Senior Advocate of Nigeria and Senior Partner at Strachan Partners Mr.Charles Adeyemi Candide-Johnson SAN was guest at the Lagos State High Court Annual Judges Retreat held on Monday, 4th December 2017 at the Radisson Blu Hotel, Amsterdam, Netherlands where he spoke on the vital role placed on the showlder of the judiciary as well as the steps towards establishing a synergy between the bar and the bench.
Below is his remark:
Introduction
Mr. Candide-Johnson began his speech by thanking the Chief Judge of Lagos State, Honourable Justice Opeyemi Oke for the privilege of speaking to the august audience.
“It goes without saying, but I must acknowledge nonetheless; the immense privilege afforded to me, to make some remarks in the presence of such as august assembly; and to do so in this beautiful, historic city of Amsterdam.
I am grateful to the Chief Judge of Lagos State, Hon. Justice Opeyemi Oke especially, for this highly valued opportunity. It is primarily because of the high respect, admiration and affection that I have for her, that I have come here, across land and sea. And this is not irrelevant.
I have been embedded in the judicial family all of my life. I have personal acquaintance with many of the most celebrated judges in our history. Judge Elias; Sir Adetokunbo Ademola; Sir Darnley Alexander; Olujide Somolu and others of that ilk have wandered through our childhood homes. I was named Charles to honour Charles Olusoji Madarikan, but Ayo Gabriel Irikefe renamed me Idehen! I have known all of the Chief Judges in Lagos state; the “good, the bad and the ugly”. And from that background, I feel quite confident, that Chief Judge Oke is the worthy custodian of a high legacy, and that she has the experience, ability, integrity as well as the character and comportment that is required to promote that legacy in the 21st century judiciary of Lagos State.”
Please allow me to respect also, my own big brother, “JJ”, amongst the organizers of this meeting and who is himself a noble exemplar of high judicial tradition. Quite obviously the better of the Candide-Johnson scions is proudly a judge of this great judiciary.
And then I must acknowledge, that an enfant terrible like myself might not be an obvious choice for the present assignment. Though shy and retiring by nature, I have always tried to stay firm on the side of the right thing. Inevitably, some of my own interactions with judges have not gone very well for individuals, but I rather think they have been good for the judiciary nonetheless.
The year after I was called to the bar, I found myself in the middle of the judicial contretemps which became the court of appeal decision in Candide-Johnson v. Edigin (1990) 1 NWLR (Pt. 129) 660. The “provocation” in that case, was the respectful, but persistent request that an Acting Chief Magistrate should faithfully record the legal submission that I had made to her in a criminal case. It ended with her ordering my peremptory detention with the simple words: “lock him up”!
In reply to the action to enforce my fundamental rights filed the very next day, she pleaded that I was in contempt of court. At 671-672 H-B of the report, Achike JCA (ahtw) narrated it in the following manner:
“Apparently, when tempers rose rather meteorically, the respondent exacerbated by the situation, unleashed this incisive question: “When did you leave the law school?”. The response going by the record was equally unrelenting: “I will refuse to answer that question in the rudest manner.” It was the refusal to answer this question, according to the record, that broke the camel’s back, and led to the detention of the appellant for contempt of court. It was unfortunate, to say the least, for the respondent, according to the records, to have taken leave of her exalted bench, invited counsel to extra-judicial dialogue, and thereafter descended into the arena of vituperative conflict with him.”
At 673 D-F the learned Justice further rebuked the magistrate:
“From the foregoing, I am unable to hold that the extra-judicial vituperative exchange between the appellant and the respondent in the peculiar circumstances of this case amounted to contempt of court. On the contrary, I think that the invocation of the power of contempt in the instant case bordered on abuse of judicial authority….”
After I had filed this case, I went to see the Chief Judge of Kano State, Saleh Umaru Minjibir to tell him what had happened and what I had done. In his own words the magistrate had “gone berserk”! He told me of a number of ways in which she had previously abused her power and that he had nothing to say on her behalf. Her employment contract with the Kano State judiciary would not be renewed. I called my own father and related the facts. He listened quietly and patiently for me to finish and then his only remark was this: “let no one doubt that you will see this to its end”.
The attitude of both these traditional judges reflects the regard they themselves had for the responsibility of very high office, as well as the priority of self-regulation by which the judiciary validates and vindicates its own authority through time. These are the priorities that we learnt from childhood and I have an ingrained commitment to defending that authority as well as the reputation and integrity of the judiciary of Nigeria and of our legal profession. And I have a background and track record which proves that I will act in this way regardless of the risk and even against temporary incumbents of any judicial office.
