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Main Index
Index:
* Current developments in cross-border discipline of foreign lawyers
Section 1 of 3
* Current developments in cross-border discipline of foreign lawyers
Section 2 of 3
* Current developments in cross-border discipline of foreign lawyers
Section 3 of 3
* Current developments in cross-border discipline of foreign lawyers
Section 1 of 3
| Jonathan Goldsmith - IBA annual conference 2006 Chicago | |
Jonathan Goldsmith - IBA annual conference 2006 Chicago
Section 1 of2
Disciplinary proceedings in the EU and EEA
Name of Speaker: Jonathan Goldsmith
Session title: Current developments in cross-border discipline of foreign lawyers
Date and time of session: 21/09/2006; 9.30-12.30
Content:
Page 1: Articles relating to disciplinary procedures from EU Directive 98/5/EC facilitating practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained.
Page 2: Articles relating to disciplinary procedures from EU Directive 77/249/EEC to facilitate the effective exercise by lawyers of freedom to provide services.
Page 4: Disciplinary proceedings and contact points in the EU and EEA Member States.
Relevant articles from 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.
Complete text: http://europa.eu.int/eur-lex/pri/en/oj/dat/1998/l_077/l_07719980314en00360043.pdf
Article 6
Rules of professional conduct applicable
1. Irrespective of the rules of professional conduct to which he is subject in his 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 he pursues in its territory.
2. Lawyers practising under their home-country professional titles shall be granted appropriate representation in the professional associations of the host Member State. Such representation shall involve at least the right to vote in elections to those associations' governing bodies.
3. The host Member State may require a lawyer practising under his 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 home-country professional title shall be exempted from that requirement if he can prove that he is covered by insurance taken out or a guarantee provided in accordance with the rules of his 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 7
Disciplinary proceedings
1. In the event of failure by a lawyer practising under his home-country professional title to fulfil the obligations in force in the host Member State, the rules of procedure, penalties and remedies provided for in the host Member State shall apply.
2. Before initiating disciplinary proceedings against a lawyer practising under his home-country professional title, the competent authority in the host Member State shall inform the competent authority in the home Member State as soon as possible, furnishing it with all the relevant details.
The first subparagraph shall apply mutatis mutandis where disciplinary proceedings are initiated by the competent authority of the home Member State, which shall inform the competent authority of the host Member State(s) accordingly.
3. Without prejudice to the decision-making power of the competent authority in the host Member State, that authority shall cooperate throughout the disciplinary proceedings with the competent authority in the home Member State. In particular, the host Member State shall take the measures necessary to ensure that the competent authority in the home Member State can make submissions to the bodies responsible for hearing any appeal.
4. The competent authority in the home Member State shall decide what action to take, under its own procedural and substantive rules, in the light of a decision of the competent authority in the host Member State concerning a lawyer practising under his home-country professional title.
5. Although it is not a prerequisite for the decision of the competent authority in the host Member State, the temporary or permanent withdrawal by the competent authority in the home Member State of the authorisation to practise the profession shall automatically lead to the lawyer concerned being temporarily or permanently prohibited from practising under his home-country professional title in the host Member State.
Article 13
Cooperation between the competent authorities in the home and host Member States and confidentiality In order to facilitate the application of this Directive and to prevent its provisions from being misapplied for the sole purpose of circumventing the rules applicable in the host Member State, the competent authority in the host Member State and the competent authority in the home Member State shall collaborate closely and afford each other mutual assistance.
They shall preserve the confidentiality of the information they exchange.
Relevant articles from Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services.
Complete text: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31977L0249:EN:HTML
Article 4
1. 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 organization, in that State. (1)OJ No C 103, 5.10.1972, p. 19 and OJ No C 53, 8.3.1976, p. 33. (2)OJ No C 36, 28.3.1970, p. 37 and OJ No C 50, 4.3.1976, p. 17.
2. A lawyer pursuing these activities shall observe the rules of professional conduct of the host Member State, without prejudice to his obligations in the Member State from which he comes.
3. When these activities are pursued in the United Kingdom, ''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 United Kingdom 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 United Kingdom shall always be subject to the rules of professional conduct applicable in Ireland to barristers.
4. A lawyer pursuing activities other than those referred to in paragraph 1 shall remain subject to the conditions and rules of professional conduct of the Member State from which he 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.
Article 6
Any Member State may exclude lawyers who are in the salaried employment of a public or private undertaking from pursuing activities relating to the representation of that undertaking in legal proceedings in so far as lawyers established in that State are not permitted to pursue those activities.
Article 7
1. The competent authority of the host Member State may request the person providing the services to establish his qualifications as a lawyer.
2. In the event of non-compliance with the obligations referred to in Article 4 and in force in the host Member State, the competent authority of the latter shall determine in accordance with its own rules and procedures the consequences of such non-compliance, and to this end may obtain any appropriate professional information concerning the person providing services. It shall notify the competent authority of the Member State from which the person comes of any decision taken. Such exchanges shall not affect the confidential nature of the information supplied.
Summary of disciplinary proceedings and contact points in the EU and EEA Member States
See also: http://www.ccbe.org/doc/En/table_discipline_april_2006.pdf
AUSTRIA
Disciplinary bodies:
First Instance :
The self-regulatory disciplinary body is the Disciplinary Council of the appropriate local Bar Association, which sits in senates of five members. A Kammeranwalt acts as prosecuting attorney.
Appeal :
An appeal against the decisions of the Disciplinary Council lies to the Supreme Commission of Appeal in Disciplinary Matters. This body consists of two lawyers of the Bar Association and two judges of the Supreme Court. No external disciplinary tribunal exists.
Proceedings:
Launch of a complaint :
Anybody may complain even anonymously about a lawyer. The time limit for lodging a complaint is five years after the disciplinary offence. The complaints have to be sent to the Disciplinary Council of the local Bar Association.
Procedure :
The procedure is characterized by the principle of ex officio judicial investigations. The Disciplinary Board starts its proceedings ex officio as soon as it receives information about a disciplinary offence. An oral not public hearing is provided. The accused may be represented by a lawyer. The sentence has to be intimated to the lawyer concerned, to the Kammeranwalt, to the person disadvantaged by the accused lawyer and to the Bar Council.
Types of sanctions:
- Written reprimand.
- Fine. A fine may be imposed together with the prohibition to practise.
- Prohibition to practise as a lawyer. The suspension from practise must not exceed one year. The prohibition applies to all fields of law, it is thus absolute. If a lawyer fails to inform the Bar about his indemnity insurance, a provisional
prohibition to practise is imposed.
- Striking off the roll. After having been struck off the roll, a lawyer may reapply for admission after 3 years. If a lawyer has obtained admission to the Bar surreptitiously or if he continues to practise as a lawyer after having been forbidden to do so, he is automatically struck off the roll.
- Temporary sanctions:
the lawyer may be put under supervision, his right to appear before certain courts and authorities may be withdrawn, prohibition to provide vocational training to future lawyers, so-called Rechtsanwaltsanwrter, a lawyer may be temporarily forbidden to practise.
Enforcement:
By the competent committee of the Bar: the committee issues a request for payment, which is the enforceable title. Where a lawyer is forbidden to practise or struck off the roll, an interim representative is appointed and the highest
courts are informed.
Sanctions are applicable in the entire state of Austria, only temporary measures may be restricted to a certain geographical area.
Communication/Publicity:
Communication :
All provisional measures are communicated to the criminal authorities. The highest courts are informed about lawyers who have been struck off the roll.
Publicity: None.
All final disciplinary sanctions are recorded in the register of the competent Bar where they are kept confidential.
Contact details of the disciplinary bodies or contact points:
First instance
Disciplinary Council of the Rechtsanwaltskammer Burgenland
Disziplinarrat der Rechtsanwaltskammer Burgenland
Prsident Dr. Karl-Heinz Gtz
Marktstrasse 3
A 7000 Eisenstadt
Tel: 0043 2682 70 45 30
Fax: 0043 2682 70 45 31
Disciplinary Council of the Rechtsanwaltskammer fr Krnten
Disziplinarrat der Rechtsanwaltskammer fr Krnten
Prsident Dr. Peter Gradischnig
Theatergasse 4/I
A 9020 Klagenfurt
Tel: 0043 463 51 24 25
Fax: 0043 463 51 24 25 15
Disciplinary Council of the Rechtsanwaltskammer Niedersterreich
Disziplinarrat der Rechtsanwaltskammer Niedersterreich
Prsident Dr. Heide Strauss
Andreas-Hofer-Strasse 6
A 3100 St. Plten
Tel: 0043 2742 71 65 00
Fax: 0043 2742 76 5 88
Disciplinary Council of the Obersterreichische Rechtsanwaltskammer
Disziplinarrat der Obersterreichischen Rechtsanwaltskammer
Prsident Dr. Christian Slana
Museumstrasse 25/Quergasse 4
A 4020 Linz
Tel: 0043 732 77 17 30
Fax: 0043 732 77 90 67 85
Disciplinary Council of the Salzburger Rechtsanwaltskammer
Disziplinarrat der Salzburger Rechtsanwaltskammer
Prsident Dr. Alois Bixner
Giselakai 43
A 5020 Salzburg
Tel: 0043 662 64 00 42
Fax: 0043 662 64 04 28
Disciplinary Council of the Steiermrkische Rechtsanwaltskammer
Disziplinarrat der Steiermrkischen Rechtsanwaltskammer
Prsident Dr. Peter Primus
Salzamtsgasse 3/IV
A 8010 Graz
Tel: 0043 316 83 02 90
Fax: 0043 316 82 97 30
Disciplinary Council of the Tiroler Rechtsanwaltskammer
Disziplinarrat der Tiroler Rechtsanwaltskammer
Prsident Dr. Georg Hubner
Meraner Strasse 3/III
A 6020 Innsbruck
Tel: 0043 512 58 70 67
Fax: 0043 512 57 13 84
Disciplinary Council of the Vorarlberger Rechtsanwaltskammer
Disziplinarrat der Vorarlberger- Rechtsanwaltskammer
Prsident Dr. Andreas Oberbichler
Marktplatz 11
A 6800 Feldkirch
Tel: 0043 5522 711 22
Fax: 0043 5522 711 22 11
Disciplinary Council of the Rechtsanwaltskammer in Wien
Disziplinarrat der Rechtsanwaltskammer in Wien
Prsident Dr. Hans Rant
Ertlgasse 2/Ecke Rotenturmstrasse
A 1010 Wien
Tel: 0043 1 533 27 18
Fax: 0043 1 533 27 18 44
Appeal
Supreme Commission of Appeal in Disciplinary Matters
Oberste Berufungs- und Disziplinarkommission
Prsident des OGH Dr. Johann Rzeszut
Museumstrasse 12
A 1016 Wien
Tel: 0043 1 521 52 3780
BELGIUM
Disciplinary bodies:
First instance :
The various local Bars in Belgium are all self-regulatory disciplinary bodies.
There is a Conseil de lOrdre/Raad van de Orde in each Bar.
Appeal :
In each area of a Court of Appeal there is a disciplinary Council of Appeal. These are only external disciplinary tribunals before which the decisions of the Council of the Order may be appealed. The Disciplinary Council of Appeal is presided over by the Senior President of the Court of Appeal and is composed of a number of chambers. The procureur gnral takes the place of the public minister and prosecutes. Each year the btonniers of the Bars within the area of the Court of Appeal make up a list of advocates who may be called to serve as assessors, having regard to the number of members of each Bar in the area.
