Proposition 51K1724

Projet de loi modifiant certaines dispositions du Code judiciaire concernant le barreau et la procédure disciplinaire applicable aux membres de celui-ci.

General information ¶

Authors

CD&V Tony Van Parys
Open Vld Claude Marinower
Vooruit Walter Muls

Submission date

April 22, 2005

Official page

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Status

Adopted

Requirement

Simple

Subjects

lawyer organisation of professions disciplinary proceedings

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Discussion ¶

March 16, 2006 | Plenary session (Chamber of representatives)

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Mr. Speaker, Mr. Secretary of State, colleagues, this bill was discussed during five discussions. There were several hearings, including with the chairman of the Order of French and German-speaking balies, with the chairman of the Flemish balies and with the staff holders of Eupen, Luik, Mechelen, Kortrijk and of both the Flemish and French-speaking balies of Brussels.

During the discussions, colleague Muls bites the tip off and pointed out, among other things, that the bill is generally carried out, although with reticences from, among others, the French-speaking ballet of Brussels. He said that the bill with changes to the disciplinary procedure imposed.

Collega Giet pointed out that the lawyer not only provides legal advice, but also provides a specific form of service, which makes a legal arrangement in place. As a result, the deontology will be more applicable and there will be greater visibility for the complainants. He also considered applying important options in the bill to the magistrates in the future.

Collega Van der Auwera pointed out the problems of today: the excess of discipline colleges, the lack of transparency in judicial practice and the risk of destruction by discipline lines in appeal. She was in favour of raising disciplinary justice to a higher level, as is already the case for other free professions. The scale enlargement should lead to more expertise. The local court will no longer be confronted with the problem of speaking at the same time as a judge and a party.

Colleague Marinower also pointed out the broad support area and the second access to the tuch wire. Mr Schoofs joined the previous speakers.

The representative of the Minister of Justice pointed out that the proposal was primarily in the interest of the smaller balies and that here the trias politica became clearer.

During the article-by-article discussion several amendments were adopted. I refer to the main ones: the updating of the text, so that the order council, which no longer has disciplinary competence, can no longer pronounce disciplinary penalties, the more client-oriented view of disciplinary law; the guaranteed presence of German speakers in the composition of the disciplinary council for the Court of Appeal in Liège and the fact that the complaints must be submitted in writing at the request of complainants and lawyers.

There were also some technical amendments.

The bill was unanimously approved. I would like to thank the services for their cooperation in the preparation of the report.

The Minister,

Liesbeth Van der Auwera, Dear colleagues, CD&V has submitted the proposal to be voted today and will approve it with full conviction. The disciplinary procedure for lawyers is indeed for a reform. Disciplinary law is part of the quality policy of a trust group. Ensuring proper professional practice in the interests of the applicant should be the primary objective of disciplinary justice.

Today, every school has a school. In addition to the 28 tuchtrades in the first stage, there are another 6 tuchtrades in appeal. There is no unity in disciplinary justice. Since there are few disciplinary matters in small bars and one is only a short member of the council of order in mainly large bars, there is also little expertise build-up. In addition, it simply depends on the will of the staff holder whether or not there is disciplinary prosecution. That can give the impression of an arbitrary and person-related prosecution policy, where prejudice prevails and which will never affect people from the inner circle.

The bill removes the disciplinary procedure from the local councils of the order and provides only for a disciplinary council per description of a court of appeal and only for a disciplinary council of appeal for the entire Belgian legal profession. In addition, next to the staff holder, it creates a second access path to the discipline line.

This has as great merits the transition from amateurism to professionalization, the ability to build expertise through scale-up and specialization, the unity of jurisprudence in disciplinary matters, the increased sense of impartiality of the complainant and the person who must respond, the greater transparency and the strengthening of the position of the complainant by allowing him to take the disciplinary council alongside the chairman of that council, by motivating the decision to prosecute or not, and because the complainant should be kept informed of the state of the investigation.

Our group thus considers that the proposal is a step forward.

Mr. Speaker, Mr. Minister, this bill, which has a broad consensus within the bars, must be supported.

The transfer of disciplinary jurisprudence to a higher level, in my opinion, contributes to the professionalization of the sector, to the strengthening of the sense of impartiality and to a more serene jurisprudence since the members of the Bar Council are no longer required to judge their own colleagues and, finally, to a greater transparency towards the public and therefore to an increase in the citizen’s trust in our bars.

Nevertheless, it should be emphasized from the outset that the current procedure generally works well, as the OBFG reminded during the hearings.

In many bars, disciplinary jurisprudence proceeds correctly and is not marked by the partiality or lack of professionalism of one or the other member of these Councils of the Order.

