I - The lawyer's code of conduct

In a society founded on respect for the rule of law the lawyer fulfi a special role. His duties do not begin and end with the faithful performance of what he is instructed to do so far as the law permits. A lawyer must serve the interests of justice as well as those whose rights and liberties he is entrusted to assert and defend.

A lawyer's function therefore Jays on him a variety of legal and moral obligations (sometimes appearing to be in conflict with each other) towards: the client; the courts (state or arbitration courts) and other authorities before whom the lawyer pleads his client's cause or acts on his behalf; the legal profession in general and each fellow member of it in particular; and the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in the face of state power and other interests in society.¹

These rights constitute ethical demands which surpass those imposed on every citizen. These ethical rules form a substantial part of the legal profession. They are designed through their willing acceptance by those to whom they apply to ensure the proper performance by the lawyer of a function which is recognised as essential in all civilized societies. ²

The particular rules of each Bar arise from its own traditions. They are adapted to the organisation and sphere of activity of the profession in the Member State concerned and to its judicial and administrative procedures and to its national legislation. The particular rules of each Bar nevertheless are based on the same values and in most cases demonstrate a common foundation.³

At the Plenary Session in Strasbourg on 28th October 1988, the Council of the Bars and Law Societies of the European Community (CCBE)'s⁴ representatives unanimously adopted the Code of Conduct for Lawyers in the European Community ("the CCBE Code'').⁵

The continued integration of the European Union and the increasing frequency of the cross-border activities of lawyers within the Union have made necessary in the public interest the statement of common rules which apply to all lawyers from the Union whatever Bar they belong to in relation to their cross-border practice.

International arbitration, where traditionally there has been significant intervention by different lawyers of the various countries of the European Community, is particularly included in cross border activity.

II - The ethics of EU lawyers in international arbitration

Within arbitration, the lawyer can intervene as an arbitrator or as a lawyer or representative of the parties.⁶ I refer to this last function here.

There has been little research on the subject of the lawyer's deontological duties when he acts as an arbitrator,⁷ as in this situation the arbitrator is subject to specific conduct rules dictated by the various arbitral institutions. Within this meaning, it is necessary to refer to the rules of the American Arbitration Association and the American Bar Association, called "Code of ethics for arbitrators in commercial disputes" 1977, to the London Court of International Arbitration ("LCIA") and to the ICC Rules of Conciliation and Arbitration of the International Chamber of Commerce 1988 (the "ICC Rules") (for example, Arts. 2. 7, 2. 8, and 2. 11).

However, in the next few paragraphs I would like to highlight the most important deontological guidelines to which the European Union lawyer is subject when he is acting not so much as an arbitrator but in the role of a representative and/or adviser to the parties in arbitration.

Art. 4.5 of the CCBE Code establishes the application of the CCBE Code regarding the relations of the lawyer with arbitrators stating that:

"The rules governing a lawyer's relations with the courts apply also to his relations with arbitrators and any other persons exercising judicial or quasi-judicial functions, even on an occasional basis."

The CCBE's Explanatory Memorandum and Commentary on the CCBE Code (4.5) explains that this provision extends the Code's measures concerning relations with the magistrature to arbitration courts and other bodies exercising judicial or quasi-judicial functions.

III - Specific CCBE Code rules

Within international arbitration, the lawyer is subject to some deontological rules in his relations with clients, with lawyers, and with the arbitrator who, during the period of arbitration, has similar powers to a judge.⁸

The references below are taken from the most important CCBE Code rules.

A. Independence

The many duties to which a lawyer is subject require his absolute independence, free from all other influence. Such independence is as necessary to trust in the process of justice as the impartiality of the judge or in this case the arbitrator.⁹

Independence is the lawyer's raison d'être. Independence is the most important of lawyers' characteristics.¹⁰ Independence is at the same time the lawyer's strength, duty and raison d'être.¹¹

"The many duties to which a lawyer is subject require his absolute independence, free from all other influence, especially such as may arise from his personal interests or extern pressure. Such independence is as necessary to trust in the process of justice as the impartiality of the judge. A lawyer must therefore avoid any impairment of his independence and be careful not to compromise his professional standards in order to please his client, the court or third parties." (Art. 2.1.1 of the CCBE Code).

