establishing and reforming bar associations in post-conflict states (cr 10-001)

8/14/2019 Establishing and Reforming Bar Associations in Post-Conflict States (CR 10-001)

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Establishing andReforming BarAssociations in Post-

Conflict StatesINPROL Consolidated Response (10-001)

With contributions from Wendy Betts, Scott Carlson, Gary Hill, Louis Gary Lissade, Zach

McKinney, Ngozi C. Nwosu, Vivienne OConnor, David Rubino, Gina Schaar, Andrew

Solomon and Claude Zullo

Drafted by Christina Murtaugh


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January 2010 INPROL Consolidated Response (10-001) Page 1 of 33

Query:

UNMIT's Administration of Justice Support Unit is currently planning to assist in

facilitating the establishment of an independent bar association in Timor-Leste.

Could you please share your experiences, lessons learned, best practices and relevantguidance material, documents and reports on how best to facilitate the establishment ofan independent bar association? Any reference to previous work on this of (non-UN)development partners will also be very useful.

Background:

This Consolidated Response focuses on methodologies and comparative approaches toestablishing or reforming an independent bar association in post-conflict states. It has

been drafted with the assistance of Vivienne OConnor, United States Institute of Peace,and Claude Zullo, American Bar Association. Information from the field has beenprovided by Wendy Betts, National Center for State Courts, Gary Hill, INPROLCorrections Facilitator, Louis Gary Lissade, Port-au-Prince Bar Association, Ngozi C.Nwosu, Nigerian Bar Association, David Rubino, American Bar Association Rule of LawInitiative Azerbaijan, and Gina Schaar, American Bar Association Rule of Law InitiativeKosovo. It combines publicly available literature and the practical experiences of expert-practitioners on the establishment and reform of bar associations.

In furtherance of human rights and the rule of law, a society necessarily requires astrong, independent cadre of lawyers. Bar associations essentially serve three roles: as

educators, regulators, and lobbyists for the legal profession. The United Nationsprovides guidance on these functions in the United Nations Basic Principles on the Roleof Lawyers (1990), which argues for an independent association of lawyers. It furtherrecommends that the bar association create standards for admission that promotes bothhigh ethical and high legal services standards. Both the Council of Europe and AfricanUnion have supplemented these principles with their own recommendations. Thisresponse provides an overview of international standards on the establishment of barassociations and complements this with comparative examples of domestic legislationand practice relating to bar associations.

Response Summary:

Part I briefly provides an overview of how to assess the existing state of the legalprofession in a post-conflict state. Part II discusses the establishment of a barassociation. Part III then looks at the development of the bar association. To enhancethis comparative approach, this paper also includes annexes providing overviews of barassociations, as well as links to enabling legislations, by-laws, and codes of conduct.


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I. Assessing the Legal Profession in a Post-Conflict State

A good assessment of the legal profession and the bar association, if one exists, shouldprecede any reform efforts. The assessment is not only important for the information it

provides, but it is also crucial in reaching out to stakeholders in a participatory fashionfrom the outset: a best practice standard in rule of law programming.

An assessment will have two overlapping components. The first component is a broadassessment of the legal and judicial sector from law-making to the hierarchy of laws,from legal education to professional services, and from the judicial structure to informal

justice mechanisms. This sort of assessment may already exist as many internationalorganizations and donors undertake such assessments prior to designing rule of lawprograms.1 The second component narrowly assesses both the formal and informallegal profession and legal education system. The Consolidated Response focuses onthe latter.

As a first step, it is important to locate any laws that may directly or indirectly regulatethe legal profession. Laws may not be readily available in-country. If this is the case, theassessment team should reach out to the legal diaspora to attempt to get copies ofrelevant laws.

The World Bank has published a basic legal and judicial assessment manual that willserve as a valuable tool in assessing legal education, training of lawyers, and the legalprofession as a whole.2 Another very useful tool is the Legal Profession Reform Index(LPRI) which the American Bar Association (ABA) has developed to assess the legalsystem prior to engaging in any reform efforts.3 The LPRI advises an assessment teamto consider the following:

1. Professional Freedoms and Guarantees Ability to Practice Law: Lawyers are able to practice without improper

interference, intimidation, or sanction when acting in accordance with thestandards of the profession.

Professional Immunity: Lawyers are not identified with their clients or theirclients' causes and enjoy immunity for statements made in good faith onbehalf of their clients during a proceeding.

Access to Clients: Lawyers have access to clients, especially thosedeprived of their liberty, and are provided adequate time and facilities forcommunications and preparation of a defense.

1See, e.g., The United Nations Office on Drugs and Crime, Criminal Justice Sector Assessment Toolkit

(2006).2Legal Vice Presidency, The World Bank, Legal and Judicial Sector Assessment Manual(2002): 20-25.

3The ABA Rule of Law Initiative the Legal Profession Reform Index (accessed October 15, 2009).


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Lawyer-Client Confidentiality: The state recognizes and respects theconfidentiality of professional communications and consultations betweenlawyers and their clients.

Access to Information: Lawyers have adequate access to information

relevant to the representation of their clients, including information towhich opposing counsel is privy (equality of arms).

Right of audience: Lawyers who have the right to appear before judicial oradministrative bodies on behalf of their clients are not refused that rightand are treated equally by such bodies.

2. Education, Training, and Admission to the Profession Academic Requirements: Lawyers have a formal, university-level, legal

education from academic institutions authorized to award degrees in law.

Preparation to Practice: Lawyers possess adequate knowledge, skills, andtraining to practice law upon completion of legal education.

Qualification Process: Admission to the profession of lawyer is basedupon passing a fair, rigorous, and transparent examination and thecompletion of a supervised apprenticeship.

Licensing: Admission to the profession of lawyer is administered by animpartial body, and is subject to review by an independent and impartial

judicial authority.

Non-Discriminatory Admission: Admission to the profession of lawyer isnot denied for reasons of race, sex, sexual orientation, color, religion,political or other opinion, ethnic or social origin, membership in a nationalminority, property, birth, or physical disabilities.

3. Conditions and Standards of Practice Formation of Independent Law Practice: Lawyers are able to practice law

independently or in association with other lawyers.

Resources and Remuneration: Lawyers have access to legal informationand other resources necessary to provide competent legal services andare adequately remunerated for these services.

Continuing Legal Education: Lawyers have access to continuing legaleducation to maintain and strengthen the skills and knowledge required bythe profession of lawyer.


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Minority and Gender Representation: Ethnic and religious minorities, aswell as both genders, are adequately represented in the profession oflawyer.

Professional Ethics and Conduct: Codes and standards of professional

ethics and conduct are established for and adhered to by lawyers.

Disciplinary Proceedings and Sanctions: Lawyers are subject todisciplinary proceedings and sanctions for violating standards and rules ofthe profession.

4. Legal Services Availability of Legal Services: A sufficient number of qualified lawyers

practice law in all regions of a country, so that all persons have adequateand timely access to legal services appropriate to their needs.

Legal Services for the Disadvantaged: Lawyers participate in specialprograms to ensure that all persons, especially the indigent and thosedeprived of their liberty, have effective access to legal services.

Alternative Dispute Resolution: Lawyers advise their clients on theexistence and availability of mediation, arbitration, or similar alternatives tolitigation.

5. Professional Associations Organizational Governance and Independence: Professional associations

of lawyers are self-governing, democratic, and independent from stateauthorities.

Member Services: Professional associations of lawyers actively promotethe interests and independence of the profession, establish professionalstandards, and provide educational and other opportunities to theirmembers.

Public Interest and Awareness Programs: Professional associations oflawyers support programs that educate and inform the public about itsduties and rights under the law, as well as the lawyer's role in assisting thepublic in defending such rights.

Role of Law Reform: Professional associations of lawyers are activelyinvolved in the country's law reform process.

Both the World Bank Assessment Manual and the ABA LPRI are broadly designed andmay need to be tailored to suit the needs of a post-conflict state whose justice systemmay be severely debilitated. For example, conflict often deprives citizens of highereducation, and thus there may not always be a domestic legal education system to


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assess. Furthermore, there is often ambiguity as to the definition of a lawyer. Whilethere is often an understanding and even regulation of the formal lawyers, more oftenthan not there is an informal legal profession that gives advice on legal matters.4 It willbe necessary to assess the number of and services provided by both formal andinformal lawyers remaining in the state.