The Topic
As to my given topic, it is trite, maybe even platitudinous to speak of “improving bar bench relations”. That necessity should be so obvious that I could take my seat right now. But the theme of this retreat gives more substance and direction. It is profound and timely, and red flags the most urgent imperative for Nigerian judges today, which is: “Preserving judicial independence in a period of national transformation”.
The political and social turmoil that our judges have to navigate today is historic, but it is not unique to Nigeria or to this time in history. The courts of England whose heritage we borrowed since 1862, transformed and progressed after the Magna Carta in 1215, through a succession of violent and bloody experiences (including violence and intimidation against judges in person) during which they distilled the value of their role in a progressive and peaceful society and perfected the art of exercising that role to the admiration of the world.
Closer to our time and space, in 2011 in Egypt, a tumultuous uprising mobilized a mass movement around demands for public authority to be clearly accountable manner and governed by the rule of law. Egyptian judges took the environment as an opportunity to realize their own vision of a state ruled by law in which they will be insulated from political pressures and private interests, providing full autonomy to individual judges and to the judiciary as a body to issue decisions that will be respected and implemented by all the agencies of the state in the face of an imperious and impervious presidency.
In Kenya, an extended period of political and economic uncertainty followed the stunning decision (unprecedented in Africa) of the Supreme Court to cancel the results of the 8th August 2017 presidential election. In September 2017, the Kenya Magistrates and Judges Association (KMJA) condemned what they termed as an assault on the Judiciary by the top leadership of the country following that decision. This appeared to be a direct rebuttal to remarks made by President Uhuru Kenyatta, and the association affirmed that the Judiciary is an independent body that will not be cowed by threats.
Nigerian Judiciary Threatened
Uniquely in Nigeria, the threat appears to come from within. That is from abuse of relations between the bar and the bench which relationship should be the cornerstone of judicial effectiveness and purpose. Ipso facto, the cornerstone of judicial independence. And also from the conduct of judges themselves within the scope of the adjudicative function.
Recently, widely reported cases have implicated senior lawyers in dubious financial arrangements with judges which have prompted criminal prosecution. Two SANs are currently facing trial in the Lagos High Court accused of bribing judges before whom they have cases.
Putting judicial corruption aside for a moment, much disquiet arises from dissatisfaction with the efficiency and effectiveness of judicial administration and the superintendence of dispute resolution in our courts. Daily, reports, rumours, comments on social and print media describe a wide division between judges and the profession in general and between judges as a class and the public whom they serve.
The Judges Burden
The context for any discussion of bar and bench relations is the responsibility of the vital role which is placed upon the shoulders of the Judiciary by our Constitution. This is highlighted in the introduction to commentary on the Bangalore Principles for Judicial Conduct as follows:
“A judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law. Even when all other protections fail, it provides a bulwark to the public against any encroachments on rights and freedoms under the law. These observations apply both domestically – in the context of each nation State – and globally, viewing the global judiciary as one great bastion of the rule of law throughout the world. Ensuring the integrity of the global judiciary is thus a task to which much energy, skill and experience must be devoted. ”
This guardianship of the Rule of Law in a democratic system of government requires an acute appreciation of the purposes of the progressive, social, economic, and political order which the Constitution seeks to install, as well as basic prescriptions for such an order. The role of a judge implies a keen awareness of problems of contemporary society; sufficient knowledge and wisdom to decipher solutions and the courage to adopt them.
In 1933, Judge Learned Hand eloquently identified the centrality of judges to the administration of justice in his decision in Brown v. Walter , pointing out that justice depends less upon legal dialectics and more upon the atmosphere of the courtroom, which in the end depends primarily upon the judge. A judge has great power, particularly in the courtroom. But that power should be used wisely and knowledgeably. When any individual judge begins to think that he or she is the institution and is better than everyone else, it is time to consider an early retirement.
The historic and continuing importance of the relationship between the judge and counsel is rooted in the role of courts in contemporary society. In the criminal area, courts exist to apply values of the entire community embodied in the law to conduct in order to determine whether it was a crime and, by the same standard, to be sure that the appropriate response is meted out to the wrongdoer. In the civil area, courts exist to resolve disputes between citizens, corporations and governmental entities so that the answer to any problem in that area is not just that might is right, but that, where possible, justice and fairness as required by the rule of law should prevail, procedurally and substantively. These simple ideas are the key to a progressive and peaceful society organized for the increasing prosperity of the many.
