Article published in LEXBASE PROFESSION AVOCAT on December 20, 2018
In a ruling dated November 21, 2018[1 ] the Douai Court of Appeal overturned a decision by the regional disciplinary board of the Douai Court of Appeal to acquit a lawyer from disciplinary proceedings for refusing to comply with a commission d'office ordered by the president of an assize court.
This ruling exposes the limits of the solution that the Constitutional Council thought it had found to resolve the conflict that can arise between the conscience of a lawyer who refuses, in agreement with his client, to take part in a trial that he does not consider fair, and the power of the president of a criminal court to appoint that lawyer ex officio.
In this case, during the appeal of a criminal conviction, the two lawyers chosen by the accused raised an incident following remarks made by the public prosecutor and requested that the trial be transferred to another assize court. They were refused and the case was adjourned to a later session. At the first hearing of this new trial, the two lawyers put forward a new request for postponement, in support of a number of defenses relating to the rules of fair trial. When this request was rejected, one of the lawyers left the courtroom. The second lawyer also felt that the defense could not be exercised serenely before this assize court and, in agreement with his client, was also preparing to leave the hearing. The president of the assize court appointed him ex officio, then rejected the excuses and impediments put forward by the lawyer. The lawyer maintained his refusal to comply with the court order. The trial continued without the presence of the accused, who refused to appear, and without counsel. Several months later, disciplinary proceedings were instituted by the public prosecutor against the lawyer who had failed to comply with the commission of office ordered by the president.
Following a referral to the French Constitutional Council on a priority question of constitutionality in the context of this disciplinary procedure, the Conseil Constitutionnel declared that the legislative provisions stipulating that the president of a court of assizes who has appointed a lawyer ex officio can judge the reasons for excuse or impediment presented by this lawyer, reject them without giving reasons, and without his decision being subject to direct appeal, were in conformity with the Constitution. For the Constitutional Council, the constitutional objective of the proper administration of justice, which includes respecting a reasonable time limit for rendering a judgment, must take precedence over the lawyer's conscience clause. Moreover, the right to an effective remedy against the president's decision to reject the lawyer's grounds for excuse or impediment would be sufficiently guaranteed by the possibility of contesting the regularity of this decision, for the accused during an appeal to the Supreme Court, and for the lawyer, during any disciplinary proceedings brought against him.[2]
The Constitutional Council's decision could have harmonized the rules governing the appointment of a lawyer by the president of a criminal court with the lawyer's conscience clause. (1)
Unfortunately, the Douai Court of Appeal did not feel it had to apply all the consequences of the Constitutional Council's decision. It refused to assess the legality of the decision of the president of the assize court to reject the grounds of excuse and impediment in relation to the lawyer's conscience clause in the exercise of the rights of defense. (2)
Even if the decision of the Douai Court of Appeal is censured by the Court of Cassation, it is necessary to amend the legislative provisions concerning the appointment of a lawyer by the president of a criminal court, in order to better reconcile the lawyer's conscience clause, the exercise of the rights of the defense and the proper administration of justice. (3)
Lawyers exercise their rights of defense in the interests of their clients, in compliance with the law and their ethical obligations. As an independent lawyer, he or she has a conscience clause that gives him or her the freedom to accept or refuse assistance and participation in a trial, particularly if the rules of a fair trial are not respected.
This demanding exercise raises few insurmountable difficulties when the lawyer is chosen by the client and the client has accepted this choice. As long as there is trust between them, problems arising in the preparation of the defense can be resolved. In any case, if there is a profound disagreement over the defense strategy, or out of respect for his conscience, the lawyer can always terminate his mission and leave it to another lawyer to conduct a defense approved by the person about to be judged.
Commission d'office, by its very nature, restricts the lawyer's ability to terminate his mission. Under current law, a lawyer may not withdraw from an assignment unless the appointing authority agrees to his or her excuse or impediment.
Article 6 paragraph 2 of the decree of July 12, 2005 relating to the professional ethics of lawyers stipulates that " the lawyer is obliged to defer to appointments and commissions ex officio, unless there is a legitimate reason for excuse or impediment admitted by the authority which made the appointment or commission ".
This text concerns all legal aid appointments in civil matters, and all ex officio commissions in criminal matters.
With regard to criminal defense, Article 6, 2, c) of the European Convention on Human Rights provides that " Everyone charged with a criminal offence has the right (...) to defend himself in person or through legal assistance of his own choosing and, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
In principle, commission d'office pursues the noble cause of providing a lawyer for those who cannot afford to pay for one. All bar associations take an active part, with honor and pride, in the organization of these "commissions d'office".
However, impecuniosity is not the only reason under French law for appointing a lawyer for a defendant in criminal proceedings.
