Reinventing the Rules
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Establishing Bar Associations in Post-Conflict States
‘Establishing and Reforming Bar Associations in Post-Conflict States’ is a comprehensive report published by INPROL in 2010. The publication discusses how to conduct an assessment on the current state of the legal profession and what factors to consider in creating a bar association in a post-conflict environment. The report also provides interesting examples of the variety of ways other bar associations have been established in developed and developing countries. Check out excerpts below!
Credit: National Geographic/Gael McKeon
Assessing the Legal Profession
A good assessment of the legal profession and the bar association should precede any reform efforts. It will have two overlapping components. The first component is a broad assessment of the legal and judicial sector – from law-making to the hierarchy of laws, from legal education to professional services, and from the judicial structure to informal justice mechanisms. This sort of assessment may already exist as many international organizations and donors undertake such assessments prior to designing rule of law programs.
The second component narrowly assesses both the formal and informal legal profession and legal education system. As a first step, it is important to locate any laws that may directly or indirectly regulate the legal profession. Laws may not be readily available in-country. If this is the case, the assessment team should reach out to the legal Diaspora to attempt to get copies of relevant laws.
Legal and Judicial Assessment Manuals
The World Bank has published a basic legal and judicial assessment manual that will serve as a valuable tool in assessing legal education, training of lawyers, and the legal profession as a whole. Another very useful tool is the Legal Profession Reform Index (LPRI) which the American Bar Association (ABA) has developed to assess the legal system prior to engaging in any reform efforts.
The LPRI advises an assessment team to consider the following:
- Professional Freedoms and Guarantees
- Education, Training, and Admission to the Profession
- Conditions and Standards of Practice
- Legal Services
- Professional Associations
Both the World Bank Assessment Manual and the ABA LPRI are broadly designed and may need to be tailored to suit the needs of a post-conflict state whose justice system may be severely debilitated.
Assessing the Informal Legal Profession
There is often ambiguity as to the definition of a lawyer. While there is often an understanding and even regulation of formal lawyers, more often than not there is an informal legal profession that gives advice on legal matters. It will be necessary to assess the number of and services provided by both formal and informal lawyers remaining in the state.
Assessing the Legal Profession’s Capacity to Self-Regulate
Another key element of the assessment is an ascertainment of whether the legal profession is willing and able to regulate itself. The assessment should analyze the capabilities of the local legal community, and whether individuals have the capacity to operate the bar association effectively. Other issues, such as corruption of both the formal and informal legal system, may arise through the assessment.
Who Should be Interviewed for the Assessment
In the World Bank’s manual, suggested interviewees include parliamentarians, legal drafters, judges (at all levels of the judicial sector and geographical areas), executive branch officials, including individuals from the prime minister’s office and the relevant ministries, prosecutors, legal professionals, legal NGOs, law school faculties and administrators, among others.
In addition, the assessment should seek out informal legal actors, civil society and human rights organizations, police, paralegals, legal trainees, and citizens that have used (or tried to use) legal services.
Choosing Which Bar Association to Model
There are a variety of different models for bar associations. The precise character of the new bar association will need to be determined while drafting legislation. Each country will need to decide whether to create a local or unified bar association system.
Local Bar Association: In a localized system, major cities and provinces have their own bar association. Each bar has the same definition of a lawyer, admissions requirements, structure, and disciplinary system. One potential issue with this system is the ability of each bar to maintain the same standards. With differences in the number of members, funding sources fluctuate.
There is a growing movement to create a federal or national bar as an umbrella organization. This may serve as a good model for a post-conflict state as it begins the establishment of its bar association. The local bars still operate as independent organizations; however, a national bar is created to standardize the system.
Unified Bar Association: Often times, the bar maintains a headquarters in the capital city. The bar could also have satellite offices in highly populated cities. The unified bar controls admissions, discipline, and other administrative functions, while satellite offices provide local access and services to members. Examples include Malaysia, Israel, Kosovo and Georgia.
De-Merged Bars: Some countries have created independent organizations that carry out the various functions of bar associations, considered de- merged bars. An independent body regulates legal professionals, receiving complaints and issuing disciplinary rulings. A separate association then carries out the educational and representative functions.
Mandatory v. Voluntary Membership in a Bar Association
Mandatory bars are legally empowered by the state to carry out regulatory functions, and will often offer educational and representational functions as well. In order to practice law, lawyers must meet the entrance requirements of the mandatory bar. Conversely, voluntary bar associations only carry out educational and representative functions and are not empowered to regulate the legal profession.
Determining the Functions of the Bar Association
Bar associations often carry out a combination of three functions: (1) regulation; (2) education; and (3) representation of the legal profession. Regulatory functions of a bar association include admitting members to the bar, maintaining a code of conduct, and disciplining members. The educational function usually entails providing continuing legal education for members of the bar, and could include education for trainees or prospective members. Finally, the representative function could lobby and negotiate on behalf of the bar, and provide services to members and society-at-large.
Enabling Legislation
Once the functions are determined, the remainder of the enabling legislation, or the legislation creating the bar association, can be drafted.
Structure of the Bar Association
Bar associations generally include an executive authority, but if past legal professional organizations have left too much control in the hands of one individual, it may be wise to delegate authority to other officers. For countries with marginalized populations, it may be wise to require certain minority groups’ representation in the executive authority or adequate gender representation. For example, the Independent Afghan Bar Association has a quota for women in leadership positions and on committees.
Bar Associations may also have a legislative body – a general assembly or house of delegates. If they do not have a legislative body, they will have standing committees, which often include an ethics committee, a disciplinary committee, and an admissions committee.
Other Factors the Enabling Legislation Should Include
- Definition of a Lawyer – whom the bar governs
- Admission Standards/Requirements
- Discipline System
- Code of Conduct
The enabling legislation should give ample time between when the legislation is passed and when it comes into effect. During this time, efforts may be made to educate both the legal community and the public on the role of the new bar association.
Pro Bono Services & Victims of Conflict
Bar associations ordinarily encourage lawyers to offer in pro-bono legal services. In many countries, individuals have a constitutional and legal right to access a lawyer in criminal cases. Post-conflict states might also seek to protect the victims of conflict. In those circumstances, the bar association may impose obligations on attorneys to represent these persons. For example, the Croatian Bar Association required any attorney to accept representation of victims of war in both civil and criminal cases if the bar association requested the representation.
To read the full report, click here.
Reinventing the Rules 