Duties of The Bar
The independence of the Bar as an institution is also of fundamental importance. An independent judiciary must be supported by an independent legal profession. This independence is a hallmark of the Bar, both in its ethos and the way that it functions. Counsel must be independent in giving counsel. He must apply an incisive legal mind to both factual and legal analysis, being frank and fearless in providing advice based on the conclusions honestly reached. That is a duty to the client, and more fundamentally, it is a duty to the courts and the system of administration of justice.
Counsel’s duty is not only to his client, but extends to the society at large, whose overriding interest is in ensuring that justice is done to all in all cases.
Judges also expect to be able to rely, as does the public, on the competence of the legal practitioner. A significant aspect of the reliance placed by a judge on a barrister is that the barrister will have thoroughly researched the case and be entirely familiar with all of the facts, as well as all of the relevant law, both substantive and procedural. Similarly, there is a duty of candour. The proper relationship between the Bar and the Bench depends upon the judge’s capacity to be able to trust the barrister to be candid and honest.
Component of The Authority Is Mutual Respect By corollary, respect from the bench for this essential function is also crucial. In the case of Lawan V. Zenon Petroleum & Gas Ltd & Ors (2014), the Court of Appeal, Per Adumien JCA highlighted the reciprocal obligation of due respect from the Bench.
“Judges themselves have a reciprocal duty to be civilized, by the use of decent words and language in dealing with lawyers and litigants who appear before them. See Ann Okwuchukwu Menakaya v. Dr. Timothy N. Menakaya (2001) 16 NWLR(Pt. 738) 203 at 252, per Ogundare,JSC, where the Supreme Court said: “I think we Judges owe it a duty to be restrained and civilized in dealing with those – counsel, parties and members of the public – who appear in our courts”
Simple courtesies go a long with to establishing and sustaining the necessary relationship of mutual confidence. Judges must respect the time, dignity and interest of members of the Bar. They should ensure they not only sit every day except when practically impossible but must also sit on time. Where a court for any reason will not sit on an adjourned date, adequate notice should be given to all counsel that have matters before the court. Also, where a court cannot sit within time, an apology and reasons for such late sitting should be tendered to members of the Bar in court.
The bar and bench are critical pillars of the administration of justice and without the support of one for the other, the house will fall. This begs the question as to why, then, do lawyers and judges often encounter problems in dealing with one another in our professional roles?
Black Robe syndrome
Certain learned authors4 have identified what they now call “black robe disease,” or otherwise known as “judge-it is”. It is a malady that can affect judges of all ages, unfortunately. The term is used to describe judges who let their own self-importance cloud their good judgment. The essence of judge-it is a judge who thinks he or she is so important that he or she can act unilaterally and arbitrarily. There are classic examples of judges who had the black-robe disease and have suffered the consequences before the Judicial Council in recent years. In an article in the journal, “The Legal Intelligencer in 20125 , an American ethics lawyer provided examples:
- A common symptom of judge-it is is lateness in sitting. When hearings are set for 9 a.m. or 9:30 a.m. and the judge doesn’t come in until 10:30 or 11 a.m., this inconveniences many lawyers and litigants and sets a very bad example. Being a judge is a privilege. Continually disregarding the time to show up in court is an abuse of that privilege and an act of total self-centeredness which undermines confidence in the responsibility and integrity of a judge and his judicial decisions.
- Another example of this disease is rude, discourteous treatment to lawyers and litigants. Another example of black-robe disease is berating lawyers in front of their clients or in public. That should never occur, except in the most extreme circumstances. A judge has an obligation to teach lawyers and help lawyers, not to berate them publicly.
- The beginning stages of black-robe disease are evident in judges who talk too much from the bench and have to constantly try to demonstrate how smart and intelligent they are. A judge’s role is to adjudicate. A judge should listen to the arguments, ask pointed questions and then make decisions. Unfortunately, some judges want to show that they supposedly know more than anyone else in the room and that is a major mistake and a classic symptom of the beginning of judge it is. Further, excessive comments and explanations from the bench are a sure way to get into judicial trouble.