Each chamber is composed of the (senior) president of the Court of Appeal and 4 advocates. Two of them are members of the local Bar of the advocate who is prosecuted. The members of the Council of the Order which gave the decision appealed against are not eligible to take any part in its appeal.
Proceedings:
Launch of a complaint :
Disciplinary matters are investigated by the btonnier/stafhouder, in terms of his office; or by a complaint, or by written notice from the procureur gnral, always made through the btonnier. The initial complaint should be lodged with the btonnier of the Bar of the district of which the advocate is a member. Only the btonnier himself is competent to decide whether or not to bring the matter before the Council. There is no time limit for lodging a complaint.
Procedure :
The procedure before the Disciplinary Council of Appeal is conducted in the language used in the wording of the sentence. All assessors sitting must know the language of the procedure. Debates before the Disciplinary Council (Conseil de lOrdre) and Disciplinary Council of Appeal do usually take place in public unless the advocate charged with the offences requires the doors to be closed or reasons of public decency or professional secrecy require otherwise. The advocate is notified of the findings of the Disciplinary Council of Appeal by registered post.
Opposition by the advocate to a sentence passed in absence by the Disciplinary Council of Appeal is made in the same form and time schedule as a normal appeal in disciplinary matters (within fifteen days of the notification). It is investigated and judged in accordance with the rules applicable to a first instance hearing.
The advocate or the procureur gnral may within 1 month submit the finding of the Disciplinary Council of Appeal to the Supreme Court (Cour de cassation/Hof van Cassatie) in accordance with the civil procedure.
Unless the sentence states otherwise this power is suspensive. If sentence is quashed, the Supreme Court sends the case back to the Disciplinary Council of Appeal composed of other members.
Types of sanctions:
- Warning
- Censure
- Reprimand
- Suspension (The advocate who is for the second time punished with the sanction of suspension may in the same decision be disbarred)
- Disbarment: The advocate who has been disbarred or struck off the roll of advocates may not be inscribed on a roll as an advocate or on a list as a stagiaire until after 10 years have passed from the date of disbarment unless this is justified by exceptional circumstances. After ten years he may be re-inscribed by the authorization of the Bar Council which disbarred him. The advocate who is suspended or disbarred is not allowed to carry out any professional business nor to advise clients, give consultations or in any way make representation that he is an advocate. (But there is no monopoly of legal advice for the Bar. So a disbarred advocate may give consultations, but not using the title of advocate and not under the guarantees offered by the legal profession)
- In case of infringement on the money laundering legislation the disciplinary judges can impose a fine on the advocate going from 250 to 1.250.000 EURO.
Enforcement:
The public prosecutor (procureur-gnral) is responsible for enforcement of the sanctions of the suspension and disbarment.
Communication/ Publicity:
Communication :
The sanction may be communicated to the plaintive.
Publicity :
In the register held at the bar and by a letter from the procureur-gnral to the jurisdictions of the realm in case of the sanctions of suspension and disbarment and to the authorities of the other member states in case of applications of directives 96/5 and 77/249.
Contact detail of the disciplinary bodies or contact points:
Ordre des barreaux francophones et germanophones
Maison de l'Avocat Avenue de la Toison D'Or, 65 B-1060 BRUXELLES Btonnier: Jean-Marie DEFOURNY
Tel.: +32.(0)2.648.20.98
Fax.: +32.(0)2.648.11.67
E-mail: info@avocat.be
Website: www.avocat.be
Orde van Vlaamse Balies
Koningsstraat 148 B-1000 BRUSSEL Voorzitter: Genevive BOLIAU Tel.: +32.(0)2.227 54 70 Fax.: +32.(0)2.227 54
79 E-mail: vvb@advocaat.be Website: www.advocaat.be
CYPRUS
Disciplinary bodies:
First instance :
The Cyprus Bar Association us a self-regulatory disciplinary body and has its own Disciplinary Board of Advocates. There is no separate Disciplinary Tribunal Operating outside and independently from the Cyprus Bar Association
Appeal :
Proceedings:
Launch of a complaint :
Complaints are to be lodged with the Disciplinary Board of Advocates through the Attorney General of the Republic of Cyprus by the client or may be made also by the local Bar Association. There is no time limit for lodging of complaints.
Procedure :
Types of sanctions:
- reprimand
- fine
- temporal suspension
- disbarment
Enforcement:
Communication/ Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
CZECH REPUBLIC
Disciplinary bodies:
First instance :
The Czech Bar Association is a self-regulatory disciplinary body. The disciplinary bodies are the Control Council (has 44 members and 5 substitute members from which the Chairman and three vice chairmen are elected) and the Disciplinary Commission (has 83 members from which the Chairman and two vice chairmen are elected).
Cases of material or repeated breach of duties under statute or internal regulations of the Bar are heard by the Bar Associations Disciplinary Commission at first instance. The disciplinary functions are exercised by a three-member disciplinary jury which is composed of members of the Disciplinary Commission of the Bar Association. The Chairman of the Associations Control Council is the disciplinary petitioner. There is no external disciplinary tribunal.
Appeal :
Appeal is decided over by a three-member jury appointed by the Directorate of the Association (further referred to as Appeal jury).
Proceedings:
Launch of a complaint :
A complaint should be made in the first instance to the Control Department of the Czech Bar Association. If it is shown that the complaint is justified, a disciplinary action is drawn up. The Chairman of the Associations Control Council is the disciplinary petitioner.
Procedure :
The Chairman of the Associations Control Council is entitled to act in disciplinary proceedings as the disciplinary prosecutor. The disciplinary action must be filed within six months from the day when the disciplinary petitioner learnt
of disciplinary misconduct, yet not later than two years after the day when the disciplinary misconduct occurred. The six-month period does not include the time when preliminary measures were conducted in order to determine whether disciplinary misconduct occurred, however, this time period must not exceed two months. The Minister of Justice may also act in this capacity.
The advocate concerned may be heard himself or may appoint an advocate to represent him. A disciplinary decision must be in writing and include the verdict, the rationale thereof and instruction on remedial action.
Both advocate and the representative of the Bar, who is prosecuting the case, have the right to appeal against the decision within fifteen days of intimation of that decision. The appeal has got a suspensive effect. The appeal is heard by the three-member Appeal jury. Its decision is final except where an advocate is to be disbarred. Then he may appeal to the Supreme Court.
The disciplinary proceeding may be reopened if there appear new facts or evidence which may have resulted in a more favourable verdict. The motion to permit the reopening is decided over by a disciplinary jury specially appointed for this purpose.
Types of sanctions:
- Written reprimand
- Written reprimand reported to other lawyers
- Fine: up to one hundred times the minimum monthly salary
- Prohibition to practise: A lawyer may be prohibited to practise for a period from six months up to five years. The prohibition is absolute, i.e. it cannot be limited to certain legal fields. After having been excluded from the profession, a lawyer may reapply for admission once his offence is deleted from the Penal Register. The prohibition to practise as a lawyer applies to activities in the entire Czech Republic
- Disbarment if the lawyer is convicted of a criminal offence: A lawyer who has been sentenced to imprisonment for a crime committed within or without the framework of his professional activities, which could damage the reputation of the profession, is automatically disbarred.
There are no provisions as to the imposition of temporary sanctions in urgent cases.
Enforcement:
Fines are enforced by the Bar Association filing an action at the competent court. If the lawyer fails to pay, this is considered another violation of his professional duties.
Communication/ Publicity:
Communication :
The verdict about the sanction is notified to the parties to the disciplinary proceeding.
The sanction of public warning/reprimand is published in the Bulletin of the Czech Bar Association.
The Association notifies the appropriate authority in the foreign country of initiation and results of the disciplinary proceeding against an attorney-at-law who has been registered in the list of attorneys-at-law, as well as of temporary suspension from the legal practice of such attorney-at-law, or of being stricken out from the list of attorneys-at-law.
Publicity :
Sanctions are published in the Gazette of the Czech Bar Association, which is sent to every lawyer and to all the courts.
Contact details of the disciplinary bodies or contact points:
JUDr. Jana Wurstova, Head of International Department
Czech Bar Association
Narodni 16
110 00 Praha 1
Czech Republic
Tel: 00420 2 24 93 44 62
Fax: 00420 2 24 93 39 41
E-mail: wurstova@cak.cz
DENMARK
Disciplinary bodies:
First instance :
The Danish Law Society is a self-regulatory disciplinary body. It has an elected Board and Chairman. Serious disciplinary matters are dealt with by the Disciplinary Tribunal, which is not an organ of the Danish Law Society. The Disciplinary Tribunal (Nvnsmoede) is an independent body with 18 members which has statutory disciplinary functions. It is established and regulated by the Administration of Justice Act.
The President of the Supreme Court appoints three judges, the Minister of Justice appoints six lay members and the Law Society elects nine advokater to the Tribunal. The Tribunal meets in three divisions, each of which is composed of three lawyers and two lay members and is chaired by a judge who has the casting vote. The Minister of Justice lays down the rules in respect of the activities of the Tribunal.
Appeal :
All decisions relating to the conduct or discipline of lawyers may be referred to the High Court.
Proceedings:
Launch of a complaint :
The client may make a complaint himself directly to the disciplinary body. There s no time limit for lodging a complaint in respect of the lawyers fees. There is a time limit of 3 months from the discovery of the matter to which the complaint pertains for lodging a complaint in respect of disciplinary matters.
Procedure :
Types of sanctions:
- Reprimand
- Warning
- Fine
- Removal of a case from a lawyer
- Suspension of the lawyers right to practise law for a period of 6 months to 5 years, or until further notice.
Enforcement:
Communication/ Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
ESTONIA
Disciplinary bodies:
First instance :
The self-regulatory disciplinary body is the Court of Ethics (Court of Honour) of the Estonian Bar Association. The Court of Ethics has five members and three substitute members. Four members and the substitute members must be sworn advocates (the highest level of qualification within the Bar) with professional experience as sworn advocates for at least ten years. One professional judge is nominated by the Chairman of the Supreme Court. Changes in law increasing the number of non-advocates (professional judges and legal scholars) are anticipated.
Appeal :
An appeal against the decisions of the Court of Ethics may be filed with the Administrative Court. An appeal against the resolution of the Board of the Bar confirming the disbarment by the Court of Ethics may be filed with the General Assembly of the Bar. The administrative court has a jurisdiction regarding disbarment resolutions as well.
Proceedings:
Launch of a complaint :
Any person may file a complaint against an advocate to the Court of Ethics or to the Board of the Bar Association which will convey the matter to the Court of Ethics. As the Court of Ethics must take into consideration general procedural norms and since the privileged data is involved, a legitimate interest of any claimant must be found out.
The procedure is commenced if there are characteristics of disciplinary offence in the activities of the advocate. The decision whether to commence the procedure or to dismiss is to be made within one month from the moment of receipt of information about possible violation.
Procedure :
At least three members of the Court must participate at the proceedings.
The advocate, whose alleged offence is discussed, must participate at the proceeding. Upon necessity, the Court of Ethics has a right to suspend the activities of the advocate for the time period of the disciplinary hearings.
Types of sanctions:
- Warning,
- Fine: Fines may amount to up to six monthly salaries.
- Prohibition to practise as a lawyer (maximum one year) The prohibition is absolute, i.e. it cannot be limited to individual fields of law. A prohibition to practise as a lawyer applies to activities within entire Estonia.
