Rule of law

UN Basic Principles on the Role of Lawyers report

Together with our pro bono partner Slaughter and May, we carried out research into the independence of the legal profession and lawyer/client rights in 15 jurisdictions worldwide (with the assistance of local lawyers and law firms).

We analysed case law of domestic high courts, as well as of regional human rights courts and the UN Human Rights Committee.

The research focused on how the following principles and rights are understood:

  • the independence of the legal profession
  • the principle of lawyer-client confidentiality (or legal professional privilege)
  • the right to have access to a legal representative
  • the right to prepare a defence

The jurisdictions analysed were divided per region:

  • Europe – United Kingdom, Germany, France and Georgia
  • Middle East and Asia – Jordan, Japan, Indonesia and Malaysia
  • Africa – South Africa and Kenya
  • Americas – the United States, Brazil, Chile and Colombia

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Summary of findings

Independence of the legal profession

Case law of the United Nations HR Committee and the African Commission on Human and Peoples’ Rights refers to intimidation and physical violence directed against lawyers in several countries.

In domestic jurisdictions, case law refers to the principle of non-identification of lawyers with their clients (for example, in Kenya).

In Jordan, Chile, and Germany, case law shows that lawyers should not be required to testify against their clients (unless in exceptional circumstances, for example to prevent the commission of an offence).

In Kenya, requiring a lawyer to provide a statement in a case against his client was regarded by the relevant court as “intimidation” and an “abuse of power”.

In many jurisdictions, the criminal charge or prosecution of a lawyer for carrying out their professional duties is disallowed by courts.

For example, in India, holding a lawyer criminally liable for statements made during cross examination was referred to as an “abuse of judicial process”.

In Brazil, courts rejected a complaint against a lawyer for alleged slander while carrying out his professional duties.

In Kenya, courts regarded approval by an attorney general of retention of external lawyers by government agencies as impermissible external interference.

In addition, in many European jurisdictions, reference is made to immunity of lawyers from suit, thereby protecting them also from possible pressure brought to bear by their clients (see for example, the UK – Scotland, and France).

Right to access a lawyer

In many jurisdictions, this extends to the provision of legal aid in indigent or capital punishment cases (see, for example, India and the United States).

In Kenya, South Africa and India, courts are required to be “proactive” in establishing if legal aid is required (and if the lack thereof would result in an injustice).

The right to a lawyer of one’s own choosing may be limited by a lawyer’s right not to accept unmeritorious cases (for example, in Colombia) or by a possible conflict of interest (see the United States).

In Jordan, proceedings can be vitiated if an accused charged with certain offences does not have legal representation.

The moment from which the right to access to a lawyer applies varies; it can be on arrest (Malaysia), when someone is taken into custody (UK), and in some jurisdictions it can be delayed if required for police investigation, although there are limits to any permissible delay (for example, in Malaysia).

In many jurisdictions, access to case files or lack thereof may constitute a violation of the right to prepare a defence (for example in Chile), while in Brazil lawyers have a right to access case files even if they are not the legal representative in the case and regardless of proceedings being finished or ongoing (unless secrecy rules apply).

The Supreme Court of India has ordered proceedings to be vitiated because state-appointed counsel did not have sufficient time to prepare a defence.

In Colombia and Chile – as well as the IACthR – courts do not comment on the quality of a defence (except that significant inaction by a lawyer can lead to a violation of the right to a defence and due process, see for example Colombia).

The principle of lawyer-client confidentiality

This principle is recognised in all jurisdictions, except in Japan.

However, recent Japanese case law shows that courts are applying this principle in practice (depending on the circumstances of the case).

In most jurisdictions, like in South Africa, it's recognised that there can be restrictions on lawyer-client confidentiality, but there need to be special safeguards to minimise risk of invasion of such confidentiality.

In Colombia and Malaysia, for example, it's recognised that lawyer-client confidentiality cannot be used to cover any illegality.

In the United States, the principle of lawyer-client confidentiality is regarded as so essential that even communications not covered by legal professional privilege, when conducted between lawyer and client, require special justification to be subpoenaed and disclosed.

In South Africa, lawyer-client confidentiality is also regarded as an essential component of the rule of law.

In many jurisdictions, this principle also applies posthumously (see the United States and Germany)

Summary conclusion

The above examples are merely illustrations, since most of these principles apply to all jurisdictions analysed in this report.

This is the case despite the differences in emphasis on certain principles in some of these jurisdictions and the nuances in their interpretation (as well as differences in legal systems and cultures).

Not only do these principles constitute important fair trial rights of clients, and the right of lawyers to practise their profession without undue external interference, but they constitute a cornerstone of the legal system itself and of the rule of law worldwide.

This report shows that, even if the UN Basic Principles on the Role of Lawyers is a non-binding instrument, the principles analysed in this report constitute binding law in domestic jurisdictions through case law of national courts, as well as case law of international tribunals.

Despite the binding nature of these principles and fair trial rights, many violations of these continue to occur in jurisdictions worldwide (including in jurisdictions analysed in this report).

It's therefore more important than ever that international bodies and tribunals, as well as domestic courts, identify and declare any such violations to ensure that members of the legal profession can carry out their professional duties without undue external interference and that clients’ fair trial rights are guaranteed.

These international tribunals and domestic courts should also continue to fulfil the important function of developing their respective case law and interpretation of these principles and rights, so that their future enjoyment may be guaranteed.

Foreword and introduction

"With the increased challenges to the rule of law and threats to lawyers around the globe, the significance and timeliness of this report by the Law Society of England and Wales, produced with pro bono assistance from its member firm Slaughter and May, cannot be overstated.

"The research features 15 jurisdictions from different regions – Europe, the Americas, Asia and the Middle East, and Africa – and includes references to decisions by international tribunals and bodies.

"It highlights that principles established in the UN Basic Principles on the Role of Lawyers, concerning the exercise of the legal profession, are recognised in the case law of High Courts in all these jurisdictions.

"Even if interpretations of these principles differ, as do the countries' legal systems (some have a common law system and others a civil law system), this case law shows that these principles in effect constitute binding rights for clients, and sometimes lawyers, in national jurisdictions.

"The principles of lawyer-client confidentiality, rights to prepare an adequate defence and access to counsel lie at the core of the legal profession and the judicial system itself.

"Without respect for these principles, lawyers cannot fulfil their function to support the rule of law and assist their clients.

"At a time when the independence of the legal profession is continuously under threat in many jurisdictions across the world, as illustrated in my reports and those of my predecessors, it's vital to highlight that such independence is a value that is shared across jurisdictions and legal cultures.

"Not only is the independence of the legal profession a value, but it is established in binding domestic and international case law, thereby creating rights for clients and their legal representatives, as well as corresponding obligations for states.

"I thank the Law Society of England and Wales, as well as its pro bono partner, for this important contribution and hope that this report will be widely read among legal professionals and the wider public."

Diego García-Sayán
UN special rapporteur on the independence of judges and lawyers

The UN Basic Principles on the Role of Lawyers

The United Nations Basic Principles on the Role of Lawyers (UN Basic Principles) is an instrument developed within the framework of a United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990.

It's the only international instrument which sets out some of the principles that underlie and safeguard the practice of the legal profession.

At a regional level in Europe, recommendations issued by the Committee of Ministers of the Council of Europe "on the freedom of exercise of the profession of lawyer" specifically address the legal profession.

Other regional standards, such as the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (from 2003), relate to fair trial guarantees more widely but do not directly address the legal profession.

The UN Basic Principles refer to a broad range of issues, such as entry into the profession and access to counsel, as well as professional training.

However, its most often cited principles (16, 17, 18, 23 and 24) refer to the independence of the legal profession, understood as the ability of lawyers to practise their profession without intimidation, hindrance, harassment or improper interference.

This includes the core principle that lawyers should not be identified "with their clients or their clients' causes" (principle 18).

Although the UN Basic Principles is itself a non-binding instrument, this report shows that some of these principles are binding on states by virtue of the interpretation (by regional tribunals) of human rights treaties that they have ratified, as well as through binding domestic case law.

This report also illustrates the practical ways some of these principles have been interpreted by international tribunals and domestic high courts in different geographical regions and legal systems.

Methodology

Regarding the methodology of the research, in addition to the international and regional tribunals, the national jurisdictions selected for case law review were:

  • in Europe: France, Georgia, Germany and the United Kingdom
  • in the Americas: Brazil, Chile, Colombia and the United States of America
  • in Asia and the Middle East: Jordan, India, Indonesia, Japan and Malaysia
  • in Africa: Kenya and South Africa

These jurisdictions were chosen to represent different geographical regions and legal systems.

In each of these jurisdictions, local counsel, law firms or individual lawyers of high repute were asked to assist in identifying relevant cases and to summarise the main findings of those cases in a template form.

Due to their volume, these templates are made available separately to the report: skip to the report and annexes.

Wherever possible, local counsel were asked to include reference to applicable legislation in their summaries, although such legislation was not separately analysed.

Local counsel were asked to identify relevant cases based on the following guidance:

  • judgments in which specific mention of the UN Basic Principles is made
  • judgments in which there is specific reasoning provided regarding relevant fair trial rights of lawyers' clients (the right to prepare a defence, the right to access counsel, and lawyer-client confidentiality)
  • judgments in which lawyers themselves are applicants alleging interference with the independence of the legal profession

The latter excludes cases of human rights violations in which the applicant is a lawyer, but where the case does not relate to the lawyer carrying out their profession.

It should be noted that international bodies and tribunals, as well as domestic courts, usually assess alleged violations of the applicable human rights treaty or domestic legislation, respectively, rather than the UN Basic Principles itself (although that instrument may be referred to in order to interpret rights established in such treaties or legislation).

This is due to the respective jurisdictions of international tribunals and domestic courts.

A notable exception to this is the African Court of Human and People's Rights (ACtHPR), which can also establish violations of human rights treaties in addition to the African Charter on Human and People's Rights (ACHPR), provided that states under its jurisdiction have ratified them.

When reading this report, it should be noted that no exhaustive review of all domestic case law was carried out.

Local counsel identified relevant cases and, where cases were similar in relation to the subject matter and reasoning, the most representative case was chosen and included in this report.

In addition, the use of case references varies in the different jurisdictions researched, with some jurisdictions using case names and others using case numbers.

It is impossible to draw precise comparisons between countries and regions based on the research carried out.

Not only do legal systems and the organisation of the legal profession differ by jurisdiction, but different jurisdictions may have placed emphasis on different principles.

The intention of this report is to include good practices.

We sought to identify judgments in which a domestic or international tribunal has interpreted the principle of non-interference with the legal profession or relevant fair trial rights in a manner that is consistent with, or is more detailed or progressive than, existing international norms.

Throughout the report, the terms 'complainant' or 'accused' are generally used for reasons of consistency.

When discussing decisions of the UN Human Rights Committee or regional tribunals, the term 'applicant' may be used to clarify who instituted the proceedings.

Another term, such as 'suspect' may be used in cases where an individual has not yet been accused or where it is not clear from the case whether the term 'accused' has a particular legal meaning in that jurisdiction.

Report structure

This report is structured as follows.

First, case law of international and regional tribunals:

  • UN Human Rights Committee
  • European Court of Human Rights
  • Inter-American Court of Human Rights
  • African Commission on Human and People's Rights and African Court on Human and People's Rights

Second, case law of the national jurisdictions researched, divided by region:

  • Europe
  • Americas
  • Asia and the Middle East
  • Africa

In all parts, reference is made to the relevant principles:

  • non-interference or independence of the legal profession
  • access to a lawyer
  • lawyer-client confidentiality
  • the right to prepare a defence

Each section starts with a brief introduction, highlighting some elements that are especially noteworthy.

This report acknowledges differences in interpretation of these principles between jurisdictions.

Evidently, despite existing standards and binding case law, in many countries around the world, these principles are being violated to the detriment of lawyers and their clients.

The inclusion of the rights of clients to a fair trial, as separate from the principle of the independence of the legal profession, demonstrates that what is at issue is not just the right of lawyers to practise their profession freely, but the right to a fair trial for all citizens.

Irrespective of differences between jurisdictions and areas of practice, these principles underpin lawyers' work worldwide and should be respected to uphold the rule of law and safeguard access to justice for clients everywhere.

This research project is an initiative of the Law Society of England and Wales (Lawyers at Risk programme) led by our international human rights adviser, Dr Marina Brilman, with the pro bono assistance of member law firm Slaughter and May.

We thank the following local partners for their invaluable assistance in identifying and reviewing relevant domestic case law in their respective jurisdictions (in alphabetical order):

  • ABNR Counsellors at Law (Indonesia)
  • Anderson, Mori & Tomotsune in collaboration with the Japan Federation of Bar Associations (Japan)
  • Anjarwalla & Khanna (Kenya)
  • A&T Najdawi Law (Jordan)
  • Bowmans (South Africa)
  • Bredin Prat (France)
  • Cravath Swaine & Moore LLP (United States of America)
  • Hengeler Mueller (Germany)
  • Georgian Young Lawyers Association (Georgia)
  • Mattos Filho (Brazil)
  • Mr Sergio Anzola of Centro de Estudios Sobre la Enseñanza y el Aprendizaje del Derecho (CEEAD) (Colombia)
  • Rahmat Lim & Partners (Malaysia)
  • Mr Jawahar Raja (India)
  • Rivadeneira, Colombara, Zegers (Chile)
Part one: international and regional tribunals

This section examines the case law and decisions of the:

  • UN Human Rights Committee (HR Committee)
  • European Court of Human Rights (ECtHR)
  • Inter-American Court of Human Rights (IACtHR)
  • African Commission on Human and Peoples' Rights (African Commission)
  • African Court on Human and Peoples' Rights (ACtHPR)

The IACtHR is the only tribunal that has explicitly referenced the UN Basic Principles.

