Lawyer’s Code of Conduct – An overview of the professionalism in BiH


Respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society.

– CCBE’s Code of Conduct for European Lawyers

When discussing professionalism, the highest standards of professional conduct seem inherent to lawyers and their extraordinary role in our societies. Whether in the Courtroom or if drafting a pleading, I see lawyers as guardians of professionalism and integrity. Simple as that: due to the nature of our profession and all it stands for.

The legal profession in Bosnia and Herzegovina (BiH) faces the lack of uniformity in determining and regulating rules of professional conduct. The enforcement of relevant Codes of Conduct as well as the awareness by the legal professionals on their significance, represent additional challenges.

Hence, this Article will analyse to what extent can European Union (EU) standard of professionalism with its Code of Conduct serve as a role model for the transitional Balkan countries. Since BiH will be examined as a case study for the purpose of this article, the overview of the country’s legal framework complexities and the level of its preparedness for the reform of professionalism standards will be examined.

European rules of Lawyer’s Code of Conduct

Code of Conduct for European Lawyers (Code) represents a compilation of the ethical principles aimed to serve lawyers in performing their function. Namely, it specifies that its core purpose is to facilitate integration within the Union and European Economic Area, for the common set of rules to be applicable to all lawyers. Importantly, drafters have indicated that the application and interpretation of national rules of deontology or practice shall be in the light of the Code.

In its preamble, the Code stresses the role of lawyers in society and set of obligations towards clients, courts, the profession itself and the general public. With reference to the general principles laid out, they include but are not limited to integrity, independence and confidentiality as well as other fundamental rights and duties of every lawyer. Interestingly, the provision on lawyer’s independence refers specifically to maintaining professional standards and ‘absolute independence’ from pleasing the interests of the client, courts and the profession itself.[3]

In a very succinct, but yet thorough manner, the Code serves not only as a guidance for lawyers, but as a tool of strengthening their European legal identity and common understanding of the most fundamental principles of their profession and professional conduct. Significantly, it prescribes disciplinary action for every disciplinary offence. Nevertheless, the Code in overall shall be more specific as it strongly accentuates on the countries’ mutual understanding and cooperation, that might be hindered in the case an issue arises.

Two Code(s) of Conduct: Regulating Professionalism in BiH

BiH doesn’t have clear rules for lawyers to follow in their own jurisdiction because it is unclear who sets the standards of professionalism for BiH lawyers. The first challenge to be discerned is the unregulated legal profession in BiH at the state level. But this stands pretty much for the entire system, as the actual power lies with entities and not the State. We are very (un) lucky to have even two Code (s) of Conducts that currently regulate the lawyers’ conduct in BiH. The Code of Professional Ethics for attorneys in the Federation of Bosnia and Herzegovina and Lawyers Ethics Code of the Bar Association of Republic of Srpska. [7]

The reasoning behind the overly complex administrative model is the 1995 General Framework Agreement for Peace in BiH or the “Dayton Peace Accords”[8], ending one of the most horrendous chapters in the history of BiH. Namely, decentralized administrative structure consists of two entities (Federation of Bosnia and Herzegovina and the Republic of Srpska), ten cantons in the Federation and Brčko District. The court system of post – Dayton BiH reflects the constitutional complexity and peculiarity to the greater extent. The division is more than obvious – each entity has Constitutional Court, Supreme Court and municipal/basic/district courts with Brčko District’s courts as a separate structure.

In this context, each entity with its own Bar Association have adopted the EU Code of Conduct at their level. The wide autonomy that entities enjoy, and the political unwillingness are predominant reasons for the existing “bureaucratic judiciary’’ and failure to establish a State judicial system. That said, it is significant to mention that only two State Courts are established, yet still without the Supreme Court of Bosnia and Herzegovina as the ultimate State instance. Resultantly, there is no State institution regulating the lawyer’s profession in BiH; however; the establishment of High Judicial Prosecutorial Council (HJPC) and the role of international actors in strengthening the rule of law cannot not be underestimated.

Particularly vital, HJPC acts as an independent body ensuring the independence and professionalism of judges/prosecutors/legal associates, by appointing, training and dismissing them. In overall, the Council may be regarded as a self-regulatory body establishing standards of professionalism for the judicial community in the country. Still, there are some of the reforms left, of relevance to the article, as defined in the last EU Commission Report on BiH (2016)[9]. Those refer to drafting guidelines on conflict of interest, disciplinary provisions and sanctions respectively, enhancing judicial independence from political pressures and advancing trainings. The Action Plan for the implementation of these reforms was adopted at the end of 2017, so it remains to be seen how fruitful and timely the implementation will be.