It is also not a foregone conclusion that a bar association will already exist. Forexample, prior to international donor efforts, Afghanistan did not have a professionalbar,5 and thus the factors discussed previously for assessing professional associationswould not apply.

Another key element of the assessment is an ascertainment of whether the legalprofession is willing and able to regulate itself: the assumption has been made in thepast that this is always true, however, that may not be the case. Often times, barassociations do not want to discipline their own members.6 The assessment shouldanalyze the capabilities of the local legal community, and whether individuals have the

capacity to operate the bar association effectively. Other issues, such as corruption ofboth the formal and informal legal system, may arise through the assessment. Amalleable assessment will have the capability to uncover these nuances.

As part of the assessment, the team will also likely target a representative audience. Inthe World Banks manual, suggested interviewees include parliamentarians, legaldrafters, judges (at all levels of the judicial sector and geographical areas), executivebranch officials, including individuals from the prime ministers office and the relevantministries, prosecutors, legal professionals, legal NGOs, law school faculties andadministrators, among others. In addition, the assessment should seek out informallegal actors, civil society and human rights organizations, police, paralegals, legaltrainees, and citizens that have used (or tried to use) legal services.

II. Setting up a Bar Association

If a decision is made to establish or reform a bar association, the next process requiresthe drafting and passing of enabling legislation. Subsection A reviews variations ofdifferent models of bar associations; the precise character of the new bar associationwill need to be determined while drafting legislation on the basis of these different

4Russell G. Pearce & Samuel J. Levine, Rethinking the Legal Reform Agenda: Will Raising Standards

for Bar Admission Promote or Undermine Democracy, Human Rights, and Rule of Law, Fordham Law

Review77 (2009): 1643-44. China maintains a formal profession of lawyers, but also has two lower tiersof informal advocates. The first, termed Basic Level Legal Workers, have some training and a license byprovincial justice bureau and can handle all but criminal cases. The second, termed barefoot lawyers, areself-trained, unlicensed individuals, usually operating in the rural and poor villages where they offer legaladvice to their community.5

International Bar Association, A Bar Against the Odds, Daily News, October 14, 2008: 11.6

In Pakistan, for example, the bar councils have relative independence. The bar association hasregulated the profession through ethic and conduct codes; however, they rarely discipline lawyers. Thus,they are largely ineffective in regulating themselves. See United States Agency for InternationalDevelopment, Pakistan Rule of Law Assessment Final Report(2008): 28-29.


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models. Subsection B provides an overview of core issues that should be addressed inthe enabling legislation.

A. Determining What Type of Bar Association to Establish

1. Local versus Unified Bar Associations

Each country will need to decide whether to create a local or unified bar associationsystem. In a localized system, major cities and provinces have their own barassociation. Prospective members apply to the bar association that governs the locationwhere they wish to practice. The enabling act will likely list the separate systems,although the enabling act needs to govern each equally. Haiti has implemented thislocalized system, with the Port-au-Prince Bar Association being the largest. Each barhas the same definition of a lawyer, admissions requirements, structure, and disciplinarysystem. One potential issue with this system is the ability of each bar to maintain thesame standards. With differences in the number of members, funding sources fluctuate.

Furthermore, although best practices support the establishment of strictly objectiveadmissions criteria, there will always be a subjective element. Thus, with some barsbeing easier to get into or providing more services, prospective lawyers may opt in tothe bar association that has the easiest entry requirements.

In countries with historically localized bar associations, there is a growing movement tocreate a federal or national bar as an umbrella organization. This may serve as a goodmodel for a post-conflict state as it begins the establishment of its bar association. Thelocal bars still operate as independent organizations; however, a national bar is createdto standardize the system. For example, the United Kingdoms Law Society and BarCouncil are national bodies, to which all local Law Societies and Inns of Court (thesubsidiaries to the Bar Council) belong. Lawyers only need to have membership in alocal bar to practice throughout the country. The national bodies have representationfrom each of the local bars, making policy decisions on behalf of all the bars. Othercountries that follow this model include Canada and Japan.

In contrast, other countries have one unified bar association. Often times, the barmaintains a headquarters in the capital city. The bar could also have satellite offices inhighly populated cities. The unified bar controls admissions, discipline, and otheradministrative functions, while satellite offices provide local access and services tomembers. Examples include Malaysia, Israel, Kosovo and Georgia.

2. Merged versus De-merged Bars7

As discussed below, bar associations have three major functions: regulation, education,and representation of the members. Some countries have created independentorganizations that carry out the various functions of bar associations, considered de-merged bars. The United Kingdom has recently moved towards this de-merged system.

7See David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales,

Final Report(2004).


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An independent body regulates legal professionals, receiving complaints and issuingdisciplinary rulings. A separate association then carries out the educational andrepresentative functions. This is discussed in more detail, both under the functions of abar association and under the disciplinary system of a bar association.

3. Voluntary versus Mandatory Bar Associations

Bar associations are either mandatory or voluntary. Although the focus of thisConsolidated Response is on mandatory associations, various voluntary barassociations carry out educational and representative functions for their members.Mandatory bars are legally empowered by the state to carry out regulatory functions,and will often offer educational and representational functions as well. In order topractice law, lawyers must meet the entrance requirements of the mandatory bar.

Conversely, voluntary bar associations only carry out educational and representativefunctions and are not empowered to regulate the legal profession. Membership will

usually only require an application and entrance fee. Voluntary associations may alsoaccept prospective members or trainees. Rather than operating as an administrativeorgan, these associations tend to be non-governmental organizations. As the primarydifference between mandatory and voluntary bars, this Consolidated Response willfocus on the regulatory functions set out in the enabling legislation.

B. Drafting Enabling Legislation

In developing the framework for an independent bar association, the first step isdetermining the functions of the bar association. Once the functions are determined, therest of the enabling legislation can be drafted. Subsection 1 looks at the possiblefunctions of a bar association. The contents of the legislation will largely depend on thefunctions that have been decided upon, but generally enabling legislation addresses thefollowing: definition of the term lawyer, the structure of the bar, admission standards,and the disciplinary system. Subsections 2-5 look at these issues.

1. General Functions of the Bar Association

Bar associations often carry out a combination of three functions: (1) regulation; (2)education; and (3) representation of the legal profession. Regulatory functions of a barassociation include admitting members to the bar, maintaining a code of conduct, anddisciplining members.8 The educational function usually entails providing continuinglegal education for members of the bar, and could include education for trainees orprospective members. Finally, the representative function could lobby and negotiate on

8At times, some countries create two independent bar groups: a regulatory bar, which includes continuing

legal education; and a representative body. For example, England and Wales have recently overhauledtheir dual-legal profession system. While they still maintain separate bars for solicitors, The Law Society,and barristers, the Inns of Court and Bar Council, both the Law Society and Bar Council have separatedtheir regulatory and representative capacities. For more information, see Annex A. About Us: The BarStandards Board (accessed October 22, 2009); The Law Society About Us (accessed October 22,2009).


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behalf of the bar, and provide services to members and society-at-large. Prior to draftingthe enabling act, it is important to create clear objectives and principles that will drivethe bar association.9 Clearly, a participatory and inclusive process would be required toengage relevant stakeholders in this process of determining the essential functions ofthe new bar association. Once the functions are determined, the next step is drafting the

components of the enabling act.

2. Definition of a Lawyer whom the bar governs

The enabling act should provide a clear definition of a lawyer and whom the bar willregulate. The Council of Europe proffers a general description of a lawyer, stating thatlawyer means a person qualified and authorized according to the national law to pleadand act on behalf of his or her clients, to engage in the practice of law, to appear beforethe courts or advise and represent his or her clients in legal matters.10 Often, a barassociation does not govern judges and prosecutors,11 though that is not always thecase.12 Thus, the definition should consider what acts appearing in court, writing a

pleading or brief, giving any advice will require a lawyer and whether judges andprosecutors will be governed by the bar association. Furthermore, many barassociations govern trainees, among other non-lawyers. In such cases, the enabling lawwill likely provide a definition of other groups the bar governs, and more importantly,clarify the differences.

Example of Defining the Practice of Law and Lawyer

The Law Society of British Columbia (Canada) defines the practice of law as:(a) appearing as counsel or advocate,(b) drawing, revising or settling [legal documents]

. . .(c) doing an act or negotiating in any way for the settlement of, or settling,a claim or demand for damages,(d) agreeing to place at the disposal of another person the services of alawyer,(e) giving legal advice,(f) making an offer to do anything referred to in paragraphs (a) to (e), and(g) making a representation by a person that he or she is qualified orentitled to do anything referred to in paragraphs (a) to (e),13

The enabling legislation specifically excludes the following from the definition:(h) any of those acts if not performed for or in the expectation of a fee,

gain or reward, direct or indirect, from the person for whom the acts are

9David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales, Final

Report(2004): 2 (stating that the Law Society in England had no clear objectives and principles whichunderlie this regulatory system; and the system has insufficient regard to the interests of consumers).10

Council of Europe, Committee of Ministers, Recommendation No. R(2000)21 (2000): preamble.11

The Advocates Law [Afghanistan], art. 7 (2007).12

State Bars in the United States govern prosecutors, defense attorneys, and private attorneys.13

British Columbia Law Society Legal Profession Act(1998): art. 1(1).


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performed,(i) the drawing, revising or settling of an instrument by a public officer inthe course of the officer's duty,(j) the lawful practice of a notary public,(k) the usual business carried on by an insurance adjuster who is licensed

under Division 2 of Part 6 of the Financial Institutions Act, or(l) agreeing to do something referred to in paragraph (d), if the agreementis made under a prepaid legal services plan or other liability insuranceprogram[.]14

The Afghanistan Advocates Law defines a lawyer as a person who is included in theRoster of practicing advocates and is entitled to defend and represent the rights ofhis/her client before a court of law, other authoritative tribunals, or initiate judicialproceedings, in accordance with the provisions of the law.15

Kosovo defines legal activities, which the bar regulates, as:

1.1. provision of legal advice;1.2. representation and defence of clients in judicial and other governmentalinstitutions enforcing the laws;1.3. defence and solicitation for clients in arbitration bodies and otherindependent organisations;1.4. defence of clients in their legal relations with other physical and legalentities;1.5. preparation of lawsuits, presentations for legal prosecution and appealremedies;1.6. preparation of legal documents conducive to or aiming at legal consistency,

such as: contracts, wills, statutes, etc.1.7. preparation of expertise for various legal issues, and1.8. other actions as provided by Law.16

The text box examples only serve as examples of the definition of a lawyer.Another important consideration is each societys particular view of a lawyersrole. Each enabling act should include a clear and concise definition of the term.

3. Structure of the Bar Association

There are no international standards regulating bar association structure, although theCouncil of Europe has issued basic guidelines for transitional states. 17 The Council,

14Ibid.

15The Advocates Law [Afghanistan], art. 5 (2007).

16Law on the Bar [Kosovo], art. 2 (2009).

17 The Council of Europe found that government entities were retaining control, and thus not providing theindependence Bar Associations needed. Council of Europe Legal Co-operation with Central and EasternEuropean, The Role and Responsibilities of the Lawyer in a Society in Transition (1997): 4.


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growing trend to standardize admissions requirements, it is unlikely that a singlesolution could ensure that individuals licensed as lawyers are fully capable of carryingout their duties.25 Admissions standardization comprises five primary elements:education, practical experience, exam, moral standards, and oath.

4.1 Education

Often, enabling acts require a four-year university degree in law or a masters degree.26The educational component, however, has its critics.27 The Chinese government ismoving towards stiffening its certification standards, potentially excluding manypresently practicing legal professionals. In China currently, non-lawyers (those notcertified) are still able to practice law and give advice. Apart from a certificate of trainingno other educational requirements are required to offer legal advice. Many of thesepractitioners are the primary defenders of human rights in rural areas.

If the admission procedure requires a higher degree of education, the enabling act or

by-laws should also indicate which types of degree qualify and which schools areeligible. Frequently, it is sufficient if the ministry or government body that overseeshigher education recognizes or approves the institution. For example, Afghanistanrequires approval by the Ministry of Higher Education for non-law degrees. In Israel, anapplicant must have a degree from an institution recognized by the Council for HigherEducation or a foreign institution recognized by the Hebrew University in Jerusalem.28

Bar associations often operate their own training and education. The South Koreangovernment created the Judicial and Research Training Institute29 and applicants arerequired to take the bar examination and complete two years of courses at theInstitute.30 Other bar associations that educate and train lawyers prior to giving them full

membership include the United Kingdom and Ireland.

31

standard of legal training and morality as a prerequisite for entry into the profession and to provide for thecontinuing education of lawyers. (Principle 2, para. 2).25

Russell G. Pearce & Samuel J. Levine, Rethinking the Legal Reform Agenda: Will Raising Standardsfor Bar Admission Promote or Undermine Democracy, Human Rights, and Rule of Law, Fordham LawReview77 (2009) (describing the American Bar Associations growing trend to standardize the educationrequirement for admission to practice).26

The Advocates Law [Afghanistan], art. 6 (2007) (requiring either a bachelors in law or Sharia, or ahigher degree approved by the Ministry of Higher Education). Cf.Act No. 86.1996 on the LegalProfession [Czech Republic], 5 (1996) (requiring a Masters in Law or a recognized equivalent foreigneducation).27

See, e.g., Russell G. Pearce & Samuel J. Levine, Rethinking the Legal Reform Agenda: Will Raising

Standards for Bar Admission Promote or Undermine Democracy, Human Rights, and Rule of Law,Fordham Law Review77 (2009) (arguing that China and South Africa serve as examples that an increasein admission to bar associations will diminish human rights, and in the case of China likely increasecorruption and decrease the rule of law).28

Bar Association Law [Israel], 25 (1961).29

Korean Bar Association, Qualifications for Attorney-at-law (accessed October 15, 2009).30

This is an interesting divergence, but it does pose serious risks the government runs the institute;therefore, questions of whether the legal sector is truly independent if they are required to complete agovernment-run education may be valid.31

See Annex I for more information.


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4.2 Practical Experience

Although not always mandatory, admission to the bar may require practical experience.This training experience varies from bar to bar. Variations include the time period of the

traineeship/apprenticeship and the bars oversight. Georgia requires one year of legaltraining, or two years with a law-related NGO, before admission to the bar. In Kosovo,trainees are still overseen by the Chamber of Advocates.32 Where there is no oversightof the trainees, lawyers may not receive the requisite experience. Rather than requiregeneral practical experience, the Port-au-Prince Bar Association in Haiti runs its owntwo-year course.33 While enrolled during the course, lawyers are limited to practicingcriminal matters and matters before the peace court.34 The course offers practicalexperience in the day-to-day operations of the legal system, especially the courts, inHaiti.

4.3 Examination

As with education and practical experience, another admission requirement could be anexamination. The Czech Republic, Kosovo, the Philippines, and Israel all have anexamination as a prerequisite to admission to the bar association. If the enabling actrequires a bar examination, relevant issues include:

Who writes the bar exam? Often times, there is a committee formed to writethe exam.

When is the bar exam offered? The enabling act or by-laws should specifyhow many times per year the exam is offered.35

What will the bar distribute prior to exam? Lawyers will often request exammaterial and practice questions well in advance of the test date.36

4.4 Moral Standards and Oath

The final two components moral standards and an oath have occasionally createdcontroversy. If admission to the bar requires good moral standards, it is vital to makeobjective criteria to gauge morality. More often than not, an enabling act states thatadmission to the profession requires good moral character, providing admissionscommittees with significant latitude for subjectivity. Some bar associations attempt to

32Law on the Bar [Kosovo], art. 34-38 (2009).

33

In Haiti, prospective lawyers only need a four-year university degree and successful completion of thetraining course they do not need to pass an examination. Afghanistan also offers a practical trainingcourse that lawyers must pass, as an alternative to an examination.34

The training course gives exams to ensure students are learning the relevant material, and studentsare required to donate minimum hours to the poor and needy criminal defendants.35

As the bar is still in its early years, the bar often does not offer the exam as often as the enabling actrequires. Although this is likely, it is important to still include when it is offered in order to both giveguidance to the bar and give redress to prospective applicants that are deprived on admission when theexam is not offered.36

See, e.g., Law No. 02/L-40 on Bar Examination [Kosovo] (2006).


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employ more objective standards by denying admission to individuals with criminalconvictions related to fraud and perjury.

Oaths may be problematic, depending on whom the oath is given to and the contents ofthe oath that must be stated. It is not unheard of for those administering the oath to add

statements requiring loyalty to the government, thus diminishing the independence ofboth the lawyer and the legal profession. In ensuring the independence of lawyers, anoath should not coax lawyers into a duty towards the bar, political branch, orgovernment that could potentially place a lawyer in conflict with his or her own clients. Ifan oath is to be required, it should be written into the enabling act. Kosovos recentlyadopted Law on the Bar provides the precise language of the oath and to whom it isadministered,37 helping ensure that the oath cannot be changed by those administeringit.

5. Discipline System

International standards recommend that the bar association or an independent panelinitiate disciplinary proceedings of a lawyer, ensuring both a fair hearing and dueprocess, with appeal to an independent body.38 The United Nations Basic Principles onthe Role of Lawyers states that:

26. Codes of professional conductfor lawyers shall be established by thelegal profession through its appropriate organs, or by legislation, inaccordance with national law and custom and recognized internationalstandards and norms.

27. Charges or complaints made against lawyers in their professionalcapacity shall be processed expeditiously and fairly under appropriateprocedures. Lawyers shall have the right to a fair hearing, including theright to be assisted by a lawyer of their choice.

28. Disciplinary proceedings against lawyers shall be brought before animpartialdisciplinary committee established by the legal profession, beforean independent statutory authority, or before a court, and shall be subjectto an independent judicial review.

29. All disciplinary proceedings shall be determined in accordance with thecode of professional conduct and other recognized standards and ethicsof the legal profession and in the light of these principles.39

37Law on the Bar [Kosovo], art. 7 (2009).

38United Nations Basic Principles on the Role of Lawyers (1990) , art. 26-29; Council of Bars and Law

Societies of Europe, CCBE Recommendations on Disciplinary Process for the Legal Profession (2007);African Commission on Human and Peoples Rights, Principles and Guidelines on the Right to a Fair Trialand Legal Assistance in Africa (2005).39

United Nations Basic Principles on the Role of Lawyers (1990) (italics added).


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Based on these principles, and those echoed by regional recommendations, theenabling act could set up a disciplinary system in one of two ways.40 In the first, the barassociation operates its own disciplinary body.41 In the second, a separate body,autonomous from the bars leadership and other government offices, operatesdisciplinary procedures. The selected system is then responsible for disciplinary

matters, including receiving complaints and issuing findings.

The discipline system has two major components: (1) receiving complaints; and (2)regulating the lawyers. The complaints procedure will likely allow anyone anotherlawyer, a client, or the bar association to initiate a complaint. Complaints will need tobe processed, and could lead to disciplinary actions. The disciplinary procedure willlikely involve a hearing, at which a lawyer is afforded due process requirements. TheUnited Kingdom recently overhauled their disciplinary system to ensure clients thosemost affected by lawyers conduct are able to report misconduct. The ClementiReport, on which the UK reforms were based, found a lack of independence betweenthose regulating the lawyers and the lawyers themselves, causing a lack of confidence

in the clients.

42

In a post-conflict setting, the lack of independence may become a majorissue. The Clementi Report argues for two separate bodies to accept complaints fromclients and to issue discipline, which may serve as good practice in a post-conflictstate.43

Regardless of the model, the disciplinary system should afford every lawyer dueprocess. In relation to disciplinary hearings, the international standard of due processrequires the right to a timely, public hearing by an independent and impartial tribunal.This likely requires a mechanism to ensure the independence of the disciplinary body.Those deciding disciplinary issues should be protected from reprisal for their decisions,and only face removal based on serious misconduct or incompetence issues.44

The disciplinary system will likely also have an oversight mechanism. This largelydepends on other legal mechanisms already in place. If the bar association is set up asan independent agency, public administrative law will likely determine the oversightfunction. Examples include appellate relief to the judicial courts and ombudsmansystems.

As part of the disciplinary system, the bar association could also create its own set ofprofessional ethics and codes of conduct to govern member behavior. These arediscussed in more detail in section 3B below.

40See David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales,

Final Report(2004): 51 (outlining the two models).41

See Council of Europe, Committee of Ministers, Recommendation No. R(2000)21 (2000): Principle VI,para. 2 (Bar associations or other lawyers professional associations should be responsible for or, whereappropriate, be entitled to participate in the conduct of disciplinary proceedings concerning lawyers.).42

David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales, FinalReport(2004): 57, 77.43

Ibid: 64, 78.44

SeeHuman Rights Committee, General Comment 32(2007).


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C. Time Frame to Establish the Bar from Passage of the Act

The enabling act may also include provisions on implementation. As discussed below,implementation will vary based on each countrys legislative timetable. This section alsooutlines past mistakes in the hopes of alleviating challenges for those drafting enabling

legislation in post-conflict states. In most legal systems, the act outlines therequirements necessary to effect the bars establishment. The act should also referenceeither a date or time frame from passage of the bill for the inaugural meeting of lawyers,as well as the eligibility of participants and quorum requirements.

1. When to Establish

The enabling act often gives both a time frame to establish the bar and generalrequirements about how the bar will be established. In terms of a time period, theenabling act may specify a date when the act, and thus the bar association, becomeseffective. The effective date should provide enough time to conduct, at least, an

inaugural meeting.

For example, the Philippines passed a very short enabling act, giving the SupremeCourt power to establish more narrow guidelines for the bar.45 The act allowed twoyears to establish the rules and by-laws of the Bar Association. Once the SupremeCourt affirmed both the rules and by-laws, the Bar was established. Specific dates arenot always necessary. In another example, South Koreas enabling act provided aspecific date for the inaugural meeting, June 17, 1950. This specificity caused a delay;because war broke out in late June 1950, the inaugural meeting did not occur until July28, 1952, with the final establishment on August 28, 1952.46

2. How to Establish

In establishing or reforming a bar association, the enabling act often includes a sectiondetailing the process of how to establish the bar association. In order to ensureindependence from state organs, sometimes bar associations are set up asindependent corporations. The Israel Bar Association is a corporate body, in which onlythe State Comptroller General has supervisory authority over it.47 The Ministry of Justicewas charged with implementing the law and with creating an election council to overseethe first elections of the Bars leaders.48

Other times, the bar is created as an independent non-governmental association.49 Forexample, The Afghanistan Advocates Law states [t]he Association of Advocatesobtains legal status upon approval by the [Bars] General Assembly, publication of its

45Philippines Act Providing for the Integration of the Philippine Bar.

46History of the Korean Bar Association.

47Bar Association Law [Israel], 4, 5 (1961).

48Ibid., 108, 110.

49The Advocates Law [Afghanistan], art. 4 (2007). (To regulate and lead all activities of advocates, anindependent non-governmental Association of Advocates (the Association) shall be established.).


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By-Laws in accordance to the law and upon registration of its Charter with the Ministryof Justice.50 It further states that the law becomes effective three months after itspassage.51 Finally, the presidential decree accompanying the act states that [t]heMinistry of Justice shall be obliged to take necessary measures for establishing anindependent Association of Advocates within three months from the enforcement of the

Advocates Law.

52

In the Czech Republic, the bar association is an administrative organ that governs legalprofessionals, and also maintains the status of a legal person.53 Since the Czechprocess involved significant reform, their enabling act included a section on transitioningfrom the former legal arrangement to the newly established bar; the enabling act waspassed in March 1996 with a provision that the law was effective on July 1, 1996. 54 Theenabling act gave transitional authority to the Board of the former bar association, whichincluded the election of new bar members and hosting the inaugural assembly.55

To ensure clarity, the enabling act should not only provide an effective date of the

legislation, but also any additional requirements that must be met to fully establish thelegal capacity of the bar association.

