Stefan Naubauer. Lawyer, lecturer Ph.D., Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail: firstname.lastname@example.org).
Keywords : profession of Lawyer, Romanian law, principle of legality, principle of freedom and independence, the principle of autonomy and decentralization, the principle of professional secrecy
In Art. 1. (2) the Statute of the lawyer profession1 says the fundamental principles2 governing the exercice of the lawyer’s profession, the following: legality, freedom, independence, autonomy and decentralization, professional secrecy. Even before adopting the current form of the Statute, the literature3 was observed, rightly, that legislation has not conducted a systematization of the organizational principles of the legal profession4 - not be confused with the principles of the lawyer’s profession exercice5 - the absence of such systematization being explained precisely because of the interdependence between the two categories of principles.
In our case, no effort to challenge our doctrine to achieve a broader analysis of the principles related to the organization, namely the profession of lawyer, we will further proceed in discussing the fundamental principles, as they were mentioned in article 1 para. (2) of the Statute.
The lawyer profession is primarily a legal profession, as organized and exercise mainly based on Law no. 51/19956 and Statute.
Indeed, according to art. 1 para. (2) of the Act in conjunction with art. 3 para. (2) and (4) of the Statute, may lawfully exercise the profession only people who have the status of lawyer and are entered on the panel's bar7 they are part of, being prohibited from carrying any specific activities of the profession by an individual that has not the quality of lawyer entered in a bar and on the table of lawyers or by another juridical person, except the (civil) limited professional attorneys society. Moreover, according to art. 3 para. (3) in conjunction with art. 172 para. (1) of the Statute, a lawyer can be entered in only one bar and can not perform in the same time in two or more forms to practice his profession8, the latter prohibition is justified in the light of the need to avoid conflict of interest9.
Under art. 1 para. (2) of the Act in conjunction with Art. 5 para. (2) and (3) of the Statute, all bar association in Romania, legally constituted, are legal members of the National Union of Bars of Romania (N.U.B.R.)10 - legal person of public interest, established by law and declared a single successor of the Lawyers Union in Romania11. In the context of a necessary perspective on thePage 225 question whether the bars organized under Law no. 51/1995 some formalities are required for the approval and registration by the competent authorities, emphasized that „(...) the bar was, is and will remain a professional association territorially organized, recognized and established by law, and not merely an association - a private law legal person - subject to judicial review at the time of its establishment and registration in the register of legal persons.12"
Article 1 para. (3) of the Act in conjunction with art. 5 para. (4) of the Statute prohibit the establishment and operation of bars outside the N.U.B.R., instruments of incorporation and registration of such entities are considered automatically void. We showed, several years ago13, that the terminology used in relation to this sanction should not be understood throught the idea of nullity operating under the law (without requiring the adjudication of a court order to verification the produced effects), opinion we considered a dependent criticable distinction between nullity in law (or by operation of law) and judicial nullity (by the recovery mode of the penalty)14.
In fact, the legislator's intention was to designate15 as „ null and void" the sanction of absolute nullity16, to be judicially established17. Indeed, the committee drafting the Statute noted, at art. 5 para. (4), third sentence, the legal regime applicable to such penalty, setting that the nullity can always be found invalid by the N.U.B.R. request, by the bar parties, by the the Public Prosecutor and also by the court may be established automatically18. Regarding the means to invoke the penalty, being a nullity of public policy, under art. 108 para. (1) Civil Procedure Code,Page 226 this may be raised by the party or by a judge in any state of the case, indicating that, under art. 162 of the above mentioned Code, before the appeal court the public policy exceptions may be raised only when there is no need for an examination of facts outside the case19.
In connection with the requirement of the lawyer's profession exercice only throught N.U.B.R., in the literature has been raised „ the question whether the text is wrong, as it is not allowing the creation of alternative bars, breaching of the two other constitutional principles namely the right to association and the one of equal opportunities"20. However, as shown on another occasion21, conditioning the establishment and functioning legality of the bars to the membership of N.U.B.R.22 represents legislation a settlement springing from the need to avoid the appearance and proliferation the paralell lawyers structures23, the lawyer profession practice outside the framework established by Law no. 51/1995 being even a crime24.
Given the close link between these two principles, we will analyze them together. Law uses the term free profession, which means the profession pursued by a person on their own, withoutPage 227 being permanently employed in an institution or organization25. But it is instead to emphasize that an essential feature of the lawyer profession is that it is a liberal26 profession, in a sense that it depends on an order, by a professional body, his remuneration in nature not having a commercial character27. Moreover, the Constitutional Court itself considered fundamental principle that „the lawyer profession is a liberal and independent profession (s.n. - Stefan Naubauer)"28. The Statute declares on the art. 6 para. (1) that the freedom and independence of the legal profession are principles upon which Advocate promotes and protects the rights, freedoms and legitimate interests to customers, these principles defining and ensuring professional status of lawyer for his business. Independence of the legal profession, which involves the organization and its operation without any interference from the state29, but not to be confused with independence of the lawyer30, the latter arising from the first, being considered31 as a consequence of the autonomy32 of the advocacy institution.
According to art. 4 para. (1) of the Statute, the legal profession is organized and operates under the principle of autonomy and decentralization, as provided by Law33 and Statute34.
Organizing the advocacy is covered in a self management structure within the N.U.B.R.35, distinct both from the device state and other legal professions or positions36 (judges, public notaries, legal advisors, bailiffs, insolvency practitioners).
From the perspective of internal organization of the legal profession on the principle of autonomy, we have seen on another occasion37 that the fundamental reform brought by the Law no. 255/200438 was to enhance organizational autonomy and decision of the bar and creating an institutional structure at national level (N.U.B.R.), in which interests are protected and covered more efficiently. The existence of a union of bars should be considered also in terms of decentralization of their work, to ensure uniform settlement of the problems of the profession, aspect that could not be achieved in the absence of such a structure at national level39.
According to art. 215 para. (2) of the Statute, professional secrecy aimed at all information and data of any kind, in any form and on any medium, provided to the lawyer by the client in order to provide legal assistance - lato sensu - and for which the client requested confidentiality, and also any documents prepared by lawyers, which contain or are based on information or data supplied by the client in order to provide legal assistance and whose privacy has been requested by the client.
In literature, professional secrecy was considered both a right and a primary, fundamental duty of the lawyer and also an essential condition of the profession exercice40.
In art. 8 para. (1) Statute declares professional secrecy as public policy, the lawyer can not be compelled to disclose it under any circumstance and by any person41. However, according to art. 8 point. f) of Law no. 656/2002 on preventing and sanctioning money laundering, and to establish measures to prevent and combat terrorist financing42, lawyers are subject to reporting when preparing or assisting in drawing operations for their clients regarding: purchase or sale of immovable property, shares or elements of goodwill, management of financial instruments or other property of guests, formation or management of bank accounts, savings or financial instruments, organizing the contributions required to provide underwriting, operation or management of a company, establishment, administration or management of companies, undertakings for collective investment in transferable securities or other similar structures or conduct, by law, of other fiduciary activities, as well in the case where they represent their customers in a financial nature operation or targeting real estates.
A lawyer may not be released from professional secrecy...