- Disbarment. The resolution of disbarment must be confirmed by the Board of the Bar.
The individual sanctions cannot be imposed simultaneously. Sanctions may not be endorsed in case if the disciplinary offence has taken place more than a year ago. Thus, a Statute of limitation is one year (changes of law prolonging this term are expected).
Enforcement:
Disbarment is enforced by the Board of the Bar Association, other sanctions are valid from the moment of resolution of the Court of Ethics.
Communication/ Publicity:
Communication :
There is no specific regulation. All courts and some penal authorities are informed in cases of prohibition of practice or disbarment.
Publicity :
Disbarment is made known in official electronic state announcements database.
Contact details of the disciplinary bodies or contact points:
Court of Ethics of Estonian Bar
Ravala 3, Tallinn 10143, Estonia
Ms. Kadri Schmidt, Consultant
Tel. +372 662 0655, Fax +372 662 0677
e-mail: kadri.schmidt@advokatuur.ee
Mr. Toomas Luhaaar, Chairman
Dunkri 7
Tallinn 10123
Estonia
Tel. +372 630 6460
Fax +372 630 6463
FINLAND
Disciplinary bodies:
First instance :
The Finish Bar Association is a self-regulatory disciplinary body. Disciplinary matters are dealt with by the Disciplinary Section of the Board of the Finish Bar Association.
There is no separate Disciplinary Tribunal operating outside, and independently from the Finish Bar Association.
Appeal :
The complainant is not in a position of a party and has not therefore right to appeal. The advocate in question can appeal only if he has been disbarred or given a public warning. The Chancellor of Justice has the right to appeal on any of the Disciplinary Boards decisions. The Court of Appeal is in Helsinki.
Proceedings:
Launch of a complaint :
Anybody may take a complaint directly to the Disciplinary Board. There is no time limit for the lodging of complaints.
Procedure :
The lawyer in the office of the Bar Association requires an explanation from the advocate to the complaint. After receiving the written reply the lawyer drafts a memorandum of the case for the Boards handling. In the next phase a member of the Board makes a written draft resolution for the Boards meeting where he presents the case. The procedure is practically always based on written documents only.
Types of sanctions:
- Warning,
- Reprimand,
- Prohibition to represent clients: it is limited in time and may be restricted to certain courts or fields of laws,
- Disbarment: dishonesty and the deliberate perpetration of a wrongful deed necessarily lead to disbarment,
- Public warning
There are no provisional sanctions. Disciplinary measures can not be imposed in combination.
Enforcement:
The prohibition to represent clients is enforced by the competent court.
Disbarment is enforced by the Bar Association.
Communication/ Publicity:
Communication :
The penal authorities are not informed about sanctions. There is no central register.
Publicity : None
Contact details of disciplinary bodies or contact points:
Suomen Asianajajaliitto (The Finnish Bar Association)
Simonkatu 12 B 20
FIN - 00100 HELSINKI
Phone: (+358 9) 6866 1215;
Fax: (+358 9) 6866 1299
FRANCE
Disciplinary bodies:
Disciplinary functions are currently carried out in France by the Council of the Bar Association in each Bar (181 Bars).
The President of the Bar is the authority in charge of disciplinary actions.
In order to satisfy the requirements set in Article 6 of the European Convention of Human Rights and in case-law of the Court of Cassation, the National Council of the Bars proposed to reform the disciplinary procedure which has been approved by the Parliament. The law was voted at the end of January 2004.The aim of the reform is to properly separate disciplinary functions, i.e. the authority in charge of disciplinary actions who is the President of a Bar, the pre-trial investigation of a case and the judgement. The pre-trial investigations are now carried out by members of the Council of the Bar Association.
On the contrary, the disciplinary council is now regional. It is located in every Court of Appeal (35 Courts of Appeal in France and Frances overseas departments and territories). The disciplinary councils members are nominated by the Councils of the Bar Associations from the jurisdiction of the Court of Appeal.
Their numbers depend on the number of members of the Bar. Bars are not allowed to have more than 50 % of their members in a disciplinary council and each Bar will have at least one of its members in the disciplinary council. The remedies remain the same:
It is now possible to submit the decision taken by a disciplinary council to the Court of Appeal censure, either through the concerned lawyer or through the public prosecutor. At the level of the second degree, the disciplinary jurisdiction is exclusively composed of professional judges.
Finally, the Court of Appeal decisions can be submitted to the Court of Cassation following the civil procedure. The disciplinary law, if it has a repressive function, it is civil, and is therefore not submitted to criminal courts. The reform was implemented on January 1 st , 2005. A decree of application of the law must be elaborated in the coming months as all the details of the disciplinary procedure are in a decree and not in a law.
Proceedings:
Any claim regarding a lawyer is addressed to the President of the Bar or to the Public Prosecutor who can refer the matter to the disciplinary council. In principle, the President of the Bar first expedites a deontological investigation before deciding whether a disciplinary pre-trial investigation is necessary.
If he considers that it is necessary to launch a disciplinary pre-trial investigation, the President can nominate a member of the Council of the Bar Association to conduct investigations concerning the claim. In simple cases, he directly summons the concerned lawyer to appear before the disciplinary council.
If the President does not react or if he decides to close the case, the Public Prosecutor can decide to refer the case to the disciplinary council.
The plaintiff does not take part in the disciplinary procedure, but he must be informed about the procedure developments and the taken decisions. When the President of the Bar decides, due to the complexity of the case, that it is necessary to hear witnesses or to order evaluation (chartered accountancy or medical examination), the investigation is thus led by a member of the Council of the Bar Association which must write a report.
Further to this report, the President decides to suit the concerned lawyer before the disciplinary council. When the lawyer who was subject to a complaint is directly summoned to appear before the disciplinary council, the latter then launches an investigation in court.
As soon as he is informed of the opening of a disciplinary investigation or a direct summons to appear before the disciplinary council, the lawyer can be assisted by a lawyer and receive a free copy of evidence from the disciplinary file.
As from the beginning of the investigation or the summons to appear, the lawyer is, of course, informed of the charges against him.
In court, the lawyer is questioned by the President of the disciplinary council which sits as a bench of five members. When the number of lawyers in the jurisdiction of a Court of Appeal exceeds 500, the disciplinary council can sit as several restricted benches.
The former President of the Bar, who due to his earlier mandate has launched the suit (authority in charge of disciplinary actions), can not be part of the bench. In case of urgency and to protect the public, the Council of the Bar Association can, further to a request by the General Prosecutor or the President of the Bar, suspend temporarily the lawyer who is registered with its roll, when the latter is subject to criminal or disciplinary suit.
This suspension is four-month long and can be repeated.
This is a security measure in the interest of thirds. It is not a disciplinary sentence.
The lawyer appears before the disciplinary court as well as the Court of Appeal in gown. Of course, he can be assisted at each stage of the procedure by a lawyer. It is ordered to publish the debates if requested by the lawyer who appears before the disciplinary council.
It is also the case before the Court of Appeal. As far as the Court of Appeal is concerned, the general prosecutor is present and makes his submissions. The plaintiff does not participate in the procedure neither before the Court of Appeal not the disciplinary council.
Types of sanctions:
- Notice
- Reprimand
- Temporary prohibition which can not exceed three years,
- Disbarment or removal from honorary title. Notice, reprimand, temporary prohibition can comprise deprivation, through the decision pronouncing the disciplinary sentence, of the right to be part of the Council of the Bar Association for a period no longer that 10 years. Furthermore, the disciplinary council can, as incidental sentence, order to publish any disciplinary sentence.
The temporary prohibition can be a deferred sentence.
The suspension of the sentence can not extend to measures and fittings regarding ineligibility at the Council of the Bar Association, or publication. If, in a period of five years from the pronouncement of the sentence, the lawyer committed a crime or misconduct drawing the pronouncement of a new disciplinary sentence, this leads, except in case of reasoned decision, to the enforcement of the first sentence without confusion with the second one.
Enforcement:
The Council of the Bar Association is in charge of making the sentence enforced. The sentence is notified to the interested lawyer and the Public Prosecutor. The latter, in any case, guarantees and controls the enforcement of disciplinary sentences and temporary suspension.
Communication/ Publicity:
Communication:
Any definitive sentence imposed to a lawyer can be notified to all the heads of Courts in France by administrative way.
Publicity:
The publication of sentence can be ordered by the disciplinary council. It can be limited to local professionals or published in the professional or general press. It can intervene only when the disciplinary decision constitutes res judicata, i.e. when all remedies have been used.
Contact details of the disciplinary bodies or contact points:
Conseil National des Barreaux (CNB)
23, Rue de la Paix
75002 PARIS
Tl. : 01 53 30 85 60
Fax : 01 53 30 85 61 / 62
Email: cnb@cnb.avocat.fr
URL: www.cnb.avocat.fr
Until December 31 st , 2004, the 180 Bars existing in France continued to apply discipline until the judgement stage. From January 1 st , 2005, the reform of the disciplinary procedure applies. Therefore, around 35 local disciplinary councils are in charge of the judgement stage.
However, the Presidents of Bars will remain the authority in charge of action and the investigation will be ensured by members of the Bar Association Council. Therefore, there is no centralisation of the practice of the discipline of lawyers at national level.
In order to favour communication between the various Bars, members of the CCBE, with the French Bars, the National Council of the Bars proposes, without any role in the practice of discipline, to act as the point of contact with all the European Bars. It will be in charge of forwarding all the requests for information or communications to the concerned local Bars or disciplinary councils.
The National Council of the Bars will admit, for security reasons, to receive requests for information or communications only by regular mail, fax or e-mail.
GERMANY
Disciplinary bodies:
First instance :
The Bundesrechtsanwaltskammer (German Federal Bar) has no disciplinary jurisdiction. Disciplinary matters are dealt with in the first instance by the Rechtsanwaltskammern (Regional Bar), which are selfregulatory bodies supervised by the Ministry of Justice of the particular state (Land) to which it belongs. The individual regional Bars are responsible for professional supervision, i.e. the regional Bar ensures that the lawyers who are members of the Bar observe their professional obligations, and it has the power to enforce certain sanctions if a lawyer infringes against his professional obligations. The legislature has provided a formal complaint procedure and proceedings before the Legal Profession Disciplinary Tribunal.
Appeal :
All decisions relating to the conduct or discipline of lawyers may be referred to the courts. Lawyers, against whom charges are laid, may appeal to the courts.
The Disciplinary Tribunal is part of the special jurisdiction hearing lawyers cases (disciplinary matters as well as questions of admission). This jurisdiction consists of the Anwaltsgericht (Legal Profession Disciplinary Tribunal), the Anwaltsgerichtshof (Legal Profession Higher Disciplinary Court) and the Senat fr Anwaltssachen beim Bundesgerichtshof (Federal High Court of Justice Senate for Legal Profession Affairs). These are panels of practicing lawyers and professional judges who hear the cases pertaining to the Professional Code of Conduct of the legal profession. Only at the Senat fr Anwaltssachen beim Bundesgerichtshof there are professional judges in the
majority.
Proceedings
Launch of a complaint :
The client may complain directly to the Rechtsanwaltskammer (Regional Bar) or to the public prosecutor.
There is no time limit for lodging a complaint.
