IMMUNITY OF SPEECH OF LAWYERS
The President of the Paris Bar, our colleague Francis TEITGEN, in his speech at the Solemn Opening Ceremony of the Paris Bar Association's training course on 17 November 2000, stated:
"There is no justice without a lawyer who speaks for the people. There is no justice if the lawyer is not free, able to express himself without any constraint and guaranteed by a strong immunity. It is the lawyer's freedom of speech that makes the Tribunal impartial..."
This freedom of speech therefore has as its corollary the rights of the defence. In principle, no one may limit or hinder it, if it falls within the framework of these rights, the protection of which by the Constitution has been proclaimed as fundamental freedoms by the Constitutional Council. This is the reason why the lawyer's speech is guaranteed by immunity.
But can one say everything when exercising the rights of the defence? Can the lawyer's immunity to speech be limited, and if the answer is yes, can it always be considered a true immunity?
This is a key issue.
Not so long ago, the lawyer's freedom of speech was seriously limited, on the one hand by the terms of his professional oath, and on the other hand by the provisions of the law of 29 July 1881 on the press.
It was with reluctance that in 1810 NAPOLEON re-established the Bar Association which had been dissolved during the Revolution. This reluctance would have manifested itself in the following way: "I want a lawyer's tongue to be cut out if he uses it against the government". The Emperor, having limited confidence in the profession, imposed an oath formula that constituted a true pledge of allegiance, an oath that was kept without much change for almost two centuries.
The young lawyer then undertook to exercise the defence with respect for the courts, the public authorities and the rules of the Order, as well as not to say or publish anything that was contrary to the laws, regulations, morality, State security and public peace.
This formula was maintained by the Act of 31 December 1971 and the Decree of 9 June 1972, which merely added another formula concerning the exercise of defence and counsel with dignity, conscience, independence and humanity.
The former section 25 of the Act of 31 December 1971 thus gave judges the possibility of immediately sanctioning lawyers who, in their opinion, had failed to comply with their oath; this was the offence of hearing. The judges could suspend and evict the lawyers from the courtroom, thus prohibiting them from continuing to defend their clients. They were judge and party. It can therefore be said that, in those recent times, lawyers did not have complete freedom of expression
Moreover, article 41 of the Press Act of 29 July 1881, while proclaiming freedom of judicial writing and freedom of speech in court, thus creating corresponding immunities, nevertheless left judges, in the event of defamation or insult, the possibility of sanctioning lawyers by immediate suspension or other moral or financial penalties.
In the light of these texts, one can only welcome the development that has taken place since the Act of 15 June 1982. This law removed from the text of the oath the formula of allegiance and retained only that mentioning moral and professional values, i.e.: dignity, conscience, independence, probity and humanity.
Moreover, in the light of this fundamental text for the profession, judges could no longer suspend lawyers or issue them with injunctions. They only retained the possibility of ordering the suppression of offensive, insulting or defamatory speeches and of ordering the payment of damages, possibly against the lawyer for the benefit of the injured party. Disciplinary proceedings under the usual procedure were also maintained.
Article 41 of the Act of 29 July 1881 still provides for the possibility of civil or criminal proceedings before the competent courts, but on the express condition that the plaintiffs have had their action reserved by the court before which the incriminating remarks were made and that this court has found that these remarks were of no use in resolving the dispute, in other words, that they were irrelevant to the defence entrusted to the lawyer.
Thus, the Act of 15 June 1982, by amending the wording of the oath, by doing away with the "hearing offence" in the former section 25 of the Act of 31 December 1971, and by correcting the consequences of section 41 of the Act of 1881, reduced, but did not remove, the previous limits on the lawyer's freedom of speech.
Aren't these limits anachronistic?
Firstly, is the lawyer not free to use the defence system that he or she considers most appropriate and is the judge not obliged to listen to the lawyer?
Secondly, should a lawyer who accepts a case not defend to the end the person who has entrusted him with this mission, a mission that he will accomplish even if his words are likely to be embarrassing and may even be dangerous to public order.
Finally, the lawyer necessarily fulfils a critical function, the aim of which is to reinforce the quality of a judicial decision through the test of a discussion based on the adversarial principle.
The lawyer's freedom of speech is therefore not a myth; the trick is to know how to use it.
In short, "true eloquence is the art of saying everything in a country where nothing can be said! "(http://membres.tripod.fr/guylecalvez/avocats,_st_yves.htm)Write your article here...