Only where lawyers are independent can the judges be impartial.¹²

The ICC Rules contain some norms relating to independence. Before starting proceedings before the International Arbitration Court of the Chamber of Commerce, the arbitrator to be must make a declaration stating his independence before the Court. Article 2. 7 of the ICC Rules states that "Every arbitrator appointed or confirmed by the Court must be and remain independent of the parties involved in the arbitration." However this rule is only aimed at the arbitrator and not at the parties' lawyers.

Nevertheless, it is clear that the lawyer's independence, exempt from any pressure especially from those resulting from his own interests or extern influences is as essential in the arbitration proceedings as in judicial proceedings.

B. Trust and moral integrity

Honesty is an essential trait for a lawyer to possess.¹³ The lawyer's oath in the Paris Bar's is as follows:

"Je jure comme avocat d'exercer mes fonctions avec dignité, conscience, indépendence, probité et humanité."

The CCBE Code states that trustworthiness, honesty, integrity, rectitude and sincerity are both traditional virtues and also the lawyer's professional obligations.

"Relationships of trust can only exist if a lawyer's personal honour, honesty, and integrity are beyond doubt. For the lawyer these traditional virtues are professional obligations." (Art 2.2 of the CCBE Code)

These obligations are totally applicable to the lawyer in arbitral proceedings and perhaps even more so in arbitral proceedings where neither the strict control of the judge nor procedural laws exists. Indeed one of the fundamental characteristics of arbitration is that the parties can carry out proceedings in any manner they wish.¹⁴

C. Confidentiality

Confidentiality is of the essence of the lawyer's mission, the lawyer must respect the confidentiality of all information told to him in confidence by his client.¹⁵ Lawyer's confidentiality is necessary in order to defend the rights of citizens.

It has two objectives: to protect every individual who requires the help of a lawyer to defend his rights and liberties and to ensure the adequate administration of justice.¹⁶

It is of the essence of a lawyer's function that he should be told by his client things which the client would not tell to others. Without the certainty of confidentiality there cannot be trust.¹⁷

Confidentiality is an essential, fundamental and primary element of the lawyer.¹⁸Confidentiality is of such great importance that if it would disappear, the profession would be destined to perish.¹⁹

"It is of the essence of a lawyer's function that he should be told by his client things which the client would not tell to others, and that he should be the recipient of other information on a basis of confidence. Without the certainty of confidentiality there cannot be trust. Confidentiality is therefore a primary and fundamental right and duty of the lawyer. A lawyer shall accordingly respect the confidentiality of all information given to him by his client, or received by him about his client or others in the course of rendering services to his client" (Arts. 2.3.1 and 2.3.2 of the CCBE Code).

However, the approach to confidentiality differs from country to country often depending on whether they have a civil based or common law legal system.

For example in France, the duty of confidentiality of the lawyer is absolute and of public interest.²⁰ The breach of this duty results in an immediate offence regardless of the final outcome.²¹

Professional confidentiality was established neither for the benefit of the lawyer who listens in confidence nor in the interest of those who disclose their secrets; it is a matter of public interest.²² A lawyer can thus never be exempted from the duty of confidentiality and this duty is unlimited in time.

On the other hand, in Anglo-Saxon countries, the duty of confidentiality is considered as the lawyer's obligation to the client and endures until the client releases him from this obligation.²³

In Great Britain, the lawyer's confidentiality is a contractual obligation towards his client only, and in the case of divulging the secret there are not any criminal proceedings but only a disciplinary hearing.

