On the Independence of Lawyers, Judges, and Bar Associations – by Roger Juan Maldonado

President’s Column, November 2018

Imagine we woke up one day to find that our esteemed bar association, founded in 1870, had suddenly been terminated by decree. All the assets of our association, including operating accounts, long-term capital investments, and real estate, had been confiscated. The members of our Executive Committee, the chairs of our various committees, and our leadership staff had been arrested and were facing severe criminal prosecution.

The recent report of the United Nations Special Rapporteur on the Independence of Judges and Lawyers reveals that the above scenario is happening around the world.

In Turkey, 34 lawyers’ associations, in fact, were shut down by decree and had their assets confiscated without compensation following Turkey’s declaration of a state of emergency in June 2016. The chairs, board members, and many regular members of those associations were prosecuted and imprisoned. In China, more than 300 detentions, summonses, travel bans, and other restrictions have been imposed on lawyers and law firm staff since July 2015.

It’s not a new phenomenon. Where liberal democracy is on the retreat, lawyers are often among the first casualties, and history is replete with examples. In Cambodia in the 1970s, the Khmer Rouge systematically murdered anyone who wore glasses, believing this an effective method for targeting members of the educated elite, including attorneys. In 2014, the City Bar hosted an exhibit co-sponsored by the German Federal Bar and the ABA called “Lawyers Without Rights: Jewish Lawyers in Germany Under the Third Reich.” The project that inspired the exhibit uncovered the fates behind a list of lawyers whose licenses had been revoked by the Nazi regime. “Some were able to leave the country after the Nazis came into power, but very many of them were incarcerated or murdered,” said Axel Filges, president of the German Federal Bar. “The non-Jewish German lawyers of those days remained silent. They failed miserably, and so did the lawyers’ organizations. We do not know why.”

Obviously these are history’s extreme cases, but the City Bar is determined to learn from and not to repeat the failures of the past. We, therefore, must stand up for the rule of law wherever it is threatened. It’s why several of our committees – including those on International Human Rights, Asian Affairs, and African Affairs, and our Council on International Affairs – have consistently spoken out on behalf of lawyers and judges around the world. Further, it’s why the City Bar recently established a standing Task Force for the Independence of Lawyers and Judges.

Since its creation, the Task Force has put on panels and Great Hall events highlighting crackdowns on lawyers, judges, and bar associations around the world, advocated on their behalf, and taken part in the global “Day of the Endangered Lawyer,” on January 24. In these and other ways, the Task Force – and the City Bar generally – have complemented the work of the Special Rapporteur, and more recently have worked with the office directly.

Special Rapporteur Diego García-Sayán’s report, and his work generally, draws heavily from two important documents in the field, “Standards for the Independence of the Legal Profession,” adopted by the International Bar Association in 1990, and the “UN Basic Principles on the Role of Lawyers,” adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders and welcomed by the UN General Assembly, also in 1990.

In his report, the Special Rapporteur catalogues the brazen rights violations committed against lawyers around the world, including arbitrary sanctions, arrests, and prosecutions, often accompanied by the demonization of lawyers through government-controlled media. But it’s perhaps most relevant and instructive for our purposes to note the more subtle and insidious tactics he identifies as very effective in undermining the independence of lawyers and jurists – specifically, through undermining the independence of their associations. These tactics include setting up legal or administrative obstacles aimed at preventing lawyers from establishing or joining independent professional organizations; vague legislation and policies on admission to the legal profession; legislation that restricts the scope of permissible activities of existing lawyers’ associations or limits their self-regulatory power; and legislative or regulatory measures to include government-appointed members in the bar association’s executive body.

The report suggests that, at a minimum, a legitimate and effective bar association must be independent, self-governing, mandated to protect the independence of the legal profession and the interests of its members, and recognized under law. And the Special Rapporteur sets forth useful recommendations for bar associations in several distinct areas, including the protection of lawyers; the development of professional standards and ethics; oversight of disciplinary proceedings; the provision of legal aid; legal education and training; and advocacy and monitoring, which touches on the substantive role of bar associations in the protection of human rights, the fair administration of justice, and the rule of law.

Indeed, while states have the primary responsibility, lawyers, judges, and their voluntary associations must play an active role in ensuring that those in the legal profession can go about their business from a position of both perceived and actual independence. Independence is not the same as neutrality. While we remain politically neutral, we have never been values neutral. The Special Rapporteur speaks of the “essential role that bar associations play in a democratic society to enable the free and independent exercise of the legal profession and to ensure access to justice and the protection of human rights, in particular due process and fair trial guarantees.”

The New York City Bar Association is proud to stand with its fellow bar associations worldwide for access to justice, for human rights, for due process, for fair trials, and for the rule of law. These are the substantive values we defend and seek to advance, and our capacity to do so depends ultimately on our ability to preserve our independence – and that of bar associations around the world – which we will continue to safeguard with the utmost vigor.

My thanks to Michael D. Cooper, Chair of the City Bar’s Council on International Affairs, for his contribution to this column.

Roger Juan Maldonado is President of the New York City Bar Association.