- The best examples of full-blown black-robe disease are judges who are arbitrary and capricious, who are mean-spirited from the bench and mean-spirited in their relationships with colleagues and, more importantly, members of the bar and the litigants who come before them. Judge. A Judges who is ever quick to hold lawyers in contempt and threatening lawyers with sanctions are another example of judge-it is in full bloom. Lawyers can be trying and difficult, but if a judge treats a lawyer with respect, the lawyer will act in a reciprocal fashion
The best judicial officers are those who struggle every day to be fair and do justice. These men and women recognize their limitations but act with fairness, an interest in learning and humility. 6 Contempt should be used sparingly, particularly if the lawyer has never acted badly before for the judge. The wise judge will learn that the courtroom runs well through mutual respect. The judge instituting a reign of terror for contempt will lead to him being the subject of ridicule and loss of respect.
Mutual Enforcement of the Disciplinary Role
Both the bar and bench have a common interest in promoting the reputation of our practice for impartiality and integrity.7 So in 1924 the American Bar Association set forth the original Canons of Judicial Ethics as a standard of professional and ethical behaviour for judges. In 1972, they revised the original Canons, and gave them a new name, the Model Code of Judicial Conduct, which in 1990 was re-written yet again. Many of these rules are embraced in the Bangalore Principles on Judicial Conduct adopted by world jurists at a meeting in 2002 and in whose drafting; the Nigerian Chief Justice ML Uwais played a key role.
The Model Code of Judicial Conduct begins with the overarching obligation to uphold the integrity and independence of the judiciary. This duty drives from the judiciary’s central role in our legal system Part of that central role is the discipline of lawyers with respect to behaviour in court which is one of the three legs of the judicial function. Lawyers are regulated through norms of conduct established and enforced by the bar, judges in litigation, and administrative agencies; through substantive laws that apply to lawyers, malpractice standards and more. Judges have panoply of procedural and substantive powers to address attorney conduct issues which may arise in litigation and to regulate that conduct.
As to lawyers, Canon 3D (2) of the 1990 Code provides that:
“A judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority.”
A recent disciplinary case from a committee which I chaired became subject of public discussion in connection with the aspiration of one individual to become a senior advocate of Nigeria. In that case it was of critical importance to us, that a judge of the High Court of the Federal Capital Territory had given judgment9 in which she concluded harshly as to the conduct of the counsel appearing before her:
“By way of an aside, I find it needful to express an observation regarding the conduct of Counsel in this suit……… Applicant’s counsel ought to have declined this brief and maintained s dignified distance from this suit in the light of her involvement with this Estate…it portends of professional impropriety and I dare say moral impropriety”. (Emphasis mine)
In finding that a prima facie case of professional misconduct/infamous conduct has been established against the Respondent, contrary to Rule 10(b) of the RPC 2007 we observed that the fact that a Judge in the case made categorical remarks that the conduct of the Respondent was professionally improper and morally improper is in itself enough without more to refer the Respondent to a disciplinary hearing.
Contempt of Court
A more direct power exercised by the bench is the contempt of court. For an act to amount to contempt of court, it must be an act which diminishes authority of the court and therefore undermines the due administration of justice. It is not appropriate when an act merely annoys the judge or magistrate. A lawyer has the right to present his client’s case in the manner he deems fit. He may be long winded and his advocacy may not be pleasing to the judge. If counsel refuses to be directed by the court as to how to present his client’s case, such refusal and strong headedness cannot amount to contempt of court. It is advisable that judges do not unduly interrupt counsel while they are presenting their case. Where counsel reacts to such undue interruptions and interference in the presentation of his client’s case, it ought not to be regarded as contempt of court. As partners in the administration of justice, judicial officers must mind their language when addressing counsel. If a judge or magistrate provokes an unpleasant retort from the lawyer, the judge or magistrate should be careful not to see the retort as contempt of court. To be respected, you must respect yourself and others. One of the qualities of a good judge or magistrate is the ability to remain calm even in the face of extreme provocation.
Steps
What, then, can we do to improve the relationships between the bench and the bar? I have drawn extensively from the 15 November 2013 Consultative Council of European Judges (CCJE) CCJE (2013) 4 Opinion No. (2013) 16 On the Relations Between Judges and Lawyers.
The Opinion was prepared on the basis of previous CCJE Opinions and the relevant instruments of the Council of Europe, in particular the European Charter on the Statute for Judges (1998), the Magna Carta of Judges (2010) and the Committee of Ministers’ Recommendation CM/Rec (2010)12 on judges: independence, efficiency and responsibilities. It also takes account of the United Nations Basic Principles on the Independence of the Judiciary (1985), the United Nations Basic Principles on the Role of Lawyers(1990), the Bangalore Principles of Judicial Conduct (2002) and the Commentary of the Judicial Integrity Group on the Bangalore Principles (2007). Further, the Opinion draws on the work of the Council of Bars and Law Societies of Europe (CCBE), notably the Code of Conduct for European Lawyers (1998, amended in 2002 and 2006) and the Charter of Core Principles of the European Legal Profession (2006).
