Wednesday , 26 July 2023
Facts
On March 3, 2023, the Bar Association of Beirut made a decision which introduced important amendments to the Code of Ethics for the Legal Profession. A chapter on lawyers and the media had been added to the Code of Ethics in 2014. The amendments add social media to the list of media which are covered by Articles 39-41. Article 39 prohibits lawyers from discussing cases pending before the courts in any media but an exception was made where the head of the Bar Association granted a lawyer permission to talk about a case of major public interest or if a lawyer’s media statement falls under the “right to reply” principle. Article 41 covered discussions or interviews “of a general legal nature”. The 2014 version of Article 41 indicated that “it is preferred to inform” the head of the Bar Association about such media engagements but the amendments being challenged in this case made it mandatory to get “prior approval” from the head of the Bar Association for this. The amendments also introduce new requirements for lawyers not to “show contempt, smear, or direct hurtful or insulting expressions to the head of the Bar Association, the members of the Bar Association council, or their colleagues especially during Bar association elections”.
On March 29, 2023, twelve members of the Bar Association lodged a legal appeal against this decision before the civil appellate court of Beirut. In parallel to this, lawyer Nizar Saghieh, who had been brought on April 20, 2023 before the Bar Association council for questioning in relation to his public criticism of the amendments, lodged another appeal against the decision of the Bar Association. The two cases were later joined in the case currently being reviewed.
The case was heard by the 11th chamber of the civil appellate court of Beirut, which is responsible for appeals involving decisions by syndicates, before President Ayman Oueidat, judges Houssam Atallah and Carla Maamari, and members of the Beirut Bar Association Wajih Massaad and Maya al-Zeghrini. In cases involving it, the Bar Association has the right to nominate two of its members to sit on the appeal panel.
The appellants argued that the decision fell outside of the scope of the mandate of the Bar Association since it restricted lawyers’ right to freedom of expression which, according to the Constitution of Lebanon, as interpreted by the Constitutional Council, was only allowed to be done by parliament. They also argued that the decision breached the freedom of expression guarantees found in the Constitution as well as under international law, including by not being necessary and proportionate, as well as standards regarding the role and independence of lawyers and judges. As such, they requested a stay of execution, for the decision to be annulled, and for all repercussions flowing from it to be reversed.
The Bar Association presented various arguments to the effect that the case was not admissible. They also argued that lawyers were prohibited from advertising their services whereas a lawyer could present him- or herself as an expert on different areas of law in the media which was a form of commercial promotion. There were also instances of confrontations between lawyers in the media and this amendment would prevent that. As a result, the amendments had been necessary.
Decision
The case was decided on May 12, 2023. The Court quickly dismissed the arguments against admissibility, including as to the timeliness of the case, in part because the Bar Association had not publicised the decision properly (rather, it had been leaked and only subsequently communicated formally), thereby extending the time limit for lodging an appeal.
The Court referred to the guarantees of freedom of expression at Article 13 of the Constitution of Lebanon and Article 19 of the Universal Declaration of Human Rights, and cited in full Article 19 of the International Covenant on Civil and Political Rights, as well as Article 10 of the European Convention on Human Rights, which are two of the leading guarantees of this right. It then noted that while international instruments on lawyers protected their right to freedom of expression, they also required them to adhere to the ethics of the profession.
The Court then went on to note that the oath that lawyers must swear when joining the Bar Association, set out in Article 10 of the law regulating the legal profession, includes a commitment to protect professional secrets, not to say anything, “whether as a deliberator or as a counsellor”, which goes against ethical rules or affects State security, to respect the judiciary and to act in a manner that portrays trust and respect. The Court also noted that lawyers enjoy immunity from prosecution for what they say in court but that this immunity does not extend beyond that, and that a prosecution of a lawyer can only proceed upon the approval of the Bar Association Council. The Court also noted that, in exchange for the rights that lawyers enjoy, they commit to the principles of “honor, integrity, and honesty”, as well as to respect legal and ethical obligations and the “traditions of the law profession”. It also cited professional rules which allow any lawyer who “brings the reputation of the profession down, or goes down a path that does not match its dignity” to be subject to disciplinary punishment. The Court then noted that the formal legal rules could not define all of these obligations precisely or maintain them as society grows and changes. As a result, it was entrusted to the Bar Association to adopt a professional code of ethics for lawyers.
