 2016 Report, 9 November 2016
  • Council of Bars and Law Societies of Europe (hereafter as: CCBE) Code of Conduct for European Lawyers, 1988, Art. 1.1

 

[1] Council of Bars and Law Societies of Europe (hereafter as: CCBE) Code of Conduct for European Lawyers, 1988, Art. 1.1

[2] Council of Bars and Law Societies of Europe, 24 November 2006, Brussels

[3] CCBE’s Code of Conduct for European Lawyers 2.1.1

[4] CCBE’s Code of Conduct for European Lawyers 3.1.4

[5] CCBE’s Code of Conduct for European Lawyers 5.1

[6] CCBE’s Code of Conduct for European Lawyers 5.8

[7] Steering Committee of the Bar Association of the Federation of Bosnia and Herzegovina, 20 October 2009/Assembly of the Bar Association of the Republika Srpska, 26 October 2009

[8] Dayton Peace Agreement, General Framework Agreement for Peace in Bosnia and Herzegovina, 21 November 1995

[9] European Commission, Bosnia and Herzegovina 2016 Report, 9 November 2016

[10] CCBE letter of March 2015, CCBE Letter of February 2017, and protection of the legal profession, see CCBE letter of March 2017

[11] Bosnia and Herzegovina Justice Sector Reform Strategy for the period 2014-2018, Ministry of Justice BiH, November 2013