As the rights of the defense are considered to be a matter of public policy[3], several texts provide for the compulsory assistance of a lawyer in certain cases, irrespective of the financial resources of the accused or defendant.
The power to appoint a lawyer is shared between the President of the Bar and the President of the criminal court hearing the case.
The President of the Bar Association is the natural authority, provided for in numerous legislative texts, to appoint a lawyer in non-jurisdictional proceedings (police custody, free hearings, referral to the public prosecutor's office, etc.) and in jurisdictional proceedings.
Article 417 of the French Code of Criminal Procedure stipulates that the president of the court must appoint a lawyer for an accused person who does not have a lawyer and who wishes to be assisted by one. This assistance is compulsory " when the accused is suffering from an infirmity likely to compromise his defense ".
In criminal cases, article 317 of the Code of Criminal Procedure stipulates that before the Assize Court, " the presence of a defense counsel for the accused is mandatory. If the defense counsel chosen or appointed in accordance with article 274[4] does not appear, the president appoints one ex officio ".
This provision is in line with article 9 of the law of December 31, 1971, which states that " a lawyer duly appointed by the President of the Bar or the President of the Assize Court may not refuse to act without having his reasons for excuse or impediment approved by the President of the Bar or the President".
Commission d'office can have effects contrary to the lawyer's rights and obligations, just as imperative as the duty to appear. It restricts the lawyer's freedom to choose a defense strategy when he and his client are in disagreement, the choice not to take part in a trial when he considers that it does not comply with the rules of a fair trial, or the choice to end his defense mission when it offends his conscience.
When the lawyer is appointed by the President of the Bar, confidential discussions allow the lawyer to set out all the reasons, including those covered by professional secrecy, why the lawyer is requesting to be relieved of his duties. If the President of the Bar approves, he may appoint another lawyer or, in the extreme case, decide to take on the defense himself.
If the lawyer is appointed by the president of the criminal court, the statement of reasons for excuse or impediment is much more constrained. On the one hand, the president who commissioned the lawyer is the judge of the request for excuse, and he also presides over the judicial debate. If the excuse presented is linked to a question of partiality on the part of a judge or a failure to respect the rules of fair trial, the request for an excuse is bound to provoke mutual distrust between the court and the lawyer. On the other hand, the lawyer may not submit to the president any grounds for excuse or impediment that would be covered by professional secrecy or that would harm his client's interests. In such cases, the president cannot know the real reasons for the lawyer's request for excuse.
If a lawyer fails to comply with a commission d'office without having had the grounds for excuse or impediment approved by the appointing authority, he is liable to disciplinary proceedings under articles 183[5 ] and 184 of the decree of November 27, 1991.
On the occasion of disciplinary proceedings against the court-appointed lawyer in the case described above, the Constitutional Council clarified the review that may be carried out on the decision by the president of the assize court to reject the lawyer's grounds for excuse or impediment.
On February 7, 2018, the Court of Cassation referred to the Constitutional Council the priority question of the constitutionality of article 9 of the law of December 31, 1971 raised by the defense of the lawyer prosecuted, with the following reasoning "...the unjustified assessment, by the president of the assize court alone, of the grounds for excuse invoked by the lawyer he himself appointed to defend the accused, may be such as to infringe the rights of defence, recognized by the Constitutional Council as deriving from article 16 of the Declaration of the Rights of Man of August 26, 1789 ".[6]
In its decision of May 4, 2018, the Constitutional Council, while declaring article 9 of the law of December 31, 1971 to be in compliance with the Constitution on the grounds that it ensured the implementation of the constitutional value objective of proper administration of justice, specified the following: " If the refusal of the president of the assize court to accept the grounds of excuse or impediment put forward by the court-appointed lawyer is not subject to appeal, the regularity of this refusal may be challenged by the accused in an appeal to the Court of Cassation, and by the lawyer in any disciplinary proceedings instituted against his refusal to defer to the decision of the president of the assize court".
The Constitutional Council therefore chose to validate the current system of ex officio commission by the president of the assize court, while specifying that it was up to the Court of Cassation in the event of an appeal by the accused, and to the disciplinary court in the event of prosecution of the lawyer who had not complied with the ex officio commission, to assess the legality of the president's refusal on the grounds of excuse or impediment.
His decision does not rule out the case where the lawyer is unable to present the president with a reason for excuse that would be covered by professional secrecy. In such a case, it is hard to see how the Cour de cassation, or even the disciplinary court, especially in its appeal procedure, could effectively review the president's refusal and the lawyer's conduct.
On the other hand, one can legitimately question the effectiveness and circumstances of this recourse, which requires the lawyer to be disciplined before it can be exercised[7].