The Court quoted a number of authorities in French regarding the obligations of lawyers. These indicated that the lawyer was different from someone who merely deals with the law (“un simple marchand de droit”) inasmuch as the lawyer offers a quality service which clients can trust and is required to respect fundamental rules under the authority of the president and other members of the professional association. Other texts indicated that the lawyer does not benefit from immunity after leaving the court and, at that time, becomes responsible for committing outrage, injury or defamation (“des propos outrageux, injurieux ou diffamatoires”), including via disciplinary proceedings. And also that over mediatisation of lawyers can undermine respect for the judiciary and that, as a result, lawyers must be subject to restrictions on their freedom of expression. Finally, while lawyers have a right to express themselves freely, including via the means of communication of their choice, when it comes to ongoing cases or general issues relating to the profession, they must indicate the capacity in which they are speaking and exercise appropriate vigilance. The president of the Paris Bar Association may make such observations or issue such warnings or injunctions (“mise en garde ou injunction”) as he or she deems necessary. The Court deduced that if the President of the Paris Bar Association has the right to make injunctions to lawyers wishing to speak to the media, this implies he has the right to withhold permission (although there is no advance permission regime in Paris).
Based on all of this, the Court drew a number of conclusions. One was to the effect that the media had a major influence on ongoing trials and public opinion which required lawyers to be “subject to strict rules that limit the media freedom”. Based on this, the idea of lawyers being subject to “disciplinary censorship on what they say outside the courts and while dealing with media platforms … remains legally acceptable”. The idea of “prior approval” for lawyers to appear in the media is an accepted form of control due to the risks such appearances could create for the profession, for the lawyer, for their clients, for government agencies, and for “what it could produce in the public sphere of repercussions and ideas that might not be correct, might be hurried, or instigate instincts”. The Court also suggested that this system of prior approval was justified based on the idea that the Bar Association Council was responsible for lifting immunity from prosecution for lawyers should they breach the Penal Code.
The Court noted that it was possible for lawyers to challenge any refusal by the head of the Bar Association to allow them to appear in the media before the courts, potentially in an expedited fashion. It also noted that it must be assumed that the head of the Bar Association “practices their task for the sake of the association and its members and the sake of Justice and those who have rights and it should not be assumed otherwise”.
The Court noted that the subject matter of the current challenge only covered the current changes, since the time limit for challenging any amendments made in 2014 had passed. Finally, the Court noted that the Bar Association of Tripoli had adopted nearly identical rules governing its members.
The Court thus concluded that the decision of the Bar Association Council amending the Code of Ethics was “consistent with the power of the Bar Association council to amend said system and is also consistent with the technical, realistic, and legal developments which have led to it. It's also consistent with the state of necessity and proportionality according to the conditions in which it was taken”. As such, the appeal was rejected.
Analysis
It is quite clear under international law that lawyers not only enjoy the right to freedom of expression but members of the public have a right to receive information from lawyers about the legal system. For example, the Standards for the Independence of the Legal Profession, adopted by the International Bar Association (IBA) in 1990, states:
Lawyers shall not by reason of exercising their profession be denied freedom of belief, expression, association and assembly; and in particular they shall have the right to: a) take part in public discussion of matters concerning the law and the administration of justice; b) join or form freely local, national and international organisations; c) propose and recommend well considered law reforms in the public interest and inform the public about such matters.[1]
Similarly, the Montreal Declaration: Universal Declaration on the Independence of Justice states:
It shall be the responsibility of the lawyer to educate the members of the public about the principles of the rule of law, the importance of the independence of the judiciary and of the legal profession and to inform them about their rights and duties, and the relevant and available remedies.[2]
This clearly encompasses a right of lawyers to engage with the media. For example, the Law Society of Ontario Rules of Professional Conduct include the following provisions:
7.5-1 Provided that there is no infringement of the lawyer's obligations to the client, the profession, the courts, or the administration of justice, a lawyer may communicate information to the media and may make public appearances and statements.
Commentary
[5] A lawyer is often involved in a non-legal setting where contact is made with the media about
publicizing such things as fund-raising, expansion of hospitals or universities, programs of public institutions or political organizations, or in acting as a spokesperson for organizations that, in turn, represent particular racial, religious, or other special interest groups. This is a well-established and completely proper role for the lawyer to play in view of the obvious contribution it makes to the community.
[6] A lawyer is often called upon to comment publicly on the effectiveness of existing statutory or legal remedies, on the effect of particular legislation or decided cases, or to offer an opinion about cases that have been instituted or are about to be instituted. This, too, is an important role the lawyer can play to assist the public in understanding legal issues.