However, the right to a lawyer is universally recognised by each of the international bodies as an important element of the right to a fair trial.

In cases where a lawyer is providing assistance, these international bodies are all hesitant to question the adequacy of such assistance and only do so in exceptional cases.

There are slight nuances in the case law of these bodies regarding the stage in proceedings from which an individual is entitled to access to a lawyer.

The HR Committee and the ECtHR require that such access should be provided from the first interrogation of a suspect by the police, while the IACtHR has found that a person must have access to a lawyer from the moment they are accused of a crime.

The African Commission seems to allow that the accused does not have immediate assistance of a lawyer in some cases.

The other principles, such as lawyer-client confidentiality (or legal professional privilege in common law systems) and the right to prepare a defence, are also included in the case law of each of the international bodies.

For example, the IACtHR has established that this right is violated when someone is not allowed to communicate with their lawyer in private (but only within audible distance of state agents) or if the accused is detained at such great physical distance from their lawyers that they are unable to communicate with them freely and privately.

The HR Committee is a quasi-judicial body that interprets the rights established in the International Covenant on Civil and Political Rights (ICCPR) and, among other things, decides on alleged violations of the ICCPR in individual cases brought before it.

Most relevant cases, for the purposes of this report, regard alleged violations of article 14 ICCPR, which protects every individual's right to a fair and public hearing in the determination of any criminal charges or suit at law against that person.

This right includes several constituent elements, including the right of every person charged with a criminal offence to have access to a lawyer of their own choosing and to defend themselves in person or with legal assistance.

However, the right not to be subjected to arbitrary asset (article 9 ICCPR) has also been used by the HR Committee to protect the rights of those prosecuted, as well as to counter interference with lawyers carrying out their professional duties.

Non-interference and independence of the legal profession

In Hammel v Madagascar, the applicant, a human rights lawyer practising in Madagascar, had been arrested by special security forces and held incommunicado, and had been subsequently expelled from Madagascar with immediate effect on suspicion of international espionage.

The complainant was not permitted to contact a lawyer prior to his deportation, which occurred on the same day as the notice given of the order of expulsion.

The HR Committee noted that, based on the information provided by both the applicant and the state party, the decision to expel him appeared to have been linked to the fact that he had represented persons before the HR Committee and found that the state had violated articles 9 and 13 ICCPR (not to be subject to arbitrary arrest and equality before courts and tribunals.

The HR Committee further noted that it would be incompatible with the ICCPR if states party to it were to take exception to anyone acting as a lawyer for persons placing their communications before the HR Committee for consideration.

Access to a lawyer

In Mukhtar v Kazakhstan, the accused was not permitted to retain a private lawyer following his arrest.

When he did appoint private lawyers, they were not permitted to access classified information on the grounds of not having been granted the requisite security clearance, and were harassed by state authorities, including by means of complaints to their respective bar associations.

The accused was assigned a state-appointed lawyer who failed to act independently in his interests.

For instance, the state-appointed lawyer did not intervene in the accused's interrogations or attend the hearings and had previously acted for a witness for the prosecution, which amounted to a conflict of interest.

The HR Committee found that the accused's rights to have time and the facilities to prepare a defence had been violated on the basis that the state party restricted the accused's access to the lawyers of his own choosing without justifying why those lawyers were not granted the requisite security clearance and violated the confidentiality of meetings between the accused and his lawyers.

In Saidov v Tajikistan, the applicant applied to the HR Committee on behalf of his father, a prominent politician who had been detained for intending to form a new political party.

Mr Saidov was denied confidential access to his lawyers for a period of four months and the domestic court ignored over thirty complaints from his lawyers about being unable to communicate freely with their client.

As a result, Mr Saidov was interrogated without the presence or the assistance of his lawyer.

The lawyers representing him were prevented from accessing key information that would allow them to defend their client properly and could not obtain a copy of their client's guilty verdict until they had signed a non-disclosure agreement.

Mr Saidov's court hearing was classified as 'secret' so, as a result, no members of the media were permitted to be present, and the testimony of more than 11 witnesses in defence of Mr Saidov was not considered.

In addition, the defence lawyers were subject to threats and harassment because of their involvement in the case.

Mr Saidov's main lawyer was arrested shortly before the trial and detained for eight months under false pretences.

Another lawyer was detained, beaten and sentenced to almost four years of imprisonment and a substantial fine based on fabricated charges.

The HR Committee found that the state had violated Mr Saidov's rights to justice and a fair trial and should not have been subjected to arbitrary arrest as guaranteed under the ICCPR.

The applicant in Zhuk v Belarus was arrested, interrogated, detained and sentenced to death without access to a lawyer, having allegedly only been permitted such access for five minutes before his first interrogation.

Despite requesting a lawyer, the accused was forced to participate in the investigation without legal advice.

The HR Committee found that the state had violated the applicant's fair trial rights in refusing to permit the accused to communicate with, and defend himself through, a lawyer of his own choosing, which is an important element of the guarantee of a fair trial and an application of the principle of equality of arms.

The same conclusions were reached by the HR Committee in Rybchenko v Belarus, in which the accused was arrested, detained and tried without access to legal representation.

In Kaliyev v Russian Federation, the applicant, who had been sentenced to 16 years' imprisonment, was informed that his lawyer could no longer represent him during the cassation proceedings in his trial.

However, he was not informed of how to apply for legal assistance and, consequently, prepared and submitted his cassation appeal without legal assistance.

The domestic court of cassation did not enquire why he was not legally represented nor did it confirm whether he wished to have a lawyer assigned to him.

The HR Committee found that:

  • the obligation was on the state party to inform the accused of his right to be represented by a lawyer during the cassation proceedings
  • it could not be assumed that he had renounced his right to legal representation simply because he had failed to explicitly request the assistance of a lawyer

The HR Committee also noted that a lawyer who refused to continue to represent the accused could not be considered "a lawyer of the applicant's own choosing".

The HR Committee therefore found that the state had violated the applicant's right to be tried in his presence with a lawyer of his own choosing.

Right to prepare a defence

In Rizvan Taysumov and others v Russian Federation, the accused were detained by Chechen forces.

On several occasions, they were not provided with the timely assistance of a lawyer or an interpreter, including during their first formal interrogation.

Some were forced to sign a statement renouncing their right to a lawyer.

The accused also did not have adequate time and facilities for the preparation of their defence and to communicate with a lawyer of their own choosing.

The failure to provide legal assistance was intertwined with a failure to provide access to an interpreter, implying that the duty to provide legal assistance includes providing it in a language of which the accused has sufficient command.

As the accused had access to legal assistance for some elements of the criminal justice process, this case provides further evidence that the deprivation of a right does not have to be total or permanent for it to be found that fair trial rights have been violated.

Here, the HR Committee found that the state had breach the accused's rights not to be compelled to testify or confess guilt under article 14 ICCPR, alongside other procedural breaches of the right to a fair trial, such as a failure to inform the accused at the time of arrest of the reasons for such arrest.

In Formonov v Uzbekistan, the accused was arrested, held incommunicado and tortured.

The accused was only subsequently permitted access to a state-appointed lawyer who failed to act independently to protect the accused's interests.

For example, the state-appointed lawyer was present when a confession was elicited from the accused under torture, which was then accepted as evidence by the trial court.

The accused attempted to rely on a family member with no legal training to handle his defence, but the domestic court impeded the preparation of the defence by limiting access to prosecutorial documents, and subsequently removed the family member as lawyer without notice immediately before the accused's trial.

The HR Committee found that the state party had violated the applicant's rights under the ICCPR in relation to lack of access to counsel, limited access to documents and accepting a confession obtained under duress.

The case of Idieva v Tajikistan concerned similar facts as those in Formonov, as the accused was arrested, detained and tortured to elicit confessions without access to a lawyer.

Such access was only granted after these events took place.

The HR Committee noted that, particularly in cases involving capital punishment, it's axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings.

As a result, the HR Committee found that the state had violated the applicant's right under the ICCPR to be tried in their presence and the right to defend themselves and not to be compelled to testify against themselves or to confess guilt.

The European Court of Human Rights has jurisdiction to assess alleged violations of the European Convention on Human Rights (ECHR).

Article 6 ECHR protects every individual's right to a fair trial, which includes several rights, such as the right to access and communicate with a lawyer of their own choosing.

The right to privacy (article 8) and the right to freedom of speech (article 10) have also been used by the ECtHR to protect the principle of independence of the legal profession.

The ECtHR has noted that the "mere presence" of a lawyer is not sufficient to make the rights under article 6 ECHR effective.

For example, a lawyer's passive presence in the court room would not be considered sufficient under article 6 ECHR.

Non-interference and independence of the legal profession

In Morice v France, a lawyer had been criminally and civilly punished for defamation due to his criticism of two judges published in an article in a leading newspaper.

On the one hand, this article repeated the terms of a letter addressed by the lawyer to a minister requesting an administrative investigation into the judges' conduct and, on the other hand, comments made to the journalist who wrote the article in question.

The ECtHR found that there had been a violation of the lawyer's right to freedom of speech under article 10 ECHR.

The ECtHR held that "a lawyer should be able to draw the public's attention to potential shortcomings in the justice system; the judiciary may benefit from constructive criticism".

The ECtHR also drew a distinction between expressions by judges and lawyers, stating that "the speech of judges, unlike that of lawyers, is received as the expression of an objective assessment which commits not only the person expressing himself, but also, through him, the entire justice system. Lawyers, for their part, merely speak in their own name and on behalf of their clients."

Similarly, in Nikula v Finland, the applicant, a defence counsel in a criminal case, argued that a conviction for negligent defamation, obtained against her by the public prosecutor in the case, was an unjustified interference with her right to freedom of expression.

The defence counsel had criticised the prosecutor's conduct in the case.

The ECtHR upheld the applicant's arguments, establishing that her criticism had been made in court and was restricted to the prosecuting counsel's function and not personal in nature.

In addition, as defence counsel, the applicant had a duty to defend her client's interest in a robust manner, subject to judicial control.

Therefore, it should be primarily for a lawyer to assess the relevance and usefulness of a defence argument without being influenced by the potential "chilling effect" of even a relatively light criminal sanction or an obligation to pay compensation for harm suffered or costs incurred.

However, the ECtHR did not that while lawyers are entitled to comment in public on the administration of justice, their criticisms must not overstep certain bounds.

The ECtHR also noted that there is more protection for statements whereby an accused criticises a prosecutor, as opposed to verbally attacking the judge or the court itself.

There are several cases involving Azerbaijan, in which the ECtHR found that disciplinary actions taken against lawyers for statements made in their capacity as a lawyer, breached the ECHR.

In Aliyev v Azerbaijan, the applicants had been denied admission to the Azerbaijan Bar Association (ABA), because of comments they had made that criticised the situation of the legal profession in the country.

The ECtHR stated that the freedom of expression of lawyers is related to the independence of the legal profession, which is crucial for the effective functioning of the fair administration of justice.

The ECtHR also stressed the importance of the professional association of lawyers acting independently and with respect towards professional colleagues, as this had not occurred in this case.

In Bagirov v Azerbaijan, the ECtHR found that the applicant's disbarment for remarks he made while legally representing an opposition politician was a violation of the right to privacy and the freedom of expression, under articles 8 and 10 ECHR.

The ECtHR noted that the proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various actors in the justice system, at the forefront of which are judges and lawyers.

The ECtHR also held that the status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts.

Due to their special role, they also should enjoy exclusive rights – among them, usually a certain latitude regarding arguments used in court.

The ECtHR further noted that a clear distinction must be made between criticism and insult, with the latter not warranting protection.

In Hajibeyli and Aliyev v Azerbaijan, the applicant was a lawyer whose home and office were searched in relation to unfounded charges which were brought against him.

The ECtHR held that the persecution and harassment of members of the legal profession strikes at the very heart of the Convention system.

Therefore, the searching of lawyers' premises should be subject to especially strict scrutiny.

The ECtHR also attached particular importance to the special role of human rights defenders in promoting and defending human rights, including in close cooperation with the Council of Europe.

Access to a lawyer

In Salduz v Turkey, the accused had been taken into custody before he was interrogated.

The ECtHR held that neither the legal assistance provided subsequently, nor the adversarial nature of the ensuing proceedings, could cure the defects which had occurred during the time spent in police custody.

The Grand Chamber of the ECtHR held that access to a lawyer should be provided as from the first interrogation of a suspect by the police unless there are compelling reasons to restrict such access.

In Aras v Turkey (No 2), the accused was questioned by the police after his arrest without access to a lawyer.

When he was brought before the investigating judge, the judge allowed the accused's lawyer to enter the court room, but he was not allowed to take the floor or advise his client.

The ECtHR held that the "mere presence" of the lawyer was not sufficient to make effective the applicant's right to defend himself, or through a lawyer of his own choosing, under article 6(3)(c).