Paragraph 2 of the UN Basic Principles on the Independence of the Judiciary stipulates that the judiciary shall decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. In the same document, paragraph 6 states that the principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
The CCJE stressed in its Opinion No. 1 (2001) that judicial independence is not a prerogative or privilege in the interests of the judges, but is a pre-requisite to the rule of law and a guarantee for those seeking and expecting justice.
Within the framework of their professional obligation to defend the rights and interests of their clients, lawyers must also play an essential role in the fair administration of justice. Paragraph 6 of the Commentary on the Charter of Core Principles of the European Legal Profession of the CCBE defines the lawyer’s role as follows:
“The lawyer’s role, whether retained by an individual, a corporation or the state, is as the client’s trusted adviser and representative, as a professional respected by third parties, and as an indispensable participant in the fair administration of justice. By embodying all these elements, the lawyer, who faithfully serves his or her own client’s interests and protects the client’s rights, also fulfills the functions of the lawyer in Society – which are to forestall and prevent conflicts, to ensure that conflicts are resolved in accordance with recognized principles of civil, public or criminal law and with due account of rights and interests, to further the development of the law, and to defend liberty, justice and the rule of law”.
Respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society. The UN Basic Principles on the Role of Lawyers state that adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession.
Principle 12 stipulates that lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
Judges and lawyers must be independent in the exercise of their duties, and must also be, and be seen to be, independent from each other. This independence is affirmed by the statute and ethical principles adopted by each profession. The CCJE considers such independence vital for the proper functioning of justice.
The CCJE refers to Recommendation CM/Rec (2010)12, paragraph 7, which states that the independence of judges should be guaranteed at the highest possible legal level. The independence of lawyers should be guaranteed in the same way.
The CCJE refers to paragraph 12 of Recommendation CM/Rec (2010)12 which states that, without prejudice to their independence, judges and the judiciary should maintain constructive working relations with institutions and public authorities involved in the management and administration of the courts, as well as all the professionals whose tasks are related to the work of judges, in order to facilitate an effective and efficient administration of justice. Constructive relations are equally necessary in the course of proceedings, in order to obtain a fair and efficient solution to the legal process concerned.
Two areas of relations between judges and lawyers may be distinguished:
- on the one hand, the relations between judges and lawyers which stem from the procedural principles and rules of each state and which will have a direct impact on the efficiency and quality of judicial proceedings;
- on the other hand, the relations which result from the professional conduct of judges and lawyers and which require mutual respect for the roles played by each side and a constructive dialogue between judges and lawyers.
Judges and lawyers share a fundamental obligation, namely compliance with the procedural rules and the principles of a fair trial. It is clear therefore, that constructive relations between judges and lawyers will improve the quality and efficiency of proceedings. They will also help in meeting the parties’ needs: litigants expect that they and their lawyers will be heard and also expect judges and lawyers to contribute together to a fair resolution of their case according to law and within a reasonable time.
However, the quality and efficiency of judicial proceedings depend in the first place on adequate procedural legislation and rules on the principal aspects of procedure for civil, criminal and administrative cases. The drafting process for these provisions should involve the consultation of judges and lawyers, not in the interests of the two professions, but in the interest of the fair administration of justice. Consultation of court users is also important. It is also essential that these procedural frameworks are regularly evaluated and updated, where necessary, and that judges, lawyers and court users are involved in this process.
Rules and legislation should provide judges with effective procedural tools to implement the principles of a fair trial and to prevent undue delays or illegitimate delaying tactics. Such legislation should be sufficiently firm, and should provide for clear and fair time-limits, while also permitting the necessary flexibility.
Procedural rules form an essential tool to enable the resolution of legal disputes. Procedural rules determine the respective roles of judges and lawyers. It is essential that both judges and lawyers have a good knowledge and understanding of these rules, in the interest of a fair and timely resolution of the proceedings.
Guidelines agreed upon at an institutional level can also be useful to encourage cooperation and dialogue. The Courts should encourage the establishment of good practices resulting from agreements between the courts and the Bar. Agreements concerning the management and conduct of agreements should comply with procedural law and should be made public in order to ensure transparency for lawyers and litigants.
