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Venezuela: Integrity and accountability of the legal profession

As with judges, a code of professional conduct for lawyers is an essential tool for the maintenance of the integrity of the profession and, consequently, the quality of access to justice in a country. The UN Basic Principles on the Role of Lawyers state that “[c]odes of professional conduct shall be established by the legal profession through its appropriate organs, or by legislation”.[1]

In order to uphold the integrity of the legal profession lawyers must be held accountable for breaches of established standards of professional conduct in fair proceedings before independent bodies,.

Complaints against lawyers for misconduct in their professional capacity should be “processed expeditiously and fairly under appropriate procedures.”[2] They should be decided “in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession.”[3]

International professional standards prescribe that the body responsible for investigating and adjudicating on allegations of misconduct by lawyers should be independent and impartial, and ensure that proceedings are conducted fairly and following proper procedure.[4] A lawyer accused of professional misconduct must have “the right to be assisted by a lawyer of their choice”.[5] He or she should be entitled to notice of the complaints against him or her and have adequate time and facilities to prepare and present a defence. Any sanction against a lawyer for misconduct should be proportionate. The lawyer should be entitled to independent judicial review of the proceedings and any disciplinary sanction.[6]

 

The disciplinary regime for lawyers in Venezuela is contained in the Law of Lawyers[7] and the Code of Ethics of Lawyers.[8] Both set out the grounds and procedures for discipline of lawyers and designate the competent body. In Venezuela, responsibility for disciplinary matters against lawyers falls upon the Disciplinary Tribunals of the Bar Association, whose five titular members are elected by the General Assembly of the Association for a two-year term.[9]

According to the Law of Lawyers, the Disciplinary Tribunals of the Bar Associations of each Department act as first instance tribunals. Their decisions are reviewed by the Disciplinary Tribunal of the Federation of Bar Associations.[10] The latter is composed of seven members, elected in a similar way as the members of the Disciplinary Tribunals of the departmental Bar Associations.

Disciplinary Tribunals can start disciplinary proceedings against lawyers who are alleged to have committed offences against the Law or Lawyers, the Code of Ethics, and other regulations enacted by the bodies of the Bar Associations, among others.[11]

The proceedings start upon receiving an allegation or complaint by the Disciplinary Tribunal. First, the Tribunal completes preliminary checks of the allegation or complaint, and thereafter summons the lawyer complained about is for a hearing.[12]

After the hearing, and if serious grounds of misconduct are established, the file is communicated to a prosecutor, who may or may not press charges against the lawyer accused of misconduct within ten days after receiving the case. Even if the prosecutor does not present misconduct charges, the procedure is open for the presentation and examination of evidence for twenty days.[13] After hearing the reports of the parties, the Tribunal decides by way of a judgment approved by the majority of its members,[14] which may be appealed within five calendar days of receiving notification of the judgment.[15] The sanctions may include:[16]

  • Fines; and,
  • Temporary suspension of activities.

These proceedings are characterized by a lack of transparency, as the decisions of the tribunals are not published. However, they are generally perceived positively, as it is considered that the disciplinary tribunals of the Bar Associations have not been used as a means to wrongfully sanction lawyers for the due exercise of their professional duties.

Nevertheless, two factors have undermined the independence of lawyers’ disciplinary proceedings:

First, as explained above in sub-section 3, different judgments of the Electoral and Constitutional Chambers of the STJ have interfered in the election and appointment of the members of the Disciplinary Tribunals, undermining their independence and objectivity.

Second, although grounds and procedures for disciplining lawyers for professional misconduct are clearly set out in the Law of Lawyers and Code of Ethics of Lawyers, as mentioned above in sub-section 4, the Judicial Code of Ethics allows any judge to impose disciplinary sanctions on lawyers during a judicial proceeding.[17] Although the courts and tribunals have so far not developed jurisprudence on the matter, these provisions undermine the jurisdiction of the Disciplinary Tribunals of the Bar Associations set out in the Law of Lawyers and the lawyers’ Code of Ethics, and have had a chilling effect on lawyers, who are fearful of taking on politically sensitive cases or publicly criticizing the functioning of the judiciary.[18]

 

Footnotes    (↵ returns to text)

  1. 1. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 26.”]

    Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom  and recognized international standards and norms.

    [/expand] The International Bar Association (IBA), Standards for the Independence of the Legal Profession [expand title=”(Standard 22)”]

    There shall be established rules for the commencement and conduct of disciplinary proceedings that incorporate the rules of natural justice.

    [/expand] reserve this task for lawyers’ associations. See Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 102.”]

    The Bar Association shall establish and enforce in accordance with the law a code of professional conduct of lawyers, Such a code of conduct may also be established by legislation.

    [/expand]
  2. 2. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27.”]

    Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.

    [/expand]
  3. 3. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 29.”]

    All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.

    [/expand]
  4. 4.UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27″]

    Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.

    [/expand] and [expand title=”29;”]

    All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.

    [/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 106;”]

    Disciplinary proceedings shall be conducted with full observance of the requirements of fair and proper procedure, in the light of the principles expressed in this Declaration.

    [/expand] International Bar Association (IBA) Standards for the Independence of the Legal Profession, [expand title=”Standard 22.”]

    There shall be established rules for the commencement and conduct of disciplinary proceedings that incorporate the rules of natural justice.

    [/expand]

  5. 5. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27.”]

    Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.

    [/expand]
  6. 6. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 28;”]

    Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.

    [/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 105;”]

    An appeal shall lie from a decision of the disciplinary committee to an appropriate appellate body.

    [/expand] International Bar Association (IBA), Standards for the Independence of the Legal Profession, [expand title=”Standard 24.”]

    Disciplinary proceedings shall be conducted in the first instance before a disciplinary committee of the appropriate lawyers’ association. The lawyer shall have the right to appeal from the disciplinary committee to an appropriate and independent appellate body.

    [/expand]

  7. 7. Law of Lawyers, Articles 59-74.
  8. 8. Code of Ethics of Lawyers, Official Gazette No. 33.357, 25 November 1985.
  9. 9. Law of Lawyers, Article 58.
  10. 10. Law of Lawyers, Articles 61 and 66.
  11. 11. Law of Lawyers, Article 61.
  12. 12. Law of Lawyers, Article 63.
  13. 13. Law of Lawyers, Article 64.
  14. 14. Law of Lawyers, Article 65.
  15. 15. Law of Lawyers, Article 66.
  16. 16. Law of Lawyers, Article 70.
  17. 17. Judicial Code of Ethics, Article 20.
  18. 18. Law of Lawyers, Articles 58-74; Code of Ethics of Lawyers, Article 27.
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