The accused should have had access to a lawyer from the first questioning.

Lawyer-client confidentiality

In Lanz v Austria, the accused's contact with his lawyer during detention on remand was under surveillance because of the risk that the accused would influence witnesses or remove documents not yet seized.

The ECtHR found a breach of the right to fair trial under article 6 ECHR.

It held that the right to communicate with defence counsel out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society.

The ECtHR concluded that if a lawyer is unable to confer with a client, the lawyer's assistance loses much of its usefulness.

Therefore, surveillance was a serious intervention and very weighty reasons were required to justify it.

In Altay v Turkey (No 2), the prison administration found that the accused's lawyer's conduct, in sending books and periodicals to the applicant which had not been defence related, had been incompatible with her duties as a lawyer and, therefore, ordered that an official be present during consultations between the applicant and his lawyer.

However, the ECtHR found that the interception of correspondence solely because it does not relate to the rights of defence would run counter to the right to privacy under article 8 ECHR.

The ECtHR noted that the privilege of the lawyer-client relationship and the national authorities' obligation to ensure the privacy of communications between a prisoner and their chosen lawyer are among recognised international norms.

Furthermore, the ECtHR held that there is no reason to distinguish between the different categories of correspondence with lawyers, which, whatever their purpose, concern matters of a private and confidential character.

The ECtHR considered that this principle applies with even stronger reason to oral, face-to-face communication with a lawyer.

In Sakhnoskiv v Russia, the Grand Chamber of the ECtHR found a violation of fair trial rights under article 6 ECHR.

The ECtHR noted that the accused was only able to communicate with his lawyer via video link for 15 minutes immediately before his appeal hearing, and it was questionable whether communication via video link was sufficiently private.

The ECtHR concluded that the arrangements made by the Supreme Court were insufficient and did not secure effective legal assistance to the accused during the second appeal proceedings.

In Sommer v Germany, the applicant (a lawyer) had defended a client in 2009.

After the proceedings ended, the client's fiancée paid the lawyer's fees by transferring money from her private bank account to his business account.

In 2010 and 2011, the Public Prosecution Office conducted investigations into several individuals suspected of having committed a commercial fraud.

As part of this investigation, the public prosecutor contacted the applicant's bank, asking for a list of all transactions concerning the lawyer's bank account from January 2009 onwards.

The ECtHR held that the collection, storage and making available of the lawyer's professional bank transactions constituted an interference with his right to respect for professional confidentiality and his private life.

The interference was made more serious by the fact that excerpts of the information was included in the case file and made available to others.

Further, the inspection of the lawyer's bank account had not been ordered by a judicial authority, and no specific procedural guarantees were applied to protect legal professional privilege.

The ECtHR further noted that they had previously acknowledged the importance of specific procedural guarantees when it comes to protecting the confidentiality of exchanges between lawyer and client.

The IACtHR rules on human rights violations committed by states under its jurisdiction, within the meaning of the American Convention on Human Rights (ACHR).

Most cases analysed for this report regard violations of the right to a fair trial (article 8 ACHR), which is similar to the right to a fair trial established in the ECHR.

Non-interference and independence of the legal profession

The IACtHR considered whether an individual could be said to have exhausted all possible legal remedies provided by the state when that individual is unable to retain a lawyer due to general fear in the legal community.

While the IACtHR recognised that article 8 ACHR requires access to a lawyer, it concluded that the requirement for that individual to exhaust domestic remedies does not need to be met if that individual is unable to engage a lawyer where a "generalised fear of lawyers exists to legally represent [them]".

In Nogueira de Carvalho vs Brazil, the IACtHR also stressed the right of lawyers and human rights defenders to practise their profession freely.

The case considered the alleged murder of a lawyer and human rights advocate who reported on crimes committed by a 'death squad' of civilian police and state agents operating in Brazil.

The IACtHR highlighted specifically that "states have the duty to provide the resources necessary for human rights defenders to conduct their activities freely".

This was subsequently reiterated in the case of Human Rights Defender et al v Guatemala, where it was determined that the state had an obligation "not only to create the legal and formal conditions, but also to ensure the real conditions in which human rights defenders can freely carry out their work".

In failing to create those conditions (and subsequently not holding to account the perpetrators of those violations), the state had violated its obligations contained in articles 8 and 25 ACHR.

Access to a lawyer

In the cases of Tibi v Ecuador and Gomes Lund and others vs Brazil, the IACtHR ruled that denial of access to counsel while detained constitutes a violation of the right to a fair trial under article 8 ACHR.

More developed considerations are included in Barreto Leiva v Venezuela, in which the IACtHR determined that the right to a legal defence exists from the moment an individual is accused of a crime.

To prevent the accused from being advised by a lawyer means to limit the right to a defence, which leads to a procedural imbalance and leaves the individual unprotected before the punishing authority.

The IACtHR reiterated this position in Ruano Torres et al v El Salvador, since the right to a defence "must necessarily be exercised from the moment a person is accused of perpetrating or participating in an illegal act and ends when the proceedings ceases, including, where applicable, the enforcement phase".

Where a lawyer is provided but the adequacy of the defence is in question, the IACtHR has been reluctant to determine that this amounts to a breach of the right to a fair trial enshrined in article 8 ACHR.

In Cabrera García and Montiel Flores v Mexico, the representatives of the alleged victims submitted that the court-appointed lawyer was incompetent.

They argued this was shown by:

  • a lack of familiarity with the available evidence
  • the failure to challenge improper conduct at the time of the detention and arrest of the alleged victims (including interrogations without a lawyer, the use of expert opinions from non-experts and the non-certification of injuries sustained during the detention period)
  • a failure to denounce torture methods used against the alleged victims

The IACtHR recognised "the appointment of a defence counsel for the sole purpose of complying with a procedural formality would be tantamount to not having a technical legal representation; therefore, it's imperative that the defence counsel act diligently in order to protect the procedural guarantees of the accused and thereby prevent his rights from being violated".

However, the IACtHR concluded that the actions of the court-appointed lawyer did not constitute a violation of the right to a defence.

In Ruano Torres et al v El Salvador, the IACtHR determined that "the state cannot be held responsible for all the failings of the public defence, given the independence of the profession and the professional judgment of the defence counsel. Therefore, the court considers that, as part of the state's duty to guarantee an adequate public defence, it's necessary to implement adequate processes for the selection of public defenders, ensure control over their work and provide them with regular training".

Previously, in the case of Chaparro Álvarez and Lapo Íñiguez v Ecuador, the IACtHR had found that the state had breached article 8 ACHR in failing to provide adequate and competent defence counsel where that counsel was physically absent during the interrogation of the alleged victim.

In Lopez et al v Argentina, the IACtHR established that one of the consequences of multiple transfers of accused (to detention centres located between 800 and 2,000 km away from their families and their legal aid lawyers) was that they "were not able to contact their defense attorneys in time and in the proper form", also not to inform them of the transfers themselves.

This meant that they "were not given an opportunity to defend themselves or object to their transfers".

The IACtHR also made clear that "contact with and the subsequent intervention of a lawyer was decisive for protecting the rights in play with each transfer".

In the IACtHR's Advisory Opinion OC-11/90, the IACtHR determined that an indigent person could be discriminated against for their economic situation, if a state does not provide free legal assistance.

A state that does not provide such assistance cannot argue that a domestic remedy exists but has not been exhausted.

Lawyer-client confidentiality

In J v the Republic of Peru, a case which considered the extended incarceration and assault of the accused with suspected links to a terrorist organisation, the accused was denied access to counsel within the first 14 days of arrest.

Thereafter, she had limited access to counsel, and the right to lawyer-client confidentiality was not respected (communications took place within audible distance of state agents).

Ms J was not permitted to speak with her lawyer in private.

The IACtHR decided that the Peruvian state had violated procedural guarantees of "competence, independence and impartiality of the judicial authorities" to the detriment of Ms J.

In Lopez et al v Argentina, the IACtHR established that the great distance between the prison where individuals were being held and their defence attorneys "posed an insurmountable obstacle to freely and privately communicate with their attorneys to guide and coordinate their defense" and that "it [was] clear that this limited their opportunity to exercise a diligent legal defense and actions to protect the procedural guarantees of their clients and prevent their rights from being violated during the sentence execution phase of the criminal process".

The IACtHR concluded a violation of the right to access to a lawyer of one's own choosing, as well as the right to communicate freely and privately with them, established in article 8(2)(d) ACHR.

Right to prepare a defence

In Castillo Petruzzi et al v Peru, the IACtHR determined that the Peruvian state's actions in only allowing counsel a very brief time to examine the evidence against the accused, as well as not being allowed to cross-examine the agents who participated in the investigation, was a breach of article 8 ACHR.

In performing its analysis, the IACtHR specifically referenced UN Basic Principle 8 as being the proper standard for an adequate defence in criminal cases.

In this case it was held there was new evidence that had not been seen by the lawyers, lack of access to the case file and the presence of the lawyers were mere formalities.

In Montesinos Mejía v Ecuador, the IACtHR established that:

  • Mr Montesinos had "rendered his preliminary statements and was even questioned without the presence of a lawyer"
  • the fact that he was held in incommunicado detention for 38 days constituted "sufficient evidence that [he] ... did not have an opportunity to properly prepare his defense, since he did not have the legal assistance of a public defender or of an attorney of his choice with whom he could communicate freely and privately"

The African Commission on Human and Peoples' Rights (African Commission) assesses alleged violations of the African Charter on Human and People's Rights (ACHPR or African Charter), as does the African Court of Human and Peoples' Rights (ACtHPR) on appeal.

The ACtHPR can also declare violations of other human rights treaties, such as the International Covenant on Civil and Political Rights (ICCPR), provided that states under its jurisdiction have ratified them.

Most relevant cases, for the purposes of this report, regard alleged violations of article 7(1)(c) ACHPR, which includes the right to a defence, as well as the right to a lawyer of one's own choosing.

Non-interference and independence of the legal profession

The African Commission and the ACtHPR have generally taken the view that the clients' right to a defence and the right to a lawyer of one's own choosing also implies that lawyers should be able to carry out their professional duties freely and without undue external inference.

In Patrick Okiring and Agupio Samson (represented by Human Rights Network and ISIS-WICCE) v Republic of Uganda, the accused were granted bail by the High Court but not released.

They alleged that during their detention, they were not granted access to lawyers on several occasions and that their lawyers were violently beaten at the High Court.

The African Commission found there had been a violation of article 7(1)(c) of the African Charter and noted that states have the obligation to "ensure that lawyers are able to carry out their profession freely, independently and without fear of bodily or mental harm.

"Where lawyers are intimidated, this has a chilling effect on their ability to defend their clients. This in turn violated the right to defence of the victim [...]. An independent lawyer allows an impartial judge to reach a reasoned and fair decision in view of the law and facts.

"The physical assault of a lawyer in the premises of the court is an impossible attack on the independence of the judiciary and the rule of law in the state."

Access to a lawyer

Both the African Commission and the ACtHPR regard denial of access to a lawyer as a serious violation of the right to a defence.

In a case before the African Commission, Purohit and Moore v the Gambia, the complainants alleged that legislation pertaining to detention of those with mental health illnesses violated article 7(1)(c) of the African Charter as the relevant legislation did not include provisions allowing institutionalised detainees the opportunity to be heard or represented prior to or after detention.

In its judgment, the African Commission noted that the omission of such provisions constituted a violation of the right to a defence, including the right to be defended by a lawyer of one's own choosing.

The right to a lawyer applies even if the accused does not request a lawyer.

In a case before the ACtHPR, Mhina Zuberi vs United Republic of Tanzania, the accused had been sentenced to 30 years in prison for rape.

However, he alleged that he was not assisted by a lawyer and that obtaining such assistance was complicated.

The respondent state argued that the right to a lawyer was available under law to all those who could afford it, and that it was not easy or practical to provide all defendants with the lawyer of their own choosing.

Additionally, it noted that under domestic laws, the right to a lawyer was not an absolute right.

The ACtHPR ruled that, even though the accused had not requested a lawyer, he should have been provided with free legal assistance and that domestic laws of a state did not allow it to evade its international obligations.

The right to access a lawyer also requires the accused to be able to choose their own lawyer.

In Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, the accused were assigned junior military lawyers and were not given the opportunity to be defended by a lawyer of their own choosing.

The African Commission judged that this was in violation of article 7(1)(c) of the African Charter, and that the accused should be able to "choose out of a list the preferred independent counsel" responsible only to the accused.

However, the right to a lawyer does not necessarily mean that the accused has the right to immediate legal assistance.

In Gabriel Shumba v Zimbabwe, although the complainant claimed that he was only allowed access to a lawyer on the day he appeared in court (and was denied access during his detention, during which he alleged that he was tortured), the African Commission did not find the respondent state in violation of article 7(1)(c) of the African Charter as the accused did receive representation within two days of requesting it.

Lawyer-client confidentiality

While the right to confidentiality between a lawyer and their client does not feature prominently in complaints before the ACtHPR and the African Commission, judgments and decisions in relation to violations of article 7(1)(c) of the African Charter sometimes reference this right.

In Patrick Okiring and Agupio Samson v Republic of Uganda, the African Commission quoted principle 14(c) of the Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa which provides that: "pre-trial detainees shall have regular and confidential access to lawyers or other legal service providers".

