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Xavier Chiloux - Avocat à la Cour - Candidat au Bâtonnat 2022

Ancien membre du Conseil National des Barreaux (2015-2017) - Ancien membre du conseil de l'ordre de Paris (2012-2014) - Vice-Président de la Cnbf depuis 2011 - Candidat au Bâtonnat 2022

Laos: intervention colloque Juin 2016

Publié le 8 Juin 2016 par Xavier Chiloux

International standards on ethics of lawyers.

It seems quite possible to agree internationally, and then define rules of professional ethics for all lawyers. In France, and at the end of a reflection based on customs and almost thousand-year-old practices, we were able to define essential principles confirmed by the law.

These allow us a disciplinary auto-regulation which only leads to make effective, real and alive these essential principles which guide the professional life of all the French lawyers.

They are among 16 to which is added another fundamental principle which is the professional secrecy.

The first one of them, and who moreover is called back in our oath, is the one of dignity.

Dignity relates first of all in the respect for oneself and in the one that we deserve of others, by our attitude.

We are talking here about restraint and about reserve even if, and it is the strength of the business ethics, these notions evolved over time.

We can quote, with amusement, that when the telephone was invented, it was forbidden for the lawyers to use it to contact their customers. Besides, not long ago, the lawyer was forced to receive exclusively his customers in his office and was forbidden to go into a company.

In the same way, and this has evolved very recently, solicitation from him was prohibited.

The most beautiful illustration of this necessary dignity is naturally the dress we solemnly wear in our judicial activities.

The second principle is that of consciousness.

We are talking about the moral and professional rigor which any lawyer has to show.

The lawyer has to be a man of consciousness and this one does not absolutely stop when he leaves his office or his work.

A lawyer who commits a penal breach outside of his business may be subject to disciplinary measures and thus be deprived of the exercise of his profession.

Once we took the oath, one is always lawyer and all the time.

Consciousness has to bring the lawyer to accept or refuse an affair.

Other major principle : independence.

The lawyer must be independent from any authority.

He should benefit from greater freedom in the exercise of his profession.

Here, it is about a material, moral and intellectual independence towards all. In particular, the lawyer is the master of his argumentation and advocacy elements he chooses to highlight.

This implies that both the collaborator as the lawyer practicing in the same structure including several colleagues, have to benefit from a total independence.

Probity, it is obviously honesty that joins the first principle of dignity.

But this is - there also - about a penal notion defined in the code of the same name: the breaches in the duty of probity.

By this we mean there: misappropriation of public funds, active or passive corruption, influence peddling, illegal taking of interest, theft or misappropriation of property.

Obviously this list is not exhaustive but illustrates the point.

The principle of humanity is essentially about the relations that lawyers have to maintain with their customers.

The lawyer is the legitimate confidant of his client which leads him to act as a counselor, in compliance with our ethical principles.

We'll talk about this point later when we get to the professional secrecy.

Most of the time or almost all of the time, the lawyer is faced with a client who has an issue or a problem.

He must show empathy, compassion and thus humanity. The lawyer does not judge and do not condemn, he understands.

Then afterwards he has to defend, by exempting himself from justice and truth, which are multiple and varied and also which are the judge’s business and not the lawyer’s.

Humanity is the last principle which encloses our oath. Then comes in the essential principles : that of the honor.

Honestly, and despite the praiseworthy efforts, but a little desperate by former masters of our business ethics, namely the presidents of the Bar Ader and Damien, but also, more recently, the one that we present as the new guardian of the temple, my friend Dominique Piau, we shall have enough difficulties defining it in an autonomous way.

Indeed, when speaking of honor, it automatically cross-reference two principle statements already expressed which are those of dignity and integrity.

There is some redundancy that is not necessarily foreign to our legal profession. Indeed, traditionally, we are taught that for an argument to be understood, we must announce that we will say it, we must say it ... and do not forget to remember that we said it ...

We find this light fault in the following principle which is that of loyalty. Indeed our ethical Bible defines it as a necessity of being faithful to its oath, and of obeying the rules of honor and integrity … The circle is completed.

However, on this essential principle, one can go further. Indeed loyalty is as well the rules of behavior that we are going to establish with all those who make up the judicial institution and more specifically our colleagues.

This is about the rules of succession of lawyers in an affair, respect for the contradictory which involves the communication of all documents in due course, and also respect for the confidentiality of correspondence.

In the French system, all correspondence between lawyers are by nature confidential except those who are struck by an official statement.

This rule is often reversed in other European countries.

Selflessness will not escape the rule of recurrence since we are talking about humanity and professionalism here.

But specifically, here we approach a subject that can be tricky, namely that of the remuneration of the lawyer's fee.

You surely know that in the early twentieth century, the fee was not requested by the lawyer but had to be a "spontaneous gift from the customer for its recognition ..." Things have changed now, our practices have changed, new fields were opened to the lawyer's activities, which is why we are 28,000 in Paris and 60,000 in France.

The rule remains that of the free determination of lawyer's fees even if, in case of litigation, they will be appreciated at first by the President of the Bar, depending on the reputation of the lawyer, the size of his office and the expenses of this one.

But also, and especially since recent months, the agreement fee between the lawyer and his customer, in a more and more consumerist approach of the law, has been made compulsory by the authorities.