[6.1] A lawyer is often involved as advocate for interest groups whose objective is to bring about changes in legislation, governmental policy, or even a heightened public awareness about certain issues. This is also an important role that the lawyer can be called upon to play.[3]
Reference to International and Comparative Norms
A first point to note is that although the Court did refer to several international standards, including by quoting in full two international guarantees of freedom of expression, it either did not explore the implications of these guarantees or did so in a manner which failed to reflect their actual meaning. For example, while the right to freedom of expression is not absolute, any restrictions must be set out clearly in law and be necessary, both conditions which are not met in this case (see below). The Court never referred to these fundamental principles or went through any proper assessment of the facts of the case as against these principles.
Similarly, the Court noted that international standards governing lawyers require them to adhere to the ethics of the profession while exercising their right to freedom of expression. There is some very general truth to this, but the specifics are much more subtle. Thus, Principle 23 of the UN Basic Principles on the Role of Lawyers states:
Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.[4]
The reference to respecting ethics of the legal profession is qualified by the idea that these must be “recognized standards and ethics”, not just any standards in a code that happens to be adopted by a bar association. As set out below, while some constraints on the freedom of expression rights of lawyers are legitimate, lawyers also have broad rights to speak publicly, including through the media, about legal matters.
The Court took even greater liberties when interpreting French standards. While these did, in line with accepted international standards, indicate that there should be some limits on lawyers’ freedom of expression to protect the administration of justice, they cannot possibly be taken to approve or justify the approach that was put in place by the Beirut Bar Association, which simply does not apply and never has been applied in France. Essentially, the Court pulled a few phrases out of larger set of comments and then used them opportunistically to justify a system which does not have any parallel in France.
Prior Censorship
The essence of the system being challenged in this case is one of prior censorship inasmuch as lawyers may be prevented from expressing themselves before they have had the chance to speak (i.e. if the head of the Bar Association does not grant them permission to talk to the media) rather than one of subsequent liability, whereby lawyers may be subject to punishment, whether disciplinary or civil or criminal in nature, after speaking if they happen to be found to have broken the rules.
International law views systems of prior censorship with the greatest suspicion and they, like any other restriction on freedom of expression, must be justified as being necessary to protect a legitimate interest before they can be considered to be legitimate as restrictions on freedom of expression. Thus, the American Convention on Human Rights disallows any form of prior censorship except to protect children.[5] The European Court of Human Rights has said that prior restraints call for the “most careful scrutiny” [6] and must be governed by a legal framework with “tight control over the scope of bans and effective judicial review to prevent any abuse of power.”[7]
The Court did at various places recognise that this is a system of prior censorship and even held that this was a necessary approach here. However, it failed to provide any specific reasoning on this point or explain why a system of post facto measures would not suffice to protect any legitimate interests. In fact, it is quite clear that a system of prior censorship is not necessary to regulate the speech of lawyers. This is demonstrated by the fact that countries around the world operate perfectly well without such a system, as well as the extensive powers that bar associations have to regulate lawyers’ speech post facto, including by suspending or revoking their licences to practise law.
The illegitimacy of the system of prior censorship being challenged in this case is exacerbated by two factors. The first, which also constitutes a breach of the requirement that restrictions on freedom of expression be provided by law, is that no standards or criteria for the imposition of this form of prior censorship are provided for in the code of ethics. The Court referred to various very general ideas which might justify such prior censorship, such as the principles of “honor, integrity, and honesty” and the “traditions of the law profession”. These are far too general and imprecise to ground a restriction on freedom of expression and, in any case, even these ideas are not set out as a basis for the head of the Bar Association to grant or deny permission to a lawyer to speak to the media. Article 41 does set out a number of again very vague standards within which a lawyer must keep any dialogue with the media, once he or she has been granted permission to conduct that dialogue. But this is different from conditions for granting such permission and, in any case, these standards do not meet the conditions of the provided by law part of the test for restrictions on freedom of expression.
Secondly, the power of prior censorship is vested in just one person, namely the head of the Bar Association. While the Court suggested that it must be assumed that this power would be exercised in good faith, international standards on freedom of expression do not place their faith in such assumptions and instead require such discretion to be clearly bounded and, to the extent possible, distributed among more than one person. In this case, for example, vesting this decision in the whole Council rather than just the head of the Bar Association would help to protect against abuse. The Court noted that any refusal to permit a lawyer to appear in the media could be challenged before the courts. While this is true, it is essentially an elusive remedy, given the pace of news coverage and the fact that even if such an appeal were heard on an expedited basis it would still almost always be too late for the lawyer to appear in the media afterwards. Additionally, the law does not clarify any mechanism to challenge the president’s decision. It is not clear what court will have jurisdiction nor the legal timeline to submit such a challenge.