A similar statement was made in Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v Nigeria, where the African Commission noted that the HR Committee had prescribed that "the accused person must be able to consult with his lawyer in conditions, which ensure confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with established professional standards without any restrictions, influences, pressures or undue interference from any quarter."

Right to prepare a defence

In The African Commission on Human and People's Rights vs State of Libya, the accused had been kept in isolation, without the possibility of getting assistance from a lawyer of his own choosing.

The ACtHPR, amongst other points, noted that the right to a defence "implied the right to communicate with his lawyer and the right to access the materials required to prepare his defence".

In Jean-Marie Atangana Mebara v Cameroon, the accused was detained on charges of embezzlement.

However, when his lawyers visited the office of the examining magistrate, they were unable to access the case file because the examining magistrate was absent.

The African Commission stated that "the right to defence stems from the need for the accused to be able to use the services of a specialist who is well informed about the procedure and the substantial issues, in order to guarantee his rights from the beginning of the proceedings ... [and] as a result, it is the right to defence that is actually violated in circumstance where the defence cannot have access to information on which the indictment is based. This conclusion applies to the need to be assisted by a lawyer of one's own choosing."

Part two: Europe

Across the European jurisdictions examined for this report, there are a number of commonly recognised safeguards for lawyers and their clients, but with the degree of protection varying between jurisdictions.

In both Germany and the United Kingdom (UK), several judgments note the importance of a complainant's right of access to a lawyer.

This right is protected in both countries from the moment a person is taken into custody.

The independence of the legal profession is another principle that is protected in Germany, France, the Uk and Georgia.

In Germany, the Federal Constitutional Court clarified that the practice of law is characterised by this principle.

In the UK, lawyers' immunity is regarded as necessary to prevent the risk of undue pressure being brought to bear by their clients. Clients are prevented from suing their lawyer over the lawyer's conduct of litigation.

It should be noted that, in England, the House of Lords found that the immunity of lawyers in this sense was no longer necessary for the fair administration of justice.

However, in Scotland, the Court of Session Inner House First Division attributed this to the ability of English courts to strike out unmeritorious claims against lawyers. Such a rule does not exist in Scotland.

In Georgia, the Supreme Court has directly referred to the UN Basic Principles in at least three cases.

It found that prolonged disciplinary proceedings against a lawyer violated domestic and international regulations, including UN Basic Principle 27 and 29, both of which relate to the fair treatment of lawyers in disciplinary proceedings.

Lawyer-client confidentiality is also a recognised principle in these jurisdictions.

In Germany, such confidentiality has a wide scope and attaches to everything that has become known by the lawyer in carrying out their professional duties, including incidental knowledge that has been acquired in the course of professional activity, and facts that have been explicitly declared confidential.

By contrast, in the UK, the House of Lords has explicitly stated that communication must be confidential in order to be covered by lawyer-client confidentiality.

However, the House of Lords has recognised the wide scope of legal professional privilege, with the court noting that the scope of legal advice privilege should reflect the fact that lawyers can only perform their duty if the full and complete set of facts are placed before them, which will only happen if clients are assured of the confidentiality of what they are sharing.

Non-interference and independence of the legal profession

In a case before the French High Court, a complainant alleged that her lawyer had failed to inform her of a judgment that was not in her favour, causing her to not lodge an appeal on time.

The lawyer had tried to communicate the judgment to the client, but the client had failed to inform the lawyer of her change of address.

The court rejected the claim on the basis that it was the client's own fault that she did not hear about the judgment.

The court held that the client's fault does not have to be deliberate to exonerate the lawyer.

In another case before the French High Court, civil division, the court was asked whether a lawyer's breach of professional duty gave a judge the ability to reduce the lawyer's fees payable by their client.

In this case, a company challenged the financial compensation due to its lawyer and claimed that the lawyer had not informed it of the foreseeable increase in the amount of fees.

The High Court held that the judge cannot rule on a possible civil liability of the lawyer with respect to his client if it's related to a question of fees.

The only way to determine whether the lawyer has failed in their professional duty is to engage their professional liability.

Access to a lawyer

The French High Court, criminal division, held that, for an adversarial debate to be possible, the complainant's lawyer of their own choosing must be summoned.

It's only in the event of their failure to appear that a court-appointed lawyer can appear as substitute.

In this case, the accused had been released under judicial supervision. The measure was revoked and the individual was incarcerated again.

He appealed the decision, saying that although he had been assisted by a court-appointed lawyer, the lawyer of his own choosing had not had an opportunity to defend him before this order was handed down.

The High Court found in favour of the accused, holding that he had a right to have the lawyer of his own choosing informed, without delay, of the holding of an adversarial debate before the liberties and detention judge.

It was not sufficient that the accused had recourse to a court-appointed lawyer.

The High Court found that there had been a violation of the accused's right to a lawyer of his own choosing.

It was considered that the trial judges should have noted that the liberties and detention judge was unable to reach the lawyer of the accused's own choosing or had noted the latter's inability to attend before calling on the court-appointed lawyer to represent the accused.

Lawyer-client confidentiality

In a decision of the Administrative High Court, the court was asked whether the tax authorities could rely on a legal opinion drafted by the taxpayer's lawyer during an audit.

The Administrative Court ruled that the opinion could only be relied upon if the taxpayer had given his consent to the lifting of professional secrecy.

In this case he had not and, therefore, the tax authorities could not rely on this opinion.

This decision demonstrates that lawyer-client confidentiality may be waived by a client only and not by a lawyer.

Non-interference and independence of the legal profession

In Georgia, a few cases specifically mention the UN Basic Principles.

In June 2016, the Supreme Court of Georgia found that the Ethics Commission of the Georgian Bar Association had grossly violated procedural norms because the disciplinary proceedings brought against a lawyer for allegedly violating the Code of Professional Ethics for Lawyers were prolonged in violation of domestic and international regulations.

In the judgment, the Supreme Court made specific reference to principles 27 and 29 of the UN Basic Principles (rights of lawyers in relation to disciplinary proceedings).

It annulled the decision of the Ethics Commission and returned the case to the same commission to examine whether, in view of the gross procedural violations, the disciplinary proceedings against the lawyer were fair.

Access to a lawyer

In a decision of the Supreme Court, the court noted that all persons are entitled to call upon the assistance of a lawyer of their own choosing to protect and establish their rights.

The court referred to various international and domestic laws, including to the UN Basic Principles.

The Supreme Court held that governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction.

Non-interference and independence of the legal profession

The independence of the legal profession has been protected by the Federal Constitutional Court.

In a case of 2014, a lawyer made a mistake in carrying out their professional activities that would not have caused any disadvantage to the client if the judge had carried out his functions appropriately.

At the hearing of divorce proceedings, the judge had added an ambiguous provision into the settlement agreement.

The ambiguity was to the disadvantage of one of the parties, who then sought compensation from his lawyer for giving him insufficient advice on the amendment.

The court considered whether the freedom of a lawyer to carry out their professional duties is encroached upon if they are held liable for a mistake in the course of their professional activities, although no damage would have been caused if the relevant court had acted appropriately.

The court held that even if the judge cannot be held liable, because judges are often held to be immune from civil proceedings, this does not legitimise the shifting of liability from the judge to the lawyer without considering that the lawyer's basic rights are affected.

As "actors in the administration of justice", lawyers shall not be liable in case of errors of justice, just because they are professionally insured against liability.

The court clarified that the practice of law is characterised by the principle that lawyers should be able to carry out their professional duties freely and that the correct application of the law is a primary task of the courts.

Mistakes made by judges are, insofar as possible, to be corrected in the courts of appeal.

The parties and their legal representatives essentially bear responsibility with regards to the submission of facts and making legal arguments, for example in the formulation of settlement agreements.

The courts are not constitutionally legitimised to burden lawyers with the responsibility for the correct application of the law by judges through upholding claims of liability against lawyers.

Access to a lawyer

In Germany, there are many cases in which the right of access to a lawyer has been considered.

In one case before the Federal Court of Justice, the complainant was interrogated by the police as the suspect of a robbery.

He demanded to speak to his lawyer but, when called by the police, the lawyer did not answer the phone.

The suspect then called his father, after which the police asked him once again whether he wanted give any information on the matter.

The court held that the information, which the suspect then proceeded to give, was not admissible in court as the police officer should have again instructed him of his right to have a lawyer present.

The court held that the right of access to a lawyer requires not only for police officers to instruct the suspect of that right, but to instruct him again if he asked for a lawyer who was not initially available, before continuing the interrogation.

Lawyer-client confidentiality

The importance of the confidentiality of lawyer-client communications has also been emphasised in several cases in Germany.

In a case before the Higher Regional Court of Munich, the court held that the lawyer has a right to refuse to testify in reference to all facts entrusted to him within the framework of a relationship with a client.

Furthermore, the court also stressed that the lawyer's duty of confidentiality towards a client remains in effect beyond the death of the client.

A lawyer, who has been entrusted with a secret in the context of a relationship with a client, must decide after the death of their client, according to their best judgment, whether they are entitled to refuse testimony in civil proceedings.

However, a lawyer in possession of confidential information may not base their decision only on general considerations.

In this case, the court denied the lawyer's right to refuse testimony in a dispute over the interpretation of a will, because the lawyer did not provide specific reasons but only general considerations as to why lawyer-client confidentiality must continue to apply after the client's death.

Another case emphasising the importance of confidentiality was handed down by the Federal Constitutional Court in 2014.

In this case, the complainants, a doctor accused in a criminal case and his lawyer, opposed the search of the lawyer's offices and the seizure of documents related to the defence.

The court found that the fundamental rights of both client and lawyer were violated:

  • the client in his right to effective defence
  • the lawyer in his fundamental right to carry out his professional duties freely, his right to a private sphere, his right not to testify and to maintain professional secrecy

The court concluded that documents in the possession of a lawyer are confidential (and not only "business documents" documenting the client-lawyer relationship) if they are found at the lawyer's office and are even remotely related to criminal proceedings.

The court further held that it follows from the client's right to a defence that documents, that are recognisably made by an accused for his defence in criminal proceedings, may neither be confiscated nor used against him.

In a case in 2011, the Federal Court of Justice offered further clarification on the breadth of matters covered by lawyer-client confidentiality.

The complainant was a lawyer in a criminal case against his (former) client.

During a break in the proceedings, he witnessed a conversation between his client and his client's relatives in the corridor.

In later civil proceedings against the same (former) client, he was named as a witness for the details of that conversation.

He referred to the principle of lawyer-client confidentiality and refused to testify.

The court confirmed that the information overheard by the lawyer in the corridor was covered by that principle and the complainant had the right to refuse to testify.

The court clarified that the principle of lawyer-client confidentiality covers everything that has become known to the lawyer in the exercise of their profession, including incidental knowledge that has been acquired in the course of professional activity.

In the UK, most of the case law on the rights of lawyers and their clients is based on the ECHR.

Therefore, the protection of lawyers in the UK essentially mirrors the protection of lawyers under the ECHR, with much of the case law of the ECtHR being cited by the UK courts.

There are certain examples where the UK has sought to derogate from the ECHR's position, or where unique aspects of laws in the UK have interacted with ECtHR case law.

We can see this particularly regarding devolution and the differing provisions of Scottish law as opposed to the law of England and Wales.

Non-interference and independence of the legal profession

In a Scottish case, Wright v Paton Farrell, a client brought a claim against his former solicitors alleging negligence in the conduct of his defence in a criminal trial, which had led to his conviction, resulting in an alleged miscarriage of justice.

The legal representatives of the solicitors pled that the solicitor involved was immune from civil suit regarding the conduct of the criminal trial.

The court determined that it was in the public interest that a lawyer carrying out their professional activities in the course of a criminal trial is immune from suit.

This was because the risk of prejudice to the proper administration of criminal justice posed by the absence of such immunity includes, in criminal proceedings, the risk of undue pressure being brought to bear on the lawyer by their client, and in appellate proceedings, the risk of losing the benefit of obtaining full and frank information from the client where an appeal is made based on defective legal representation.

Wright v Paton Farrell was a judgment rendered by the Court of Session in Scotland, which distinguished itself from the judgment rendered by the English House of Lords in Arthur JS Hall and Co v Simons, in 2000, where it was held that it was no longer necessary for lawyers to enjoy immunity in civil proceedings.

The court in Scotland justified its decision by stating that there is no similar rule in Scotland which would empower the Scottish courts to strike out unmeritorious claims against lawyers and, therefore, immunity from suit is a necessary protection for lawyers.

Access to a lawyer

In Cadder v Her Majesty's Advocate, a Scottish case ultimately decided by the UK Supreme Court, it was held that the police had violated the rights of the complainant under article 6 ECHR.

Incriminating evidence that had been obtained during questioning by the police whilst the suspect was detained at the police station without the presence of a lawyer was relied on at trial.

This had been carried out on the basis that Scottish law makes no provision for right of access to a legal representative during detention prior to formal interview by the police.

The Supreme Court held that the decisions of the High Court of Justiciary in several previous cases were "no longer good law" in light of the ECtHR's Grand Chamber ruling in Salduz v Turkey and should be overruled.

In Salduz it was found that even if the primary purpose of article 6 is to ensure a fair trial by a "tribunal" competent to determine "any criminal charge", it does not follow that the article has no application to pre-trial proceedings.