The proposed transfer of skills benefits especially the small bars for which the current disciplinary system poses problems. Indeed, the assessment of lawyers by their peers in small bars poses great difficulties. Being judged by peers is not easy, neither for the one who has to make the decision, nor for the one who has to be judged.

Moreover, as disciplinary cases are few, the experience acquired remains limited. Furthermore, the experience of all members of the Order Council within the small bars is even more limited. Indeed, the smaller the bar is, the fewer the files are. It is logical.

I recognize that the situation of the big bars, especially that of Brussels, is specific. However, the introduction of an exceptional procedure for large bars could pose problems with respect to the principles of constitutionality, equality and non-discrimination. The Brussels bar is actually larger than the others. However, this does not justify special treatment when it comes to disciplinary proceedings.

On the other hand – we discussed this in a committee – I would have been quite in favour that members of the current Order Council could be part of the disciplinary boards. At first, I was quite reluctant to this eventuality because I thought it could create a form of conflict of interest. In fact, the same person would be called to perform two functions. However, if the reform is adopted, there will be no more problems. Indeed, if it is true that these persons are part of the Order Council, the plurality of geographical origin of the members of the disciplinary council will ensure impartiality. Any connection between the lawyer who judges and the one who is being judged will be impossible. Under these conditions, out of five counselors, two or three could have been members of the Board of the Order. This would not have been a problem for me. The amendment was not voted in the committee. This will not change my position on this issue. To amplify the fact that it would have been interesting that councillors could be members of the current Councils of the Order, I specify that the members of the Councils of the Order of the different bars within the same constituency are elected persons. They therefore have a democratic legitimacy, which could have been valued by the counselors in these disciplinary councils. This would have seemed to me more positive, better for the credibility of this new procedure applicable to bar members.

I do not think that the position of local stallers is diminished in the project. Indeed, the chairman of the disciplinary council represents only a second way of access to the disciplinary council and this in a limited way. It cannot be directly taken from a file because every investigation and every complaint must first be entrusted to the steward who can, after a sometimes summary investigation, estimate that this complaint is unacceptable, unfounded or that it has a venical character. The chairman may, on the other hand, remedy a wrong decision or a lack of decision or investigation on the part of the steamer. Therefore, it is always the stickman who holds the hand in this procedure. Here only a second path is created, but the stickman remains the person who has the hand as part of this procedure.

Finally, I wanted to emphasize that I was delighted to have obtained that the legitimate demands of the Eupen Bar were heard. Thus, in case of disciplinary prosecution against an attorney of the Eupen Bar, he may justify himself before a chamber of the disciplinary council or the disciplinary council of appeal, including two members external to the Eupen Bar but knowing the German language.

Furthermore, in order to better guarantee the respect of the defence rights of the German-speaking lawyer subject to disciplinary proceedings, the proposal allows him, if necessary, to speak in German before the disciplinary board or the disciplinary board of appeal. In fact, it seemed to me important that the lawyer, when he is on the side of the defence as a person, that he must defend himself, can do it in his own language, like any citizen. When it comes to a German-speaking lawyer, it is essential that he can be judged by people who understand the language in which he speaks.

Through this proposal, the bars have, in some way, shown the example. They are self-reforming. They understood themselves and I think it’s very positive, that disciplinary procedures could pose problems, specifically in the small bars, I recall. The bar has made its own self-criticism. He himself submitted this bill that allows to find a solution to a possible disciplinary problem. Overall, disciplinary procedures go well, but in small bars, this can be a problem.

The Bar has, in some way, shown the example by doing its duty of self-criticism and by putting on the table of parliament a procedure that is more impartial, healthier and more serene. In this way, the bar will be able to refine its image and ensure that there is greater impartiality in the decisions that will be made by the disciplinary courts.

First of all, I would like to thank the rapporteur for his excellent report and for the cooperation of his group, both in the draft law and in the committee.

During the hearings, the history of creation was clearly outlined. President Stevens has pointed to us, and we must confirm, that it is a strange system. We first had to proceed to a division of the National Order of Lawyers to then bring the OVB and the OBFG together around an idea that they themselves launched. The OBFG itself submitted a proposal and had to conclude in the final quarter not that there was no agreement within the OBFG to submit it, but that there was no special majority within the OBFG to declare its agreement.

In the end, we heard at the hearings themselves that this bill can get the full support of the various balis, with the exception of Brussels-Frans, Bergen and Hoei.

The previous speakers have already cited a number of elements related to the core points, the concerns in this new discipline procedure. I will go over them very briefly. First and foremost, the purpose is a modernization of the discipline system, which will ultimately bring about an adaptation of the social reality that was somewhat lost in the current system as stated in the Judicial Code.

