Belgian bâtonnier on Russia: 'You can have a client you don't like'

EUobserver: In your role as bâtonnier (bar president), what advice would you give a lawyer if they were approached by a high-profile Russian client on an EU blacklist?

I would not. I would not for the simple reason because it's the lawyers' public mission to defend private interests.

Our core principle is that everyone, every person, every organisation, or company has the right to be assisted and to be defended if needed by a lawyer. So that's the principle — there are no good or bad clients, and the only duty of a lawyer is to defend his or her client.

Of course, they should do that in compliance with applicable laws here in Belgium, Belgian law, and our professional rules and our ethics, but basically that's the story. So I don't have any advice. It's not my task as president of the bar to say to a lawyer: 'This is a good client, this is a bad client, this is a good case, or not'.

The oath we take when we start the bar is we will only assist and defend clients in good conscience. So, if we think 'well, I want to defend this client. I want to assist them', or 'I want to defend him or her or the organisation', then the lawyer will take it.

Of course, you need to comply with all due laws and professional duties and professional rules, but then it's basically the choice of the individual lawyer. It would be very dangerous to say 'you may take the case or not', because that would mean some people are deprived of a lawyer, which is completely contrary to the rule of law.

What practical problems have EU sanctions caused for lawyers representing Russians at the European Court of Justice (ECJ)?

I don't have specific experience. The ones confronted with that know which laws exist and need to deal with them, but my point is that a lawyer should still be able to perform his job.

Some lawyers may be in charge of difficult matters because they're defending a citizen, or some oligarch, against sanctions and their client's funds are frozen [because they're on an EU blacklist]. Lawyers might face practical difficulties, but they're just doing their job.

Let's put aside for a moment the issue of litigation on behalf of EU-blacklisted Russians. EU sanctions have also banned lawyers from providing commercial consultancy services for all Russian individuals and companies, but the Belgian and French bars are suing the EU Council at the ECJ to relax the ban, why is that?

There is an [EU] regulation which basically prohibits lawyers from doing their jobs with some exceptions, especially in litigation and legal advice that is in relation to potential litigation. But the mere service of a lawyer giving advice unrelated with potential litigation is prohibited and that's a bridge too far for us.

The regulation speaks of any legal entities or organisations established in Russia. But the first question is: 'What does that mean?' And they [the EU Council] say: 'Well, they are no longer entitled to seek advice from a lawyer established in the EU'. But this means there are some persons excluded by this regulation from their fundamental right to retain a lawyer for advice and that's a bridge too far for us.

When he, she, or an organisation is seeking advice it's excluded because they're under EU sanctions. That's the whole idea of sanctions, I suppose — if the persons targeted are prevented from seeking advice from a lawyer it's helpful in the combat against Russia, so I understand the whole idea.

But the problem is that by excluding the service of a lawyer for anyone you touch on a fundamental right of everyone. Even the worst dictator in the world, you have someone, and that someone is a lawyer, who can give him or her advice, completely independently, and so that's a fundamental right. It's very dangerous for democracy and rule of law and how we live together, because it means that due to your [EU] regulation some persons are not entitled to a lawyer.

That's the end of everything. Well, that's the end of rule of law, because a lawyer should be entitled to give his or her services to everyone.

EU sanctions have also banned law firms from lobbying on behalf of Russian clients. Would you agree it's sometimes hard to know the perimeter between legal services and lobbying-type representation?

I agree with you, but here in Belgium we consider that the core activities of a lawyer, which define a lawyer, are giving advice, assisting, defending, and possibly also mediation — mediating in a litigation between two parties.

This is the core business of a lawyer and that's the perimeter, which doesn't mean the lawyer can do only that. No. They can do a lot of other activities, but these should be compatible with our [the Belgian bar's] core values. So lobbying is on the edge. It's not in the core business of a lawyer.

Earlier on you mentioned "conscience". Can you tell us more about the Belgian bar's ethical code?

I was referring to the oath: 'I will not advise or defend a case which in my honour and conscience I believe not to be a just case'. That's the oath in the Belgian judicial code, but it's a matter of really personal conscience.

Lawyers also have a lot of other professional rules to follow, such as the duty of independence. As a lawyer, you always need to be completely independent vis-à-vis your client, vis-à-vis the judges, and even vis-à-vis yourself — which can sometimes be quite challenging. It means you're not supposed to undertake court proceedings because this is in your own financial interest. No. You have to do it because it's useful for your clients. So that's an example of being independent vis-à-vis yourself.

Other principles are loyalty, competence, integrity — financial and moral integrity. Under the duty of competence, for instance, you can only take on cases if you're familiar with the essential knowledge you need to have. Otherwise you have to refer it to other colleagues.

I spoke with one lawyer who felt strongly against Russia's aggression in Ukraine, but who was still representing a Russian in an anti-EU sanctions case. Was he right to be doing so?

I think he's right.

What could happen, especially in criminal law, for obvious reasons, is that a lawyer unconsciously thinks, for instance: 'I don't want to defend the perpetrator of a rape, because of my personal experience or the experience of someone in my family.' So, if in your conscience you think 'I wouldn't be a good lawyer for the person because I'm disgusted by what he did', then it's your duty as a lawyer not to take that case, because you wouldn't be good at it.

But if you could have some distance between your personal thinking, your personal feelings, and what he did, then it's basically your job as a lawyer to take the case. We are not the clients! That's very dangerous, because some media sometimes say: 'Well, you have the clients you deserve.' No. That's exactly the point — you can have a client you don't like, that you don't have any personal relationship with, but you feel this case is worthy of being defended. Then you take the case.

What are your own views about the Ukraine war?

Of course, that's my personal view. I'm not speaking on behalf of all lawyers. But, of course, I have the same view as almost everyone.

It's important to mention that we [in the Belgian bar association] are fully supporting the Ukrainian bar, Ukrainian people, Ukrainian lawyers.

We set up a fund to help them. We set up a centre here where Belgian lawyers collected witness testimonies from Ukrainian refugees who came to Belgium.

Speaking of Ukrainian refugees, I wonder how they would feel if they were in the same room as an EU attorney who is making a lot of money defending a Russian oligarch against EU sanctions. Would you agree there's sometimes a clash between legal principles and real-life feelings?

I fully agree with you, but you are talking about reputational risks. Some law firms or some lawyers obviously do position themselves and that's fine for me.

But there's a more fundamental discussion about the right of everyone, irrespective of what he or she did or who they are, to have a lawyer and that's all that really matters for me.

For the rest, I understand the reputational challenges and so on. That's the rest. I know that some law firms are positioning themselves, especially in the US and in the UK, and that's fine. They are just acting in accordance with their governance and their values and that's fine.

Apart from your role as bâtonnier you are also an employment and labour lawyer for the international law firm Crowell & Morning. Putting aside all that, would you be ethically happy to represent a Russian in an EU sanctions case?

I could not speak on behalf of Crowell, but yes. I could take such a client. It may be a good case. He or she may be a bad person, but a good case.