The Supreme Court in Cadder followed the reasoning in Salduz and, because national laws may attach consequences to the response of a suspect to the initial stages of police interrogation which influence the prospects of any subsequent defence.

Article 6 ECHR will usually be engaged in these circumstances.

Ambrose v Harris is another Supreme Court case regarding whether being questioned by the police without a lawyer constitutes a violation of a suspect's right to due process.

The complainant had been stopped by the police on suspicion of drunk driving, and whilst by the side of the road he was questioned by police without having been informed of the offence he was suspected of committing or given access to a lawyer, with the evidence obtained in this manner being subsequently used against him in his trial.

In this case, the Supreme Court declined to extend the principle established in Salduz v Turkey to questioning that took place before a person was detained at a police station.

The Supreme Court held that, in principle, the line as to when access to legal advice had to be provided before a person was questioned should be drawn as from the moment that they have been taken into police custody.

This is because a failure to comply with the provision of article 6 at that stage might seriously prejudice a person's right to a fair trial.

However, the Supreme Court held that the right to a fair and public hearing, under article 6(1) ECHR,  was only engaged from the moment an individual was 'charged' with an offence.

Article 6 is not automatically breached if the individual did not have access to a lawyer before being questioned and after they had been charged.

Rather, the court should look at the totality of the circumstances and decide whether an individual's right to a fair trial would be violated if evidence was admitted that had been obtained during such questioning.

McGowan v B concerned the validity of the accused waiving their right of access to a lawyer.

Prior to being interviewed by police on suspicion of burglary, the suspect stated that he did not wish to have legal representation and signed a statement to this effect.

He received no legal advice at any stage on the question of whether he should waive his right to access to a lawyer.

The court ruled that this omission did not necessarily breach article 6 ECHR and render the waiver invalid.

In order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal, and must be attended by the minimum safeguards commensurate to the importance of the right, and the court found in this instance these conditions had been met.

The court held that the ECtHR's case law does not establish that an individual who acts of their own free will in waiving their right to a lawyer must have access to legal advice before they can waive their rights, and there can be an effective waiver of the right to due process in such cases.

Lawyer-client confidentiality

In Three Rivers District Council v Governor and Company of the Bank of England, the House of Lords outlined the policy rationale behind the principle of legal professional privilege.

The court noted that modern case law on legal professional privilege has divided it into two categories: legal advice privilege and litigation privilege.

The first extends to any communications between lawyers and their clients where legal advice is sought or given.

The second, litigation privilege, covers all documents produced in contemplation of litigation.

The court held that, if the threshold for legal professional privilege is met and privilege is successfully attached to a communication or document, then that privilege is an absolute right, apart from in some limited circumstances.

The court noted that the policy justifications for this are that a client should be able to place "unrestricted and unbound confidence in" their lawyer and thus that "the communications he so makes to him should be kept secret".

This is because in order for the legal advice to bring about the desirable result, it's essential that "the full and complete facts are placed before the lawyers who are able to give it; and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients') consent, there will be cases in which the requisite candour will be absent".

Part three: Americas

In the case law examined for the Americas, the UN Basic Principles are not specifically mentioned.

However, many of the relevant principles are reflected in the cases summarised in this report.

For example, the right of access to a counsel of one's own choosing is protected in each of the four jurisdictions examined.

However, some limitations may apply to that right, for example in the case of a conflict of interest or where a lawyer can decide not to defend unmeritorious cases (as shown in the Colombian case law).

The complainant's right to a defence does not necessarily extend to guarantee the quality of that defence (see, for example, Chile and Colombia).

Whilst many of the protections of these rights are common in all jurisdictions analysed, the Brazilian case law includes additional protection for lawyers in some cases, based on the Brazilian Bar Association's Statute, such as a lawyer being allocated a special cell when detained for statements made while carrying out their professional duties.

Brazilian case law also guarantees, pursuant to that statute, the right of a lawyer to access case files, even where they are not a legal representative in a case.

However, this right is not absolute and can be limited in some circumstances.

Most of the case law emanating from the Brazilian high courts regarding the legal profession refers to:

  • the Brazilian Bar Association's Statute
  • Estatuto da Advocacia da Ordem dos Avogados do Brasil (Bar's Statute)
  • the Brazilian Federal Constitution 1988 (Federal Constitution)

The Brazilian case law reviewed includes decisions from the Brazilian Federal Supreme Court and the Brazilian Superior Court of Justice.

Non-interference and independence of the legal profession

The Federal Supreme Court has upheld the right of a lawyer to professional immunity with respect to statements made in good faith while carrying out their professional duties.

In one case, the Federal Prosecution's Office filed a claim of slander against lawyers who had lodged a complaint against a local judge's actions.

The court ruled that pursuant to the Bar's Statute, the lawyers could not be prosecuted for such actions taken while carrying out their professional duties.

Further case law has also upheld a lawyer's right to free speech when carrying out their professional duties.

Several cases discuss the rights, guaranteed by the Bar's Statute, of a lawyer in detention.

In one case, the Brazilian Bar Association acted on behalf of a lawyer who had been arrested on charges of misappropriation of public funds and criminal conspiracy.

The lawyer alleged that they had been kept in pre-trial detention for an excessive time in a facility which was not considered 'special'

Article 7 paragraph V of the Bar's Statute specifically confirms a lawyer's right not to be held in pre-trial detention, except in an Estado-Maior room (special cell), with decent facilities and failing that, under house arrest.

Pursuant to this, special accommodation for detention should have been provided to the complainant, in the absence of which the Superior Court of Justice stated that they should have been provided with a domiciliary detention regime.

In another case, a lawyer lodged a constitutional complaint after being denied an Estado-Maior cell.

The Federal Supreme Court confirmed that the lawyer was indeed entitled to a special cell, but that this need not be an Estado-Maior.

The requirements of the special cell were clarified as being equivalent to any state unit for provisional segregation that is considered to constitute decent accommodation with adequate facilities.

Access to a lawyer

The right to a lawyer of the complainant's own choosing has been considered in the Federal Supreme Court.

In one example, lawyers representing the complainants had discontinued the defence without notifying their clients, which precluded their appeal.

The complainants contended that, along with the failure by the state to appoint a public lawyer, this hampered their right to a defence.

In evaluating the claim, the court noted that it had previously recognised the complainant's right to a lawyer of their own choosing; a right granted by the Federal Constitution.

Further, it was held that the complainant must be notified when a lawyer ceases to provide the defence, so they may obtain a replacement.

The Superior Court of Justice has, in other circumstances, considered the right to a defence.

For example, this court annulled the decision of an appellate court in the context of a criminal execution on the basis that there was no defence, in breach of article 59 of the Sentence Execution Act.

Lawyer-client confidentiality

The Superior Court of Justice has upheld the principle of lawyer-client confidentiality in a decision concerning the seizure of legal documents at the legal department of the complainant (a bank).

The court held that a lawyer's working place and a company's legal department can only be entered by authorities in limited situations.

According to the Code of Criminal Procedure, search and seizure warrants can only be issued by a judge if the seizure concerns documents that could constitute corpus delicti (the evidence that proves a crime has been committed) and the grounds of the decision are clearly stated.

As these grounds had not been satisfied in this case, the court annulled the proposed search.

The court also held that the search and seizure infringed the inviolability of the lawyer's role, as guaranteed by article 133 of the Federal Constitution.

Lawyer-client confidentiality has also been protected through the right of lawyers to not have to testify as witnesses in a client's case.

In one case, a lawyer became aware of facts which resulted in his client being convicted of fraudulent misrepresentation during the client's defence.

The lawyer was also subject to criminal proceedings for alleged participation in the crime, but this was dismissed by the trial court.

In the client's criminal proceedings, the lawyer was summoned to act as a witness. In response, the lawyer filed a lawsuit to argue that he should not be compelled to do so.

The Superior Court of Justice held that a lawyer was not obliged to testify against his client in criminal proceedings to preserve lawyer-client confidentiality.

This upheld the lawyer's right, pursuant to the Bar's Statute, not to testify as a witness regarding facts that he became aware of in carrying out his professional duties.

Importantly, it was the lawyer's prerogative to assess the appropriateness of testifying in given circumstances, based on their judgment of the implications for their client.

In a later case, the Federal Supreme Court also held that, pursuant to the Bar's Statute, lawyers could not be required to testify as witnesses in circumstances where a risk of serious breach of lawyer-client confidentiality could occur.

The Brazilian courts have considered the confidential nature of lawyer-client communications to guarantee an effective defence.

In the Federal Supreme Court, defendants argued that they were prevented from having an adequate defence due to having to communicate with their lawyer through a glass wall and phone.

The court recognised the right contained in the Bar's Statute for lawyers to privately discuss matters with their clients.

Nonetheless, it held that this right needed to be balanced with security requirements for lawyers, complainants and prison staff, which meant that the complainant was unsuccessful in this case.

Another case, brought by the Brazilian Bar Association, arose following circumstances where the Secretariat of Penitentiary Administration of the State of São Paulo had altered the visiting and interviewing rights of lawyers with clients who had been arrested and were detained under a special disciplinary regime.

One of the changes made was that lawyers had to make an appointment before being able to communicate with their detained clients.

It was argued that this infringed the Bar's Statute by limiting the lawyers' right to communicate with such clients and their ability to enter prisons outside business hours.

More broadly, the complainant argued that the constitutional principles of the right to a fair hearing and legal assistance of prisoners had been breached.

The Superior Court of Justice agreed that the changes made did violate the right of lawyers to communicate with detained clients.

Right to a defence

Regarding the right to a defence, the Federal Supreme Court considered the right of access to case files by a lawyer who is not acting in the relevant proceedings.

In one case, the Federal General Accounting Office had prevented the complainant's lawyer from accessing case files.

During the analysis of the case, the court referred to the Bar's Statute, which guarantees a lawyer's right to examine any case files, even where they are not representing a party to the proceedings (subject to secrecy restrictions), regardless of whether those proceedings are finished or ongoing.

As a result, it held that the lawyer should have been permitted to access the case files, despite that lawyer not acting in the case.

The Superior Court of Justice has also established this right by lawyers to access case files.

It had been noted by the Supreme Court that the right is not absolute.

It can be limited in exceptional circumstances, such as to limit it to the number of complainants in a case and to restrict the access to case files only to a notary.

In another case, the Federal Supreme Court held that the right of lawyers to access documents from a police investigation report superseded the confidentiality of these reports.

The complainant argued that their constitutional rights to a defence and adversary proceedings had been compromised.

However, the court held that such constitutional rights only apply to 'proceedings' and that a police investigation report does not qualify as such.

The court ruled with reference to the Bar's Statute, which affirms that lawyers have a right to access files at any police station, including the investigation files (despite the possible conflict with the public interest in confidential investigations).

The Justice-Rapporteur added that the defendant's right to consult with a lawyer was also engaged, since this right could be compromised if the arrested person could not access police investigation reports.

The case law reviewed for Chile is that of the Supreme Court and the Constitutional Court.

In many cases, the General Council of the Bar Association (exercising its prescribed function to provide professional and humanitarian support to its members) intervenes in cases, for example, to obtain recognition of the principles that lawyers should be able to carry out their professional duties freely and in support of the principle of lawyer-client confidentiality.

Access to a lawyer

In the "Duty Lawyer" case, the Constitutional Court ruled on the right of a lawyer to be compensated for their professional services, balanced with the state's objective of providing wider access to legal services.

The court considered the constitutionality of a rule included in article 595 of the Organic Courts Code, which requires lawyers who have been selected as duty lawyers, to perform their professional services without charge for those who cannot afford such services.

A lawyer brought a case, arguing that the rule was unconstitutional since the lack of payment violated the principle of equality of public officers "before public burdens".

The concept of equality before public burdens is a right recognised in the Chilean Constitution.

It means that public duties must be distributed amongst all those called to bear them in an equitable manner, without arbitrary discrimination.

Consequently, the court held that the lawyer's right to freedom of labour and right to carry out lawful economic activities had been infringed.

The Constitutional Court recognised that a balance needed to be struck between the state's obligation to provide universal legal services and the lawyer's right to receive compensation for their services.

Although the state's objective was acknowledge by the court, the latter maintained that the application of article 595 of the Organic Courts Code (which stated that lawyers were obliged to perform their services free of charge for people who cannot afford to pay for a lawyer) was unconstitutional in this case.

The legitimate aims of the state's policy to provide legal aid did not mean that the lawyer's professional services should be provided without monetary compensation.

Right to a defence

The Chilean Constitution guarantees equal protection before the law for all and guarantees every person the right to a defence.

In one case, a constitutional challenge was brought against article 78 of the former Criminal Procedure Code regarding the right to a defence.

This article of the code established that all investigative acts directed by an investigative judge remained secret, so that an accused was denied access to the relevant files.

The Constitutional Court agreed that the application of this rule inhibited the possibility of an effective defence and prevented the accused from being able to testify the full knowledge of the incriminating evidence.

In another case, heard by the Chilean Supreme Court, the right to a defence was limited.

The complainant appealed to have his conviction quashed, alleging that the public defender who represented him during his trial had also represented another accused individual earlier in the proceedings.

He argued that this violated his right to a defence and to due process.

The court held that it did not have jurisdiction to rule on the quality of the defence provided by the lawyer, nor on the relationship of trust between the accused and their lawyer.

There was also no breach of due process, as the court held that there were no serious infringements that had had a substantial influence on the judge's decision.

This was because the complainant had legal assistance available at all stages of the trial and had exercised the available remedies.

Lawyer-client confidentiality

In a case filed by the State Defence Council, the Supreme Court considered whether a violation of the right to a defence and professional secrecy had occurred.

Ministers had ordered the Council to provide the arguments made by lawyers who acted for the defence in criminal proceedings, arguing that it constituted public information under the Transparency Act.

However, the Supreme Court found in favour of the confidentiality associated with the lawyer's role, asserting that the documents were protected by professional confidentiality despite the role of lawyers as public officers.

The court noted that professional secrecy was a matter of public interest, which also secures due process.

Access to a lawyer

As a corollary of a complainant's right to due process and to a defence, access to a lawyer is an essential part of the Colombian legal system.

However, this is not a completely unrestricted right.

The complainant does not have complete liberty to choose or reject their lawyer when a public defender (a legal aid lawyer) is assigned to them.

In one case, the Supreme Court of Colombia rejected an accused's argument that, if they refused to accept the assistance of a public defender, then that lawyer's actions are invalidated and the accused's right to a defence is breached.

The court held that, while there is a constitutional right to a lawyer in a criminal case and the state is obliged to guarantee access to a lawyer and thus to a defence, the fulfilment of this obligation is not subject to all preferences of the accused.

The right to a lawyer of one's own choosing is an important right, acknowledged by the Colombian courts.

In a case from 2015, a complainant argued that his parole hearing should be delayed as his privately appointed lawyer was unable to attend the hearing because he was required to attend another hearing on the same day.

The judge accepted this argument, but the prosecution argued that a publicly appointed lawyer would have been sufficient, and would have fulfilled the complainant's right to a defence.

The Supreme Court held that, where someone has a privately appointed lawyer, this should be respected, thereby showing the importance placed on a complainant's right to be assisted by a lawyer of one's own choosing.

Nonetheless, where a complainant does not attend a hearing and their privately appointed lawyer is also absent (when that lawyer's absence cannot be justified), the Supreme Court established that a judge could designate a public defender.

Lawyer-client confidentiality

The Colombian Disciplinary Code for Lawyers provides that a lawyer can only reveal confidential information provided to them by a client to make the necessary disclosures to avoid the commission of a crime.

In 2012, the Colombian Constitutional Court considered whether a lawyer's freedom to disclose confidential information in these circumstances was unconstitutional on the basis that it undermined the lawyer-client relationship.

The court held that in any case a decision needed to be made regarding the necessity to reveal such information, taking into consideration:

  • the existence of a danger to the rule of law due to the commission of a crime
  • weighing up professional secrecy against the importance of the information disclosed
  • whether disclosure of the information would be an "ideal" means to counteract the danger

Therefore, lawyers are not mandated to reveal information, which could be interpreted as an interference in the lawyer-client relationship, but rather are given the right to reveal information if they think it might be appropriate based on the test outlined above.

Right to a defence

Several cases in Colombia concern circumstances in which a complainant has claimed that their right to a defence was breached due to deficiencies in their lawyer's work.

The Colombian courts have accordingly had to consider the interaction of the right to a defence with the professional obligations of lawyers.

The Constitutional Court considered this issue in 2011.

The complainant claimed that his right to due process was violated because his lawyer did not appeal a judgment and he was convicted.

The Constitutional Court noted that a lawyer, while being subject to standard duties to carry out their profession with responsibility and seriousness, is not obliged to file appeals that appear unmeritorious and unfounded to that lawyer.

Therefore, the duties of lawyers towards their clients are not infinite but limited by what they consider reasonable based on the law and facts at hand.

A similar conclusion was reached by the Supreme Court when it rejected an argument that a complainant had not received due process on the basis that his previous lawyer did not use all the legal arguments available.

The Supreme Court did not seek to define what constitutes a good defence or adjudicate on what arguments a lawyer should make.

It instead noted that the complainant would have to identify the procedural action taken by his lawyer that was allegedly harmful, specify which legal norm it violated, and demonstrate how such a violation had a prejudicial impact on the complainant in relation to the judicial outcome.

However, the Criminal Chamber of the Supreme Court has made clear that a significant lack of action by a lawyer could result in a violation of a complainant's right to due process and right to a defence.

The Supreme Court held that, while it's not the job of a lawyer to present claims by the client that appear unviable, in their opinion, there is an obligation to engage in a serious study of issues in the case that could be validly raised in an adversarial court system.

Therefore, it noted that inertia by a lawyer could result in a breach of the client's rights.

While lawyers are not obliged to present proof of providing defence or of actively intervening during trial, an obligation rests on the lawyer to take a proactive and diligent attitude in the crafting of a defence.

This includes taking steps that are inherent to the legal proceedings, such as challenging evidence, questioning and cross-examining witnesses and expert witnesses.

Where this has not occurred, there may be a breach of the complainant's right to due process and right to a defence.

Access to a lawyer

In the United States, an individual's right to access a lawyer is protected by the Sixth Amendment to the Constitution of United States of America and has been further expanded by the Supreme Court of the United States' interpretation of the 14th Amendment to the Constitution.

The importance of this right has been considered in several cases and the jurisprudence has significantly evolved over the course of the 20th century.

A seminal judgment in 1932 guaranteed the right to a court-appointed lawyer in relation to an accused who had been sentenced to death and could not afford legal representation.

The accused had been denied access to a lawyer in the period between their arrest and trial.

The Supreme Court held that an accused should be afforded a fair opportunity to secure a lawyer of their own choosing, and if that was not possible, as was the case, a lawyer should be appointed well before trial.

If a lawyer was provided at a point close to trial, it was in effect a denial of due process before the law as there was no opportunity for consultation or preparation for trial.

The Supreme Court later expanded this right for indigent accused in relation to non-capital crimes in state courts, thereby considerably expanding the concept of due process and evidencing the court's increasingly broad view of the right of access to a lawyer.

However, while access to a lawyer has been established as of paramount importance, the Supreme Court has placed limitations on a complainant's ability to insist on a lawyer of their own choosing.

In a criminal case involving three accused, one accused sought to employ the same lawyer as the other two individuals, waiving his right to conflict-free legal representation.

However, this was denied on the basis that the lawyer would be subject to irreconcilable conflicts of interests, particularly when cross examining.

The Supreme Court, upholding the decision of the lower courts, denied the accused's request to use the same lawyer.

The court noted that while the right to a lawyer of one's own choosing was clearly considered by the Constitution, it was subject to important limitations.

In this case, the Supreme Court held that there is a presumption in favour of the accused's choice which is to be balanced against evidence of a serious potential for conflict, the latter of which was established in this case.

Similarly, the accused's right to a lawyer of their own choosing was limited when the lawyer was to be paid by the indigent accused with assets that were subject to a freezing order, due to such asset's connection to criminal activity.

In that case, the chosen lawyers themselves petitioned the Supreme Court arguing that the prevention of their fees being paid out of the frozen assets was a curtailment of the accused's right to a lawyer of their own choosing.

The Supreme Court held that, as long as the accused had access to a court-appointed lawyer, they could have no cognisable complaint.

However, the court did note in a later case that the restriction on assets unrelated to the alleged crime, and which are needed to retain a lawyer of one's own choosing, violates an accused's right to have a fair opportunity to secure such a lawyer.

Lawyer-client confidentiality

The Supreme Court has emphasised, in several cases, the importance and considerable breadth of lawyer-client privilege in the United States.

It's clear from these judgments that lawyers' communication with their clients are offered a high degree of protection.

The breadth of this principle was emphasised in a judgment in 1998 in which the prosecution sought to access notes made by two lawyers during an interview with their client shortly before his death.

The Supreme Court held that lawyer-client privilege applies posthumously, noting that the curtailment thereof would likely result in a chilling effect on client communication.

The Supreme Court held that the knowledge that such communications would remain confidential even after death encourages clients to communicate fully and frankly with their lawyer.

It noted that, if clients knew that such privilege could expire posthumously, then communications with their lawyer may be less frank given that the client may be concerned with reputation, civil liability and harm to friends or family.

In an earlier case from 1947, in considering lawyer-client privilege, the Supreme Court noted the importance of the concept and the broader importance of the privacy of the lawyer.

The Supreme Court held that notes taken by a lawyer, who interviewed survivors of a boating accident, were not protected by lawyer-client privilege based on the facts.

However, notwithstanding this, because the policy against invasion of the privacy of the lawyer is such a key part of the American legal system, any party wishing to subpoena documents prepared by a lawyer bears the burden to justify the production of such documents.

The Supreme Court also made the breadth of the principle of lawyer confidentiality clear in the corporate context.

A company sent a questionnaire to various foreign employees and interviews were conducted with these individuals in relation to allegations of bribery of foreign government officials.

The Internal Revenue Service (IRS) requested the questionnaires and the notes from the interviews.

The lower courts upheld the IRS' request on the basis that privilege only applied to the defendant firm's "control group" (those individuals responsible for directing the company) and, on that basis, held that privilege did not extend to the foreign managers as they were not part of such "control group".

The Supreme Court rejected this approach, and considerably expanded the breadth of privilege, noting that it should apply to all employee communications with the lawyer, since employees outside of upper echelon management are able to provide information to the lawyer that is not available to more senior employees.

Part four: Asia and the Middle East

Across the jurisdictions researched in Asia and the Middle East for the purposes of this report, there are several commonly recognised safeguards for lawyers and their clients, albeit that the degree of protection of those rights and the application of the underlying principles varies between jurisdictions.

Among the rights recognised in most of the jurisdictions analysed is the right of an accused to have access to a lawyer of their own choosing, or to have a lawyer assigned to that person without cost if they are not able to pay for legal representation.

However, this right is sometimes balanced with the interests of justice.

For example, in several judgments in Malaysia, it was found that, while the right of an accused to consult with a lawyer arises upon arrest, there may be circumstances where it's not appropriate that this right be exercised immediately, such as where doing so would prejudice a police investigation.

The independence of lawyers and the legal profession has also been considered in the case law of the jurisdictions examined.

In Jordan and Malaysia, courts found that a lawyer could not be compelled to testify against their client.

In particular, in one case, the High Court of Malaysia referred specifically to UN Basic Principles 16, 17 and 22 (in relation to the guarantees for the functioning of lawyers) and noted that "lawyers must be protected from any form of interference in the performance of their obligation to advise and act for clients".

A case in Indonesia also established that lawyers cannot be subject to civil or criminal prosecution as a result of carrying out their professional duties in good faith and that this protection applied both inside and outside court proceedings.

The principle of lawyer-client confidentiality was generally found to be accepted in these jurisdictions, with the exception of Japan.

However, whilst the principle is not generally recognised in Japan, in several recent cases, Japanese courts have ruled in favour of protecting such confidentiality.

In addition, in some jurisdictions, the principle of lawyer-client confidentiality may be restricted where it would conflict with other interests that must be protected.

For example, in one case in Malaysia a lawyer refused to disclose the whereabouts of his client, who was being investigated in connection with a criminal case.

The Court of Appeal found that the lawyer in that case could not "hide behind the [principle] of privilege" when he himself was being investigated in a criminal case.

Non-interference and independence of the legal profession

The case of Issam Mohammed Anabtawi v Azzam Hilmi Anabtawi concerned the admissibility of a lawyer's testimony in court against such lawyer's client.

The Court of Cassation (Civil Division) upheld the decision of the Court of First Instance and the Court of Appeal that the testimony of the lawyers of one of the parties to the proceedings could not be accepted against that party.

Accepting such testimony would be in contravention of a number of legislative provisions.

Access to a lawyer

The case of Bahaa al-Din Imran Muhammad Abu Amer v Public Right concerns the right to appoint a lawyer and access to legal aid.

The Court of Cassation (Criminal Division) found that all criminal proceedings against the accused in this case that took place without the presence of a lawyer were vitiated.

Jordanian law requires, in relation to felonies punishable by execution, life imprisonment, perpetual hard labour or temporary hard labour for a period of 10 years or more, the appointment of a lawyer for an accused in every trial session.

If an accused informs the court that they are no longer legally represented and are unable to appoint a substitute lawyer due to financial difficulties, the court shall appoint a legal representative for the accused.

Non-interference and independence of the legal profession

In Gajanan Laxman Bhalchandra v Rangrao Amrutrao Deshpande, the Bombay High Court quashed a criminal defamation prosecution of a lawyer at its very inception, pre-trial.

The court held that to require a lawyer to stand trial for imputations made on a client's instructions, while cross-examining a witness, "would be virtually akin to abuse of judicial process and rank nothing short of stultifying the very dynamic art of cross examination" rendering the object of cross examination "nugatory and infructuous".

In Navin Parekh v Madhubala Shridhar Sharma, the court halted attempts at prosecuting a lawyer for imputations made in correspondence on a client's instructions and cautioned trial magistrates to be "doubly cautious while entertaining complaints against legal practitioners" because the law confers on them certain privileges necessary for the discharge of professional duties that involve "the difficult process of conveying material that may be far from pleasant or far from complimentary".

Access to a lawyer

In The State v Tikaram Haneri, the Guwahati High Court set aside a conviction and directed a re-trial because the accused had been undefended at trial.

