Lawyers’ freedom of speech

The second European Lawyers Day will take place on 10 December 2015. The theme this year is freedom of speech.

The consequences of this freedom resonate every day. There are huge ramifications, such as in the Charlie Hebdo murders, and smaller ones in daily events. For instance, in the comments under the piece I wrote about asylum last week, the question arose as to whether it is acceptable to say that Jews have made more of a contribution to British society than Muslims.

Most of us feel that speech should be as free as possible - it is often protected in countries’ constitutions - but the famous example of shouting ‘fire!’ in a crowded theatre unites nearly everyone in calling for some limits. The right concerns us as lawyers because we are on the frontline of those who patrol it. If someone feels that they have a case where it should be limited - they have been defamed, say - that person goes to a lawyer for an opinion, and it is for the lawyer to look at the border between what is and what is not allowed, and to decide in the first instance whether it is worthwhile mounting a claim.

(The police play a similar role with hate-speech.)

There is an interesting sub-set of freedom of speech cases involving lawyers themselves. Many concern what a lawyer can say about a case in which he or she is involved. My own organisation, the Council of Bars and Law Societies, wrote a submission for one decided by the Grand Chamber of the European Court of Human Rights earlier this year: Morice v France (Application no. 29369/10).

The facts of the case are very complicated and concern the mysterious death of a French judge, Bernard Borrel, in Djibouti in 1995. There have been national cases in France involving his death for many years.

Lawyer Olivier Morice represented Bernard Borrel’s widow, and, in an article in Le Monde, was quoted as making accusations against judges removed from the investigation into Borrel’s death. The judges filed a criminal complaint.

The consequences of this freedom resonate every day

This made its way through the appeal process in France, and eventually, when the conviction against the lawyer was confirmed, the Grand Chamber of the ECtHR laid down the law.

If you ever want to find out what you can and cannot say as a lawyer about a case in which you are involved, whether in or outside the court, it is worth reading paragraphs 132-139 of the Morice judgement, which summarise the existing case law. I know that the Law Society also offers advice which touches on such matters – see, for instance, the practice note on social media.

Applying the law to the facts, the court decided that ‘the judgment against the applicant [the lawyer] for complicity in defamation can be regarded as a disproportionate interference with his right to freedom of expression, and was not therefore “necessary in a democratic society” within the meaning of article 10 of the convention on human rights.’

There have been other, older cases before the Strasbourg court was founded. Our national delegations have been supplying them in preparation for European Lawyers Day. Here as a taster for that day’s celebrations is a brief summary of a case from the Czech Republic from 1922, involving a famous lawyer-writer called Jaroslav Maria (that was his pen-name, his lawyer’s name was Jaroslav Mayer).

It may not be surprising to note that he was disciplined for publishing a short story in a magazine in which he caricatured certain members of that same disciplinary council of the bar which then went on to sanction him. He also made his hero break his duty of confidentiality by blurting out the defendant’s guilt to the court. It was found by the bar that he had offended the legal profession. There was an appeal to the Supreme Court.

Interestingly, it was the lawyer’s pseudonym which saved him. The court found that art and the law have to be separated, the constitution guaranteed freedom of art, the writer had never been involved in cases such as the one described in the story, and that even if a lawyer writes disparagingly in a story about lawyers and the law, he is protected provided that he uses a pseudonym and does not breach the criminal law.

All bars in Europe are encouraged to hold events around freedom of speech on 10 December, and to examine in general and in relation to lawyers the impact of that right.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs