Deliberação n.º 2511/2007, de 27 de Dezembro de 2007
Deliberaçáo n. 2511/2007
Aprova a traduçáo na língua portuguesa do Código de Deontologia dos Advogados Europeus, originalmente adoptado na sessáo plenária do Conseil des Barreaux européens (CCBE) de 28 de Outubro de 1988 e subsequentemente alterado nas sessóes plenárias do CCBE de 28 de Novembro de 1998, de 6 de Dezembro de 2002 e de 19 de Maio de 2006. Revoga o Regulamento n. 25/2001, de 22 de Novembro.
O Conselho Geral da Ordem dos Advogados, reunido em plenário de 13 de Julho de 2007, delibera, ao abrigo do disposto nas alíneas d) e h), do n. 1, do artigo 45. do Estatuto da Ordem dos Advogados, aprovado pela n. Lei n. 15/2005, de 26 de Janeiro:
1 - Aprovar a traduçáo em língua portuguesa do Código de Deontologia dos Advogados Europeus e o respectivo memorando explicativo, originalmente adoptado na Sessáo Plenária do Conseil des Barreaux européens (CCBE), de 28 de Outubro de 1988, e subsequentemente alterado nas Sessóes Plenárias do CCBE de 28 de Novembro de 1998, de 6 de Dezembro de 2002 e de 19 de Maio de 2006, cujas versóes autênticas em língua inglesa e em língua francesa, e a respectiva traduçáo em língua portuguesa ficam em anexo à presente deliberaçáo, da qual fazem parte integrante.
2 - Revogar o Regulamento n. 25/2001, de 22 de Novembro.
7 de Dezembro de 2007. - O Presidente do Conselho Geral, Rogério Alves.
ANEXO
Code of Conduct for European Lawyers
This Code of Conduct for European Lawyers was originally adopted at the CCBE Plenary Session held on 28 October 1988, and subsequently amended during the CCBE Plenary Sessions on 28 November 1998, 6 December 2002 and 19 May 2006. The Code includes an Explanatory Memorandum which was updated during the CCBE Plenary Session on 19 May 2006.
1 - PREAMBLE
1.1 - The Function of the Lawyer in Society
In a society founded on respect for the rule of law the lawyer fulfils a special role. The lawyer's duties do not begin and end with the faithful performance of what he or she is instructed to do so far as the law permits. A lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is the lawyer's duty not only to plead the client's cause but to be the client's adviser. Respect for the lawyer's professional function is an essential condition for the rule of law and democracy in society.
A lawyer's function therefore lays on him or her a variety of legal and moral obligations (sometimes appearing to be in conflict with each other) towards:
the client;
the courts and other authorities before whom the lawyer pleads the client's cause or acts on the client's behalf;
the legal profession in general and each fellow member of it in particular;
the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society.
1.2 - The Nature of Rules of Professional Conduct
1.2 - 1. Rules of professional conduct are designed through their willing acceptance by those to whom they apply to ensure the proper performance by the lawyer of a function which is recognised as essential in all civilised societies. The failure of the lawyer to observe these rules may result in disciplinary sanctions.
1.2 - 2. The particular rules of each Bar or Law Society arise from its own traditions. They are adapted to the organisation and sphere of activity of the profession in the Member State concerned and to its judicial and administrative procedures and to its national legislation. It is neither possible nor desirable that they should be taken out of their context nor that an attempt should be made to give general application to rules which are inherently incapable of such application.
The particular rules of each Bar and Law Society nevertheless are based on the same values and in most cases demonstrate a common foundation.
1.3 - The Purpose of the Code
1.3 - 1. The continued integration of the European Union and European Economic Area and the increasing frequency of the cross -border activities of lawyers within the European Economic Area have made necessary in the public interest the statement of common rules which apply to all lawyers from the European Economic Area whatever Bar or Law Society they belong to in relation to their cross -border practice.