The court held that "no person can be allowed to lose his life in an established court of law under any civilised system without affording an opportunity of defence".

The fact that the accused "did not ask for a lawyer or did not know his rights" or "ask for an opportunity for being defended by a lawyer of his choice" did not "absolve the trial court from its duty to arrange for his defence".

The same High Court had, a year earlier in Nasia Pradhan, declared proceedings vitiated and had acquitted the accused when it found that he had received an "inadequate defence" because the trial court had not recommended the assistance of free legal aid when he did not have legal representation.

In Madhav Hayawadhanrao Hoskot v State of Maharashtra, the Supreme Court of India held that the right of the indigent to a competent, court-appointed lawyer was not limited to the trial stage but included appellate remedies.

In Hussainara Khatoon and ors (IV) v Home Secretary, State of Bihar, the Supreme Court held that the right to free legal services is "an essential ingredient of reasonable, fair and just procedure for a person accused of an offence [...]. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the state is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so required".

In Khatri and others (II) v State of Bihar and others, the Supreme Court of India held that the constitutional obligation to provide free legal services to an indigent person arose when the arrestee was brought before a magistrate for the first time within 24 hours of arrest.

The court also held that it was incumbent on the magistrate before whom the arrestee was brought to inform the arrestee of their right to obtain free legal services at the cost of the state.

In Nandini Satpathy v PL Dani, the Supreme Court set out guidelines for the police, including that all arrested persons shall have the right to consult a lawyer of their own choosing, the services of a lawyer shall be available for consultation to accused persons from the earliest stages including "under circumstances of near custodial interrogation" and, that it was "prudent for the police to permit the advocate of the accused, if there be one, to be present at the time he is examined".

However, the court also clarified that the lawyer "cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not otherwise fully appreciated. He cannot harangue the police but may help his client and complain on his behalf."

In AK Roy v Union of India, the Supreme Court held even in cases of preventative detention, where there is no constitutionally recognised fundamental right to be represented by a lawyer, that if the government of the detaining authority is represented by a lawyer or legal adviser it would be unfair for the detainee to be refused such representation.

The Supreme Court also ruled in Francis Coralie Mullin v The Administrator, Union Territory of Delhi and Others that a person in preventative detention does have the right to consult a lawyer "for the purpose of preparing his representation, advising him as to how he should defend himself before the Advisory Board and preparing and filing a habeas corpus petition or other proceedings for securing his release".

Right to a defence

In Bashira v State of UP, the Supreme Court held that the lawyer appointed at the state's expense to defend an accused must be allowed sufficient time to prepare, and that failure to give such lawyer sufficient time to prepare vitiated the trial.

In Mohd Hussain and Julfikar Ali v The State (Govt of Nct) Delhi, the lawyer who was appointed by the trial judge to defend the accused at the state's expense, because the accused did not have a lawyer, stopped attending proceedings and several witnesses were examined in his absence.

The new lawyer who was appointed at the trail neared its conclusion did not take remedial measures to address the failure to cross-examine material witnesses.

The Supreme Court held that the trial was vitiated and ordered a retrial.

In doing so, the court reviewed the law on the right to a fair trial and reiterated that:

  • the right of cross-examination was the right of every accused in a criminal trial
  • the provision of free legal services to accused without sufficient means to pay for such services is an essential element of any "reasonable, fair and just" procedure
  • such legal services must ensure the right to "effective counsel"

Non-interference and independence of the legal profession

A case before the Indonesian Constitutional Court in 2013 concerned an application brought by legal aid lawyers.

It was argued that article 16 of the Advocates Law, which protects a lawyer from civil or criminal prosecution in carrying out their professional duties in good faith for the benefit of the client's defence, should not be limited to those "in court proceedings".

It was argued that this protection should extend to protect lawyers when carrying out professional duties such as when issuing subpoenas, conducting negotiations, making press statements, issuing announcements via printed and online media.

The court did not make any express reference to the UN Basic Principles but agreed with the complainants and upheld the claim.

There is also earlier jurisprudence of the Supreme Court of the Republic of Indonesia, from 1973, where a lawyer was charged with a criminal offence, based on reporting certain circumstances between a witness and a member of law enforcement, with the charge being later dismissed by the court on the ground that the lawyer had made such a report to defend his client's interests.

In 2011, the Constitutional court dismissed a claim brought by several lawyers who argued that the Advocates Law contradicted the Indonesian Constitution in requiring lawyers to form one single professional organisation, thus impeding the independence of the legal profession.

Whilst the petition was ultimately rejected by the court, the court made extensive reference to the UN Basic Principles supporting the principle of the independence of the legal profession.

The court expressly referred to:

  • principle 1 (right of access to a lawyer in criminal proceedings)
  • principle 16 (non-interference with the professional duties of lawyers)
  • principle 23 (freedom of expression)
  • principle 24 (entitlement to join self-governed professional association)

Further, the court examined the Advocates Law in relation to the national Constitution and international instruments or conventions.

There have been instances of the Indonesian courts making indirect references to the UN Basic Principles, such as the Constitutional Court in a case from 2019, where it was argued that the lack of a mechanism to implement the right to immunity of a lawyer contradicted the Constitution.

The court referred to an academic text that listed international norms, including the UN Basic Principles.

Access to a lawyer

A decision of the Constitutional Court referred to legal aid as being a state obligation and categorised it as a non-derogable right, with reference to the Universal Declaration of Human Rights, ICCPR and the UN Basic Principles.

Access to a lawyer

In one case, the complainant (a lawyer) had been denied permission by an investigation official to meet with his client, who was being held in custody, on six occasions on the basis that the lawyer did not have the prosecutor's designation in writing of the time and place of the meeting.

Japan's Code of Criminal Procedure provides that an accused who is in custody may, without the presence of an official, have a meeting with their lawyer, but that a prosecutor may designate the date, place and time of any such meeting when necessary for an investigation (provided that such designation must not unduly restrict the rights of the accused to prepare for their defence).

In this case, the Fukuoka High Court found that on two of the six occasions where the lawyer was not permitted to meet with the client, there had been no reason to restrict such meetings.

Lawyer-client confidentiality

The principle of lawyer-client confidentiality is not established in law or regulations in Japan.

In one case, the Japan Fair Trade Commission (JFTC) had raided the complainant's business premises and seized certain documents, including communications between the complainant and its lawyer, and subsequently:

  1. issued a cease-and-desist order against the complainant
  2. decided to accept a petition by a competitor of the complainant to examine the case file

The complainant filed a claim to revoke the JFTC's decision in respect of the communications between the complainant and its lawyers on the basis that such communications should be protected by lawyer-client confidentiality.

The Tokyo High Court rejected this claim on the ground that there was no legal basis to treat communications as confidential only because they are made between lawyers and their clients.

However, there are instances where the Japanese courts have recognised and protected such confidentiality.

For example, in two cases, the Osaka High Court referred to the UN Basic Principles as an "agreement between the parties regarding the interpretation of the [ICCPR] or the application of its provisions" and a "subsequent practice in [its] application".

The court referred specifically to articles 8 (lawyer-client confidentiality in criminal cases) and 22 (lawyer-client confidentiality) of the UN Basic Principles as guidelines for interpreting article 143(b) and (d) ICCPR.

These cases concerned proceedings brought by a lawyer acting for a complainant, after that lawyer was denied the opportunity to meet with their client.

The Osaka High Court, affirming the decision of the Osaka District Court, found that this had been an infringement of the rights of the complainants and their lawyers to communicate in confidence.

The Fukuoka High Court held that a prosecutor's actions in interrogating a suspect regarding his meeting with a lawyer, recording the contents of that interview in a written statement, and requesting the examination of that statement in court as evidence upon indictment constituted an infringement of the right of the lawyer to communicate in confidence with their client.

The complainant referred in his arguments to the UN Basic Principles.

The judgment does not explicitly refer to the UN Basic Principles but refers to them as "UN resolutions".

The Supreme Court found that the refusal by the warden of a penal institution of a request by an inmate or his lawyer for a meeting without the attendance of any of the institution's staff was an abuse of discretionary powers that constituted a violation of the rights of both the inmate and the lawyer.

This was the case unless there were special circumstances, such as the meeting being likely to disrupt discipline and order in the institution.

This case also confirmed that the rights afforded to lawyers in this respect apply not only during a trial but also during any preparations for a retrial (at least in this case, in which the death penalty had been imposed).

In December 2020, the JFTC introduced a principle similar to lawyer-client confidentiality to certain communications between companies and their lawyers in connection with cartel investigations under Japan's Antimonopoly Act to make this act's leniency programme more effective.

The Japan Federation of Bar Associations published comments on the JFTC's proposal noting that:

  • the scope of lawyer-client confidentiality should be expanded to all investigations, whether these are related to the leniency programme or not
  • confidentiality should be protected in line with its objectives (to facilitate legal consultation by clients with confidence and enhance the due process of law)

Non-interference and independence of the legal profession

The case of Latheefa Bibi Koya and another v Suruhanjaya Pencegahan Rasuah Malaysia and others concerned the protection of lawyers from intimidation and harassment (as well as the principle of lawyer-client confidentiality).

The complainants were lawyers who acted for a client that was summoned by the Malaysia Anti-Corruption Commission (MACC) to give a statement in connection with an investigation by the MACC into a third party.

The lawyers were allowed to be present when their client gave a statement but were subsequently notified that they would also be required to provide statements and that failure to do so would constitute a criminal offence.

The High Court of Malaysia (Kuala Lumpur) found that the issuance of the notice requiring the lawyers to give statements constituted an act of intimidation and abuse of power and held that, as the Basic Principles had been adopted [sic] by Malaysia, Malaysia should "give due respect and [adhere] to [the Basic Principles]".

The court referred specifically to principles 16 (non-interference of lawyers), 17 (safeguarding the security of lawyers) and 22 (confidential communications between lawyers and clients).

The court stated that "lawyers must be protected from any form of interference in the performance of their obligation to advise and act for clients".

Access to a lawyer

The case of Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis concerned the right of a person who is arrested to consult with, and be defended by, a lawyer of their own choosing.

The Federal Court held that, while the right of a person who is arrested to consult a lawyer begins at the moment of arrest, it cannot be exercised immediately after arrest, as there is a balance to be struck between the right of the arrested person to consult their lawyer and the duty of the police to protect the public by apprehending wrongdoers and collecting evidence against them.

The right to consult a lawyer should not be exercised to the detriment of any police investigation.

This case was cited by the High Court of Malaya (Pulau Pinang) in the subsequent case of Saul Hamid v Inspector Abdul Fatah bin Abdul Rahman [1999].

The court noted that the Federal Constitution does not prescribe a time limit within which an arrested person shall be allowed to consult a lawyer.

The denial of access to a lawyer while the person was under remand pending investigation was found not to amount to an infringement of the right to access a lawyer conferred by the Constitution.

In Mohamad Ezam Mohd Noor v Ketua Polis Negara and other appeals, the Federal Court found a violation of the right to consult with a lawyer.

The appellants were political activists who were arrested and detained under the Internal Security Act 1960 (ISA) and were denied access to legal representation throughout the 60-day duration of their detention.

The court held that this denial was "unreasonable and a clear violation" of article 5(3) of the Federal Constitution and, moreover, the ISA did not contain any provision that proscribed access to a lawyer.

The court agreed with the complainants' contention that the ISA had been used as a pretext to deny access to a lawyer to defend them on several other charges they faced in connection with their activism.

Although the earlier judgments in Ooi Ah Phua and Saul Hamid provided that a delay in allowing a detained person to consult a lawyer was lawful, the court in this case noted that "denying access during the earlier part of the detentions would have been acceptable to facilitate the police in their investigations but to stretch that denial throughout the duration of the 60-day period makes a mockery of article 5(3)".

Lawyer-client confidentiality

The principle of lawyer-client confidentiality in Malaysia is enshrined in the Evidence Act 1950.

In several cases, the courts did not allow the principle to be easily overridden by various public authorities.

However, lawyer-client confidentiality cannot be used to circumvent the operation of the criminal justice system.

In Bar Malaysia v Ketua Pegarah Hasil Dalam Negeri, the defendant (the director general of Inland Revenue) carried out raids under tax legislation on the law firms of members of the Malaysian Bar with a view to auditing the firms and demanded access to the lawyers' records, documents and books relating to clients.

The High Court of Malaya held that, in doing so, the defendant had breached lawyer-client confidentiality.

Despite certain provisions of the relevant tax legislation purporting to override such confidentiality in certain circumstances, the court held that the legislation enshrining the concept of lawyer-client confidentiality prevailed, notwithstanding that the relevant provision does not protect communications made in furtherance of any illegal purpose or demonstrating any crime or fraud.

The decision of the High Court was recently upheld by the Court of Appeal.

The case of Gideon Tan v Tey Por Yee and another appeal also concerned the boundaries of the principle of lawyer-client confidentiality.

The appellant in the Court of Appeal (Putrajaya) was a lawyer who had represented his clients in the lower court and had sought to use an affidavit to support his application to set aside a court order.

They argued that certain paragraphs and exhibits from that affidavit should be expunged because these were covered by lawyer-client confidentiality.

The other party to the proceedings argued that legal professional privilege did not apply as it would allow such confidentiality to be used to cover up illegality, crime or fraud (to which, under statute, privilege does not extend).