The complaint should be made, in writing, in the first place to the President of the Bar. The first step is for the Council of Management of the Bar (composed of 7 lawyers elected by the members of the Bar) to decide whether the level of negligence of the member of the regional Bar should be deemed as slight and issue a reprimand
- which makes it possible to punish minor infringements of the Professional Code of Conduct for lawyers without initiating formal proceedings and without incurring a large amount of costs - , or whether to initiate formal proceedings in the Legal Profession Disciplinary Tribunal. The issue of a reprimand does not exclude the possibility that the Public Prosecutors Office at the Higher Regional Court will initiate proceedings in the Legal Profession Disciplinary Tribunal on the basis of the same facts. The member of the regional Bar can avoid a reprimand being issued by making an application to the Public Prosecutors Office for the initiation of proceedings in the Legal Profession Disciplinary Tribunal so that he can clear himself of suspicion of a breach of duty.
Disciplinary Tribunal proceedings are opened on the basis of the submission of written charges by the Public Prosecutors Office to the Disciplinary Tribunal. The application for the initiation of the main proceedings in the Disciplinary Tribunal can be made by one of three applicants:
- the Public Prosecutors Office on its own initiative,
- the Council of Management of the relevant regional Bar
- the affected lawyer.
Procedure :
The Rechtsanwalt has always a right to appeal against the decision of the disciplinary authority. The member of the Bar has the right to object to the notification of reprimand within one month of issue by the Council of Management .The appeal must be made to the Anwaltsgerichtshof (Legal Profession Higher Disciplinary Court), set up for the region in which the Bar has jurisdiction.
There is a further appeal for matters of general interest to the Bundesgerichtshof (Federal High Court of Justice Senate for Legal Profession Affairs), Federal court with a civil and criminal division, composed by the President of the Federal High Court of Justice, 3 further members of this Court and 3 lawyers as puisne judges.
Types of sanctions:
- Warning
- Reprimand
- Fine up to 25,000
- Prohibition to represent: for 1-5 years. It may be limited to certain fields of law. A violation of the prohibition always leads to disbarment.
- Disbarment
- Admonition: pronounced by the bar, the other sanctions are imposed by the disciplinary court. It expires when the disciplinary court pronounces a decision. As an additional measure, reprimand and fine may be imposed together. All other sanctions may only be imposed separately.
As for provisional sanctions, a temporary prohibition to practise or to represent is possible. However, for this sanction to be imposed, the court must have every reason to believe that the final disciplinary measure will be disbarment, and may only be imposed to avoid a concrete danger.
Enforcement:
In order to enforce a fine, the chairman of the competent division of the disciplinary court issues a copy of the final clause of the judgement. The sanction is enforced by the Bar in accordance with the German Code of Civil Procedure. The prohibition to represent and the exclusion from the profession become effective as soon as the judgement becomes final. A prohibition to practise applies to the entire federal territory.
Communication/ Publicity:
Communication :
The prohibition to represent as well as the exclusion from the profession is registered in the Federal Central Register (Bundeszentralregister). Entries must be deleted from the authorities files after five years where a lawyer has received a warning, and after ten years where he has been reprimanded or fined.
Entries containing information on criminal convictions which have neither lead to punishment by the disciplinary court nor to an admonition by the Bar, have to be deleted after five years upon request by the respective lawyer. Publicity: None. Disciplinary proceedings are not open to the public. However, upon application the trial can be made public.
Contact details of the disciplinary bodie or/contact points:
- Regional bars
- Bundesrechtsanwaltskammer Littenstrae 9
D-10179 BERLIN
Tel.: +49.30.28.49.39-0
Fax.: +49.30.28.49.39-11
E-mail: zentrale@brak.de
Website: http://www.brak.de
GREECE
Disciplinary bodies:
First instance :
Each of the local Bars in Greece is a self-regulatory disciplinary body, and has its own Disciplinary Board of Lawyers.
There is no separate Disciplinary Tribunal operating outside, and independently from the Disciplinary Boards of the Local Bars.
Appeal :
The lawyer upon whom disciplinary sanctions have been imposed is entitled to appeal to the Supreme Disciplinary Board within 10 days from the decisions communication to him. The Supreme Disciplinary Board delivers an irrevocable judgment within 3 months.
Proceedings:
Launch of a complaint :
There are two procedures available in respect of complaints against lawyers.
The client may make a complaint himself directly to the Disciplinary Board of the Local Bar.
Complaints may also be instigated against a member of the Local Bar by the President/Btonnier of the Bar itself or by the Public Attorney. The time limit for lodging a complaint is three years. Any disciplinary proceedings act suspends the prescription.
Procedure :
When a report against a lawyer is communicated to the competent Bar Association, a member of the Bars Board must be appointed as Rapporteur to conduct the investigation. Then, the Board proceeds to set up a Disciplinary Board. Within six months at the latest from the date on which ex officio disciplinary proceedings have initiated or a report has been filed, the Disciplinary Board must complete the investigation procedure and deliver its final judgment.
If a lawyer is subject to criminal proceedings, the Disciplinary Board is not impeded from examining the same wrongful deed. A court decision does not impede the Disciplinary Board in its operation.
Types of sanctions:
- Adjudication of blame
- Reprimand
- Fine
- Temporary suspension of the right to practice form 8 days to 6 months
- Disbarment
Enforcement:
Final decisions are enforced by the President of the Bar Association. Disciplinary sanctions, with the exception of disbarment and temporary suspension of practising can be enforced by Courts.
Communication/ Publicity:
Communication :
Temporary suspension or disbarment must be communicated to the courts public prosecutors and to the secretaries of the Administrative courts.
Publicity :
All decisions of the Disciplinary Board of the Bar Associations regarding the sanctions of disbarment or temporary suspension must be published in a summary form in a law review once they are final. All other decisions, except for reprimands, are communicated by affixation at the premises of Bar Associations.
Contact details of the disciplinary bodies or contact points:
- Disciplinary Boards of Greek Local Bars
- Dikigorikos Sylogos Athinon (Athens Bar Association)
Akadimias Street 60
GR-106 79 ATHINAI
Tel.: +30.210.339.82.70/339.82.71/339.81.11 / 339.82.00
Fax.: +30.210.361.05.37
E-mail: dsarel@ath.forthnet.gr
Website: http://www.dsa.gr
HUNGARY
Disciplinary bodies:
First instance :
Each local Chamber of Lawyers is a self-regulating disciplinary body.
The appropriate self-regulatory disciplinary body is the Disciplinary Committee of the Chambers of lawyers of the area, viz. the county or Budapest, in which the lawyer has his practice.
Appeal :
An appeal against the decision of the Disciplinary Committee of the local Chamber of Lawyers lies to the Disciplinary Committee of the National Chamber of Lawyers. This body consists of a Chairman, a Deputy Chairman and members of their substitutes.
The advocate, his representative, and the President of the Bar may within 1 month submit the finding of the isciplinary Council of Appeal to the Court of Capital City in accordance with the civil procedure.
Unless the decision states otherwise this procedure is suspensive.
If the decision is quashed, the Court of Capital City sends the case back to the Disciplinary Committee of the National Chamber of Lawyers. The Court is not entitled to amend the decision of the Disciplinary Committee.
Proceedings:
Launch of a complaint :
A client making a complaint against a lawyer may complain to the President of the Bar Association/Chamber of Advocates, in a written form.
Disciplinary matters are brought to the attention of the Council by the President of the Bar /btonnier by written notice from the disciplinary commissioner/procureur gnral. The initial complaint from the National Bar Association should be lodged with the President of the Bar of the district of which the advocate is a member. The President himself is competent to decide whether or not to prosecute before the Council.
There is a time limit of one year from the commission of the disciplinary offence for initiation of the disciplinary procedure. If a crime has been committed this period is extended to three months following the completion of the criminal procedure.
Procedure :
The procedure before the Disciplinary Council is conducted in the language used in the wording of the sentence. All assessors sitting must know the language of the procedure.
Trial before the Disciplinary Council takes place in public unless the advocate charged with the offences, or the Disciplinary Council requires to close it. They may close the trila any time. The advocate is notified of the findings of the Disciplinary Council by registered post. Appeal is made in the same form and time schedule as a normal appeal within fifteen days of the notification.
It is investigated and judged in accordance with the rules applicable to the first instance procedure.
The advocate or his representative, and the President of The Bar may within 1 month submit the finding of the Disciplinary Council of Appeal to the Court of the Capital City in accordance with the civil procedure.
Unless the decision states otherwise this procedure is suspensive.
If the decision is quashed, the Court of Capital City sends the case back to the Disciplinary Committee of the National Chamber of Lawyers. The Court is not entitled to amend the decision of the Disciplinary Committee. Unless the decision states otherwise this power is suspensive. The disciplinary procedure is a contradictory procedure.
Types of sanctions:
- Reprimand
- Fine
- Exclusion from the Bar: The exclusion may be suspended for three years.
Together with conditional or unconditional disbarment, a fine may be imposed. This fine cannot be suspended.
A provisional prohibition may be imposed:
- on a lawyer who is prosecuted for an intentionally committed offence which is punishable with imprisonment of more than three years, or if it is deemed necessary on account of the seriousness of the offence;
- on a lawyer against whom the Disciplinary Committee made a exclusion from the Bar decision.
A temporary prohibition to practise may not exceed six months and has to be observed until the court decision becomes final.
Enforcement:
Fines are enforced on the basis of a decision by the Bar. The exclusion from the Bar is enforced by way of withdrawal of the lawyers identity card, a card that has to be presented when a lawyer represents clients before courts and authorities.
Communication/
Publicity:
Communication/ Publicity :
Sanctions are not published or communicated to the authorities.
Certain important decisions without name - are published in the official paper of lawyers, just to give information.
Contact details of the disciplinary bodies or contact points:
FIRST INSTANCE DISCIPLINARY BODIES
BUDAPESTI GYVDI KAMARA
1055 Budapest, Szalay u. 7.
1363 Bp., Pf.: 61.
T.: 1/353-0155, 353-0810, 331-4574, 269-5727
Fax: 332-1385
e-mail: bpbar@matavnet.hu
APPEAL DISCIPLINARY BODY
MAGYAR GYVDI KAMARA FEGYELMI BIZOTTSGA
1054 Budapest, Szemere u. 8.
T.: 1/311-9800, 331-1773
Fax: 1/311-7867
e-mail: muk@mail.tvnet.hu
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Main Index
* Current developments in cross-border discipline of foreign lawyers
Section 2 of 3
| Jonathan Goldsmith - IBA annual conference 2006 Chicago | |
Disciplinary bodies:
First instance :
The Icelandic Bar Association is a self-regulatory disciplinary body with an elected council and chairman. The disciplinary functions of the Association are exercised by the Board. There is no independent disciplinary tribunal.
Appeal :
A right of appeal against the decision of the Board lies to the Supreme Court.
Proceedings:
Launch of a complaint :
The client may make a complaint directly to the disciplinary body.
The Council of the Icelandic Bar Association may of its account initiate
proceedings against a member or members.
There is no time limit for lodging a complaint. The effect of a delay in filing a complaint is decided on a case by case basis.
Types of sanctions:
- Warning
- Censure
- Fine
Enforcement:
Communication/
Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
IRELAND
Disciplinary bodies:
First instance :
Law Society of Ireland represents and regulates the legal profession of solicitors.
The Departments' Complaints and Client Relations section of the Law Society deals with all complaints against solicitors arising from clients, members of the public and the profession. These complaints are either resolved by the secretariat or are referred to the Complaints and Client Relations Committee.