However, the Constitutional Council gives the Cour de Cassation and the disciplinary courts the power to review both the form and the substance of the Chairman's refusal.
This control must also respect the jurisprudence of the European Court of Human Rights, which has developed with regard to the prosecution of lawyers. Control of lawyers' conduct must be implemented with particular caution and restraint. It cannot be a threat with an "inhibiting" effect that would undermine the defense of their clients' interests[8]. It is only in exceptional cases that the sanctioning of a lawyer may be considered necessary in a democratic society, because of his or her expression or choice of defense[9].
Now, unfortunately, the first decision of a disciplinary court on the basis of article 9 of the law of December 31, 1971 after the decision of the Constitutional Council of May 4, 2018 leads us to note that the review requested by the lawyer sued of the president's decision to reject the grounds of excuse or impediment is not effective, particularly when the Court of Cassation has already rejected, on the occasion of an appeal, the criticism presented by the accused of the president's decision of refusal.
In the case which gave rise to the Douai Court of Appeal's ruling of November 21, 2018, the regional disciplinary board had acquitted the lawyer in question on July 5, 2018, considering that no disciplinary fault could be attributed to him, since on the one hand the president of the assize court had not, by his own admission, examined the grounds for the apology presented to him by the lawyer, This had deprived his decision of " any legal basis ", and secondly, the lawyer's refusal to submit to this commission d'office and his choice to withdraw from the hearing, under such conditions and with his client's agreement, had constituted " an act of defense ", " which in a democratic society cannot form the basis of disciplinary proceedings ".
Following an appeal by the public prosecutor, who had requested a warning against the lawyer in question, the Douai Court of Appeal overturned the decision of the regional disciplinary board and issued a warning.
In support of its decision, the Court of Appeal :
(...)
In addition, the Court of Appeal considers that:
By refusing to review on the basis of the lawyer's professional ethics the decision of the president of the assize court to refuse the excuse presented by the lawyer and the reasons which led him not to comply with the court order, the court of appeal incurs, in our opinion, the following criticisms.
Firstly, the generality of its ruling that " a lawyer's refusal to submit to a commission of office by the president of an assize court constitutes a disciplinary fault when the reasons for excuse presented by the lawyer have not been accepted by the president of the assize court" , ruins the efforts of the Constitutional Council, which, in order to uphold the constitutionality of article 9 of the law of December 31, 1971, specified that the regularity of the president's decision should be reviewed by the disciplinary court in the event of prosecution of the lawyer.
If the Court of Appeal is to be believed, any refusal by a lawyer to comply with a commission d'office ordered by the president who has rejected the excuse, without having to give reasons for his decision, constitutes a disciplinary fault.
This generality alone, which forms the basis for the lawyer's conviction, is in total contradiction with the Constitutional Council's decision. The Court of Appeal's ruling of November 21, 2018 therefore incurs the censure of the Court of Cassation for non-compliance with the law and lack of legal basis.
Secondly, the Court of Cassation's ruling of June 24, 2015[10], which dismissed the defendant's appeal, does not have the authority of res judicata over the disciplinary proceedings brought against the lawyer sued.
However, the Court of Appeal considered " that the arguments put forward by Me B. had already been rejected by the decision of the Criminal Division of the Court of Cassation" on the occasion of the accused's appeal, and that the Court therefore no longer had to consider whether or not the lawyer's refusal to comply with the court-appointed commission was justified by the exercise of his conscience clause or by the exercise of the rights of the defense.
Here again, this decision is contrary to the Constitutional Council's ruling, in that the latter never indicated that the decision of the Cour de Cassation, in the event of an appeal by the accused, was binding on the disciplinary court ruling on the lawyer's conduct at the hearing, and vice versa.
The two procedures are distinct and independent. It is quite conceivable that the accused's appeal, criticizing the president's decision to refuse the excuse on the basis of article 6 of the European Convention for the Protection of Human Rights, could be rejected without the lawyer's decision not to comply with the commission automatically constituting a disciplinary fault.
Thirdly, the Court of Appeal's conception of the role of the court-appointed lawyer, who, in its view, should be present in the courtroom but silent if his client forbids him to intervene, is a hindrance to the lawyer's independence and an attack on his conscience if it dictates that he should not take part in a trial he does not consider fair.
Moreover, it contradicts the case law of the Cour de cassation, which accepts that a lawyer may not be present throughout an assize trial, since the validity of the proceedings is not called into question when the lawyer's absence is not "due to the fault of the assize court, the president or the public prosecutor "[11].
This ruling prompts us to propose a reform of the procedures for ex officio commissions by the presiding judge of a criminal court.