The court held that, in this case, no exception to the rule of lawyer-client confidentiality applied.

The court upheld the long-recognised principle that "a document protected by privilege continues to be protected so long as the privilege is not waived by the client: once privileged; always privileged ... the privilege is the same whether the documents are sought for the purpose of civil or criminal proceedings, and whether by the prosecution or defence, and that the refusal of the client to waive his privilege, for whatever reason, or for no reason, cannot be question or investigated by the court".

In Leonard Teoh Hooi Leong v Public Prosecutor, the complainant was a lawyer who was arrested following the disappearance of a client for whom he was acting in connection with a criminal case.

He was not willing to disclose his client's whereabouts and argued that he was protected by lawyer-client confidentiality and that his detention was unlawful.

The Court of Appeal (Putrajaya) held that the detention of the lawyer was lawful and in accordance with the Criminal Procedure Code, and that he "could not hide behind the '[principle] of privilege'" when he was being investigated over a criminal case.

Part five: Africa

In the two jurisdictions in Africa examined for this report, the courts have acknowledged that lawyers and their clients have various rights and protections.

In Kenya, some of the case law refers specifically to the UN Basic Principles, whereas in South Africa, this does not seem to be the case, although similar protections are included in case law.

For example, in Kenya, the principle of non-identification of a lawyer with their client and their clients' causes has been recognised with reference to the UN Basic Principles.

In both Kenya and South Africa, individuals have a right to be assigned a lawyer if otherwise it would result in an injustice.

Non-interference and independence of the legal profession

In Kenya, a few cases specifically mention the UN Basic Principles.

In a High Court case from 2020, the court found in favour of a complainant who relied on a defence based on principles 16 (non-interference with lawyers' professional duties) and 18 (lawyers should not be identified with their clients and their clients' causes).

In this case, the complainant was a lawyer who had stamped and executed the forms for the registration of a branch of a foreign company in the ordinary course of carrying out his professional duties.

The company subsequently came under scrutiny for illegal activity and the lawyer was charged for his alleged role as a director and secretary of the company.

The High Court, considering the UN Basic Principles, decided in favour of the lawyer on the basis that he should not be identified with the acts allegedly committed by the company that he had assisted in registering in his capacity as a lawyer.

The right for lawyers to practise without hindrance and improper interference has also been acknowledged in Kenyan case law.

In a judicial review case, the complainant, an advocate general of the High Court of Kenya, sued the attorney general on the basis that recently published guidelines – which required the engagement of any external lawyers by government agencies to be approved by the attorney general – were unconstitutional.

The complainant successfully argued that these guidelines were "in breach of [his] legitimate expectation that as an advocate, his engagement with clients [would] not be arbitrarily and unlawfully interfered with" and the relevant parts of the guidelines were quashed.

Access to a lawyer

There are also several cases that establish the right to choose, and be represented by, a lawyer, as well as the right to receive legal aid if substantial injustice would otherwise result.

In HO v Republic, the complainant had been convicted of defilement and had been sentenced to 20 years in prison.

He argued that he was not informed of his right to a lawyer and that this was a breach of his rights under the Constitution of Kenya.

The High Court agreed and held that the trial court should be "proactive" in assessing whether injustice will result if the accused does not receive legal aid and should always ensure that they are informed of their right to be represented by a lawyer.

This consideration is reflected in another High Court case of 2017, in which the complainant, a minor, had asked for access to a lawyer after being charged with the offence of defilement but had not been granted such access.

The court found the failure to provide legal aid to a minor in such a complex case could result in gross injustice and that this was a gross oversight.

Non-interference and independence of the legal profession

South African case law protects the independence of the legal profession and has done so for many years.

In one case from the late 19th century, a lawyer had been publicly criticised in a newspaper for his actions in defending an individual in a dispute.

The lawyer alleged that the statement was libellous and claimed damages.

The court found that the newspaper was unjustified in its criticisms and that the lawyer had only been carrying out his professional duties.

In a high-profile case, Nelson Mandela had been convicted and imprisoned for political activism.

As he was a practising lawyer, the Incorporate Law Society of Transvaal sought to remove him from the roll of attorneys on the basis that he had been convicted of breaking the law.

While the court agreed that lawyers might be "expected to observe the laws more strictly than other persons, the fact that an attorney [had] deliberately disobeyed the law [did] not necessarily disqualify him from practising his profession or justify the court in removing his name from the roll".

The court found that, as none of Mr Mandela's conduct had been dishonest, disgraceful or dishonourable, he should not be removed form the roll.

Access to a lawyer

South Africa's Constitution guarantees every accused person's right to a fair trial and, as part of this, the accused has the right to have a lawyer assigned, including through legal aid, if it would otherwise result in an injustice.

In one High Court case, this has been interpreted as requiring that legal assistance to the accused be "real, proper and designed to protect the interests of the person so represented".

In this case, when the accused testified it became clear that his lawyer had not consulted with his client prior to the trial.

The court found that this was in breach of the accused's constitutional rights.

In another case, the accused decided to conduct his own defence, but later decided to consult with a lawyer.

When the lawyer asked for a postponement of the trial so that he could familiarise himself with the case, this was denied.

The High Court held that this amounted to a denial of the accused's right to legal representation, which had been entrenched in South African law prior to the adoption of its Constitution in 1996.

Lawyer-client confidentiality

The principle of lawyer-client confidentiality is protected under South African law.

In a case concerning former president of South Africa Jacob Zuma, his offices and those of his lawyers were searched and documents seized.

The court agreed with the complainant that these actions interfered with the principle of lawyer-client confidentiality and stated that, while a search is not necessarily unlawful, privileged material could not be admitted as evidence without consent of the client and could not be seized under a search warrant.

Along a similar line of reasoning, in AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services the constitutionality of South Africa's communications surveillance regime was challenged as it allowed for state officials to intercept communications on exceptional grounds.

The court acknowledged that such surveillance, in the case of lawyers' communications, may be justified because lawyers "are not immune to the very same type of conduct that justifies the surveillance of other members of society" (for example, when there is a risk to national security or of "serious criminality").

However, the court held that "the proper functioning of our legal system is reliant on the confidentiality of communications between lawyer and client" which "in turn promotes the rule of law".

The court, therefore, held that "the wholesale interception of lawyer-client communications without any recognition of this legal, indeed constitutional, reality would be at odds with the rule of law".

The court established that this means that "special consideration [needs to] be given to this fact when interception directions are sought and granted" and concluded that the relevant legislation was unconstitutional "to the extent that, when the intended subject of surveillance is a practising lawyer [or a journalist], it fails to provide for additional safeguards calculated to minimise the risk of infringement of the confidentiality of practising lawyer and client communications".

Conclusion

The case law analysed in this report gives an overview of the application of the principle of the independence of the legal profession, as well as in the 15 jurisdictions examined:

  • the right of access to a lawyer
  • the right to prepare a defence
  • the principle of lawyer-client confidentiality

The UN Basic Principles have been specifically referred to by courts in Malaysia, Indonesia, Japan, Kenya and Georgia (as well as by the IACtHR), but the principles referred to are mostly considered to be binding through domestic case law in all jurisdictions.

Regarding the independence of the legal profession, case law of the HR Committee and the African Commission refers to intimidation and physical violence directed against lawyers in several countries.

In domestic jurisdictions, case law refers to the principle of non-identification of lawyers with their clients (for example, in Kenya).

In Jordan, Chile and Germany, case law shows that lawyers should not be required to testify against their clients (unless in exceptional circumstances, for example to prevent the commission of an offence).

In Kenya, requiring a lawyer to provide a statement in a case against his client was regarded by the relevant court as "intimidation" and an "abuse of power".

The criminal charge or prosecution of a lawyer for carrying out their professional duties is not permitted by the courts in most jurisdictions.

For example, in India holding a lawyer criminally liable for statements made during cross-examination was referred to as an "abuse of judicial process".

In Brazil, courts rejected a complaint against a lawyer for alleged slander while carrying out his professional duties.

In Kenya, courts regarded approval by an attorney general of the retention of external lawyers by government agencies as impermissible external interference.

In addition, in many European jurisdictions, reference is made to the immunity of lawyers from suit, thereby protecting them also from possible pressure brought to bear by their clients (see, for example, the UK – Scotland and France).

Concerning the right of access to a lawyer, in many jurisdictions, this extends to the provision of legal aid in indigent or capital punishment cases (see, for example, India and the United States).

In Kenya, South Africa and India, courts are required to be "proactive" in establishing if legal aid is required (and if the lack thereof would result in an injustice).

The right to a lawyer of one's own choosing may be limited by a lawyer's right not to accept unmeritorious cases (for example, in Colombia) or by a possible conflict of interest (see the United States).

In Jordan, proceedings can be vitiated if an accused charged with certain offences does not have legal representation.

The moment from which the right of access to a lawyer applies varies; it can be on arrest (Malaysia), when someone is taken into custody (UK) and, in some jurisdictions, it can be delayed if required for police investigation, although there are limits to any permissible delay (for example, in Malaysia).

In many jurisdictions, a lack of access to case files may constitute a violation of the right to prepare a defence (for example, in Chile).

In Brazil, lawyers have a right to access case files even if they are not the legal representative in the case and regardless of whether proceedings have finished or are ongoing (unless secrecy rules apply).

The Supreme Court of India has ordered proceedings to be vitiated because state-appointed counsel did not have sufficient time to prepare a defence.

In Colombia and Chile, as well as the IACtHR, courts do not comment on the quality of a defence (except that significant inaction by a lawyer can lead to a violation of the right to a defence and of due process: see, for example, Colombia).

The principle of lawyer-client confidentiality is recognised in all jurisdictions, except in Japan.

However, recent Japanese case law shows that courts are applying this principle in practice (depending on the circumstances of the case).

In most jurisdictions, like in South Africa, it's recognised that there can be restrictions on lawyer-client confidentiality but that there needs to be special safeguards to minimise the risk of invasion of such confidentiality.

In Colombia and Malaysia, for example, it's recognised that lawyer-client confidentiality cannot be used as cover for any illegality.

In the United States, the principle of lawyer-client confidentiality is regarded as so essential that even communications not covered by legal professional privilege, when conducted between lawyer and client, require special justification to be subpoenaed and disclosed.

In South Africa, lawyer-client confidentiality is also regarded as an essential component of the rule of law.

In many jurisdictions, this principle also applies posthumously (see the United States and Germany).

The above examples are merely illustrations, since most of these principles apply to all jurisdictions analysed in this report.

This is the case despite the differences in emphasis on certain principles in some of these jurisdictions and the nuances in their interpretation (as well as differences in legal systems and cultures).

Not only do these principles constitute the important right to a fair trial for clients, and the right of lawyers to practise their profession without undue external interference,  but they also constitute a cornerstone of the legal system itself and of the rule of law worldwide.

This report shows that, even if the UN Basic Principles is a non-binding instrument, the principles analysed in this report effectively constitute binding law through the case law of national courts, as well as the case law of international tribunals.

Despite the binding nature of these principles and of rights to a fair trial, many violations of these continue to occur in jurisdictions worldwide (including in the jurisdictions analysed in this report).

It is, therefore, more important than ever that international bodies and tribunals, as well as domestic courts, identify and declare any such violations to ensure that members of the legal profession can carry out their professional duties without undue external interference and that clients' fair trial rights are respected.

International tribunals and domestic courts should also continue to fulfil the important function of developing their respective case law and interpreting these principles and rights, so that their future enjoyment may be guaranteed.

This research project is an initiative of our Lawyers at Risk programme led by international human rights adviser, Dr Marina Brilman, with the pro bono assistance of member law firm Slaughter and May.

We thank the following local partners for their invaluable assistance in identifying and reviewing relevant domestic case law in their respective jurisdictions (in alphabetical order):

  • ABNR Counsellors at Law (Indonesia)
  • Anderson, Mori & Tomotsune in collaboration with the Japan Federation of Bar Associations (Japan)
  • Anjarwalla & Khanna (Kenya)
  • A&T Najdawi Law (Jordan)
  • Bowmans (South Africa)
  • Bredin Prat (France)
  • Cravath Swaine & Moore LLP (United States of America)
  • Hengeler Mueller (Germany)
  • Georgian Young Lawyers Association (Georgia)
  • Mattos Filho (Brazil)
  • Centro de Estudios Sobre la Enseñanza y el Aprendizaje del Derecho (CEEAD) (Colombia)
  • Rahmat Lim & Partners (Malaysia)
  • Mr Jawahar Raja (India)
  • Rivadeneira, Colombara, Zegers (Chile)
Download the report

UN Basic Principles on the Role of Lawyers: independence of the legal profession and lawyer/client rights worldwide (PDF 1 MB)

Annex 1: international and regional tribunals (PDF 864 KB)

Annex 2: Europe (PDF 423 KB)

Annex 3: Americas (PDF 844 KB)

Annex 4: Asia and the Middle East (PDF 708 KB)

Annex 5: Africa (PDF 435 KB)

The annexes to the report are templates that were used by local counsel to include information on relevant cases.

Such information has been reviewed at face value and edited for uniformity by the Law Society and Slaughter and May (recognising, for example, that some jurisdictions use case names and others numbers).

Where many cases were included, some of the most illustrative per jurisdiction were chosen.

For a further explanation of the research methodology, see the introduction to the report.

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