In the U.S.A²⁴ a distinction is made between the "attorney-client privilege" and the "professional duty of confidentiality". The Code of Professional Responsibility, Canon 4, differentiates between "confidences" and "secrets:"

"(a) Lawyers should preserve the confidences and secrets of a client:"

The differences are as follows:

1. "Attorney client privilege" is a procedural rule of evidence which protects against the disclosure of certain information ("confidences") by the lawyer, even in judicial proceedings ("evidentiary privilege"). It applies to information disclosed by the client to the lawyer in confidence. "Attorney-client privilege" therefore constitutes an exception to the general rule according to which the community has the right to the testimony of anyone.

As a result, this right is strictly interpreted and different conditions are necessary in order that communications between lawyer and client are protected by professional secrecy.²⁵

2. The "professional duty of confidentiality" is an ethical rule which forbids the lawyer from disclosing a larger group of information ("secrets"), an exception to this being if the court permits such a disclosure ("ethical privilege"). This applies not only to information given by the client but also to all other information received by the lawyer concerning his mission irrespective of its source.^{26 27}

Appendix II of the ICC Internal Rules of the International Court of Arbitration establishes that the work of the International Court of Arbitration is of a confidential character which must be respected by everyone who participates in that work in whatever capacity.

If professional confidentiality is still regarded as being essential to the lawyer, perhaps it is even more essential when the lawyer acts in arbitral proceedings where the parties often elect this procedure for its more confidential characteristic in comparison with judicial proceedings.

D. Incompatible occupations

The CCBE Code provides that the performance of certain professions or functions is incompatible with the legal profession.

"In order to perform his functions with due independence and in a manner which is consistent with his duty to participate in the administration of justice a lawyer is excluded from some occupations" (Art. 2.5.1 of CCBE Code).

Differences exist concerning the extent of these incompatibilities. These differences reflect different local circumstances, different perceptions of the lawyer's mission and different techniques relating to the legislative procedure.

Lawyers must observe the rules of incompatibility both in judicial and arbitration proceedings.

E. The client's interests

Professionalism means that the lawyer must always give preference to the interests of society and to his clients' interests over and above his own interests and the interests of others.²⁸

The CCBE Code states that:

"Subject to due observance of all rules of law and professional conduct, a lawyer must always act in the best interests of his client and put those interests before his own interests or those of fellow members of the legal pro (Art. 2.7 CCBE Code).

The fundamental duty to defend the client's interests is completely applicable to the lawyer in arbitration.

F. Acceptance and Termination of Instructions

The CCBE Code rules (art. 3.1) on:

• diligence:
• "A lawyer shall advise and represent his client promptly conscientiously and diligently."
• competence:

"A lawyer shall not handle a matter which he knows or ought to know he is not competent to handle, without co-operating with a lawyer who is competent to handle it.

• A lawyer shall not accept instructions unless he can discharge those instructions promptly having regard to the pressure of other work."
• the termination of the relationship:

"A lawyer shall not be entitled to exercise his right to withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prevent prejudice being suffered by the client."

are fully applicable to lawyers defending a client in arbitration proceedings.

G. Conflict of interest

As a consequence of the principle of independence of the lawyer, he cannot defend two clients having conflicting interests.

"A lawyer may not advise, represent or act on behalf of two or more clients in the same matter if there is a conflict, or a significant risk of a conflict, between the interests of those clients.

"Where lawyers are practising in association, paragraphs 3.2.1 to 3.2.3 above shall apply to the association and all its members" (Arts. 3.2.1 and 3.2.4 of the CCBE Code).

Any lawyer can find himself faced with a conflict of interest. However it is in the large law firms where this type of conflict of interest occurs most frequently. Conflicts of interest are often hardly detected in large law firms because these firms have offices in different countries with lawyers working great distances apart.

This situation does not release them, however, from the incompatibility caused by the conflict of interest and obliges them to take control of the matters in which they are involved in order that the lawyer entrusted with the defence of one of the parties in arbitration proceedings may know whether he is risking a conflict of interest or not.

