The independence of the legal profession: A European perspective

Pierre-Dominique Schupp, President of the Council of Bars and Law Societies of Europe dialled in from Paris to share his thoughts on the independence of the profession, advancing the rule of law, the use of AI, and international collaboration.

Dialling in from Paris, Pierre-Dominique Schupp highlighted the essentiality of independence within the legal profession from a European perspective, emphasising its foundational role in democracy and justice. His speech navigated through institutional independence, individual freedoms, and regulatory frameworks essential to safeguarding this independence amid increasing external pressures.

Importance of independence in law

Schupp emphasised that independence within the legal profession transcends a mere privilege and stands as a fundamental duty and responsibility. He explained that for lawyers to “speak truth to power” and uphold clients' rights without fear of interference, they must operate in a landscape free from external influence. Independence allows lawyers to "defend unpopular causes" and "uphold the rights of all citizens, regardless of their standing in society". This independence supports lawyers in defending even unpopular causes and is vital for maintaining public confidence in justice systems.

Key pillars of legal independence

Schupp delineated three core pillars of independence: institutional, individual, and regulatory. Institutional independence ensures that law firms and bar associations can self-regulate, shielding them from political and economic pressures. Regulatory independence, particularly significant in a self-regulated profession, enhances lawyers' roles as ethical guardians of democratic societies. Schupp highlighted the CCBE’s theme for the 2024 "European Lawyers Day" – "Independent Lawyers, Stronger Democracies: Understanding Why Self-Regulation Matters", which reflects their commitment to educating the public on self-regulation's critical role in democratic societies.

Threats to the profession’s independence

Schupp outlined various threats facing the legal profession, particularly concerning governmental attempts to limit lawyers’ autonomy. He described concerns about "the rise of authoritarianism, the erosion of democratic norms, and the pressures exerted by modern technology" which "pose significant threats to the autonomy of lawyers and legal institutions". This includes surveillance measures undermining confidentiality and legislative initiatives threatening the right of self-regulation. These actions erode trust between lawyers and their clients and jeopardise the rule of law across Europe. For instance, anti-money laundering directives and other regulatory frameworks impact the profession's ability to operate freely and can compromise essential client-lawyer confidentiality.

European institutions and the rule of law

Schupp reiterated CCBE's role in safeguarding the profession by engaging with European institutions. The CCBE collaborates with the European Court of Human Rights and the European Commission to address challenges to legal independence. He shared that the CCBE has intervened in several cases, supporting the independence of legal professionals under threat from state measures. For instance, the CCBE "regularly submits amicus curiae briefs defending the independence of the legal profession from potential interference by state measures". He underscored CCBE’s advocacy for a European Convention on the Protection of Lawyers, which would codify protections and standards to defend legal independence at a European level.

Advocacy and legal frameworks

The CCBE’s efforts include contributing to the European Commission’s "Rule of Law Report," providing insight into legal independence in EU countries and highlighting national threats to access to justice. Schupp noted the 2022 report’s explicit acknowledgment that "lawyers and their professional associations play a fundamental role in strengthening the rule of law and ensuring the protection of fundamental rights, including the right to a fair trial". These reports encourage transparency and hold member states accountable for maintaining legal independence, impacting policy changes.

Convention on the protection of lawyers

Schupp introduced the planned European Convention on the Protection of Lawyers as a groundbreaking legal instrument, expected to take effect in May 2025. The convention will enshrine the rights of lawyers to practice independently, free from harassment or threats, with a monitoring mechanism to ensure compliance by member states. He explained that the convention’s aim is to create "a binding legal instrument to ensure that lawyers can practice without fear, prejudice, or improper restraint". This convention will establish standards of independence and confidentiality that transcend European borders, supporting legal professionals globally.

Collaboration internationally

The CCBE represents over one million European lawyers through its member bars and law societies from 32 full member countries, and 14 further associate and observer countries. While the CCBE primarily comprises EU member states, it also includes non-EU countries. For instance, the United Kingdom, following its departure from the EU, transitioned to an affiliate membership status within the CCBE. This status allows the UK to remain active in the organisation, albeit with certain restrictions, particularly concerning EU policy matters.

Therefore, being outside the EU does not preclude participation in the CCBE, but it may influence the level of involvement and the scope of participation in specific EU-related discussions.

He acknowledged that while Brexit has changed the UK’s official status within the CCBE, it did not remove the UK delegation from the organisation. Schupp explained that the UK delegation continues to participate and "brings valuable expertise" to CCBE discussions. He noted that UK lawyers still influence CCBE’s work despite their new affiliate status, underscoring the importance of their ongoing involvement.

Additionally, Schupp recognised the appointment of a Scottish head for the UK delegation to the CCBE, emphasising how this role reflects the UK's sustained commitment to the CCBE and the values shared with the organisation.

National bars play a crucial role in the CCBE’s mission by disseminating CCBE values and involving individual lawyers in working groups and committees. Schupp acknowledged the Law Society of Scotland's active participation, which has greatly contributed to CCBE’s work on policy and legal frameworks to protect the profession. He expressed his appreciation for Scotland’s "leadership and collaboration" and recognised the contributions made by the new Scottish head of the UK delegation to the CCBE.

Political interference

In discussing the influence of rising political pressures, Schupp emphasised the growing risks posed by authoritarianism and shifts within long-standing democracies. He underscored the need for vigilance, especially as European political landscapes evolve and right-wing influences present new challenges to the independence of lawyers. Schupp remarked that "dictatorship in general is a threat" and that recent events demonstrate "even in what we call old democracies...things are maybe changing". The CCBE’s commitment to upholding democratic values is a collective responsibility to ensure that politics do not undermine the autonomy or integrity of the legal profession.

AI and technological threats

Finally, Schupp touched on the impact of technological advancements, particularly AI, on the rule of law. While AI offers potential benefits, it also poses challenges related to data security and privacy, which could compromise lawyer-client confidentiality. Schupp encouraged the legal community to advocate for responsible use of technology, ensuring that digital tools are aligned with ethical standards in the profession. He expressed a cautious stance on AI, stating, "We must ensure that those future systems do respect the basic fundamental rules on the profession in order to protect not only the lawyers, but of course, our clients".

Active participation

In his address, Schupp emphasised the importance of active participation within the legal community. He encouraged lawyers to engage with their national bar associations and the CCBE by contributing to working groups and committees. Schupp highlighted that such involvement is crucial for addressing challenges to the profession's independence and for upholding the rule of law. He also mentioned the significance of events like the "European Lawyers Day" in fostering engagement and awareness among legal professionals. By participating in these initiatives, lawyers can play a vital role in shaping policies and defending the core values of the legal profession.

In closing, Schupp reaffirmed the CCBE's commitment to defending the independence of the legal profession. He urged lawyers across Europe to uphold values of integrity, justice, and democracy, highlighting that these principles are the foundation of a functioning society. This unwavering dedication to safeguarding independence, he stressed, ensures the legal profession remains a pillar of democracy in Europe and beyond.

Summary of keynote speech written by Rebecca Morgan, Editor