3. Ensuring Legitimacy

Issues of legitimacy may arise when enabling acts fail to carefully provide specificprocedural guidance. In one example, an enabling act required an inauguralconference, at which lawyers voted on by-laws that were then registered with the state.However, since the enabling act did not provide any guidance on the number of lawyersneeded to vote on the by-laws, quorum became an obstacle to the bars legitimacy. Thebar approved the by-laws based on a quorum of registered participants, rather than

eligible participants. Dissatisfied lawyers later claimed that the by-laws, and thus the barassociation, were illegitimate.

If a quorum of voters is required, a balance should be struck between a quorum lowenough to obtain, yet high enough to provide the bar association legitimacy. If thequorum is too low, a single political group constituting quorum could potentially form andoperate the bar, compromising the bars independent status. Drafters of enabling actsshould seek to resolve these issues prior to any inaugural conference.

50Ibid.,art. 38.

51Ibid., art. 44.

52Presidential Decree, The Advocates Law [Afghanistan], art. 2 (2007).

53Act No. 86.1996 on the Legal Profession [Czech Republic], 40 (1996)

54Ibid., 72.

55Ibid., 65, 68.


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4. Eligibility of Participants

Often, an independent bar is established because of a lack of effective governingstructure of the legal profession.56 Issues may then arise as to who is eligible toparticipate in the establishment of the bar association. In seeking clarity, the enabling

act should set out the criteria for original founding membership, especially if there is noother document before the establishment of the bar to do so.

In Afghanistan, the Philippines and Israel, lawyers who met the basic criteria to be alawyer and were registered with the previous oversight regime were grandfathered intothe new bar. In transitioning to a new bar association, the Czech Republics enabling actstated: Lawyers having their names entered in the Register of Lawyers kept under thecurrent legislation shall become lawyers under the Act herein as of the date of effect ofthe Act herein; the Bar shall enter their names in the Register of Lawyers without theirapplying for such.57 A second option would require all those interested to sit for aninaugural exam on top of meeting the other eligibility requirements. Another option, if

there is a list of lawyers already registered with the state, is to grandfather thoselawyers into the new bar association, and allow each to be eligible to participate in thefounding conference. Clarifying criteria for eligibility in the enabling act provides usefulguidance in advance of a founding conference.

III. Developing the Bar Association

As stated above, the enabling legislation should give ample time between when thelegislation is passed and when it comes into effect. During this time, efforts may bemade to educate both the legal community and the public on the role of the new barassociation. Furthermore, during this time, prospective lawyers could have theopportunity to register for the bar, based on the provisions of the enabling act.58 The barassociation will also likely need to acquire office space and staff. Bar associationsfrequently host an inaugural meeting during the implementation phase, in which theypass by-laws, elect leaders and form committees.59 This is outlined in Subsection A.Once the bar is established, it will likely need to draft a code of conduct or ethicalguidelines. In light of the widespread attention this issue often receives, Subsection Bbriefly describes codes of conduct.

56This is not always the reason for establishing a bar association. In other situations, a unified bar

combined local bars. In situations where former membership in the legal profession was established,deciding whom is eligible to participate in the founding of the new bar may be an easy solution.57

Act No. 86.1996 on the Legal Profession [Czech Republic], 57 (1996). Their act also included aprovision grandfathering in legal trainees. Ibid., 58.58

As stated above, the enabling act could set out both the initial requirements to obtaining membership,including whether there is a grandfather clause, as well as the requirements for new members.59

As the Afghanistan example illustrates, the enabling legislation may require the Bar Association tomeet, pass the by-laws, and register a charter prior to being recognized as a legal entity. In such asituation, the Bar Association is likely required to host an inaugural meeting where it can meet therequirements.


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A. The Inaugural Meeting of the Bar

Implementation of the enabling legislation often requires an inaugural conference. Thefounding conference is charged with complying with the enabling act requirements.

Those that meet quorum will likely need to vote on multiple issues. Thus, participantsmay need to be screened at every session to ensure they are qualified. This is anarduous process, and since there may be multiple sessions, participants are likely tocome and go frequently, placing pressure on the quorum requirements. Proper planningwill help ensure a streamlined conference. Although enforcement of eligibility andquorum is challenging and time-consuming, the alternative is likely worse; once the baris established, opponents could raise issues of legitimacy.

1. By-laws

During the conference, it may also be necessary to pass by-laws. Representative

stakeholders may want to draft by-laws beforehand. It may be helpful to set up aprocess to accept and distribute such proposals before the conference, enablingparticipation and feedback from members. At the conference, all participants could alsosplit up into groups to debate proposals for a certain time period, after which they mightsubmit any opposition to the various proposals. Although there are no guidelines orstandards for how to handle by-law proposals, organizers could review Roberts Rulesof Orderor similar books on parliamentary procedure.

2. Leadership

The enabling act and by-laws describe the organization, including the leadershippositions. Based on these documents, the next step is to ensure a valid nominating andvoting procedure is in place. With regard to the nominating and voting procedure, it isimportant to keep in mind the social and cultural context of the country. In one instance,only one individual was needed to nominate a candidate. Due to social courtesy,nominations were made for friends, neighbors, and even nearby candidates. It may bewise, in that situation, to place requirements either in the form of a specific number ofsignatures or particular qualifications needed that the candidates have to meet beforebeing placed on a ballot. Once those eligibility criteria are in place, the nomination andvoting procedures can take place.

When creating the nomination and voting procedures, it is important to determine thesequence of leadership votes. While there are no best practices or lessons learned forthis practice, the process could be greatly enhanced if details are worked out prior to theconference and voting.

3. Standing Committees

Similar to the leadership positions, the enabling act and by-laws might create statutoryand standing committees, as well as the procedure for filling their seats. Bar


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associations typically have at least two standing committees. First, there is usually acommittee to create and update the bars ethical guidelines and code of conduct. Thesecan help ensure a legal community that strives to provide the highest standard of legaladvice.60 In tandem with an ethics committee is a disciplinary system. As describedabove, the disciplinary system varies, but it should be set up via the enabling act and

by-laws.

The second committee commonly found in bar associations is an admissionscommittee. Not all bar associations have created admissions committees. Indeed, thereis a growing movement among some bar associations, including Kosovos, toestablishing their admissions committee as a standing committee in order to limit thepower of individuals in the bar.61

Truly independent bar associations should have the ability to freely admit or denyapplicants. Often, a standing committee to screen applicants created. This componentcan be overlooked, as was initially the case in Kosovo.62 The Kosovo Chamber of

Advocates recently reformed their bar application process because the ultimate decisionwas left to the head of the Chamber. At present, there is a committee to screenapplicants with strictly objective criteria.63 This has helped remove bias and increasetransparency of the admissions process. In countries with ethnic divisions, a unified barassociation will need to ensure that those in charge of bar admissions are preventedfrom favoring or discriminating against particular ethnicities.

B. Code of Conduct

In carrying out their duties, lawyers must maintain a certain level of ethical andprofessional behavior. As recommended by international standards,64 enablinglegislations often delegate authority to bar associations to create their own codes ofconduct, which serve as the basis for disciplinary proceedings.

Ethical norms amongst legal professions are usually based on common values,although variations illustrate the nuanced differences in each countrys legal traditions.65The American Bar Associations Professional Legal Ethics: A Comparative Perspective,analyzes both American and European bar associations and recognizes four commonareas of concern: (1) conflict of interest; (2) confidentiality; (3) competence; and (4)

60See infra Annex D.

61See, e.g., American Bar Association, The Legal Profession Reform Index of Kosovo, Volume II(2007):

27.62

Ibid.63

Law on the Bar [Kosovo], art. 5-6 (2009).64

United Nations Basic Principles on the Role of Lawyers (1990), art. 26. See alsoCouncil of Europe,Committee of Ministers, Recommendation No. R(2000)21 (2000): Principle 6, art. 1.65

Council of Europe,Activities for the Development and Consolidation of Democratic Stability, Ethics ofLawyers (1999): 4.