H. Regulation of fees

As far as lawyers' fees are concerned these cannot be fixed on a "quota litis" basis: an agreement which is not subject to a regulation of proportional fees is contrary to a good administration of justice because it encourages speculation and may give rise to abuse.

"A lawyer shall not be entitled to make a 'pactum de quota litis.' By 'pactum de quota litis' is meant an agreement between a lawyer and his client entered into prior to final conclusion of a matter to which the client is a party, by virtue of which the client undertakes to pay the lawyer a share of the result regardless of whether this is represented by a sum of money or by any other benefit achieved by the client upon conclusion of the matter." (Arts. 3.3.1 and 3.3.2 of the CCBE Code).

Lawyers must always inform their clients of their requirements as regards fees, and the amount of fees must be just and equitable.

Under no circumstances whatsoever can lawyers share their fees with any other person who is not a lawyer.

I. Relations between lawyers

It is in the public interest for the legal profession to maintain a relationship of trust and co-operation between its members.²⁹ The fraternity requires a relationship of trust amongst lawyers for the client's best interest.

"The corporate spirit of the profession requires a relationship of trust and cooperation between lawyers for the benefit of their clients and in order to avoid unnecessary litigation. It can never justify setting the interests of the profession against those of justice or of those who seek it.

"A lawyer should recognise all other lawyers of Member States as professional colleagues and act fairly and courteously towards them." (Arts. 5.1.1 and 5.1.2 of the CCBE Code).

"Where a lawyer of a Member State co-operates with a lawyer from another Member State, both have a general duty to take into account the differences which may exist between their respective legal systems and the professional organisations competences and obligations of lawyers in the Member State concerned." (Art. 5.2.2 of the CCBE Code).

Given the more flexible nature of the rules of procedure of arbitration in comparison with the judicial rules of proceedings and the international nature of many arbitration proceedings, the duty of trust and loyalty of lawyers to one another and to the arbitrator should he be a lawyer becomes all the more important.

J. Relations with arbitrators

Article 4.5 of the CCBE Code provides that (please see II) the rules governing a lawyer's relations with the courts apply also to his relations with arbitrators.

The following rules should be taken into account:

"A lawyer who appears, or takes part in a case before a court or tribunal in a Member State, must comply with the rules of conduct applied before that court or tribunal.

"A lawyer must always have due regard for the fair conduct of proceedings. He must not, for example, make contact with the judge without first informing the lawyer acting for the opposing party or submit exhibits, notes or documents to the judge without communicating them in good time to the lawyer on the other side unless such steps are permitted under the relevant rules of procedure.

"A lawyer shall while maintaining due respect and courtesy towards the court defend the interests of his client honourably and in a way which he considers will be to the client's best advantage within the limits of the law.

"A lawyer shall never knowingly give false or misleading information to the court." (Art. 4.1, 4.2, 4.3 and 4.4 of the CCBE Code)

The ICC Rules provide that the arbitrator shall hear the parties together in person if one of them so requests (art. 14.1) and he shall be in full charge of the hearings, at which all the parties shall be entitled to be present (art. 15.4).

IV - REVIEW OF THE CODE OF CONDUCT

While the Code is relatively "young" given that it just dates from 1988, problems and developments have arisen in many spheres of the legal profession which could not have been foreseeable in 1988 when the Code was approved. Therefore, these changes make a review of the Code necessary in order for it to be "up to date" with the developments of justice.

Consequently, a review of the Code by the Deontology Committee of the CCBE is currently underway.³⁰ Deontology is the essence of the legal profession, and as such, must be protected and defended. Lawyers, as co-ministers of Justice, consider their independence and their professional ethics to be the quintessence of their mission. I would like to bring these paragraphs to an end with the superb words of Aguesseau:

" … un ordre si ancien que la magistrature aussi noble que la vertu, aussi nécessaire que la justice, se distingue par un caractère qui lui est propre; et seul entre tous les états, il se maintient dans l'heureuse et paisible possession de son indépendance. Libre sans être inutile à sa patrie, il se consacre au public sans en être esclave.³¹ "

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