In practice, procedural rules, whether they concern civil, criminal or administrative cases, are often complex and allow a variety of procedural stages and intermediate appeals. This may cause unreasonable delays and high costs to the parties, as well as to society in general. The judges should support efforts to analyze and evaluate the existing procedural rules and to develop, where necessary, more transparent and adequate rules.
An open exchange of experience, between judges and lawyers, should foster the development of “best practices” in the area of procedural frameworks. Equal access to information on procedural and substantive laws, and also to landmark case-law, should be provided as far as possible, both for judges and lawyers. The judiciary should make case law, or at least landmark decisions, available on the internet i) free of charge, ii) in an easily accessible form, and iii) taking account of personal data protection. This emphasizes the importance of technology which is increasingly cheap and accessible and which is already being put to use by practitioners in many ingenious ways.
It is necessary to establish proper communication between courts and lawyers to ensure the speed and efficiency of proceedings. The judiciary should introduce systems facilitating computer communication between the courts and lawyers, in order to improve the service for lawyers and litigants.
Judges and lawyers must co-operate in meeting the needs of the parties. To this end, it is important to develop planning hearings and procedural calendars, to facilitate, in the interests of the parties, an effective co-operation between judges and lawyers. Further, judges and lawyers must cooperate in facilitating ADR and other routes to the friendly settlements in the interests of the parties. Joint training sessions can improve the understanding of the respective roles of judges and lawyers in the field of friendly settlements of disputes, by the processes of conciliation or mediation.
Paragraph 5.3 of the Bangalore Principles states that a judge shall carry out his/her judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties. A judge must maintain order and dignity of debate in all proceedings before the court and be patient, dignified and courteous in relation to litigants, jurors, witnesses, lawyers and others with whom the judge deals
With regard to lawyers, a lawyer must always have due regard for the fair conduct of the proceedings. A lawyer shall, while maintaining due respect and courtesy towards the court, defend the interests of the client honourably and fearlessly without regard to the lawyer’s own interests or to any consequences to him- or herself or to any other person. A lawyer shall never knowingly give false or misleading information to the court.
The relations between judges and lawyers should be based on the mutual understanding of each other’s role, on mutual respect and on independence vis-à-vis each other.
It is necessary to develop dialogues and exchanges between judges and lawyers on the issue of their mutual relations. The ethical principles of both judges and lawyers should be taken into account.
Training conferences for judges and lawyers should deal with their respective roles and with their relations, with the general aim of promoting the fair and efficient settlement of disputes, whilst respecting the independence of both sides.
Relations between judges and lawyers should always preserve the court’s impartiality and image of impartiality. Judges and lawyers should be fully conscious of this, and adequate procedural and ethical rules should safeguard this impartiality.
The sharing of common legal principles and ethical values by all the professionals involved in the legal process is essential for the proper administration of justice.
Summary Recommendations
- That courts establish appropriate procedural provisions, which must define the activities of judges and lawyers and empower judges to implement effectively the principles of a fair trial and to prevent illegitimate delaying tactics of the parties. It also recommends that judges, lawyers and court users be consulted in the drafting of these provisions and that these procedural frameworks be regularly evaluated.
- The exchange of experience between judges and lawyers with a view of developing “best practices” in the area of procedural frameworks.
- That judges organize case management hearings within the framework of the relevant procedural laws, and establish, in consultation with the parties, procedural calendars, e.g. by specifying the procedural stages, setting out reasonable and appropriate time frames and structuring the manner and timing of the presentation of written and oral submissions and evidence.
- Developing lines of communication between courts and lawyers. Judges and lawyers must be in a position to communicate at all stages in proceedings. There should be facilitation of computer communication between the courts and lawyers.
- Developing arrangements for the friendly settlement of disputes. It considers that understanding the respective roles of judges and lawyers in the framework of friendly settlements by conciliation or mediation is a vital factor for developing this approach and that, as far as possible, joint training sessions on the various modes of friendly settlement should be provided.
- The development of dialogues and exchanges between judges and lawyers at an institutional level on the issue of their mutual relations, whilst taking full account of the ethical principles of both lawyers and judges. Such dialogue should facilitate mutual understanding of and respect for the role of each side, with respect for the independence of both judges and lawyers.
- Where appropriate, joint training for judges and lawyers on the themes of common interest can improve the quality and efficiency of proceedings.