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independence of lawyers.66 Interestingly, the ABAs comparative approach found thatthe American legal system placed loyalty to the client first, while Western Europe placedloyalty to the legal profession first.67

The Council of Europe, in a forum to discuss legal ethics, condensed ethical norms

into legal and moral obligations that lawyers have to their clients, the court, and thecommunity.68 Towards their clients, lawyers can defend legitimate interests, maintainmanageable workloads, keep up professional skills, refrain from withdrawing if there islikely immediate harm to their client, and avoid conflicts of interest.69 Towards thecourts, lawyers should maintain decorum and respect for the court.70 Finally, towardsthe community, they should aim to enforce human rights norms in their practice.71

In comparing ethical standards across bar associations, as the ABA noted, thesecommon norms may be summarized as the following components: (1) the lawyer-clientrelationship; (2) the lawyer-lawyer relationship; (3) The lawyer-court relationship; and (4)the lawyer-society relationship. It should be noted that these ethical norms will vary

depending on the functions of the bar association and the definition of a lawyer.

1. Lawyer-Client Relationship

Ethical norms addressing the lawyer-client relationship often entail the following: (1) theformation of the relationship; (2) a lawyers diligence and confidentiality; (3) conflicts ofinterest; (4) fees; and (5) the termination of the relationship.

Codes of conduct often do not address the issue of when a lawyer-client relationship iscreated. More often, the ethical norms address relationships that have already beenformed. Ambiguity may arise, however, with regard to whether the relationship exists,

and thus what duty the lawyer has to the client. This oversight may simply be that thelawyer-client relationship is ordinarily a contractual relationship, and thus contract lawaids in determining if the relationship has been formed. Still, a code of conduct maywant to specify what law applies. Clarity will allow better training and understandingamong the lawyers on when their obligations to the client begin.

Some bar associations have determined that prospective clients are still in need ofprotection, especially with regards to information they may give to a lawyer. Forexample, in the Model Rules of Professional Conduct, published by the ABA, lawyersowe duties to prospective clients, especially if they have dealt with confidential

66

American Bar Association Central European and Eurasian Law Initiative, Professional Legal Ethics: AComparative Perspective (2002): 1. See alsoCouncil of Bars and Law Societies of Europe, Code ofConduct for European Lawyers (2006): 5.67

American Bar Association Central European and Eurasian Law Initiative, Professional Legal Ethics: AComparative Perspective (2002): 1.68

Council of Europe,Activities for the Development and Consolidation of Democratic Stability, Ethics ofLawyers (1999): 2.69

Ibid: 2, 4.70

Ibid: 4.71

Ibid.


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information.72 These duties usually include the norms of confidentiality and decliningrepresentation due to conflicts of interest. Bar associations may also limit the solicitationof prospective clients.73

Non-discrimination clauses frequently appear in many codes of conduct, prohibiting

lawyers from discriminating against their clients. In a post-conflict setting, this may bevery important if ethnic, religious, or gender divisions still persist. Also, it may be wise toclarify whether a non-discrimination clause should apply to prospective clients. In theUnited States, for example, most lawyers can decline representation of a client due toconflicts with the prospective clients religious beliefs if it would prejudice the lawyersrepresentation. This is not to say that allowing this decline of representation is the bestchoice in countries with very few lawyers or predominantly one ethnicity, it may servesociety best if lawyers are obligated to take clients regardless of those beliefs. Thissection merely emphasizes the need to address these nuanced issues.

Codes of conduct also address conflicts of interest, which arise in three main areas:

personal conflicts, client-to-client conflicts, and third-party conflicts. Within the categoryof client-to-client conflicts, sub-categories include former clients, current clients, andprospective clients. In common-law traditions, the client will likely have the ability towaive the conflict, and thus allow representation even though a conflict exists.Conversely, in a civil law tradition, the conflict supersedes the clients wishes.74

Finally, bar associations usually address attorney fees. Bar associations treatment offees varies from placing ceilings on what attorneys may charge to merely applying fairand reasonable standards of contract law. If there are serious concerns about feescharged by attorneys, bar associations may provide fee guidelines. Bar associationscould go as far as standardizing fees, though they rarely take these drastic steps.Instead, most bar associations treat fees as a contractual agreement between lawyerand client. While acknowledging the unequal bargaining power between the two, thesebar associations merely require fees to be fair and reasonable. The Council of Bars andLaw Societies of Europe, for example, simply states that [a] fee charged by a lawyershall be fully disclosed to the client, shall be fair and reasonable, and shall comply withthe law and professional rules to which the lawyer is subject.75 In some jurisdictions inthe United States, bar associations provide factors to consider the fairness andreasonableness of fees.76

2. Lawyer-Lawyer Relationship

The norms addressing the lawyer-lawyer relationship can be broken into two parts: theconduct of lawyers within a practice, and the conduct of lawyers with opposing counsel.

72The American Bar Association, Model Rules of Professional Conduct, Rule 1.18 (accessed November

13, 2009).73

Japan Federation of Bar Associations, Basic Rules on the Duties of Practicing Attorneys (2004): art. 10.74

For more information, see American Bar Association Central European and Eurasian Law Initiative,Professional Legal Ethics: A Comparative Perspective (2002): 37, 43.75

Council of Bars and Law Societies of Europe, Code of Conduct for European Lawyers (2006): 11.76

The American Bar Association, Model Rules of Professional Conduct, Rule 1.5.


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The legal practice usually falls into one of the following categories: duties of a solepractitioner; limits on joint practice (firm); and limits on working with non-lawyers. Anexample of a sole practitioners duty is to put a plan in place for clients in case of alawyers death. Not every country permits lawyers to practice in a firm and thus shareprofits; however, with transnational practice the trend seems to permit lawyers to share

profits. Most countries still place strict limits on sharing profits with non-lawyers.

Often times, norms will also discuss how a lawyer, in an adversarial situation, shouldtreat opposing clients and counsel. To opposing clients, a country might placerestrictions on communications a lawyer may have with clients represented by othercounsel. The ABA Model Rules, for example, state, [i]n representing a client, a lawyershall not communicate about the subject of the representation with a person the lawyerknows to be represented by another lawyer in the matter, unless the lawyer has theconsent of the other lawyer or is authorized to do so by law or a court order. 77 Finally,ethical norms may create disclosure rules. Most bar associations in the United Statesrecognize that not every lawyer has the same capabilities and resources. Thus, in an

attempt to protect all clients, especially those disadvantaged, the Model Rules and mostRules of Civil Procedure set out broad disclosure rules for adversarial lawyers to adhereto.

3. Lawyer-Court Relationship

In its relationship with the court, a lawyer will have obligations that range from ensuringthe law and facts are truthfully stated to showing the court deference. The nature of thelawyer-court relationship is closely tied to the structure of the particular judicial system.For example, in countries with a civil law tradition, judges are both the finder of fact andlaw, which influences the lawyers obligation to report false or misleading testimony.European courts ordinarily do not have a positive obligation to report false testimony oftheir clients or witnesses to the court, while conversely most United States courts havethis positive obligation. In most jurisdictions in the United States, lawyers are required tocorrect any false statements of law or fact. Codes of conduct often reinforce the normsof this relationship.

Frequently, codes of conduct will also enforce the lawyers deference to the court. Forexample, some countries impose attire requirements for attorneys in court. These varyfrom formal business suits to robes and wigs,78 and can serve as a visual representationof the relationship between the lawyer and court.

4. Lawyer-Society Relationship

A lawyer has a general duty to society, whether it is upholding the ethical norms,addressing lawyers advertising and solicitation, or taking pro bono legal work to ensure

77The American Bar Association, Model Rules of Professional Conduct, Rule 4.2 (accessed November

13, 2009).78

For example, the enabling acts of both Afghanistan and Georgia give the Bar Associations authority toset a standard for the Advocates Uniform.


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access to justice by marginalized populations. Bar associations will often create a self-regulatory body, as the disciplinary system ordinarily only has independent judicialreview as its check. Thus, lawyers will often have a positive obligation to uphold thenorms of the code of conduct. It is also possible to require lawyers to report anymisconduct to the discipline authority.