Standards for Restricting Freedom of Expression
To be legitimate under international law, restrictions on freedom of expression must meet a strict three-part test of which the first part is that the restriction must be provided by law. This requires not only that the restriction is set out in a legal instrument but also that the rules are sufficiently clear so as to enable those who are subject to them to regulate their conduct in advance. It is quite clear that this applies equally to codes of conduct that underpin disciplinary measures. As the Special Rapporteur on the independence of judges and lawyers stated in his 2022 Report on the Protection of lawyers against undue interference in the free and independent exercise of the legal profession:
Ambiguous grounds for disciplinary action open the door to overly broad or abusive interpretations and risk undermining the independence of the legal profession. Overly general formulations may also create uncertainty and unpredictability as to the conduct requiring disciplinary action, in breach of the principle of legality. Consequently, the principles of legality, foreseeability and narrow interpretation, which apply in criminal matters, also apply, mutatis mutandis, to disciplinary matters.[8]
The rules in question here do not begin to meet that standard. Subordinate legal rules such as those involved here, namely a code of ethics, can meet the provided by law standard, as long as they are properly authorised by primary legislation and sufficiently clear. As noted, no conditions whatsoever are prescribed for how the head of the Bar Association is to exercise his or her discretion to grant or refuse a request by a lawyer to talk to the media. Otherwise, the standards that are set out are all far too vague to meet the standard of provided by law. Thus, Article 41 calls for dialogue with the media to be kept “within an academic scientific frame”, to remain committed to the principles of “honor, upstandingness, honesty, neutrality, objectivity and avoiding hurtful or insulting expressions” and not to “show contempt, smear, or direct hurtful or insulting expressions” towards the head or other members of the Bar Association. The Court itself referred to the risk of media appearances by lawyers leading to the dissemination of “ideas that might not be correct, might be hurried, or instigate instincts”. These ideas are all simply too vague and subject to broad interpretation to justify restrictions on freedom of expression.
Restrictions must also be necessary to protect a legitimate interest, such as public order or the authority and impartiality of the judiciary. It is accepted that these interests may justify certain special limitations on the freedom of expression of lawyers, given the role they play in the system of justice. Decisions by international and national courts highlight the importance, given their specialised knowledge of the courts and legal system, for the public to benefit from hearing the views of lawyers on these matters, including as to the issues involved in and implications of the outcomes of cases that bear on matters of public concern.
At the same time, these decisions reflect the idea that lawyers need to keep their commentary within certain bounds of civility and respect so as to maintain the authority and impartiality of the judiciary or, put differently, the confidence of the public in the judicial process. In a leading case involving the conviction of a lawyer for publishing a letter and statements in a newspaper accusing a judge of a lack of impartiality and fairness, the European Court of Human Rights, in holding that the conviction was an unjustifiable restriction on freedom of expression, stated:
Nevertheless – save in the case of gravely damaging attacks that are essentially unfounded – bearing in mind that judges form part of a fundamental institution of the State, they may as such be subject to personal criticism within the permissible limits, and not only in a theoretical and general manner. When acting in their official capacity they may thus be subject to wider limits of acceptable criticism than ordinary citizens.
…
[T]he Court reiterates that the defence of a client may be pursued by means of an appearance on the television news or a statement in the press, and through such channels the lawyer may inform the public of shortcomings that are likely to undermine pre-trial proceedings.
…
Lawyers cannot, moreover, make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis, nor can they proffer insults. In the circumstances in Gouveia Gomes Fernandes and Freitas e Costa, the use of a tone that was not insulting but caustic, or even sarcastic, in remarks about judges was regarded as compatible with Article 10.[9]
This reflects both the idea that lawyers have the right to appear in the media to discuss legal matters, even for purposes of criticising judges, and that in doing so they have some latitude to use strong and even sarcastic language, although they must not overstep in the sense of making statements that have no sound factual basis or that are gratuitously insulting.
A similar position was taken by the Supreme Court of Canada in a case involving the professional disciplining of a lawyer for writing a very harshly worded letter to a judge after having been criticised strongly by that judge. In holding that it was appropriate to discipline the lawyer, the Court made the following observations:
No party in this dispute challenges the importance of professional discipline to prevent incivility in the legal profession, namely “potent displays of disrespect for the participants in the justice system, beyond mere rudeness or discourtesy”.
