European brief | Assumption that employed lawyers are not 'independent' is unsatisfactory

Article 19 of the Statute of the European Court of Justice provides that “Member States and the institutions of the Union shall be represented before the Court by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer … Other parties must be represented by a lawyer.” It goes on to say that “Only a lawyer authorised to practise before a court of a Member State … may represent or assist a party before the Court.”

Polish law recognises not only the profession of lawyer, but the profession of “legal adviser” – a status established by the Polish constitution, governed by a specific law, and subject to a code of ethics. Under Polish law, legal advisers may be employed by their clients; but the ethical rules are designed to ensure that they can “exercise their profession in complete independence whether or not they act under a contract of employment”. They are entitled to represent their clients in court.

Ms Gruszecka and Ms Paw?owska were legal advisers, duly qualified as such in Poland, employed by a Polish state organisation, the Electronic Communications Office. They signed, on behalf of the chairman of that office, an action for annulment of a Commission decision. The General Court became suspicious. It asked whether the applicant’s representatives were employed lawyers. And when it found out that they were, it dismissed the application as inadmissible: it had not been signed by a proper legal representative (Case T-226/10 Prezes Urz?du Komunikacji Eletronicznej v Commission [2011] ECR I-0000). In Joined Cases C-422/11 P and C-423-P (6 September 2012), the ECJ dismissed an appeal.

Not qualified?

The surprised layman might ask: what is the problem? The persons in question held a qualification expressly referred to in the ECJ’s statutes. That professional qualification entitled them to do the very thing that article 19 requires: to represent a client before the Polish courts. The Polish government confirmed this. How could they be held not to be qualified?

The sticking point for the General Court and the ECJ was the very notion of an employed lawyer. Building on various earlier cases, the General Court concluded that a person cannot be ‘represented’ by an employee, because that would be a sort of ‘self-representation’. That, the General Court thought, was consistent with a conception of the lawyer that it found to “reflect legal traditions common to the Member States”: “collaborating in the administration of justice and being required to provide, in full independence and in the overriding interests of that cause, such legal assistance as the client needs”.

The ECJ agreed. It regarded employment as inherently incompatible with the necessary independence. It was unfazed by the fact that Polish law regarded the advisers as competent to act: a necessary condition, it thought, but not sufficient. It was not interested in considering the ethical obligations placed on the lawyers by Polish law: they did not ensure independence “as thoroughly” as the court’s own rule, which was therefore proportionate. It was unconcerned with the practical problems this might pose: its answer to the suggestion that it would be very expensive for public authorities to employ external lawyers being that private parties have the same problem! (And the court rejected applications by various third party associations, including the Law Society, to make submissions.)

In abstract terms, no doubt, the general proposition that a measure of independence is legitimately required of lawyers is uncontroversial. It is good to be reminded that a lawyer owes a duty not just to the client, but to the court. But it is altogether another thing to reason from that to the conclusion that employment is incompatible with the necessary degree of independence. That, evidently, is not part of the conception common to the Member States. Of course permanent employment places the lawyer in a situation of potential conflict. But the self-employed lawyer is also subject to such pressures – which may be every bit as acute in practice as those that the employed lawyer faces. These pressures are unavoidable, and are routinely handled by regulatory and ethical codes which encourage lawyers to behave properly. The ECJ’s assumption that employment is ipso facto incompatible with independence is unsatisfactory.

Counterbalancing restrictions

So too, on a technical level, is its handling of issues such as proportionality. Suppose that reserving the right of representation to non-employed lawyers did make it more likely that lawyers would discharge their obligations of independence, and that mere ethical codes and regulation would not be as effective. So what? In judging the proportionality of a restriction the court conventionally asks whether less restrictive regulation would be insufficient, not merely whether it would be less effective. Even if independence were to add something, the question that ought to have been asked is whether it adds enough to counterbalance the restriction.

It is clearly (as the Polish rules show) not part of a tradition common to the Member States that employed lawyers can never represent their clients in court proceedings. Nor, with respect to the ECJ, is it a rational rule – much less a necessary one.

The applicant will no doubt be consoled to discover that, in the interest of ensuring that he could have “such legal assistance as [he] needs” and that there should be “collaboration” in the “administration of justice”, his application has been dismissed without considering its merits. Although the determination to insure independent and ethical representation is admirable, the decision itself is not.