Codes of conduct also differ in their treatment of advertising and soliciting clients. InEurope, for example, advertising and soliciting clients is highly regulated. Europeansplace the legal professional perception high on their lists of priorities, and thusregulations are in place to decrease practices which give rise to mistrust and discreditthe legal profession.79 These regulations may go as far as to prohibit advertising andsolicitation.80 Conversely, the United States Supreme Court has provided a liberalframework for advertising based on the First Amendments freedom of speech clause.81In other countries, rules stipulate that advertising cannot be false or misleading and itcannot discredit the dignity of an attorney.82 Finally, some limits prevent advertisementsfrom harming other attorneys.83

Bar associations ordinarily encourage lawyers to offer in pro-bono legal services. Inmany countries, individuals have a constitutional and legal right to access to a lawyer incriminal cases. The judicial system may have a process of appointing lawyers torepresent these criminal defendants. Bar associations often reinforce this process byrequiring lawyers to accept any court appointments. It should be noted that the UnitedStates is in the minority; if they wish, lawyers may decline court-orderedrepresentation.84

Post-conflict states might also seek to protect the victims of conflict. In thosecircumstances, the bar association may impose obligations on attorneys to represent

these persons. For example, the Croatian Bar Association required any attorney toaccept representation of victims of war in both civil and criminal cases if the barassociation requested the representation.85

Although ethical guidelines vary, bar associations should attempt to address theseissues and craft standards that comport to cultural and societal norms. In order toprovide straightforward professional standards for their members and assist their

79American Bar Association Central European and Eurasian Law Initiative, Professional Legal Ethics: A

Comparative Perspective (2002): 11.80

Ibid: 15.81Ibid: 11.

82Japan Federation of Bar Associations, Basic Rules on the Duties of Practicing Attorneys (2004): art. 9.83

Afghan Independent Bar Association, Code of Conduct (2009): art. 31.84

As stated previously, the United States does not have a non-discrimination clause with regard torepresentation. Most other countries require attorneys to accept representation without regard race, sex,sexual orientation, color, religion, political or other opinion, ethnic or social origin, membership in anational minority, property, birth, or physical disabilities.85

American Bar Association Central European and Eurasian Law Initiative, Professional Legal Ethics: AComparative Perspective (2002): 63.


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training on ethical obligations, bar associations should strive for clarity in their codes ofconduct.

Note on Annexes

As with any reform process, the establishment or reform of a Bar Association includesvarious components. To complement this Consolidated Response, Annex A provides anoverview of selected bar associations. To enhance the comparative nature of thisConsolidated Response, Annex B contains links to various enabling legislations; AnnexC lists links to by-laws, constitutions, and regulations of Bar Associations; and Annex Doffers links to Codes of Conducts.


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Annex A

Overview of Selected Bar Associations

I. Countries with Civil Law Traditions

A. Portugal

The Portuguese Bar Association (Ordem dos Advogados) is set up as an independent,professional organization. In order to practice law, an individual needs a four-yeardegree in law, followed by two years of training under a lawyer with at least five years ofexperience. The two years are divided into an initial six-month trial period and a secondeighteen-month period. Completion of objective criteria is required to pass from the firstto the second. The training period is followed by both a written and an oral examination.Trainees, overseen by the bar association, are limited in their practice to legal aid, minorcriminal defense, and civil cases in first instance court. However, prospective applicants

who are law professors or hold doctorate degrees in law do not need to complete thetwo-year training period.

B. Czech Republic

The Czech Bar Association is comprised of an assembly, a board of directors, apresident, a supervisory council, a disciplinary commission, and an examination board.The Disciplinary Commission has a panel to hear complaints at first instance, as well asan appellate panel. If the commission decides to issue any disciplinary action, theirdecision is provided in writing.

The Czech Republic requires applicants to be legally competent, have no criminal ordisciplinary history, hold a completed a masters in law, finish three years of training,pass an examination, and take an oath before the president of the bar association.

C. Sweden

The Swedish Bar Association operates in a somewhat different context than most otherbar associations. In Sweden, individuals may represent themselves in court, and mayfurther be represented by non-lawyers. Even still, lawyers are prevalent due to theirexpertise of the law. Membership into the bar association requires residency in Swedenor an EU member state, a bachelors or masters in law, five years of legal work,including three as an assistant or runner in a law firm, an examination, and good moralcharacter.

The bar association has a governing council, which then creates subsidiary committees.The disciplinary committee oversees complaints made by clients or other involvedparties. At an adjudication hearing, a decision is made whether to issue an appropriatesanction, refer the matter to the entire committee or take no action. Sweden has alsoset a deadline for complaints; they must be made within three years of the event.


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D. France

The French legal profession has localized bar associations, the largest of which is theParis Bar Association (Ordre des Avocats des Paris). Applicants must possess a

masters degree in law, and nationality in France or an EU member state. They thenapply to the Institute of Judicial Studies, where they prepare for the entrance exam tothe Training Bar. The Training Bar, comprised of eighteen months of study, providesboth theoretical and practical training. Finally, the applicant must pass an examinationand take an oath.

E. Japan

Japan has created a unified, umbrella system. The Japanese Federation of BarAssociations oversees the fifty-two local bars. The JFBA has a legislative bodyconsisting of the House of Delegates, Board of Governors, and Board of Executive

Governors. The Boards of Governors and Executive Governors consist of the president,vice presidents and governors. The House elects the Vice Presidents and Governors,while all members directly elect the president. The Practicing Attorney Law creates theQualifications Screening Board, a Disciplinary Actions Committee, DisciplineMaintenance Committee, and Complaints Grievance Panel.

In order to qualify as an attorney in Japan, the applicant must complete law school, abar examination, and one year training at the Legal Training and Research Institute ofthe Supreme Court. Japan is currently in the middle of reforming their entrancerequirements. In 2011, they will create a shortcut route for applicants who pass apreliminary test, enabling them to sit for the bar even if they have not finished lawschool. Applicants apply to both the local bar they will practice under and the JFPA.

The local bar and JFPA jointly discipline lawyers. Anyone may file a complaint againstan attorney, at which point the local bars Discipline Maintenance Committeeinvestigates. The Committee decides whether to initiate formal proceedings. If so, theDisciplinary Actions Committee investigates and imposes disciplinary actions. The localbars may impose disbarment for three years, loss of status, suspension of practice fortwo years, or a reprimand. The attorney then has a right to appeal to the JFBADisciplinary Actions Committee.

F. Afghanistan

The Afghan Independent Bar Association has a General Assembly, President,Executive Board and regular members. Membership into the Afghani Independent BarAssociation requires Afghan citizenship, no criminal convictions, a bachelors in Sharialaw or a higher degree approved by the Ministry of Higher Education, and completion ofa training course. In terms of the disciplinary system, anyone may issue a writtencomplaint to the monitoring board. If a complaint is made concerning a lawyer, the


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monitory board holds a hearing. Should the Board issue disciplinary actions, the lawyerhas a right to appeal the punishment to the court system.

G. Kosovo

The Kosovo Chamber of Advocates, first established in 1973 and reformed in 2001, hasrecently completed a second round of reform. Their new enabling act, published inMarch 2009, creates a general assembly (containing all lawyers), a president, a board,a disciplinary committee, and an audit committee. The boards are elected to four yearterms, while the president has a two year term. The Discipline committee referscomplaints to a three person panel, one of whom is a lay person. Finally, prospectivemembers are required to be a citizen, complete a law degree, pass an examination, andcomplete practical training. Training consists of one year as a law clerk or intern with alawyer or judge, or two years a legal-based NGO.

H. Israel

Israel has maintained the same bar association since its inception. The bar has apresident and national structure made up of the national council, national ethicscommittee and national disciplinary courts. It also has a decentralized system, withcentral and district committees, as well as district disciplinary courts and district ethicscommittees. The discipline system accepts individual or ethics committee referrals. Thecourts have closed hearings, at which the district courts provide a written opinion.Attorneys may then appeal to the national disciplinary court. At the moment, there is abill that would overhaul this disciplinary system.

The Israeli Bar is in charge of admitting new members. With the enabling act providingsubstantial definitions of all the requirements, it essentially requires the completion of ahigher legal education, one year as a legal intern, and an examination. The examinationis given after completion of the legal internship.

