The session was opened by the session chair, Peter Maynard. His introductory remarks can be accessed here.

The first speaker was José Miguel Júdice, Former President of the Portuguese Bar Association. His paper can be accessed here.

The following speaker was Masahiro Shimojo of the Japan Federation of Bar Associations. His paper can be accessed here: part 1 / part 2 / part 3.

The next speaker was Dianne Bourque of Canada. Ms Bourque opened by giving some facts and figures regarding the profession in Canada:

• 85,000 licenced lawyers following English common law
  • 55,000 are licenced to offer legal services to the public, are insured and operate under a code of conduct.
  • 30,000 offer services as academics or as Crown attorneys
• 3,000 notaries in Quebec Province operating under French civil law
• 14 law societies regulate the profession

The public interest is paramount and it must be upheld by law societies . They do so through:

• Insurance
• Compensation fund
• Legal education
• Discipline

Approximately 350 law society employees (from 1,000) work on discipline.

The discipline procedure is, and must be seen to be, transparent and fair. There are approximately 120 complaints per annum. Complaints must be answered within two weeks and resolved within six months.

The relationship between law societies and the government is paramount; law societies must be prepared both to work with government (federal and provincial) and to face up to it if necessary – self regulation is the right of the profession.

The most serious complaints received deal with misappropriation and mismanagement of funds: the most common complaint is not replying to letters or calls. Also dealt with regularly are conflicts arising from law firm mergers.

As outlined above transparency in the disciplinary process is seen to be vital. There should be access to the status of the complaint being dealt with at all times, hearings should be open, and guilty decisions published.

A lawyer who is deemed to endanger the public is suspended within 24 hours.

Costs are paid by the losing side. If a case is dismissed the law society pays.

At this point a question from the floor brought up the subject of client confidentiality and professional reputation if a complaint is dismissed. If a hearing is open that may put a client off complaining, and may damage a lawyer’s reputation, even if the complaint is dismissed. Ms Bourque pointed out that the reality was that hardly any hearing was ever attended by the public. She thought that a client may have the right to request a private hearing and would check this point.

Next to speak was Hans-Jürgen Hellwig (HJW), immediate Past President, Council of the Bars and Law Societies of Europe (CCBE) and member of the Board, German Bar Association (DAV).  He started by stating that discipline was an ethical obligation, arising out of the core values of the profession which hold public interest as paramount.

There is no total self-regulation in Europe, as all bars are limited by either legislation or the courts. The delegated authority that bars have must be merited and may be taken back, and he noted that several countries are currently having discussions on taking back or modifying self-regulation – HJW cited:

• Clementi in England and Wales
• The report of the Irish Competition Commission
• Moves in the same direction in Poland
• Code of conduct in France being replaced by government decree

The point of self regulation is the power of self discipline, and if the profession does not prove itself worthy it will lose that power. However, HJW pointed out that no bar in Europe has absolute power – there is a combination of self discipline and intervention at a higher level, ie the courts.

There is no pan-European disciplinary procedure – it is a matter for national bars and law societies. The two EU Service Directives harmonise practice rights, not legal education, codes of conduct or disciplinary procedures. Both directives recognise that the rules of both the native and the host country can be applicable simultaneously:

• Double deontology and
• Double disciplinary system

Therefore, knowledge of both cross-border codes and disciplinary procedures is necessary. The CCBE has a working group on disciplinary matters where members can exchange information - further information can be found here.

At this point Peter Maynard highlighted some of the problems of working in a cross-border environment. Who is responsible for eg, conflicts of interest or misleading advertising – the individual lawyer or the law firm as an entity in itself, and which of them should be disciplined? The Clementi report recognises this weakness and highlights the need to take into account the law firm as an economic entity.

Next to speak was Philip Dykes of the Hong Kong Bar. He pointed out that, because of the small size of the Bar (869 barristers), all disciplinary procedures are undertaken by the Bar Council. There are approx 20 complaints outstanding at any given time – in 2003 two complaints out of 33 were referred to a Barristers’ Disciplinary Tribunal (BDT) and in 2004 four out of 44 were referred to a BDT. His paper outlining the procedure in more detail can be accessed here.

Iqbal Ghanie then outlined the South African situation. His paper detailing disciplinary measures in South Africa can be accessed here.

He explained the concept of the Attorneys Fidelity Fund (‘The fund’) which was set up 62 years ago to reimburse the public for theft of trust monies by practitioners. Until 1979 the Fund was directly financed by practitioners. Now it is funded by the interest on trust monies in law firms’ current accounts being paid into the fund. A committee was formed in 2003 to invest the fund and so generate further income.

A question was raised about the anonymity of the accuser when a complaint is made, and it was mooted that a lawyer under suspicion has the right to face their accuser. It was explained that calls of complaint are screened by an independent company – if a complaint merits inspection, the lawyer under suspicion is notified and at this point the complainant must come forward.

Olefunke Adekoya of Nigeria spoke next and highlighting the similarity of the Nigerian and Hong Kong systems. The Bar Association is self-regulating but disciplinary measures are undertaken by a court. A complaint may be made either to the Bar Association or the Court. The majority of complaints are financial. There may be mediation but if this does not settle the complaint and there is a case to answer then it goes to a Disciplinary Commission of the Body of Benchers under the Supreme Court. If found guilty then the Bar Association believes a lawyer should be suspended; the Chief Justice, however, disagrees with this.

The entire procedure is voluntary and no payment is made. It is, however, a slow process and a private process. Decisions are published to the Bar Association. There is no indemnity fund. The public image of the profession might be improved by publicising decisions to show an effort is being made to regulate the profession.

The final speaker was Rachel Levitan from Israel, who briefly outlined the Israeli system. Insurance is not compulsory and neither is ongoing legal education. Regulation may be by lawyers, lawyers and judges or just judges. There are lots of ‘runaway’ lawyers and it is only a matter of time before harsher disciplinary measures are put in place. Current measures range from a demand for apology to disbarment. There is a minimum budget available for discipline and it is a voluntary procedure. The Bar has a very high workload and so discipline has a very low priority.

Comments were taken from the floor:

In a very small country it may be hard for Bars to discipline members because of available resources – there might be an opportunity to cooperate with neighbouring countries?

It was pointed out that resourcing may need some creative thinking, and the South African fund was highlighted as an example.