Where professional misconduct has been found, the Department deals with the preparation and presentation of cases before the Disciplinary Tribunal, together with petitions and applications to the High Court where appropriate.
Barristers are subject to the professional standards set by the Bar Council. Complaints of misconduct by a barrister against another barrister are considered by the Bar Council's Professional Practices committee.
Complaints of misconduct by a barrister against another barrister are considered by the Bar Council's Professional Practices committee.
Complaints of misconduct from the public, solicitors and other clients are considered by the Barristers' Professional Conduct Tribunal.
The Barristers' Professional Conduct Tribunal comprises five practising barristers, including a chairman, and two lay representatives: one nominated by the Irish Business and Employers' Confederation (IBEC), and one nominated by the Irish Congress of Trade Unions (ICTU).
Appeal :
Proceedings:
Launch of a complaint :
Procedure :
Types of sanctions:
The Tribunal (for barristers) can impose penalties if it finds that a barrister has been guilty of breaching the Code of Conduct or of breaching proper professional standards. It should be noted that the Tribunal does not deal with professional negligence claims. Such claims are a matter for the courts.
Enforcement:
Communication/
Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
ITALY
Disciplinary bodies:
First instance :
The various local Bars in Italy are all self-regulatory disciplinary bodies.
The disciplinary functions of the Bar are exercised in the first instance by the Council of the Bar which may have from seven to fifteen members in accordance with the size of the Bar.
There is no separate disciplinary Court operating outside and independently from the Councils of the Local Bars.
Appeal :
Decisions relating to the conduct or discipline of lawyers may not be referred to the courts but to the Consiglio nazionale forense (hereinafter: Consiglio) in Rome, which is the second instance forum with jurisdiction over the conduct and discipline of lawyers and it receives appeals on these matters. Against the decisions of the Consiglio, it is possible to appeal to the Corte di Cassazione.
Proceedings:
Launch of a complaint :
The client may make a complaint himself directly to the Council of the local Bars.
There is no time limit for lodging a complaint but there is a time limit for starting proceedings: five years from the time of the fact or occurrence about which the complaint is made.
Procedure :
The Council of the local Bar can do any investigation and hear the witnesses in the hearings, with no special limits: at the end of the procedure the Council takes a decision.
A Lawyer may continue to practise while appealing against a decision from the Bar Council, but the decision from the Consiglio has immediate effect.
Types of sanctions:
- Warning,
- Reprimand,
- Prohibition to practise as a lawyer: it may be imposed for a period ranging between two months and one year and it is absolute, i.e. it cannot be limited to certain fields of law. A suspension from practice applies to the entire state.
- Disbarment.
- In urgent cases, a provisional suspension from practice may be imposed.
Enforcement:
The prohibition to practise and disbarment are enforced by the Bar: it oversees the implementation of a sanction and reports to the courts.
Communication/
Publicity:
Communication :
The Public Prosecutors office is informed of the sanctions imposed.
Suspension from practice and disbarment are communicated to all Bars and Higher Regional Courts.
Contact details of the disciplinary bodies or contact points:
Consiglio Nazionale Forense
Roma, Via Arenula 71 (c/o Ministry of Justice)
LATVIA
Disciplinary bodies:
First instance :
The Latvian Collegium of Sworn Advocates is an independent, professional association of Latvian sworn advocates which unites all practising sworn advocates in Latvia The Latvian Council of Sworn advocates is the managerial, control and executive body of the Latvian Collegium of Sworn Advocates. The disciplinary cases of sworn advocates are revised by Disciplinary Commission.
Appeal : In court in the procedure prescribed by the Administrative Procedure Law.
Proceedings:
Launch of a complaint :
For violationg the law, other normative, acts, the statutes of the Latvian Collegium of Sworn Advocates, as well as for violating the instructions regulating the activities of sworn advocates and the norms of professional ethics of advocates, the Latvian Council of Sworn Advocates may instigate disciplinary proceedings upon the recommendation of the court or the prosecutor, as well as upon complaints from persons or upon its own initiative, sending the materials of the case for revision to the Disciplinary Commission.
Procedure :
The Latvian Bar is a self-regulatory disciplinary body. The influence of the Sate appears in such a way that disciplinary proceedings may be initiated upon the recommendation of the court or the prosecutor (as mentioned above) as well as in a procedure of appeal - disciplinary punished persons may appeal against the decisions of the Disciplinary Commission in court.
Types of sanctions:
After revising the disciplinary case, the Disciplinary Commission makes one of the following decisions:
1) about imposition of disciplinary punishment upon a sworn advocate;
2) about dismission of disciplinary proceedings.
Enforcement:
Communication/
Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
LIECHTENSTEIN
Disciplinary bodies:
First instance :
The Liechtenstein Bar Association is a self-regulatory disciplinary body.
The disciplinary functions are exercised by the board of the Bar Association in first instance.
Appeal :
Disciplinary control is exercised by the High Court, which is the only external disciplinary tribunal.
Proceedings:
Launch of a complaint :
The client himself may complain directly to the disciplinary body, the Bar Association or to the High Court. There is no time limit for lodging a complaint.
The decision of the Bar Association may be referred to the High Court by the lawyer concerned, or by the bar Association. The High Court may itself initiate proceedings against a lawyer if it becomes aware of misconduct.
Procedure :
An appeal must be made within fourteen days of intimation of the granting of a preliminary order, withdrawal of a charge, making or refusal of a temporary provision or a decision imposing a disciplinary punishment.
Types of sanctions:
- Written reprimand,
- Fine
- Prohibition of practice up to one year or permanently: it may however be suspended on probation for a period of one to three years. The prohibition applies to activities in the entire state A conditional or unconditional prohibition to practise may be imposed together with a fine.
- A subsidiary measure is the prohibition to employ trainee lawyers.
- As a provisional sanction, a law firm may be placed under supervision by the Council of the Bar, the right to act as legal representative before certain courts/authorities may be withdrawn, and the employment of trainee lawyers may be prohibited. Provisional sanctions are imposed where a final sentence has been passed or a permanent suspension from practice has been ordered.
Enforcement:
Sanctions are executed in accordance with the provisions of the Code of Criminal Procedure, i.e. they are enforced like court judgements. The prohibition to practise as a lawyer is enforced by the government, which also keeps a list of lawyers.
Communication/
Publicity:
Communication :
Since disciplinary proceedings are dealt with by ordinary law courts, the latter inform the Bar about the sanctions imposed.
Sanctions are not recorded in the register of convictions.
Publicity :
Contact details of the disciplinary bodies or contact points:
LUXEMBOURG
Disciplinary bodies:
First instance :
According to the law of 10 August 1991 on lawyers disciplinary cases are of the competence of the President of the Bar (for minor cases) and of the ''Disciplinary and Administrative Board''.
The ''Disciplinary and Administrative Board'' is composed of five lawyers, who are elected by the general assembly of the Bar.
Appeal :
The appeal is brought before the ''Appeal Disciplinary and Administrative Board''.
The ''Appeal Disciplinary and Administrative Board'' is composed by three lawyers, elected by the general assembly of the Bar, and by two judges of the Court of appeal, nominated by their president. The ''Appeal Disciplinary and Administrative Board'' is presided by one of the two judges. These solutions are inspired from Belgian law.
Proceedings:
Launch of a complaint :
Procedure :
Types of sanctions:
Enforcement:
Communication/
Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
MALTA
Disciplinary bodies:
First instance :
Malta Chamber of Advocates is the only local Association representing all lawyers practicing in Malta. As such, it is not a legally recognised Bar Association as you may understand it, since there exists no need of a Bar Association in
Malta.
There exists a Commission for the Administration of Justice which was set up in order to regulate Lawyers, Legal Procurators and Judges. The Commission then has, within it, a Committee on Lawyers and Legal Procurators, which
regulates all disciplinary actions relating to Lawyers and Legal Procurators. The Committee consists of a panel of five Board Members, three of whom are nominated and appointed by the Chamber of Advocates
Appeal: Before the Commission, which is chaired by the President of Malta and wherein there is the President of the Chamber of Advocates as a member ex officio.
Proceedings:
Launch of a complaint :
This Committee receives complaints from lawyers and the public at large, against Lawyers.
Procedure :
The Committee evaluates the cases, even hearing witnesses accordingly, having all the powers conferred to a Court of Law.
Types of sanctions:
When the Committee finds that there has been a case of misconduct of a Lawyer, it may do one of four actions:
1. request the Commission to recommend to the Prime Minister to advice to the President of Malta to suspend the Lawyer perpetually or for a specific period;
2. impose a pecuniary penalty
3. admonish the advocate or legal procurator
4. make recommendations to the lawyer.
Enforcement:
Communication/
Publicity:
Communication: As a rule, these decisions are to be private, however, the Committee may, if it deems it necessary, make the decision public.
Publicity :
Contact details of the disciplinary bodies or contact points:
THE NETHERLANDS
Disciplinary bodies
First instance :
The disciplinary law is exercised in the first instance by the Council of Discipline.
There is a Council of Discipline within the jurisdiction of each Court of Appeal. Each Council has a Chairman and 9 members. The Chairman is a judge. Only advocates are eligible for other places.
Appeal :
Decisions from the Council of Discipline can be appealed before the Court of Discipline. The Court of Discipline is in Den Bosch and consists of two Chambers. The Council consists of five members, three of them are judges and the other two, advocates. The judges are appointed by the Crown. The chairman is always a judge. The advocates are elected by the Board of Representatives.
Proceedings:
Launch of a complaint :
Complaints against an advocate are submitted in writing to the Dean of the Order of which the advocate is a member.
The Dean may investigate or may refer the complaint to the Council of Supervision. Mutual agreement is sought. If achieved, the agreement is written and signed. If no agreement is reached, the complaint may be referred to the Council of Discipline. There is no time limit for lodging a complaint, but the course of time should not be unconscionable long.
Procedure :
Procedures for hearing the complaint and objecting to the decision are specified.
The Council may suspend the effect of sanctions while placing the advocate on probation. Compliance with the rules of probation is to be supervised by the Dean of the Order to which the advocate belongs.
The hearing may be in open session or in camera.
The Court of Discipline hears appeals, by reasoned statement, from the decision of the Council of Discipline and gives a reasoned decision.
Procedures for hearing the appeal are specified. The Court may impose, reduce or increase a sanction or decide no ground for imposition of a sanction exists.
The incoming lawyer is subject to discipline by the Council of Discipline of the Dutch advocate with whom he appears.
Types of sanctions:
- Warning,
- Reprimand,
- Prohibition to practise: it is limited to a maximum of one year and it is absolute, i.e. it comprises every field of law.
- Disbarment,
- Publication of the disciplinary bodys decision.
- In urgent cases, a provisional prohibition to practise may be imposed.
There are several sanctions which cannot be imposed simultaneously.
Enforcement:
A suspension from practice is enforced by the Supervisory Council of the Bar Association. If a lawyer is excluded from the profession, the competent court cancels the registration for his admission to the Bar. The Supervisory Council also sees to the proper execution of the decision.
Communication/
Publicity:
Communication :
There are no provisions as to notification of the penal authorities.
There are no provisions as to registration in a central register.
Publicity :
Publication of the sanction imposed may be ordered.