We are here in a real transparency approach which, not only will facilitate the access to the law, but which besides will allow to define contractually the frame of the intervention of any lawyer.

I cannot resist the pleasure of telling you a story, from another century.

A client, of the best world, just came to consult a reputable lawyer to initiate her divorce proceedings.

The latter asked her a provision to cost on the fees, very consistent. In the week following the first appointment, the husband of the lady died what returns, naturally, the perspective of a rather little possible divorce proceedings.

The client requested an appointment with his lawyer, which merges into worldliness and condolences.

The woman, determined to recover part of the provision then contacted his lawyer.

"My dear sir, what about concerning the provision? ".

"Sufficient, Dear Madam, quite sufficient ".

We now turn to the principle of collegiality.

This is the relationships of the lawyer with his colleagues, his order and his President of the Bar. We thus find the notions of loyalty, honor and probity.

This is especially the rules of the relationship between colleagues, respecting a certain detachment from the interests of customers first; their rules are not ours.

Here we find the notions of the contradictory, the document transmission, confidentiality and professional secrecy.

Moreover, and as we teach our young future colleagues, it is appropriate to put ourselves in our colleague’s place to try to understand fellowship.

Would I accept the behavior I'm trying to adopt with my colleague ?

It's that simple.

We are now in the moderation principle that must be combined, between firstly a correction in particular at the Court hearing, and also a greater freedom of expression sometimes affecting immunity remarks.

But we must be aware that – as one of us said – a lawyer even though he is an officer of the court and therefore should endorse a facilitator role as to put "oil in the machinery", he must also be sometimes the one that put “sand in the engine. "

It is the interest of our profession, and strategies that we wish to adopt: collusion or rupture.

We approach now, which may seem very outmoded to our students, but what turns out to experience, a cardinal principle : namely delicacy.

This is a general behavior that should be adopted towards our colleagues and our customers.

The lawyer must avoid all conflicts of interest and thus keep a moral line that is also recalled by the honor, probity and moderation.

We remain a bit, and still in redundancy with the principle of courtesy.

As stated in our ethical bible quoting one of our dictionaries, this is "a refined politeness attitude in compliance with the tradition and good education, as well as wordly uses ..."

Honestly, courtesy is very similar to delicacy and this is a tricky question we sometimes ask to those who pass the examination of ethics before us.

What is the difference between courtesy and delicacy ?

Discussion is open. Let’s talk now about the four essential principles more specially oriented towards our customers and our professional activity.

First we will talk about the competency.

The lawyer should intervene in matters where he acquired some skills.

It is suitable for him not to rest on its professional civil liability. If he is not competent in one area, the lawyer must refrain from committing.

Devotion. This is a real obligation towards his customer.

The lawyer must fulfill the mission of defense which he accepted with seriousness and availability. Diligence.

The lawyer needs to show availability and attentive care to the defense of his client. He must perform the necessary proceedings and inform his client.

The lawyer must be present next to his client at all times.

The last essential principle listed in our ethical rules and not the least, is that of caution.

The lawyer must always act with caution, being able to refuse a case if he is not competent or able to defend his customer with professionalism.

But this caution should also move towards his client, and this is the obligations of its duty of council.

The lawyer should advise moderation and caution to his client, and warn him on the risks of a trial.

He must give a careful and objective interpretation of texts and jurisprudence.

In general, the French man is not simple, it just has to see the complexity of our language, and we do more analysis than synthesis.

I think we can summarize these principles of conduct and ethics of lawyers into three categories.

The first is the moral obligations of the lawyer and thus : dignity, conscience, honesty, honor, loyalty, and collegiality.

The second category would be the behavioral obligations of the lawyer,

in which we could find : independence, humanity, selflessness, moderation, delicacy, and courtesy.

Finally, the third great category would be the professional obligations, with: competence, dedication, diligence and prudence.

At these great fundamentals adds a key principle, and that is the essence of our profession, namely professional secrecy.

In France, the basic principle is that of professional secrecy, the one that governs the relationship of the lawyer and his customer.

We may be a bit too far, but finally not that much, from the English Legal Privilege that is more interested in the acts covered by professional secrecy than relations between people.

Etymologically speaking, professional secrecy is general, absolute and unlimited in time, which leaves very little leeway with these concepts.

Nevertheless, for some time, it is been attacked from all sides by France.

In fact, according to the authorities and judges, it might be variable geometry, and depending on conditions, you can get exempt from it.

Yet, this secret it is not ours, that of the lawyer that often would like not to share it, but this is the one of the citizen, the man or the woman who wish to share it.

Everyone should be able to share a secret and get the help or advice of an experienced and trusty professional.

If he cannot do it anymore, and be sure that our customers will know very quickly that they can not confide, to whom will go their confidence?

The member of a religious order, the doctor, of course, in their fields, but no one can replace the lawyer. More likely, the secret will not be shared, and the one that won’t be able to share it will remain with his doubts, fears and questions.

The worst will be feared because they are corporate models that were perfectly described by the anticipation authors, and which were known during the twentieth century as totalitarianism models.

A society which would go without such a tool of social peace would strictly have understood nothing in its evolution and would go irreparably to its loss.

The professional secrecy of the lawyer is not a habit, it is the defense of our civilization, and it must, one way or another, be made sacred.

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