Document Type : Original Article
Highlights
According to many jurists, the independence of the legal profession is considered a fundamental guarantee of the promotion and protection of human rights and is a prerequisite for effective and appropriate access to legal services. In order to establish and protect the rule of law, the existence of a fair judicial system that can guarantee the independence of lawyers in the performance of their professional duties without any undue restrictions, pressure or direct or indirect interference is essential. Therefore, the independence of the lawyer breathes life into justice, threatens and prosecutes violators, makes the courts legal, guides litigants and implements the law more realistically, which will result in nothing but the establishment of an orderly and ideal society. It can be expected that by observing this issue, international human rights instruments will be implemented and the judiciary, and consequently, the government, will also be considered credible and the opinions of its courts will be considered valuable at the international level.
The key general guarantee and protection of the independence of lawyers is the general legality of violations and procedural proceedings. In the field of procedural proceedings, the most important guarantee of implementation is the legality of the suspension of a lawyer and the related procedures. According to Article 17 of the Independence Bill, “No lawyer can be suspended or banned from practicing law, except by a final ruling of a disciplinary court.” Also, according to Article 18 of the same bill, the request for suspension is limited solely to the Minister of Justice, the Chairman of the Board of Directors of the Bar Association, or six members of the Board of Directors of the Bar Association, and the consideration of an appeal against it is possible upon the request of the complainant and the Minister of Justice or the Chairman of the Bar Association, and is solely within the jurisdiction of the Supreme Judicial Court of Disciplinary Court. The exclusive and limited possibility of requesting a suspension, the authority to consider it, and the immediate consideration of the request for an appeal against the suspension decision are important guarantees that do not exist in other cases and, in fact, are intended to ensure the independence and immunity of the lawyer in performing his professional duties. The Supreme Court of Justice has repeatedly cited this mechanism.
Lawyers are among the oldest legal professionals in France, having focused extensively on the filing and defense of lawsuits in the courts in the years before the reforms (1971 and 1991). The main roles of lawyers in France include preparing and drafting written defenses and motions, providing legal advice, and preparing and presenting documents and evidence. Lawyers must be able to appear alongside their clients during the defense phase and, if necessary, make statements and submissions on their behalf. They also have the implicit authority to act as a proxy on behalf of their clients, and it is not necessary that this authority has been explicitly granted to them. It should also be noted that lawyers do not have any monopoly on providing legal advice, and individuals such as notaries and individuals who, despite having legal degrees, do not have any job qualifications, can provide legal advice in some circumstances.
In France, the Bar Association has complete autonomy in terms of the approval of administrative structures. The lawyers of each French jurisdiction are brought together within a professional body to draw up the rules governing their profession within the framework of applicable state laws and regulations, to supervise their proper implementation and to jointly protect and defend their professional rights against any external aggression, in particular from public authorities. This body, the Bar Association, has legal personality and is responsible for protecting the rights and supervising the implementation of the collective obligations of its member lawyers and acts as the official spokesperson of the profession.
Regarding the legal validity of the formation of independent professional associations, paragraph 21 of the Resolution on Fundamental Principles provides lawyers with the possibility and authorization to form independent self-governing professional associations and the right to join them. This provision states: “Lawyers shall have the right to form or join self-governing professional associations which represent their interests, promote their training and education and protect their professional reputation.” In principle, the main body of such professional associations shall be elected by their members and shall carry out their duties without external interference. The independence of the association is so important in protecting the independence of lawyers that “the French Bar Association firmly protects its members against any pressure or threat from the authorities or from litigants. This protection is so firm that, in the opinion of the association, it may be said to confer a kind of immunity on the lawyer when carrying out his duties in support of his client.” According to Article 18 of the resolution of the General Assembly of the International Bar Association (New York, September 1990), in addition to ensuring the independence of the legal profession among its duties, the Bar Association has other important functions such as: promoting and supporting the establishment of justice without fear and tolerance; defending honor, dignity, honesty, competence, ethics, standards of conduct; professional discipline; protecting the material and spiritual independence of the lawyer from the client; defending the role of the lawyer in society; preserving the independence of the legal profession and protecting and defending the dignity and independence of the judiciary.
An examination of the nature of the Bar Association in Iran indicates that this institution is, on the one hand, a legal entity under public law and, on the other hand, it belongs to the realm of private law, because part of its duties is related to providing legal assistance services, which in many countries are part of the government's social services, and on the other hand, investigating violations and prosecuting lawyers and imposing punishments on them, as well as granting a law license, arise exclusively from the judicial sovereignty of the state, and in private law, such a right is not conceivable for individuals.
It is necessary to determine the legal nature of the personality of the Bar Association in order to strengthen the private aspect of its personality to any extent, and its similarity to a professional association that, in addition to its legal duties, must protect the rights and interests of the group and defend their professional dignity will increase. In addition, there is less doubt about the possibility of claiming moral damages from private law legal entities. These characteristics bring the Bar Association closer to a non-profit private law institution; because, as such institutions are formed for non-commercial purposes and to pursue specific scientific and social goals of interest to the members, the main purpose of forming a Bar Association is to organize and coordinate the provision of legal services in society by lawyers and to strive to ensure justice and the implementation of the law in judicial authorities, which ultimately leads to judicial guarantees for members of society.
In France, the National Council of Bar Associations was created by Law No. 90-1259 of December 31, 1990, which was in fact an amendment to Article 21-1 of the Law of December 31, 1971. This National Council is a public service institution with a separate legal personality and represents all lawyers who are members of the French Bar Associations. In addition, every lawyer in France is necessarily a member of one of the 161 local associations in France. The National Council of Bar Associations is responsible for promoting the legal profession at national and international level, is the addressee of public authorities, participates in the preparation and preparation of any text relating to the legal profession and the conditions of this profession, and intervenes on questions relating to legal matters, including laws, regulations and judicial institutions.
