Our members Independence

 

General principle

Our Members shall maintain independence and protect that independence by giving clients unbiased advice and representation.

Our Members shall exercise independent, unbiased professional judgment in advising a client, including advice regarding the likelihood of success of the client’s case.

Explanatory note

It is indispensable to the administration of justice and the operation of the Rule of Law that our Member acts for the client in a professional capacity free from direction, control or interference.

If our Member is not guaranteed independence and is subject to interference from others, especially those in power, it will be difficult for our Member to fully to protect their client(s). Therefore, the guarantee of our Member’s independence is an essential requirement for the protection of their client.

The requirement of independence calls upon our Member to give priority to the independence of the legal profession over personal aspirations and to respect the need for an independent legal profession.

Members’ clients are entitled to expect independent, unbiased and candid advice, irrespective of whether or not the advice is to the client’s liking. Independence requires that our Member acts for a client without improper conflicting self-interest; without undue external influences; and without any concern which may interfere with a client’s best interest or our Member’s professional judgment.

Circumstances in which a lawyer’s independence will or may be at risk or impaired include:

  • the involvement of the lawyer in a business transaction with a client when proper disclosure and client consent  is absent;
  • where our Member becomes involved in a business, occupation or activity whilst acting for a client and such an interest takes or is likely to take precedence over the client’s interest;
  • unless otherwise authorised by law, knowingly acquiring an ownership, possession, or security interest adverse to the client; and
  • holding or acquiring a financial interest in the subject matter of a case which our member is conducting, whether or not before a court or administrative body, except, where authorised by law, for contingent fee agreements and liens to secure fees;
  • if our member may be paid by a third party, that fact must not affect their independence and professional judgement in rendering their services to the client.

Independence of our Member requires that the process for the lawyer’s admission to the bar, professional discipline, and professional supervision in general, is organised and carried out in a manner that guarantees the administration of the legal profession is free from undue or improper influence, whether governmental, by the Courts or otherwise.

 

International implications

Note: -While the principles of independence of the lawyer and of the legal profession are undisputed in all jurisdictions adhering to, and striving for, the improvement of the Rule of Law, the respective regulatory and organisational frameworks may vary significantly from jurisdiction to jurisdiction.

In certain jurisdictions, the bars enjoy specific regulatory autonomy on a statutory and sometimes constitutional basis. In others, legal practice may be administered by the judicial branch of government and/or governmental bodies or regulatory agencies.

Often the courts or statutory bodies are assisted by bar associations established on a private basis. The various systems for the organisation and regulation of the legal profession should ensure not only the independence of our practicing Members but also administration of the profession in a manner that is itself in line with the Rule of Law.

Our Members should strive for and preserve the true independence of the legal profession and encourage all to avoid and combat the challenges to the Rule of Law.

As regards employment of Individual Members admitted to the Institute, they may in some jurisdictions be prohibited from being employed. If such is the case the Members must avoid conflict and inform the Secretariat.

Differences in jurisdictional approach should be considered in cases of cross-border or multi-jurisdictional practice. Every Member is called upon to observe applicable rules of professional conduct in both homeland and host jurisdictions (Double Deontology) when engaging in the practice of law outside the jurisdiction in which the Member is permitted to practice in.

Every Member will have to examine whether their entire organisation is in conformity with such rules, in every jurisdiction in which they are established or engaged in the provision of legal services.

A universally accepted framework for determining proper conduct in the event of conflicting or incompatible rules has yet to be developed, although certain jurisdictions have adopted conflict of law principles to determine which rules of professional conduct apply in cross-border practice.