Recently, an incident in the most publicized trial in Portuguese democracy exposed the tension that currently exists between the power to direct the hearing vested in the trial judge and the exercise of the forensic mandate by the lawyers, which culminated in the resignation of one of the representatives from sponsorship during the trial. The reason was the decision of the group of judges to submit the lawyer’s disciplinary action to the Bar Association, following a delay to a session.
To the dialogue that took place in the middle of the hearing, in which the representative stated “he’s not going to scold me”, drawing a line of professional parity and rejecting a stance of subordination to the collective, the response of the presiding magistrate was “the joke is over”. The exchange of words at the hearing is very representative of two different views on the judge’s power to direct proceedings and the limits imposed on him. In response, the lawyer in question submitted his resignation, citing “ethical reasons”.
In his justification, he argued that continuing in the process would “unbearably” violate his conscience, independence and professional dignity. The episode deeply divided the legal community over the adequacy of the conduct of the two participants, between those who believe that the presiding judge exceeded the limits of her power of direction and those who consider the lawyer’s “reprimand” to be legitimate and appropriate.
On the one hand, the Code of Criminal Procedure which gives the presiding judge the power to direct and take “preventive, disciplinary and coactive measures” to stop “acts of disturbing the hearing”. On the other hand, the Constitution and Statute of the Bar Association which enshrine the lawyer’s independence and the immunities necessary to exercise the mandate. What the court may interpret as an “act of disturbance”, the defense invokes as the legitimate exercise of its independence against an “admonition”.
In effect, the use of the power of direction in judicial proceedings does not give judges the possibility of “admonishing or reprimanding the agents”. Especially because, from what has come to light, there is no evidence of procedural misconduct or lack of civility on the part of the agent. A magistrate’s appeal to a disciplinary complaint must, in a rule of law, be clearly ultima ratio in extreme situations of bad practices and/or lack of respect for other procedural participants, and disciplinary action cannot be used to, directly or indirectly, intimidate agents who, in the eyes of the judge, exercise their mandate in an “irritating or provocative” way.
In reality, the evaluation of the professional and axiological performance of lawyers is the exclusive responsibility of the judicial bodies of the Bar Association, namely the Ethics Councils and the Superior Council. It would hardly be in a State of Law that the judge of the case, maximein the criminal process, could censure the ethical-professional conduct of those in charge. The renunciation of the mandate, in this context, cannot even be seen as an “abandonment” of the client, but as the way found by the agent to react procedurally to an exaggeration of the power of direction of the magistrate who presided over the investigation.
The jurisprudence of the European Court of Human Rights, in Article 10 of the Convention (freedom of expression) is clear: although subject to duties of civility, lawyers benefit from “a greater degree of latitude” when expressing themselves within the court, precisely to vigorously defend their clients. The imposition of sanctions or a subpoena environment can generate a “chilling effect” (chilling effect), which European law does not allow. And this same normative context is supported by the Constitution of the Portuguese Republic, the Law on the Organization of the Judiciary System and the Statute of the Bar Association. The independence of the legal profession is not a corporate privilege, but a fundamental guarantee of citizens’ right to defense in a rule of law. Without a free, fearless defense immune to “admonitions” or “axiological predictions”, fair judgment itself is compromised.
Lawyer and founding partner of ATMJ – Sociedade de Advogados