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EUROPEAN COMMISSION for the EFFICIENCY of JUSTICE (CEPEJ) the Role of Lawyers in Judicial Proceedings in Europe Isabelle Andouls

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EUROPEAN COMMISSION for the EFFICIENCY of JUSTICE (CEPEJ) the Role of Lawyers in Judicial Proceedings in Europe Isabelle Andouls EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ) The Role of Lawyers in Judicial Proceedings in Europe Isabelle Andoulsi Université Libre de Bruxelles (U.L.B.) Institut d’Etudes européennes May 2012 The Role of Lawyers in Judicial Proceedings in Europe Table of contents INTRODUCTION ...........................................................................................................................................3 PART I: .. THE ROLE OF LAWYERS IN JUDICIAL PROCEEDINGS IN THE MEMBER STATES OF THE COUNCIL OF EUROPE ................................................................................................................................5 Chapter I:The profession of lawyer ...........................................................................................................5 I. General .............................................................................................................................................5 II. Rules governing the profession ....................................................................................................8 A. Organisation of the profession .....................................................................................................8 B. Access to the profession ........................................................................................................... 10 C. Continuing education and other training ................................................................................... 11 III. Exercising the profession ........................................................................................................... 13 A. Reservation of representation in judicial proceedings for members of the legal profession ..... 13 B. Rules of ethics and quality standards ....................................................................................... 15 C. Duty to advise the client ............................................................................................................ 16 D. Fees and disputes ..................................................................................................................... 18 E. Disciplinary proceedings in general and sanctions ................................................................... 19 IV. Partial conclusions ...................................................................................................................... 22 Chapter II: The lawyer as agent for enhancing the efficiency and quality of judicial proceedings24 I. Means lawyers have at their disposal........................................................................................ 24 A. Which means for which proceedings? ...................................................................................... 24 B. Alternative methods for resolving disputes ............................................................................... 29 II. Due diligence of lawyers and sanctions if they breach this obligation ................................. 31 A. Abuse of process ....................................................................................................................... 31 B. Recourse available to litigants in cases of inaction or professional misconduct....................... 34 C. Quality control of legal aid ......................................................................................................... 34 III. The impact of lawyers using ICT on the efficiency and quality of judicial proceedings ...... 35 A. Computerisation of law firms ..................................................................................................... 36 B. Access to ICT ............................................................................................................................ 37 C. Regulation of electronic communication ................................................................................... 38 IV. Supplementary activities of lawyers and their impact on the efficiency and quality of judicial proceedings .................................................................................................................................. 39 A. The lawyer as mediator ............................................................................................................. 39 B. The lawyer as arbitrator ............................................................................................................. 40 C. May a lawyer become a judge? ................................................................................................ 40 V. Partial conclusions ...................................................................................................................... 41 PART II: .... ANALYSIS OF THE ROLE OF THE LAWYER IN JUDICIAL PROCEEDINGS IN TWO EAST EUROPEAN STATES: ROMANIA AND MOLDOVA ................................................................................ 44 Chapter I: The role of lawyers in judicial proceedings in Romania ................................................. 44 I. The profession of lawyer ............................................................................................................ 44 A. General ...................................................................................................................................... 45 B. Rules governing the profession ................................................................................................. 45 C. Exercising the profession .......................................................................................................... 46 II. The lawyer as an agent for enhancing the efficiency and quality of judicial proceedings ....................................................................................................................... 49 A. Means which lawyers have at their disposal ............................................................................. 50 B. Due diligence of lawyers and sanctions if they breach this obligation ...................................... 51 1 C. The impact of lawyers using ICT on the efficiency and quality of judicial proceedings ............ 53 D. Supplementary activities of lawyers and their impact on the efficiency and quality of judicial proceedings .............................................................................................................................. 53 III. Partial conclusions ...................................................................................................................... 54 Chapter II: The role of lawyers in judicial proceedings in Moldova ................................................. 55 I. The profession of lawyer ............................................................................................................ 55 A. General ...................................................................................................................................... 55 B. Rules governing the profession ................................................................................................. 56 C. Exercising the profession .......................................................................................................... 57 II. The lawyer as an agent for enhancing the efficiency and quality of judicial proceedings .. 59 A. Means which lawyers have at their disposal ............................................................................. 60 B. Due diligence of lawyers and sanctions if they breach this obligation ...................................... 60 C. The impact of lawyers using ICT on the efficiency and quality of judicial proceedings ............ 61 D. Supplementary activities of lawyers and their impact on the efficiency and quality of judicial proceedings .............................................................................................................................. 62 III. Partial conclusions ...................................................................................................................... 63 CONCLUSION ............................................................................................................................................ 65 2 The Role of Lawyers in Judicial Proceedings in Europe The Role of Lawyers in Judicial Proceedings in Europe Introduction On 8 October 2008, the European Commission for the Efficiency of Justice (hereafter the CEPEJ) of the Council of Europe1 published a report entitled “European Judicial Systems - Edition 2008 (data 2006): Efficiency and Quality of Justice”.2 The Commission also decided at the 12th plenary meeting to continue analysing the facts and figures presented therein in order not only better to understand the functioning of the judicial systems of the member states of the Council of Europe, but also to define the common indicators for evaluating these systems, to identify the major trends and difficulties and, finally, to help public policy on justice enhance quality and efficiency. In this context the CEPEJ made three calls for projects inviting Europe’s research community to work on three specific studies.3 This particular study was drawn up as part of the third call for projects by the CEPEJ, focusing on the role of lawyers in judicial proceedings in Europe. It was established using data on European judicial systems collected by the CEPEJ in 2008 and made available to researchers. The study is based, inter alia, on the responses provided by member states of the Council of Europe4 to a supplementary questionnaire
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