Bar associations must be independent and self-governing says UN

06 Dec 2018 / Human rights Print

Bar associations must be self-governing says UN

A UN report of the Special Rapporteur on the independence of judges and lawyers finds that bar associations play a vital role in safeguarding the independence and integrity of the legal profession and its members.

Mandate

In the report, Special Rapporteur Diego García-Sayán finds that associations should be independent and self-governing, because they hold a general mandate to protect the independence of the legal profession and the interests of its members.

They should also be recognised under the law, the UN says.

“Bar associations have a crucial role to play in a democratic society to enable the free and independent exercise of the legal profession, and to ensure access to justice and the protection of human rights, in particular due process and fair-trial guarantees,” UN Secretary General António Guterres says.

Access

“They protect individual members of the legal profession, particularly in situations where they are not able to adequately defend themselves; elaborate and implement requirements and procedures to gain access to the legal profession; develop codes of professional conduct; and handle disciplinary proceedings against lawyers,” he said.

Professional associations of lawyers also co-operate with state institutions in providing legal-aid services to poor and disadvantaged people, and legal education and training to lawyers throughout their careers, the UN report says.

The report analyses various forms of interference with associations’ independence, ranging from legal or administrative obstacles, to control by the executive or judicial branch, and threats of disciplinary action and intimidation against the members of bar associations.

Self-governing

The UN’s Basic Principles on the Role of Lawyers (published in 1990) recognise that lawyers, like other citizens, have the right to freedom of association and assembly, which includes the right to form and join self-governing professional associations to represent their interests. Since its publication, this universal document has been referenced in wrangles between lawyers and governments.

Requirements

Existing legal standards do not provide a definition of what constitutes a professional association of lawyers. They simply focus on the necessary requirements that such institutions must possess, such as independence and a self-governing nature.

The report recommends that: “In order to ensure the integrity of the entire profession and the quality of legal services, it is preferable to establish a single professional association regulating the legal profession.”

Elected by peers

Another principle of the UN report is that: “In order to guarantee the independence of the legal profession, the majority of members of the executive body of the bar association should be lawyers elected by their peers.”

It says that state control of bar associations or governing bodies is “incompatible with the principle of the independence of the legal profession”.

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