A clear point in the bill goes to the professionalization of disciplinary justice in which one should not lose sight of or confuse that in this sense professionalization is not opposed to amateurism. There was no amateurism in the past. Only there is the concern that one needs to move more and more to specialization and that eventually with fewer disciplinary lines throughout the country at the level of the jurisdiction of the courts of appeal there will also be a less variable occupation, as the previous speaker has cited, At the moment that the disciplinary trial takes place at the level of the arrondissements, from the individual balais, the citizen gets the impression that it is too much "we know us" and those who should sit in the disciplinary council are also not satisfied because they must make a judgment about people they know well in everyday life. These problems are now solved by bringing it to a higher level of jurisdiction.

That has the full support of the various balls, even the smaller ones.

The staff holder of Eupen has clearly pledged and almost begged to organize it in this way. At their request, we have unanimously approved an amendment, allowing them to choose a German-language jurisprudence for their territory.

The next point that is of course important is the strengthening of the sense of impartiality. The dynamics of the research are also increased. In addition to the fact that the individual staff holder will still lead the investigation, in case of a complaint there is an additional opportunity for the individual complainant to address the chairman, the second access route. That chairman will be granted full jurisdiction if it is established that the staff holder to carry out the investigation would remain in the investigation for too long or if, possibly, no investigation has even been initiated.

Finally, the publication of the disciplinary court. At the moment, different measures in the field of disciplinary justice are issued in the different districts for possible similar cases, because one does not know what the current jurisprudence is. The publication of the disciplinary jurisprudence can bring about uniformity and everyone is treated equally.

Finally, we were able to conclude that the bill has a very broad support, not only in our Parliament, opposition, majority, language limit or no language limit. This is also the case on the ground. That is why we have submitted the bill and will also approve it.

Mr. Speaker, from time to time we hear the comment that there are too many lawyers or too many lawyers sitting in our Parliament. With this bill, this has ⁇ not proved to be a disadvantage and we have succeeded, across all party boundaries and language boundaries, after a number of hearings to come to a proposal that has received a ⁇ broad support.

The proposal, which is put to the vote today, represents a step forward in modernising the disciplinary procedures at the bars and the lawyer’s profession. Colleague Muls has described the history in part. During the hearing it was revealed that already five years ago with the predecessor of the OBFG the discussion about a new disciplinary law or a new disciplinary procedure was initiated. The sector has been advocating for a procedure with a view to greater transparency, away from the idea of “we know us” and “we arrange that inside rooms”, also away from any form of notification.

It was also aimed at uniformity in the jurisprudence of the various councils of the order, now twenty-eight, but five after the approval of the present bill. In this context, the differences manifested themselves not only across the language boundaries, but also in the same language area. Former staff holder Stevens, current chairman of the Order of Flemish Bales, has recalled that the independence of the lawyer is the cornerstone for a fair and impartial procedure, conducted before an independent judge in a rule of law like ours. That order must and must at all times, in all independence, have its own disciplinary right, which has remained unchanged to this day, irrespective of any interference of the judicial and executive powers. That is also good.

Previous speakers have already pointed out that the discussions between the various orders — the OVB on the one hand and the OBFG on the other — have taken a lot of time. It is true that after the start of those discussions the colleagues Muls and Van Parys and I myself submitted the bill. The hearings were held very broadly and showed clearly that the present proposal was supported as widely as possible, with the exception of Brussels-Frans, Bergen and Hoei. This has been outlined in a very broad support, here in Parliament and in the competent committee.

Following the adoption of the proposal, 28 disciplinary colleges with disparate jurisdiction will subsequently pass to a reduced number of disciplinary colleges — five — and a more transparent jurisdiction will be achieved. Members of their own board will no longer have to judge the fate of their fellow councillors, which will lead to greater confidence in the legal profession. I think we should look forward to the professionalization and uniformity of disciplinary justice that is coming, with increased transparency and also the disappearance of the dissatisfaction that existed over the functioning of the current system of disciplinary justice.

In fact, the minority pledge held in the committee has not obtained any effect. There is a broad majority and it is therefore pleased that our group will support the submitted bill.

Mr. Speaker, colleagues, we are delighted that the disciplinary law for the ballet can finally enter the 21st century, that one gets at the ballets a system of disciplinary arrangement that is finally adapted to the needs of this time. We would also like to point out that it is — for once, however — thanks to the unanimity on the Dutch-speaking side that this bill can get its seizure.

In the majority, there was some resistance in some groups, including the MR, after all. They even protested a little by leaving the committee seats before voting. In the end, everything goes well and it is not the dictates of some large French-speaking bars that come here to make the law, but is it a general democratic support at all bars that ensures that lawyers obtain the disciplinary right that they have been waiting for so long.