Lawyers fulfill an essential function in protecting human rights and ensuring the fair and effective administration of justice. An independent legal profession is one of the pillars upon which respect for human rights and the rule of law rests.{{1}}
UN Basic Principles on the Role of Lawyers enumerate duties that lawyers must be able to carry out at all times freely. They include, among others: “advising clients on their rights and obligations and the working of the legal system insofar as it is relevant to their rights and obligations; assisting clients in every appropriate way and taking legal action to protect their interests”; and “assisting clients before courts, tribunals and administrative authorities, where appropriate”.{{2}} In doing so, and promoting the cause of justice lawyers “shall seek to uphold human rights and fundamental freedoms, and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession”.{{3}} They must “always loyally respect the interests of their clients”.{{4}}
As essential agents of the administration of justice they must also maintain the honour and dignity of their profession.{{5}}
Governments must, among other things, ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.{{6}} They must recognize and respect that all communications between lawyers and their clients within their professional relationship are confidential.{{7}} The competent authorities must ensure that lawyers have access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance.{{8}}
The ICCPR and other international standards guarantee the right of all persons charged with a criminal offence to access to counsel, and the right to defend themselves against the charges with the assistance of counsel. Those who do not have counsel of choice to represent them are entitled to have legal assistance assigned to assist in their defence in any case where the interests of justice so requires, free of charge if the accused cannot afford to pay.{{9}} The UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems and the Human Rights Committee have clarified that the gravity of the offence, the complexity of the case, and the severity of the potential penalties are important factors in deciding on when the “interests of justice” require that appointed counsel be available to represent people who are at risk of deprivation of liberty.{{10}} Effective assistance by a lawyer, free of charge if necessary, is considered to be a fundamental requirement in death penalty cases.{{11}} At the regional level, the right to a fair trial has been interpreted as also requiring the State to ensure the assistance of a lawyer, free of charge if necessary, in at least some non-criminal (e.g., civil) proceedings.{{12}}
[[1]]1. Lawyers’ essential role in defending human rights and the rule of law has been underscored repeatedly by United Nations authorities, see inter alia General Assembly, Strengthening the rule of law: Report of the Secretary-General, UN Doc. A/57/275 (2002), para. 41; Human Rights Council, Resolution on the Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers, A/HRC/RES/23/6 (2013), Pre-amble.[[1]]
[[2]]2. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 13.”]
The duties of lawyers towards their clients shall include:
(a) Advising clients as to their legal rights and obligations, and as to the working of the legal
system in so far as it is relevant to the legal rights and obligations of the clients;
(b) Assisting clients in every appropriate way, and taking legal action to protect their
interests;
(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate
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[[3]]3. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 14.”]
Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
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[[4]]4. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 15.”]
Lawyers shall always loyally respect the interests of their clients.
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[[5]]5. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 12.”]
Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
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[[6]]6. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 16.”]
Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad;and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
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[[7]]7. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 22.”]
Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.
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[[8]]8. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 21.”]
It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.
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[[9]]9. ICCPR, [expand title=”Article 14(3)(d).”]
To be tried in his presence, and to defend himself in person or through legal assistance of his own
choosing; to be informed, if he does not have legal assistance, of this right; and to have legal
assistance assigned to him, in any case where the interests of justice so require, and without
payment by him in any such case if he does not have sufficient means to pay for it;
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[[10]]10. UN principles and Guidelines on the Access to Legal Aid in Criminal Justice Systems Proceedings, UN Doc. A/RES/67/187 (2013), [expand title=”Principle 3 (para. 20);”]
States should ensure that anyone who is detained, arrested, suspected of, or charged with a criminal offence punishable by a term of imprisonment or the death penalty is entitled to legal aid at all stages of the criminal justice process.
[/expand] European Court of Human Rights, Prezec v. Croatia, Application No. 48185/07 (2009), para. 29; European Court of Human Rights, Talat Tunç v. Turkey, Application No. 32432/96 (2007), para. 56; European Court of Human Rights, Benham v. United Kingdom, 19380/92 (1996), para. 61; European Court of Human Rights, Quaranta v. Switzerland, Application No. 12744/87 (1991), para. 34. Also see European Court of Human Rights, Maxwell v. United Kingdom, Application No. 18949/91 (1994), para. 40-41.[[10]]
[[11]]11. UN principles and Guidelines on the Access to Legal Aid in Criminal Justice Systems Proceedings, UN Doc. A/RES/67/187 (2013), [expand title=”Principle 3 (para. 20);”]
States should ensure that anyone who is detained, arrested, suspected of, or charged with a criminal offence punishable by a term of imprisonment or the death penalty is entitled to legal aid at all stages of the criminal justice process.
[/expand] Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [expand title=”para. 38.”]
Third, article 14, paragraph 3 (d) guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it. The gravity of the offence is important in deciding whether counsel should be assigned “in the interest of justice” as is the existence of some objective chance of success at the appeals stage. In cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. Counsel provided by the competent authorities on the basis of this provision must be effective in the representation of the accused. Unlike in the case of privately
retained lawyers, blatant misbehaviour or incompetence, for example the withdrawal of an appeal without consultation in a death penalty case, or absence during the hearing of a witness in such cases may entail the responsibility of the State concerned for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. There is also a violation of this provision if the court or other relevant authorities hinder appointed lawyers from fulfilling their task effectively. (footnotes omitted)
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[[12]]12. See the jurisprudence of the European Court of Human Rights on the interpretation of Article 6: Airey v. Ireland, Application No. 6289/73 (1979), para. 26 ; also see McVicar v. United Kingdom, Essaadi v. France, Application No. 49384/99 (2002), P., C., and S. v. the United Kingdom, Application No. 56547/00 (2002) and Steel and Morris v. United Kingdom, Application No. 68416/01 (2005). The Inter-American Court of Human Rights has addressed the need to remove obstacles in access to justice that might originate from a person’s economic status, including by ensuring free legal assistance, in Advisory Opinion OC-11/90; also see Advisory Opinion OC-18/03 on “juridical condition and rights of undocumented migrants” and Inter-American Commission on Human Rights, Report on Terrorism and Human Rights. The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article H explicitly provides for a right to legal assistance in civil cases where the interests of justice so require, to be determined in light of the complexity of the case, the rights that are affected and the likely impact of the outcome of the case on the wider community.[[12]]