Some may wish to allow the lawyer never to refer to a commission d'office.
The European Convention for the Protection of Human Rights does not require the compulsory assistance of a lawyer for the accused or the defendant in a criminal trial. 12] Article 6, 2, c) of the Convention provides only that every accused person has the right to defend himself in person or through legal assistance if he has not sufficient means to pay for it.
However, we believe that the lawyer's code of ethics should allow him to defer to a commission d'office if his conscience does not forbid him to carry out the mission ordered, and that he can freely exercise the rights of defense he deems appropriate in the trial in which he is requisitioned.
The problem with the current system stems from the fact that, in the event of a lawyer being appointed by the president of a criminal court, the judge of the grounds for excuse or impediment presented by the lawyer after his appointment is the president who has just appointed him.
In the event of the lawyer's refusal, the president finds himself in a situation of conflict of interest, since he must be the judge of his own decision to appoint a lawyer, with regard to parameters over which he has, and should have, no power: the exercise of the lawyer's conscience clause and the choice of means of defense. This situation is exacerbated by the fact that the lawyer can never give the president any reasons for his refusal, which would be covered by professional secrecy or prejudice the defence of the accused.
One way out of this dilemma would be to make the President of the Bar the sole judge of the grounds for excuse and impediment.
This is why we are proposing that, after paragraph 2 of article 6 of the decree of July 12, 2005 on lawyers' ethics, which states that " the lawyer is obliged to comply with appointments and commissions ex officio, unless there is a legitimate excuse or impediment accepted by the authority that made the appointment or commission ", a paragraph 3 should be added:
" If the appointing or commissioning authority is not the President of the Bar, and the appointed or commissioned lawyer is rejected on the grounds of excuse or impediment, the matter must be referred to the President of the Bar in the jurisdiction where the lawyer is to perform his duties, so that he may decide, after confidential discussion with the lawyer, either to confirm the appointment or commission ordered, or to appoint or commission another lawyer.
Similarly, article 9 of the law of December 31, 1971, which stipulates that " a lawyer duly appointed by the President of the Bar or by the President of the Assize Court may not refuse his ministry without having his reasons for excuse or impediment approved by the President of the Bar or by the President", could be amended to read as follows:
"A lawyer who has been duly appointed by the President of the Bar or the President of the Assize Court may not refuse to act without having his reasons for excuse or impediment approved by the President of the Bar or the President.
In the event that the President rejects the lawyer's excuse or impediment, the matter must be referred to the President of the Bar Association of the place where the Assize Court is sitting, so that he may decide, after conferring confidentially with the appointed lawyer, either to confirm the commission ordered, or to appoint another lawyer. "
[1 ] This decision has been appealed to the French Supreme Court.
[2] Constitutional Council, decision of May 4, 2018 n°2018-704
[3] Cass. crim. August 8, 1959: Bull. crim. 1959, n°387
[4] Article 274 of the Code of Criminal Procedure stipulates that during the preliminary examination for trial, " The accused is then invited to choose a lawyer to assist him in his defense. If the accused does not choose a lawyer, the president or his delegate appoints one ex officio. This designation is null and void if the accused subsequently chooses a lawyer.
[5] Article 183 of the decree of November 27, 1991, amended by the decree of May 24, 2005: "Any contravention of laws and regulations, any breach of professional rules, any breach of probity, honor or delicacy, even relating to extra-professional facts, exposes the lawyer who is the perpetrator to the disciplinary sanctions listed in article 184."
[6] Cass. crim. February 7, 2018, n°17-90.025
[7] " Not only is the exercise of a disciplinary procedure not trivial, but such a procedure, moreover, is not the appropriate framework for judging the decision of the president of the assize court ", Florence G'sell in Chronique Avocats, la Semaine Juridique, Edition Générale, n°21, May 2018, doctr. 588, n°17
[8] ECHR, Dec. 15, 2015, Bono v/ France, no. 2902411
[9] ECHR, gde ch. Apr. 23, 2015 n°29369/10, Morice c/ France
[10] Cass. crim. June 24, 2015 (n°14-84.221)
[11 ] Cass. crim. Feb. 13, 2008 n°07-83.168
[12] This was the argument put forward by Henri Juramy, " a formidable trial lawyer (1933-2010) ", when he felt he had to leave a trial that was not fair, so as not to have to endorse it by his presence, even if silent, as François Saint-Pierre recalls in Quitter le prétoire : une stratégie de défense exceptionnelle, in Pratique de la défense pénale, p.447, François Saint-Pierre, LGDJ,2nd edition.
On May 20, 2020, the French Supreme Court overturned the decision of the Douai Court of Appeal and referred the case back to the Paris Court of Appeal.
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