Apart from the system’s complex architecture and politicizing judiciary, the very enforcement of the relevant Codes of Conduct represents another challenge. As the practice demonstrates, the enforcement of the Code of Conduct for any legal professional is undoubtedly lacking. For instance, little or no enforcement exists regarding Code of Ethics for judges and prosecutors. At the moment, Bosnian Code (s) of Ethics do (es) replicate European. However, if we are missing harmonization and enforcement of the Code at the national level, it is questionable whether it suffices to have polished and copy-pasted Code of Conduct?

If the effective enforcement measures of the Code (s) fail, or if the state of professionalism is becoming no-man’s land, then I strongly advocate for the judicial community to take proactive approach in the development processes and integration of lawyers by building their skills. Uniform judiciary would be an ideal scenario for regulating the professionalism in BiH, apart from regular challenges every country face. But this simply does not seem feasible in a short – term period, whilst lawyers are being inadequately trained for eventual entering EU market. Hence, the role of judiciary in reforming the profession becomes vital, but last resort option too.

Importance of conductorly improvement for our European identity

Sharing values and gaining the European identity is very significant, especially due to necessity to protect lawyers as recent violations of lawyer’s rights demonstrate[10], as well as for the protection of the independence of the legal profession from pressures by any other branch. As a recommendation, revisiting the legal education in terms of adapting curriculum to developing soft skills of young future lawyers is an initial step. Continuous and mandatory training and mentoring throughout different stages of development is also vital, irrespective of whether the mind-set of a senior professional shall be reshaped or young professional’s mind-set just entering the practice. Openness to learning processes and thrive for professional development are to be encouraged and imbedded in the legal system.

These are indeed some of the strategies of the Bosnia and Herzegovina Justice Sector Reform Strategy for the period 2014-2018[11] referring to the continuous professional development of the judicial office holders and improved perceptions of judiciary more generally. Since we are inevitably aiming to become members of the European family of lawyers, it is important to mention CCBE’s efforts on the upcoming Convention on the protection of legal profession, whose end aim is the protection of the profession and the rule of law. By the time BiH enters EU (apparently, we have enough time to understand us, our profession and apply EU principles as of now), the professionalism levels will have to be raised.

As a concluding remark, the overview of European standards regarding professionalism was helpful in determining their purpose and implications. Importantly, the Code aims to harmonize the ethical guidelines and foster corporate spirit between the Member/Observer countries. Still, the diversity of rules and procedures may represent a challenge for the Code’s implementation, especially in few segments as discussed above. Also, peculiar challenges faced by BiH were provided, with the background discussion for the purpose of greater understanding of the entire judicial/political architecture. Lastly, recommendations were provided for the professionalism improvements for BiH lawyers, for the purpose of strengthening their sense of belonging and preparedness for joining EU judicial community.

 

Edita Maric

Edita Maric graduated Law in International and Comparative Law from the American University (AUBiH) in BIH with honours in 2013. In 2015, she completed her Master’s degree from the University College London (UCL) after which she got involved in a series of internships and positions that have helped her career develop very quickly. Since May 2018, she is also a member of European Legal Research & Training Network BiH, an organization contributing to lawyer’s gradual integration to the EU job market.

 

  • CCBE letter of March 2015, CCBE – Letter of February 2017, and protection of the legal profession, see CCBE letter of March 2017
  • Bosnia and Herzegovina Justice Sector Reform Strategy for the period 2014-2018, Ministry of Justice BiH, November 2013
  • Steering Committee of the Bar Association of the Federation of Bosnia and Herzegovina, 20 October 2009/Assembly of the Bar Association of the Republika Srpska, 26 October 2009
  • Dayton Peace Agreement, General Framework Agreement for Peace in Bosnia and Herzegovina, 21 November 1995
  • European Commission, Bosnia and Herzegovina 2016 Report, 9 November 2016
  • Council of Bars and Law Societies of Europe (hereafter as: CCBE) Code of Conduct for European Lawyers, 1988, Art. 1.1
  • Council of Bars and Law Societies of Europe, 24 November 2006, Brussels
  • CCBE’s Code of Conduct for European Lawyers 2.1.1
  • Steering Committee of the Bar Association of the Federation of Bosnia and Herzegovina, 20 October 2009/Assembly of the Bar Association of the Republika Srpska, 26 October 2009
  • Dayton Peace Agreement, General Framework Agreement for Peace in Bosnia and Herzegovina, 21 November 1995
  • Bosnia and Herzegovina Justice Sector Reform Strategy for the period 2014-2018, Ministry of Justice BiH, November 2013