We are, in other words, balancing the fundamental importance of open, and even forceful, criticism of our public institutions with the need to ensure civility in the profession. Disciplinary bodies must therefore demonstrate that they have given due regard to the importance of the expressive rights at issue, both in light of an individual lawyer’s right to expression and the public’s interest in open discussion.[10]
Here again there is a balancing between the right of lawyers to engage in strong criticism of the judiciary and, by implication, legal issues facing society more generally, with the idea that such expression should not exhibit a lack of respect for other legal professionals. In this case, some of the terms used by the lawyer in referring to the judge were “loathsome”, “arrogant”, “fundamentally unjust”, “pedantic”, “aggressive” and “petty”.
The restrictions in question in this case are not only unduly vague but they also go well beyond the standards set out in these cases. Indeed, they seem to focus on abstract concepts like the honour of the legal profession and lawyers, which is not recognised as a legitimate ground for restricting freedom of expression under international law, rather than the need to avoid excessively harsh and unwarranted criticisms. They are certainly not limited to statements which pose a threat to the authority or impartiality of the judiciary.
It is quite clear that blanket bans on lawyers or others from taking about ongoing cases is not legitimate. As the European Court of Human Rights has noted in this context:
Whilst the courts are the forum for the determination of a person’s guilt or innocence on a criminal charge, this does not mean that there can be no prior or contemporaneous discussion of the subject matter of criminal trials elsewhere, be it in specialised journals, in the general press or amongst the public at large.
Provided that it does not overstep the bounds imposed in the interests of the proper administration of justice, reporting, including comment, on court proceedings contributes to their publicity and is thus perfectly consonant with the requirement … that hearings be public. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them. [references omitted][11]
The primary rules barring lawyers from talking to the media about legal matters, including ongoing cases, were adopted with the 2014 amendments, and were thus beyond the purview of the case before the Court. However, the current amendments exacerbated the problematical nature of these restrictions by imposing a regime of prior censorship to enforce them and also by expanding the substantive scope of the restrictions. As such, the overbroad nature of these restrictions should have been the subject of discussion by the Court. The comments by the Court as to the nature of the restrictions were all of a nature to suggest that it thought that their scope was perfectly legitimate, and this is also inherent in their decision to uphold the restrictions. However, from the perspective of international standards on freedom of expression, those restrictions were not legitimate.
Overall, the Court accepted the system of prior censorship to enforce these rules and also appeared to view them as being necessary, although it did not refer to the idea of being provided by law. It reached its conclusions without engaging in any clear analysis based on the three-part test for restrictions on freedom of expression under international law and, indeed, it often stated rather important conclusions without providing much reasoning for them. In the end, it approved a decision by the Bar Association Council to amend the Code of Ethics which is seriously flawed from the perspective of international guarantees of freedom of expression.
[1] Para. 14, https://icj2.wpenginepowered.com/wp-content/uploads/2014/10/IBA_Resolutions_Standards_for_the_Independence_of_Legal_Prof_1990.pdf.
[2] Adopted by the First World Conference on the Independence of Justice, 10 June 1983, para. 3.09, https://icj2.wpenginepowered.com/wp-content/uploads/2016/02/Montreal-Declaration.pdf.
[3] See https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/complete-rules-of-professional-conduct.
[4] Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-role-lawyers.
[5] American Convention on Human Rights, 22 November 1969, in force 18 July 1978, Article 13(2).
[6] Observer and Guardian v. the United Kingdom, 26 November 1991, Application No. 13585/88, para. 60, https://bit.ly/3UDJKoJ.
[7] Ekin Association v. France, 17 July 2001, Application No. 39288/98, para. 58, https://bit.ly/3hiJ1u2.
[8] 22 April 2022, para. 82, https://undocs.org/A/HRC/50/36.
[9] Morrice v. France, 23 April 2015, Application No. 29369/10, paras. 131, 138 and 139, http://hudoc.echr.coe.int/eng?i=001-154265.
[10] Doré v. Barreau du Québec, 2012 SCC 12, paras. 61 and 66, https://www.canlii.org/en/ca/scc/doc/2012/2012scc12/2012scc12.html?autocompleteStr=dore&autocompletePos=1.
[11] Worm v. Austria, 29 August 1997, Application no. 22714/93, para. 50.
This report was published with the support of:.png)