Contact details of the disciplinary bodies or contact points:
Council of Discipline Amsterdam:
p/a griffier,
Postbus 75265
1070 AG Amsterdam
Tel. 00 31 20 678 92 75
Fax. 00 31 20 678 95 89
Council of Discipline The Hague:
p/a griffier,
Postbus 240
4330 AE Middelburg
Tel. 00 311 18 65 60 60
Fax. 00 311 18 63 61 78
E-mail: mjwolf@avdw.nl
NORWAY
Disciplinary bodies:
First instance :
The Norwegian Bar Association is a self-regulatory disciplinary body with disciplinary authority over its members. The Bar Association exercised disciplinary functions over its members through internal Disciplinary Committees. Nonmembers may volunteer to be tried by these committees.
The Supervisory Council appointed by the King decides whether the advocates fulfil all requirements by law to practice.
The Advocate Licence Committee appointed by the King decides on appeals concerning decisions by the Supervisory Council and have the authority to revoke licences of practice.
Appeal :
Decision from the regional Disciplinary Committees may be appealed to the Governmental appointed Disciplinary Committee. Their Decisions cannot be appealed.
Decisions from the Supervisory Council may be appealed to the Advocate Licence Committee. Decisions from the Advocate Licence Committee can not be appealed.
Proceedings:
Launch of a complaint :
The client may make a complaint himself directly to the disciplinary body.
There is a time limit for lodging complaints. This is 6 months. Anybody may complaint to 2) and 3).
Procedure :
The procedure is in writing
Types of sanctions:
- Reprimand
- Warning
- Suspension or revocation of licence to practice
Enforcement:
Orders from the Governmental appointed Disciplinary Committee to repay salary may be enforced in court.
Communication/
Publicity:
Communication :
Decisions for disciplinary committees may be communicated to other bodies in the Association and to the Supervisory Council.
Publicity :
In the spring of 2004 the decisions from the disciplinary committees will be publicly available.
Contact details of the disciplinary bodies or contact points:
Den Norske Advokatforening
Augustsgt. 9, 0164 Oslo, Norway
Tilsynsrdet for Advokatvirksomet
Boks 720 Sentrum, 0106, Oslo, Norway
POLAND
Disciplinary bodies:
First instance :
The Polish National Bar Association is a self-regulatory disciplinary body. Disciplinary functions are exercised in the first place by the Disciplinary Court of each District Bar which supervises the discipline of the members of the Bar
within its jurisdiction.
Appeal :
Disciplinary functions are also exercised by the Disciplinary Court of the National Bar Association which hears appeals from the Disciplinary Courts of the District Bars.
Proceedings:
Launch of a complaint :
A client making a complaint against an advocate or an apprentice may complain directly to the advocate, the practice unit or the disciplinary body via the appropriate District Bar Disciplinary Court or the Polish National Bar Disciplinary
Court.
Procedure :
A client may be represented by an advocate who must inform the Bar that he is taking the case. The client may also go to court. Disciplinary and penal proceedings are heard separately.
The Minister of Justice may institute proceedings against, or temporarily suspend an advocate or apprentice who may appeal to the Supreme Court within 30 days of intimation of proceedings.
A complaint against an advocate who has not committed a disciplinary offence is heard by the Disciplinary Court of the appropriate District bar. Disciplinary proceedings for insulting behaviour in court must be begun within six months of the offence, for other offences within three years of the offence and for penal offences must follow the time limits in rules of criminal procedure.
The disciplinary fiscal acts as prosecutor.
An extraordinary appeal against a decision of on an important legal principle may be taken before the Supreme Court by the Minister of Justice, General Public Prosecutor or President of the Council of the Polish National Bar within six months of the decision.
Types of sanctions:
- Warning (it may be accompanied by a fine)
- Reprimand
- Fine: fines may amount to five to ten times the monthly contribution to the Bar.
- Prohibition to represent: it may be imposed for a period between three months and five years. It is absolute, i.e. covers all fields of law. The prohibition to practise applies to activities in the entire state.
- Exclusion from the Bar Other subsidiary sanctions are the prohibition to train young lawyers, or, in combination with the prohibition to practise, a deprivation of the right to vote and the right to be elected for three years.
Where an urgent case justifies such a measure, the disciplinary court may impose a prohibition of practice for up to three months. After three months a higher instance will review the case. If the lawyer is acquitted, he has the right to
claim damages.
Enforcement:
Fines as well as the prohibition to practise and the exclusion from the Bar are enforced by the Council of the Bar.
Communication/
Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
- Disciplinary courts in each of the District Bar Council
- The High Disciplinary Court
Naczelna Rada Adwokacka
Wyszy Sd Dyscyplinarny
ul. witojerska 16
02-202 Warszawa
Tel: +48 22 635 81 09
Fax: +48 22 635 27 09
PORTUGAL
Disciplinary bodies:
First instance :
The Order of Advocates is a self-regulatory disciplinary body. Disciplinary matters are dealt with in the first instance by the appropriate District Council.
Appeal :
The Superior Council decides on appeals from the disciplinary decisions of the District Councils, and in complaints involving former or present office bearers of the Superior, General and District Councils.
Both the District Council and the Superior Council are organs of the Order of Advocates. The Superior Council has twenty members sitting in plenary session or in four sections. The Superior Council may also meet jointly with the General Council.
Proceedings:
Launch of a complaint :
Disciplinary proceedings are instigated by the decision of the Superior or District Council following a complaint made to the Order, or on its own initiative without an external complaint. The criminal authorities must send copies of complaints made against lawyers to the Order. Proceedings are in secret until the lawyer is charged.
Procedure :
The Superior Council decides whether to prosecute and prepares the case against the former or present office bearers of the Order and members of the Superior and General Councils, and former or present office bearers of District Councils.
The Superior Council in Plenary Session decides on appeals from the disciplinary decisions of its own sections. After three years from the incident or conduct complained about proceedings are time barred. Disciplinary infringements which are also crimes are time barred in accordance with the time limits of the criminal law if this time is longer.
Types of sanctions:
- Warning
- Reprimand
- Fine
- Suspension from practise: the time of suspension may vary: up to six months, six months to two years, two years to ten years, ten to fifteen years. It is absolute.
- prohibition to practise
Subsidiary measures may be an order to return files and fees and/or loss of fees.
As a provisional sanction, a lawyer may be prohibited to practise for three months, if he continues to violate the Code of Conduct, if he tries to obstruct the proceedings or if he is accused of a criminal offence committed outside professional activity. The same applies if a lawyer is accused of a serious crime which is punishable with imprisonment. A prohibition to practise as a lawyer applies to all fields of law and on the entire state territory.
Enforcement:
Sanctions are enforced by the President of the Bar to which the lawyer is admitted.
Communication/
Publicity:
Communication :
Publicity: A suspension from practise is always made public and communicated to all the courts. It is also published in the regional newspaper.
Contact details of the disciplinary bodies or contact points:
Current developments in cross-border discipline of foreign lawyers
Jonathan Goldsmith - IBA annual conference 2006 Chicago
Section 2 of2
SLOVAK REPUBLIC
Disciplinary bodies:
First instance :
The Slovak Bar Association is a self-regulatory discipline body. The disciplinary commission hears cases of breaches of duties under the statute or internal regulations of the Bar. The disciplinary functions are exercised by a three member disciplinary committee; which is part of the internal structure of the Bar Association. There is no external disciplinary tribunal.
Appeal :
The Praesidium hears appeals and in certain circumstances special cases may go to the Supreme Court.
Proceedings:
Launch of a complaint :
The complaint should be made in the first instance to the Slovak Bar Association office. If it does not result in satisfactory action being taken the client may make a complaint himself directly to the Supervisory Board where it will be dealt with by a disciplinary committee of three members.
Procedure :
Disciplinary action is instigated by the Chairman of the Supervisory Board within three months of becoming aware of the offence, or at the latest one year from the date of the offence. The advocate concerned may appoint an advocate to represent him. An appeal from the decision of the disciplinary committee by the advocate or the Chairman of the Supervisory Board goes to the Praesidium which will either confirm or repeal it. If it is repealed the case is returned to the disciplinary committee. No further appeal is permitted.
Types of sanctions:
- warning
- reprimand
- fine
- exclusion from the profession for five years There are no provisional sanctions.
Enforcement:
Fines are enforced by the Bar which sends the Disciplinary Senates decision to the lawyer concerned. The amount due has to be transferred onto the account of the Bar.
Communication/
Publicity:
Communication :
In cases of exclusion from the profession, the Chairman of the Disciplinary Senate sends the decision to the lawyer concerned and to the Bar. The decision is then forwarded by the Bar to the competent court and registered at the Bar.
Publicity :
Contact details of the disciplinary bodies or contact points:
SLOVENIA
Disciplinary bodies:
First instance :
The Bar Association of Slovenia is a self-regulatory disciplinary body. The disciplinary functions of the Bar Association are exercised by the Disciplinary Committees of First Instance. The Disciplinary Committee of First Instance is composed of a president and 8 members elected for 4 years, sitting as a bench of three. It hears all matters except those reserved to the Disciplinary Board. The Disciplinary Board is competent regarding offences for which an appropriate penalty is suspension or disbarment.
The Board is part of the court system and consists of 2 judges of the Supreme Court, one of whom is president, and 3 elected advocates, sitting as a bench of five.
Appeal :
The Disciplinary Committee of Second Instance is composed of a president and 5 members, elected for 4 years, sitting as a bench of three. It hears appeals against decisions of the Disciplinary Committee of First Instance.
Proceedings:
Launch of a complaint :
A client making a complaint against an advocate, a prospective entrant or a pupil, may complain to the advocate, his practice unit, the appropriate Regional Advocates Assembly or the Bar Association. More serious complaints are referred to the Board of Advocates for discussion. The Board may propose the introduction of disciplinary proceedings to the Disciplinary Prosecutor.
Procedure :
The prosecution of a disciplinary offence is time barred on expiry of two years from the date of the offence. If the disciplinary offence is at the same time a criminal act the date for the limitation of prosecution shall be identical to that for limitation of prosecution in criminal acts (2 to 25 years). Limitation is interrupted by reporting the offence to the Prosecutor and by each action before the Disciplinary Committee or Board. Disciplinary procedure is instructed officially by the disciplinary body on its own initiative or after a complaint or notice from other persons or agencies.
The Disciplinary Prosecutor is an advocate, a member of the Bar Association, who is elected for four years. He or one of his four deputies, institutes proceedings before the appropriate body. If the President of the Court and the Minister for Justice so requires the Prosecutor institutes proceedings before the Board.
The Prosecutor specifies the averred breach of duty and outlines the case. The Disciplinary Committee of First Instance sends the complaint to the person against whom it is lodged for reply, and a preliminary investigation is held in private.
An appeal may be lodged within fifteen days. An appeal from the Disciplinary Board goes to the Supreme Court of Slovenia sitting as a bench of five judges.
Types of sanctions:
- Warning
- Reprimand
- Fine
- Prohibition to practise as a lawyer: it is imposed for a period of five years and it is absolute, i.e. it is not limited to certain fields of law. A prohibition to practise applies on the entire state territory.
- Temporary sanctions may also be imposed
Enforcement:
Communication/
Publicity:
Communication :
The decision of the Disciplinary Committee is intimated to the Board of Advocates for information and Bar records. All sanctions are recorded by the Slovenian Bar in a central register.
Publicity: None. Disciplinary records are kept secrets.
