Le Président
The President
Mr. I.W. Opstelten
Minister of Security and Justice
P.O. Box 20301
2500 EH The Hague
The Netherlands
Brussels, 18 October 2011

Dear Minister,
I am writing to you on behalf of the Council of Bars and Law Societies of Europe (CCBE).
The CCBE is the representative organisation of around 1 million European lawyers through
its member bars and law societies from 31 full member countries, and 11 further associate
and observer countries.
The Netherlands Bar Association, which is a member of the CCBE, has brought to the
CCBE‟s attention recent plans for a legislative proposal aimed at establishing a Supervisory
Board, composed of three non-lawyers, which would have special guidance powers over
local Bar Presidents. Under the proposal, the Netherlands Bar is entitled only to recommend
candidates for membership of the Board, whereas it will be the Government's decision
actually to make the appointments.
The CCBE is very much concerned about these developments which in our view would go
against European and international standards concerning the legal profession, including the
following:




UN Basic Principles on the Role of Lawyers (1990)
Recommendation No. R (2000) 21 of the Committee of Ministers to the member
states on the freedom of exercise of the profession of lawyer
European Parliament resolution on the legal professions and the general interest in
the functioning of legal systems (16 March 2006)

The core values at stake – independence and professional secrecy – have also been
recognised by the Court of Justice of the European Union and the European Court of Human
Rights.
All EU Member States recognise these core values as major objectives and principles of
regulation for the legal profession. They should be seen primarily not as rights of the lawyer
but as obligations on lawyers to implement the rights of clients.
(-) Self-regulation and independence
The CCBE believes that the legislative proposal - which provides for non-lawyers having
supervisory powers over local Bars and for Governmental control over the appointment of
these non-lawyers - will put at risk the independence of the profession. The European and
international legal instruments clearly state that Bars should be entitled to form selfregulatory associations which are independent from any external influence, the authorities
Conseil des barreaux européens – Council of Bars and Law Societies of Europe
association internationale sans but lucratif - RPM Bruxelles 0.467.250.186
Avenue de la Joyeuse Entrée 1-5 – B 1040 Brussels – Belgium – Tel.+32 (0)2 234 65 10 – Fax.+32 (0)2 234 65 11/12 – E-mail ccbe@ccbe.eu – www.ccbe.eu

and the public1. An independent legal profession is the cornerstone of a free and democratic
society, although of course the legal profession accepts and indeed provides for a high
degree of accountability to the public.
Self-regulation is characteristic for the legal profession in Europe. No country has total and
unrestricted self-regulation of the legal profession, and the regulatory structure of the legal
profession in Europe varies from country to country. However, there is in all European
countries which are members of the CCBE a significant extent of self-regulation.
Self-regulation, conceptually, must be seen as a corollary to the independence of the
profession. It addresses the collective independence of the members of the legal profession.
The principle of self-regulation is nothing less than a structural defence of the independence
of the individual lawyer which requires a lawyer to be free from all influence, especially such
as may arise from his/her personal interests or external pressure (such as through an
external Supervisory Board which is composed only of non-lawyers and, moreover, nonlawyers appointed by the Government).
Copenhagen Economics – when examining the Danish legal services market – also looked
at the issue of self-regulation (see Report on “The Legal Profession, Competition and
liberalisation”, January 2006) and concluded that there are a number of clear advantages in
favour of self-regulation of the legal profession. According to Copenhagen Economics,
lawyers, given their special knowledge of the profession/business, are in the best position to
lay down the requirements for a lawyer‟s work. Lawyers will also feel greater responsibility for
regulation if they are involved in the process of regulation. Besides, it is easier to change
rules that are adopted via self-regulation than modifying rules via legislation. This results in
lower administrative costs for professional associations/authorities, greater acceptance of the
rules (since they come from within the profession), better compliance and lower compliance
costs for the firms. Lawyers are also in the best position both to observe and evaluate
professional misconduct and assist the profession in sanctioning it. Lawyers will have an
interest in maintaining the good reputation of the profession, and therefore will strive to
ensure that lawyers live up to the requirements of the code of conduct.
Establishing a Supervisory Board composed of non-lawyers will therefore go against
European and international standards.
(-) Professional secrecy
The CCBE also understands that this proposal would allow for professional secrecy - which
is one of the core values of the legal profession, and the very essence of the relationship

1

UN Basic Principles on the Role of Lawyers (1990)
24. Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their
continuing education and training and protect their professional integrity. The executive body of the professional associations
shall be elected by its members and shall exercise its functions without external interference.
European Parliament resolution on the legal professions and the general interest in the functioning of legal systems (16 March
2006)
E. whereas the importance of ethical conduct, of maintaining confidentiality with clients and of a high level of specialised
knowledge necessitates the organisation of self-regulation systems such as those run today by legal professional bodies and
orders,
Recommendation No. R (2000) 21 of the Committee of Ministers to the member states on the freedom of exercise of the
profession of lawyer
Principle V. Associations
2. Bar associations or other professional lawyers‟ Associations should be self-governing bodies, independent of the authorities
and the public.
3. The role of Bar associations or other professional lawyers‟ associations in protecting their members and in defending their
independence against any improper restrictions or infringements should be respected.

between a lawyer and a client - to be set aside to a certain extent in the interest of
supervision. The new Board could also delegate its supervisory powers to „others‟ than the
local Bar Presidents. It seems that these „others‟ could query files of a lawyer regardless of
professional secrecy.
In the CCBE‟s view, this again will be contrary to European and international standards; the
legal instruments cited above guarantee professional secrecy as one of the fundamental
rights and duties of a lawyer2 in order to guarantee citizens‟ rights.
If the right of the citizen to have professional secrecy/confidentiality safeguarded, i.e. the
right of the citizen to be protected against any divulging of his/her communication with his/her
lawyer, would be denied, people may be denied access to legal advice and to justice.
Accordingly, the CCBE urges you to re-consider this legislative proposal in the light of the
comments we have made. If you have any questions, please let me know.
I am of course happy to discuss these comments further with you, if you wish.

Yours sincerely,

Georges-Albert Dal
CCBE President

2

UN Basic Principles on the Role of Lawyers (1990)
22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients
within their professional relationship are confidential.
Recommendation No. R (2000) 21 of the Committee of Ministers to the member states on the freedom of exercise of the
profession of lawyer
2. Professional secrecy should be respected by lawyers in accordance with internal laws, regulations and professional
standards. Any violation of this secrecy, without the consent of the client, should be subject to appropriate sanctions.
European Parliament resolution on the legal professions and the general interest in the functioning of legal systems (16 March
2006)
E. whereas the importance of ethical conduct, of maintaining confidentiality with clients and of a high level of specialised
knowledge necessitates the organisation of self-regulation systems such as those run today by legal professional bodies and
orders,