Is the UPC's Code of Conduct "fit for purpose"? CCBE encourages Preparatory Committee to re-evaulate

Merpel's state of play prior to reading CCBE's
letter about the draft UPC Code of Conduct

Merpel has many rules.  One of them is that she does not work on a Friday, especially when the sun has made a warm appearance in London.  However, this afternoon she read a letter from the President of the Council of Bars and Law Societies of Europe (CCBE), Michel Benichou, that compelled her to break her rule.  For those unfamiliar, CCBE represents the bars and law societies of 32 member countries and 13 further associate and observer countries and, thus, 1 million European lawyers.

The letter was addressed to the Chairman of the UPC Preparatory Committee, Alexander Ramsay, encouraging the Preparatory Committee to take its time to ensure that the UPC Code of Conduct is "fully fit for purpose".  Back in April, the UPC Preparatory Committee announced that following its most recent meeting in Luxembourg, the draft Code of Conduct was expected to be agreed at the end of May.

Under the draft Rules of Procedure, Rule 290 provides that:

"1.  As regards representatives who appear before it, the Court shall have the powers normally accorded to courts of law, under the conditions laid down in Rule 291.  

2. Representatives who appear before the Court shall strictly comply with any code of conduct adopted for such representatives by the Administrative Committee."

Rule 291 empowers the Court to exclude a representative form proceedings for various reasons including if they are in breach of any code of conduct adopted pursuant to Rule 290(2).  And thus, a Code of Conduct was drafted by EPLAW, EPLIT and the epi which representatives before the UPC would be bound.

Although the draft Code of Conduct has not been made public or subject to wider consultation, Merpel understands it was a short document. As noted in CCBE's letter:

"...the proposal for a Code of Conduct for the UPC – Second Draft, of which CCBE was only made aware of on 15 April 2016, refers to the Code of Conduct developed by CCBE. I should make clear that, although those at EPLAW who worked on the draft may have seen the CCBE Code, CCBE has not, either through its Patents Working-Group or its Deontology Committee, had the opportunity to consider the draft Code."

The letter then details CCBE's desire to provide assistance in the formulation of the UPC's Code of Conduct while listing various issues that warrant further consideration including the following:

• Minimum Standards:  Although many Member States' Codes of Conduct share common principles, there are significant differences which could give rise to the perception that the UPC does not provide a level playing field as between representatives.  What will those minimum standards be?

• Enforcement of the Code & Procedure:  The need for an independent body, not judges, to enforce the Code so there is not breach of Article 6 of the ECHR, as well as protecting a representative from any perception of being inhibited from representing their client's interests fearlessly.   There also needs to be an effective complaints, appeals and sanctions procedure. Who will that body be and what will the procedure look like?

• Conflict between obligations:  CCBE state that "certain aspects of the draft Code (in particular point 2.5 "False or misleading information” and point 2.6 "Privileged Information") may not take into account the diversity of national deontological rules, and consequently, risk creating conflicting obligations regarding national codes and charters. This could give rise to a situation whereby a representative could not comply with both the national rules and the UPC Code of Conduct."  How will this conflict be addressed?

The letter concludes on a positive note hoping that the Preparatory Committee will wait until the CCBE is able to provide a full response (after consultation with its Patents Working Group and Deontology Committee) before approving the draft Code.  The letter states:

"Bearing in mind that the draft Code has been in gestation since late 2013, a slightly extended timetable for this aspect of the Preparatory Committee’s work would help achieve a code which is fully fit for purpose. The CCBE will do what it can to ensure a prompt response to the draft Code, but we believe that for a properly considered response to be given, the earliest our views are likely to be available is 24 June." 

Of course there are a number of things that need to be resolved as the clock starts ticking down on the UPC opening its doors, the Code of Conduct being one of them.  However, while there is still time, it is important that the uncertainty and issues outlined in CCBE's letter should be fully considered and addressed, with the current draft being a launching off point.  Further, Merpel hopes that the current draft is circulated more widely so that the larger European profession, who will be bound by the Code, is given an opportunity to comment.