Contact details of the disciplinary bodies or contact points:
Odvetniška zbornica Slovenije
Praakova ulica 8
1000 Ljubljana
SPAIN
Disciplinary bodies:
First instance :
Each local Bar Association is a self-regulatory disciplinary body and has its own Disciplinary Board of advocates.
Appeal :
A decision of the Disciplinary Board of the local Bar may be appealed before the Consejo Superior de la Abogaca.
There is no Disciplinary Tribunal operating outside and independently from the Spanish Bar Association.
Proceedings:
Launch of a complaint :
The disciplinary procedure is instituted officially by the disciplinary body either on its own initiate or after a complaint or notice from other persons or agencies. Charges or notifications should be lodged with the appropriate Bar Association.
The party lodging the charge or providing the information which he is the subject of the disciplinary procedure has no status in the proceedings, but is entitled to be notified of the result and of the imposition of any fine, against which he
may lodge an appeal.
Very serious misdemeanours come under the statute of limitation after two years, serious misdemeanours after one year and slight misdemeanours after three months. This term is reckoned from the date on which the misdemeanour
is committed.
Procedure :
Types of sanctions:
- Warning
- Reprimand
- Prohibition to practise as a lawyer: it may be imposed for only one day, but it can also lead to disbarment. It is absolute and thus cannot be restricted to certain fields of law. The prohibition to practise applies to activities anywhere in Spain. It is always possible to impose a temporary sanction.
Enforcement:
The prohibition to practise is enforced by the Bar.
Communication/
Publicity:
Communication :
Data on sanctions is communicated to the judicial authorities.
Publicity :
Contact details of the disciplinary bodies or contact points:
SWEDEN
Disciplinary bodies:
First instance :
The Board and the Disciplinary Committee exercise supervisory control over the Bar and must ensure that all members fulfil the duties incumbent upon them when pleading cases in court and in their other activities.
If the question of disciplinary action against a member arises in some way other than by a complaint from a client or someone else involved in the matter, the Board will decide whether or not the matter is to be referred to the Disciplinary Committee.
The Bar Association Disciplinary Committee consists of a chairman, a vice-chairman and nine other members. Three of the members of the Committee (public representatives) are appointed by the government.
The Disciplinary Committee may work in divisions comprising three members, of whom one must be a public representative, for the purpose of deciding whether disciplinary action against a member is called for. These divisions are called Adjudication Divisions.
Appeal :
An advocate who has been disbarred may also appeal to the Supreme Court.
Proceedings:
Launch of a complaint :
If a member is reported to the Bar Association by a client or someone else involved in the matter or if the question of disciplinary action against a member should otherwise arise, the matter will be considered by the Disciplinary Committee, usually by an Adjudication Division in the first instance. Should the Adjudication Division agree that no disciplinary action is called for and if the members agree as to the content of the decision, the Adjudication Division may decide the matter. Otherwise the matter must be referred to the Disciplinary Committee.
Procedure:
The chairman of the Disciplinary Committee may decide that the matter is to be referred to the Committee without first being dealt with by an Adjudication Division. The Disciplinary Committee is not obliged to consider complaints against a member that relate to events more than three years in the past.
The member against whom the complaint was made, the Chancellor of Justice and the Board must be notified of a decision of the Disciplinary Committee, as well as a decision of an Adjudication Division not to refer a matter to the Committee. However, the Board will only be notified of a decision of the Adjudication Division if the Board so requests.
If a matter has been dealt with following a complaint, the complainant must also be informed of the decision, unless he has withdrawn the complaint.
The complainant, the member and the Chancellor of Justice must be notified of a decision of the Board to take no further action on a complaint. If it has been decided to take no further action on a complaint or if a decision has been made that a disciplinary matter will not be referred to the Disciplinary Committee, the Chancellor of Justice may, within four weeks from the time he is notified of this decision, demand that the Committee take action against the member.
The member involved in a disciplinary matter must be given the opportunity to respond to the complaint, unless particular circumstances dictate otherwise.
If so directed, a member against whom a complaint has been made is under a duty to submit a written statement, produce the documents the Disciplinary Committee or the Secretary General orders him to supply and to appear before the Committee if ordered to do so.
The Disciplinary Committee may decide that oral proceedings are to be held in a matter before the Committee. Unless particular reasons dictate otherwise, oral proceedings are to be held when the penalty in question may be disbarment from the Bar Association. A member of the Bar Association appointed by the Board must then plead the case to answer as a result of the complaint reported or otherwise evident. Appointment by the Board takes place following notification by the Committee or the Secretary General. Members of the Disciplinary Committee may not be appointed.
If a member against whom a complaint has been made is considered to be in need of defence counsel but does not instruct any such counsel, the Disciplinary Committee may appoint defence counsel to act for him in the proceedings before the Committee. The fee for defence counsel appointed by the Committee will be paid by the Bar Association, the amount to be determined by the Disciplinary Committee.
The same applies to the fee for defence counsel appointed by a member against whom a complaint has been made if the Committee considers the nature of the matter to necessitate counsel for the members defence. The Committee may order the member against whom a complaint has been made to reimburse the Bar Association for all or part of the cost of his defence.
A decision to disbar, warn or reprimand must state the reasons on which it is founded.
Members of the Bar Association and the public courts of Sweden must be notified of a decision to disbar a member as soon as it enters into effect. If a disbarment decision has been revoked, members of the Bar Association and the courts mentioned must be notified of this if they have previously been notified of the disbarment.
Only an advocate who has been disbarred may appeal to the Supreme Court.
Types of sanctions:
- Disbarment
- Warning: An advocate who is issued a warning may, if there is special reason. Also be ordered to pay a monetary penalty to the Bar Association of not less than 1 000 thousand SEK or more than 50 000 SEK.
- Reminder
If it is considered sufficient, the disciplinary committee may express an opinion that the advocates action is wrong or inappropriate, instead of issuing a reminder to the advocate.
Enforcement:
The Disciplinary Committee of the Bar Association enforces fines and exclusions from the profession.
Communication/
Publicity:
Communication :
Sanctions are communicated to the Chancellor of Justice.
Publicity :
Disciplinary proceedings are not open to the public. The Disciplinary Committee may decide that a decision in a disciplinary matter which involves important principles or is otherwise of public interest shall be made public, in part or whole. The Bar Association can also decide to answer questions regarding disciplinary cases.
Contact details of the disciplinary bodies or contact points:
Disciplinary Committee of the Swedish Bar Association
Box 27321
102 54 STOCKHOLM
SWEDEN
UNITED KINGDOM
England & Wales Solicitors
Disciplinary bodies
First Instance :
The Law Society of England and Wales is a self-regulatory disciplinary body. Although membership of the Society is not compulsory it exercises statutory power over all solicitors. The Council of the Law Society has the principal responsibility for considering complaints against solicitors and investigating as required.
The Law Society has within its structure a Solicitors Complaints Bureau which is a completely separate unit (Chinese Wall).
The Solicitors Disciplinary Tribunal is a wholly independent statutory body consisting of twenty or so members, of who around fourteen are solicitors and six are lay persons. Its function is to hear and determine applications regarding allegations of unprofessional conduct and/or practice rule breaches.
Appeal :
A decision may be appealed to the Adjudication and Appeals Committee. A decision of the Adjudication and Appeals Committee may be challenged before the Master of Rolls.
The decision of a committee or of the Disciplinary Tribunal may also be challenged by the complainant or the solicitor concerned by requesting a review.
A solicitor may apply to the Disciplinary Tribunal to have his name restored to the Roll.
Proceedings:
Launching of a complaint :
A client wishing to make a complaint against a solicitor or a practice unit should first complaint to the solicitor, or practice unit concerned, and only thereafter to the Solicitors Complaint Bureau. A Legal Services Ombudsman is provided to ensure an effective complaints handling system. He is neither a solicitor nor a barrister, and written complaints may be made to him by or on behalf of a member of the public, relating to the way in which a professional
body dealt with a complaint made to it about a solicitor.
Any member of the public may complain about the conduct of a solicitor. Only clients, or beneficiaries, may complain about poor service.
There is no time limit for lodging a complaint against a solicitor, but there are time limits concerning appeals to the Disciplinary Tribunal or the court, and also time limits concerning taxation procedures.
Procedure :
The Disciplinary Tribunal does not have an appellate function. A decision may be appealed to the Adjudication and Appeals Committee. A decision of the Adjudication and Appeals Committee may be challenged before the Master of
Rolls.
The decision of a committee or of the Disciplinary Tribunal may also be challenged by the complainant or the solicitor concerned by requesting a review.
A solicitor may apply to the Disciplinary Tribunal to have his name restored to the Roll. The Law Society must publish the application in the Gazette.
Types of sanctions:
- Warning
- Reprimand
- Fine
- Suspension from practice: this may be temporary or final and is always absolute, i.e. not limited to individual fields of law. It applies to the entire territory of England and Wales.
- Exclusion from the profession
- Prohibition on undertaking legal aid work
Further sanctions are: requirement to apologise, requirement to waive or refund fees, requirement to pay compensation. Certain conditions may also be imposed on solicitors which may limit the scope of their Practising Certificate, a licence which has to be renewed every year.
Where a solicitor violates several conduct rules at once, warning, reprimand, the requirement to apologise, bill reduction and conditioning of his Practice Certificate may be imposed together with the requirement to pay compensation. There are no automatic sanctions for breaches committed by solicitors.
Provisional conditions may be imposed on a solicitors Practising Certificate.
Enforcement:
Solicitors have to pay their fines to the Crown, i.e. to the state. The Solicitors Disciplinary Tribunal enforces the prohibition to practise and exclusion from the profession. Limiting a lawyers Practising Certificate, however, is the responsibility of the Law Society.
Communication/
Publicity:
Communication/ Publicity :
The most serious sanctions are communicated to the Lord Chancellor and the Senior Judges, Crown Prosecution Service, Senior Members of the profession and are published on the Bar Councils web site.
Contact details of the disciplinary bodies or contact points:
The Law Society
113 Chancery Lane
UK-London WC2A 1PL
Tel: +44.207.242 12 22
Fax: +44.207.831 00 57
Email: international@lawsociety.org.uk
Website: www.lawsoc.org.uk
UNITED KINGDOM
England & Wales Barristers
Disciplinary bodies
First instance :
The General Council of the Bar is a self-regulatory disciplinary body and acts through its lay Complaints Commissioner and its Professional Conduct Committee (PCC). The Commissioner and the PCCC are authorised to investigate and sift complaints received from outside bodies, the public, etc, or initiated by the Bar Council itself of its own motion. The Commissioner refers cases which he considers may involve inadequate professional service or misconduct to the PCC. The PCC may refer complaints to informal hearings or Panels in cases of inadequate professional service or prefer charges of professional misconduct before Disciplinary and Summary Tribunals of the Council of the Inns Court.
Professional misconduct and serious disciplinary matters are dealt with by the Disciplinary or Summary Tribunals of the council of the Inns of Court. These Tribunals are not organs of General Council of the Bar.
Appeal :
Barristers have a right of Appeal to the Visitors to the Inns of Court against findings and sentences of the Tribunals. There are also internal appeal mechanisms against findings of lesser panels.
Proceedings:
Launching of a complaint :
A client wishing to make a complaint against a barrister may complain, through the solicitor or direct, to the Bar Council Complaints Commissioner. A client making a complaint against the handling of a complaint by the professional body may complain in writing to the Legal Services Ombudsman. There is a six month time limit for lodging a complaint, although complaints can be accepted outside the time limit in exceptional circumstances.