I. Kenya

The Law Society of Kenya is a unified bar association. It has both a Council andSecretariat. The Council is comprised of all lawyers, who elect a chairman and vice-chairman bi-annually. Elections are made via postal ballots. The Secretariat, comprisedof staff, then manages the Societys daily affairs. The Law Society maintains over adozen committees, including the Disciplinary Committee. The Disciplinary Committee ismade up of the Attorney-General, or an individual appointed by the Attorney-General,and six advocates with at least ten years of experience, and three lay personsnominated by the Society and appointed by the Attorney-General. The Committeereceives complaints and issues rulings.


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II. Countries with Common Law Traditions

A. The United Kingdom

The United Kingdom has a bifurcated bar association system. The Law Society is the

governing association of the Solicitors, while the Bar Council governs Barristers.Consistent reforms have lessened the relevance of the distinctions between the twoprofessions both solicitors and barristers are able to represent clients before the highcourts, as well as outside the court system. Historically, barristers were referred toclients by solicitors; however, referrals are on the decline as clients seek barristers ontheir own.

In order to practice law as a barrister, an applicant must meet the academicqualifications, namely a bachelors degree in law followed by a conversion course. It isthen followed by the Bar Professional Court, which is either one year full-time or twoyears part-time. It is a practical course, involving case management skills (preparing a

case and conducting legal research), written skills, interpersonal skills, and legalknowledge.86 Finally, applicants must complete a one-year apprenticeship under anexperienced barrister. The first six months are considered non-practicing, followed bythe second six months of practicing.87

In order to practice law as a solicitor, an applicant must complete the academic stage, aconversion course, the Legal Practice Course, and a trainee period. It is very similar tothe barristers membership requirements, and is overseen by the Solicitors RegulationAuthority.88

B. Canada

The legal profession in Canada consists of local bars for each province. The followingprovides a synopsis of one such local bar, the Law Society of British Columbia.89 Thelinks provided in the following annexes note which provincial bar they represent.

British Columbia requires applicants to complete a Bachelor of Laws degree (either froma Canadian law university or a foreign law degree and a certificate of qualification), theLaw Societys Admission program (nine months of apprenticeship), followed by a ten-week Professional Legal Training Course, and an examination.

The Law Society is granted all three functions regulatory, education andrepresentation. It is governed by the Benchers, 25 elected lawyers and up to six non-lawyers. The senior Bencher serves a one-year term as President. The Benchers haveoversight powers and establish the code of conduct.

86The Bar Council, Bar Professional Training Course (accessed October 28, 2009).

87The Bar Council, The Barristers Pupilage (accessed October 28, 2009).

88See Solicitors Regulation Authority Becoming a Solicitor(accessed October 28, 2009).

89See The Law Society of British Columbia(accessed October 28, 2009).


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Finally, the Law Society has created a complaints and disciplinary procedure. Oncecomplaints are received, Law Society staff determine if formal or informal mechanismswill resolve the issue. Lawyers are asked to respond, and staff then make necessaryinquiries. If the staff determines a formal resolution is needed, they refer it to theDiscipline Committee. The Discipline Committee has the power to form a disciplinary

hearing or make informal inquiries. A hearing is comprised of three Benchers, at whichtestimony is given under oath, in a public hearing, and a formal decision is given.

C. South Africa

South Africa, in its Common Law tradition, has bifurcated the legal profession intoadvocates, who represent clients in court, and attorneys, who conduct transactionallegal services.

The advocates' profession in South Africa is a referral profession. This means that aclient approaches an attorney who, in turn, instructs an advocate.90

In order to practice as an advocate or attorney, individuals must be twenty-one yearsold; be fit, proper, and qualified to be admitted; have a Bachelor of Laws from either afour-year program or three-year undergraduate degree, followed by a two-yearvocational training program; and pass an examination.

D. Philippines

The Integrated Bar of the Philippines comprises all members on the roll of the SupremeCourt. The Supreme Court is still charged with admission of lawyers to the profession.The bar, however, regulates those lawyers. The bar has a House of Delegates, whichhas one hundred twenty members from local chapters, a Board of Governors,President, and Executive Vice-President. The Executive Vice-President rotates byregion. The bar has disciplinary authority; however, the Supreme Court has the finalword on the suspension or disbarment of individuals.

In order to become a lawyer, individuals must be Filipino citizens, be twenty-one yearsof age, and hold legal residence. They must also have good moral character, nocriminal charges of moral turpitude, a law degree and bachelor's degree from a Filipinouniversity, successfully pass the examination, and take an oath before the SupremeCourt. The roll of lawyers is then kept by the Supreme Court.

90The Legal System in South Africa, The General Council of the Bar (GCB); The Attorneys Act [South

Africa] (1979).


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Annex B:Enabling Acts

Afghanistan The Advocates Law

Canada

Alberta Law Society Legal Profession Act

British Columbia Law Society Legal Profession Act

Manitoba Law Society Legal Profession Act

Nova Scotia Barristers Society Legal Profession Act

Czech Republic Act on the Legal Profession

Germany Federal Lawyers Act

The Israel Bar Association Law

Japanese Practicing Attorney Act

Kosovo Law on the Bar

Malaysian Legal Profession Act of 1976

Norway Regulation for Advocates

Philippines Act Providing for the Integration of the Philippine Bar

South Africa Attorneys (Solicitors)

Sweden

Turkey Attorneyship Law


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Annex C:By-Laws/Constitution/Regulation

Canada

The Rules of the Law Society of Alberta

The Manitoba Law Society Rules

Nova Scotia Barristers Society Regulations

The Articles of Association of the Japan Federation of Bar Associations

The Statute of the Kosovo Chamber of Advocates

The Nigerian Bar Association Constitution

The By-laws of the Norwegian Bar Association

The By-laws of the Integrated Bar of the Philippines

The Constitution of the Law Society of South Africa

Sweden


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Annex D:Code of Conduct/Ethics

The Code of Conduct for the Council of Bars and Law Societies of Europe

Albania Attorney Ethics Code

The Code of Conduct for the Afghan Independent Bar Association

Armenia Code of Advocates' Ethics

Belgium

Bulgaria Attorneys-at-Law Ethics Code

The Canadian Bar Associations Code of Professional Conduct

The Law Society of Albertas Code of Professional Conduct

The Law Society of British Columbia's Code of Professional Conduct

The Law Society of Manitoba's Code of Professional Conduct

The Nova Scotia Barrister's Society Legal Ethics

The Croatian Bar Association Attorneys Code of Ethics

The Cyprus Bar Association Code of Conduct

The Czech Bar Association Code of Conduct

The Japanese Basic Rules on the Duties of Practicing Attorneys

The Kosovo Chamber of Advocates Professional Rules of Ethics of Attorneys

The Integrated Bar of the Philippines Code of Professional Responsibility

The South African Bar Councils Uniform Rules of Professional Responsibility

United Kingdom

Barristers Bar Standards Board

Solicitors Code of Conduct

American Bar Associations Model Rules of Professional Conduct


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Compilation of Resources

International and Regional Organization Documents

United Nations Basic Principles on the Role of Lawyers (1990)

African Commission on Human and Peoples Rights, Principles and Guidelines on theRight to a Fair Trial and Legal Assistance in Africa (2005)

Council of Bars and Law Societies of Europe, CCBE Recommendations on DisciplinaryProcess for the Legal Profession (2007)

Council of Bars and Law Societies of Europe, Code of Conduct for European Lawyers(2006)

Council of Europe, Committee of Ministers, Recommendation No. R(2000)21 (2000)

Council of Europe Legal Co-operation with Central and Eastern European, The Roleand Responsibilities of the Lawyer in a Society in Transition (1997)

Council of Europe,Activities for the Development and Consolidation of DemocraticStability, Ethics of Lawyers (1999)

Assessment Related Documents

Legal Vice Presidency, The World Bank, Legal and Judicial Sector Assessment Manual(2002).

The ABA Rule of Law Initiative the Legal Profession Reform Index

Reports and Other Documents

American Bar Association Central European and Eurasian Law Initiative, ProfessionalLegal Ethics: A Comparative Perspective (2002).

David Clementi, Review of the Regulatory Framework for Legal Services in Englandand Wales, Final Report(2004).

Russell G. Pearce & Samuel J. Levine, Rethinking the Legal Reform Agenda: WillRaising Standards for Bar Admission Promote or Undermine Democracy, HumanRights, and Rule of Law, Fordham Law Review77 (2009).