A particular purpose of the statement of those rules is to mitigate the difficulties which result from the application of "double deontology", notably as set out in Articles 4 and 7.2 of Directive 77/249/EEC and Articles 6 and 7 of Directive 98/5/EC.
The organisations representing the legal profession through the CCBE propose that the rules codified in the following articles:
be recognised at the present time as the expression of a consensus of all the Bars and Law Societies of the European Union and European Economic Area;
be adopted as enforceable rules as soon as possible in accordance with national or EEA procedures in relation to the cross -border activities of the lawyer in the European Union and European Economic Area;
be taken into account in all revisions of national rules of deontology or professional practice with a view to their progressive harmonisation.
They further express the wish that the national rules of deontology or professional practice be interpreted and applied whenever possible in a way consistent with the rules in this Code.
After the rules in this Code have been adopted as enforceable rules in relation to a lawyer's cross -border activities the lawyer will remain bound
to observe the rules of the Bar or Law Society to which he or she belongs to the extent that they are consistent with the rules in this Code.
1.4 - Field of Application Ratione Personae
This Code shall apply to lawyers as they are defined by Directive 77/249/EEC and by Directive 98/5/EC and to lawyers of the Observer Members of the CCBE.
1.5 - Field of Application Ratione Materiae
Without prejudice to the pursuit of a progressive harmonisation of rules of deontology or professional practice which apply only internally within a Member State, the following rules shall apply to the cross -border activities of the lawyer within the European Union and the European Economic Area. Cross -border activities shall mean:
(a) all professional contacts with lawyers of Member States other than the lawyer's own;
(b) the professional activities of the lawyer in a Member State other than his or her own, whether or not the lawyer is physically present in that Member State.
Definitions
In this Code:
"Member State" means a member state of the European Union or any other state whose legal profession is included in Article 1.4.
"Home Member State" means the Member State where the lawyer acquired the right to bear his or her professional title.
"Host Member State" means any other Member State where the lawyer carries on cross -border activities.
"Competent Authority" means the professional organisation(s) or authority(ies) of the Member State concerned responsible for the laying down of rules of professional conduct and the administration of discipline of lawyers.
"Directive 77/249/EEC" means Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services.
"Directive 98/5/EC" means Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained.
2 - GENERAL PRINCIPLES
2.1 - Independence
2.1 - 1. The many duties to which a lawyer is subject require the lawyer's absolute independence, free from all other influence, especially such as may arise from his or her personal interests or external pressure. Such independence is as necessary to trust in the process of justice as the impartiality of the judge. A lawyer must therefore avoid any impairment of his or her independence and be careful not to compromise his or her professional standards in order to please the client, the court or third parties.
2.1 - 2. This independence is necessary in non -contentious matters as well as in litigation. Advice given by a lawyer to the client has no value if the lawyer gives it only to ingratiate him - or herself, to serve his or her personal interests or in response to outside pressure.
2.2 - Trust and Personal Integrity
Relationships of trust can only exist if a lawyer's personal honour, honesty and integrity are beyond doubt. For the lawyer these traditional virtues are professional obligations.
2.3 - Confidentiality
2.3 - 1. It is of the essence of a lawyer's function that the lawyer should be told by his or her client things which the client would not tell to others, and that the lawyer should be the recipient of other information on a basis of confidence. Without the certainty of confidentiality there cannot be trust. Confidentiality is therefore a primary and fundamental right and duty of the lawyer.
The lawyer's obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client. It is therefore entitled to special protection by the State.
2.3 - 2. A lawyer shall respect the confidentiality of all information that becomes known to the lawyer in the course of his or her professional activity.
2.3 - 3. The obligation of confidentiality is not limited in time.
2.3 - 4. A lawyer shall require his or her associates and staff and anyone engaged by him or her in the course of providing professional services to observe the same obligation of confidentiality.
2.4 - Respect for the Rules of Other Bars and Law Societies When practising cross -border, a lawyer from another Member State may be bound to comply with the professional rules of the Host Member State. Lawyers have a duty to inform themselves as to the rules which will affect them in the...
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