Procedure :
To ensure an effective complaints handling system, there is a Legal Services Ombudsman, who is neither a solicitor nor a barrister, to whom written complaints relating to the way in which a professional body dealt with a complaint made to it in respect of a barrister may be made, by or on behalf of a member of the public. She has powers to request information, call witnesses and report to the professional organisation, the complainant and the person about whom the complaint was made. Her report is privileged.
Types of sanctions:
- Warning
- Reprimand
- Fine
- Suspension from practice: this may be temporary or final and is always absolute, i.e. not limited to individual fields of law. It applies to the entire territory of England and Wales.
- Exclusion from the profession
- Prohibition on undertaking legal aid work
- Further sanctions are: requirement to apologise, requirement to waive or refund fees, requirement to pay compensation. Certain conditions may also be imposed on solicitors which may limit the scope of their Practising Certificate, a licence which has to be renewed every year.
All of the sanctions imposed on barristers may be imposed in combination. There are no automatic sanctions for breaches committed by barristers or solicitors.
Enforcement:
Fines imposed on barristers are enforced by the General Council of the Bar. Failure to pay constitutes a breach of the code of conduct. Acting against the prohibition to practise and to represent, or against disbarment is considered a criminal offence.
Communication/
Publicity:
Communication/ Publicity :
The most serious sanctions are communicated to the Lord Chancellor and the Senior Judges, Crown Prosecution Service, Senior Members of the profession and are published on the Bar Councils web site.
Contact details of the disciplinary bodies:
General Council of the Bar Complaints Department
Northumberland Hse
303-306 High Holborn
London WC1V 7JZ.
Tel: 020 7440 4000
Northern Ireland Solicitors
Disciplinary bodies:
First instance :
The Law Society of Northern Ireland is a self-regulatory disciplinary body. Breaches of the Law Societys own regulations and other complaints against solicitors are dealt with initially by the Societys internal Practice Committee.
Serious matters may be referred to the independent Disciplinary Tribunal appointed by the Lord Chief Justice.
Appeal :
Proceedings:
Launch of a complaint :
A client may complain against a solicitor, or a solicitors employee or former employee either through a lawyer or directly to the Law Society, or in writing to the Disciplinary Tribunal. There is no time limit within which complaints must be made, but undue delay may prejudice the complainants case.
Procedure :
Sanctions:
Enforcement:
Communication/
Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies and contact points:
Northern Ireland Barristers
Disciplinary bodies:
First instance :
The Honourable Society of the Inn of Court of Northern Ireland is a self regulatory disciplinary body. Complaints against barristers are dealt with initially by the Professional Conduct Committee of the Bar Council. All members of this Committee are barristers.
Where more serious breaches of the Code of Conduct involving professional misconduct are alleged the Professional Conduct Committee may prefer and prosecute disciplinary charges before a Disciplinary Committee of the Executive
Council.
Appeal :
The barrister may appeal the decision to the Disciplinary Appeal Committee.
Proceedings:
Launching of a complaint :
A client may complain directly to the Bar authorities.
There is no time limit within which complaints must be made, but undue delay may prejudice the complainants case.
Procedure :
The Disciplinary Committee investigates and may allow or dismiss such charges. There is a provision for one lay member to be included in the Disciplinary Committee. The Disciplinary Appeal Committee may allow or dismiss an appeal, confirm or vary the order of the Disciplinary Committee, or order a re-hearing.
Where this Committee considers disbarment or suspension appropriate it makes such recommendation to the Benchers.
Types of sanctions:
- Warning
- Reprimand
- Fine
- Prohibition to practise as a lawyer: it may be imposed for any length of time, it may also be permanent, and it is absolute, i.e. not restricted to certain fields of law. A prohibition to practise applies to the whole of Northern Ireland.
- Disbarment
- As a subsidiary sanction, certain conditions may be imposed on legal practice for a certain period of time. Barristers may also be requested to repay their fees.
Enforcement:
Fine, prohibition to practise and disbarment are enforced by the Bar Council.
Communication/
Publicity:
Contact details of the disciplinary bodies or contact points:
Scotland Solicitors
Disciplinary bodies:
For professional misconduct :
First instance :
Independent Scottish Solicitors Discipline Tribunal
Appeal :
Court of Session
For inadequate professional services :
First instance :
The Law Society
Appeal :
Discipline Tribunal
Proceedings:
Launch of a complaint :
A client making a complaint against a solicitor may complain, through the solicitor, his practice unit, or to the Complaints Department of the Law Society.
A client making a complaint against the handling of a complaint by the professional body may complain in writing to the Scottish Legal Services Ombudsman.
There is no time limit for lodging a complaint, but there is a time limit of 21 days after intimation of the Councils or the tribunals decision for appeal to the tribunal or to the court.
Procedure :
A solicitor may petition the court to have his name restored to the roll.
Types of sanctions:
- Warning
- Reprimand (a reprimand may be accompanied by a fine)
- Fine
- Prohibition to practise, which may be temporary or permanent
- Exclusion from the profession
- Restriction of the Practising Certificate (e.g. allowing legal practise only as an employed lawyer). It may be imposed too together with a fine.
The Law Society may impose provisional sanctions.
Enforcement:
Fines are executed by the Crown, i.e. the state. The Law Society enforces prohibitions to practise and exclusions from the profession. A prohibition to practise applies to activities in the entire state.
Communication/
Publicity:
Communication :
Sanctions are recorded in a register at the Law Society, which is open to the public.
Publicity:
Contact details of the disciplinary bodies or contact points:
Scotland Advocates
Disciplinary bodies:
First instance :
Disciplinary Tribunal (consisting of a retired judge or Sheriff Principal nominated by the Lord President, three counsel of whom at least one is senior counsel and one lay person nominated by the Secretary of state for Scotland).
Appeal :
The Dean has the power to reduce or rescind the penalty imposed by the Tribunal. Otherwise no right of appeal.
Proceedings:
Launch of a complaint :
The lay client may make a complaint himself directly to the disciplinary body.
There is no time limit for lodging a complaint.
Procedure :
Where the facts to which the complaint relates are disputed, the Dean of Faculty may remit the complaint to the Investigating Committee to make a preliminary investigation of the facts and report to him. The complaint may then, with the consent of the member of Faculty against whom the complaint has been made, be upheld, and penalties may be imposed by the Dean or by the Disciplinary Tribunal.
If the member does not consent to it being disposed of in this way, then the complaint is remitted to the Disciplinary Tribunal for a full hearing. At this hearing written and oral evidence may be led.
If the Disciplinary Tribunal upholds the complaint they may impose various penalties. Their determination is then reviewed by the Dean who has power, if he sees fit, to reduce or even rescind the penalty imposed by the Tribunal.
Types of sanctions:
Enforcement:
Communication/
Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
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* Current developments in cross-border discipline of foreign lawyers
Section 3 of 3
| Jonathan Goldsmith - IBA annual conference 2006 Chicago | |
Disciplinary bodies:
First instance :
The Icelandic Bar Association is a self-regulatory disciplinary body with an elected council and chairman. The disciplinary functions of the Association are exercised by the Board. There is no independent disciplinary tribunal.
Appeal :
A right of appeal against the decision of the Board lies to the Supreme Court.
Proceedings:
Launch of a complaint :
The client may make a complaint directly to the disciplinary body.
The Council of the Icelandic Bar Association may of its account initiate
proceedings against a member or members.
There is no time limit for lodging a complaint. The effect of a delay in filing a complaint is decided on a case by case basis.
Types of sanctions:
- Warning
- Censure
- Fine
Enforcement:
Communication/
Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
IRELAND
Disciplinary bodies:
First instance :
Law Society of Ireland represents and regulates the legal profession of solicitors.
The Departments' Complaints and Client Relations section of the Law Society deals with all complaints against solicitors arising from clients, members of the public and the profession. These complaints are either resolved by the secretariat or are referred to the Complaints and Client Relations Committee.
Where professional misconduct has been found, the Department deals with the preparation and presentation of cases before the Disciplinary Tribunal, together with petitions and applications to the High Court where appropriate.
Barristers are subject to the professional standards set by the Bar Council. Complaints of misconduct by a barrister against another barrister are considered by the Bar Council's Professional Practices committee.
Complaints of misconduct by a barrister against another barrister are considered by the Bar Council's Professional Practices committee.
Complaints of misconduct from the public, solicitors and other clients are considered by the Barristers' Professional Conduct Tribunal.
The Barristers' Professional Conduct Tribunal comprises five practising barristers, including a chairman, and two lay representatives: one nominated by the Irish Business and Employers' Confederation (IBEC), and one nominated by the Irish Congress of Trade Unions (ICTU).
Appeal :
Proceedings:
Launch of a complaint :
Procedure :
Types of sanctions:
The Tribunal (for barristers) can impose penalties if it finds that a barrister has been guilty of breaching the Code of Conduct or of breaching proper professional standards. It should be noted that the Tribunal does not deal with professional negligence claims. Such claims are a matter for the courts.
Enforcement:
Communication/
Publicity:
Communication :
Publicity :
Contact details of the disciplinary bodies or contact points:
ITALY
Disciplinary bodies:
First instance :
The various local Bars in Italy are all self-regulatory disciplinary bodies.
The disciplinary functions of the Bar are exercised in the first instance by the Council of the Bar which may have from seven to fifteen members in accordance with the size of the Bar.
There is no separate disciplinary Court operating outside and independently from the Councils of the Local Bars.
Appeal :
Decisions relating to the conduct or discipline of lawyers may not be referred to the courts but to the Consiglio nazionale forense (hereinafter: Consiglio) in Rome, which is the second instance forum with jurisdiction over the conduct and discipline of lawyers and it receives appeals on these matters. Against the decisions of the Consiglio, it is possible to appeal to the Corte di Cassazione.
Proceedings:
Launch of a complaint :
The client may make a complaint himself directly to the Council of the local Bars.
There is no time limit for lodging a complaint but there is a time limit for starting proceedings: five years from the time of the fact or occurrence about which the complaint is made.
Procedure :
The Council of the local Bar can do any investigation and hear the witnesses in the hearings, with no special limits: at the end of the procedure the Council takes a decision.
A Lawyer may continue to practise while appealing against a decision from the Bar Council, but the decision from the Consiglio has immediate effect.
Types of sanctions:
- Warning,
- Reprimand,
- Prohibition to practise as a lawyer: it may be imposed for a period ranging between two months and one year and it is absolute, i.e. it cannot be limited to certain fields of law. A suspension from practice applies to the entire state.
- Disbarment.
- In urgent cases, a provisional suspension from practice may be imposed.
Enforcement:
The prohibition to practise and disbarment are enforced by the Bar: it oversees the implementation of a sanction and reports to the courts.
Communication/
Publicity:
Communication :
The Public Prosecutors office is informed of the sanctions imposed.
Suspension from practice and disbarment are communicated to all Bars and Higher Regional Courts.
Contact details of the disciplinary bodies or contact points:
Consiglio Nazionale Forense
Roma, Via Arenula 71 (c/o Ministry of Justice)
LATVIA
Disciplinary bodies:
First instance :
The Latvian Collegium of Sworn Advocates is an independent, professional association of Latvian sworn advocates which unites all practising sworn advocates in Latvia The Latvian Council of Sworn advocates is the managerial, control and executive body of the Latvian Collegium of Sworn Advocat