Establishing and Reforming Bar Associations in Post-Conflict States (CR 10-001)

Establishing and
Reforming Bar
Associations in Post-
Conflict States
INPROL Consolidated Response (10-001)
With contributions from Wendy Betts, Scott Carlson, Gary Hill, Louis Gary Lissade, Zach
McKinney, Ngozi C. Nwosu, Vivienne O’Connor, David Rubino, Gina Schaar, Andrew
Solomon and Claude Zullo
Drafted by Christina Murtaugh

ESTABLISHING AND REFORMING BAR ASSOCIATIONS IN POST-CONFLICT
STATES
INPROL Consolidated Response (10-001)
January 2010
Submitted by: Hans Sachs, Facilitator, UN DPKO Peacekeeping Rule of Law Network
Drafted by: Christina Murtaugh, Researcher, Rule of Law (ROL) Program, US Institute
of Peace
With contributions from:
1. Wendy Betts, National Center for State Courts

2. Scott Carlson, Senior USIP ROL Advisor, INPROL ROL Facilitator
3. Gary Hill, INPROL Corrections Facilitator
4. Louis Gary Lissade, Port-au-Prince Bar Association
5. Zach McKinney, INPROL Program Specialist
6. Ngozi C. Nwosu, Nigerian Bar Association
7. Vivienne O’Connor, Senior USIP ROL Advisor
8. David Rubino, American Bar Association Rule of Law Initiative Azerbaijan
9. Gina Schaar, American Bar Association Rule of Law Initiative Kosovo
10. Andrew Solomon, Deputy Director and Fellow, Brookings-Bern Project on
Internal Displacement, Brookings Institution, INPROL ROL Council of Experts
11. Claude Zullo, American Bar Association
The full text of the responses provided by these INPROL members can be found at
http://www.inprol.org/node/4442. INPROL invites further comment by members.
Note: All opinions stated in this consolidated response have been made in a personal
capacity and do not necessarily reflect the views of particular organizations. INPROL
does not explicitly advocate policies.
Query:
UNMIT's Administration of Justice Support Unit is currently planning to assist in

facilitating the establishment of an independent bar association in Timor-Leste.
Could you please share your experiences, lessons learned, best practices and relevant
guidance material, documents and reports on how best to facilitate the establishment of
an independent bar association? Any reference to previous work on this of (non-UN)
development partners will also be very useful.
Background:
This Consolidated Response focuses on methodologies and comparative approaches to

establishing or reforming an independent bar association in post-conflict states. It has
been drafted with the assistance of Vivienne O’Connor, United States Institute of Peace,
and Claude Zullo, American Bar Association. Information from the field has been
provided by Wendy Betts, National Center for State Courts, Gary Hill, INPROL
Corrections Facilitator, Louis Gary Lissade, Port-au-Prince Bar Association, Ngozi C.
Nwosu, Nigerian Bar Association, David Rubino, American Bar Association Rule of Law
Initiative Azerbaijan, and Gina Schaar, American Bar Association Rule of Law Initiative
Kosovo. It combines publicly available literature and the practical experiences of expert-
practitioners on the establishment and reform of bar associations.
In furtherance of human rights and the rule of law, a society necessarily requires a
strong, independent cadre of lawyers. Bar associations essentially serve three roles: as
educators, regulators, and lobbyists for the legal profession. The United Nations
provides guidance on these functions in the United Nations Basic Principles on the Role
of Lawyers (1990), which argues for an independent association of lawyers. It further
recommends that the bar association create standards for admission that promotes both
high ethical and high legal services standards. Both the Council of Europe and African
Union have supplemented these principles with their own recommendations. This
response provides an overview of international standards on the establishment of bar
associations and complements this with comparative examples of domestic legislation
and practice relating to bar associations.
Response Summary:
Part I briefly provides an overview of how to assess the existing state of the legal
profession in a post-conflict state. Part II discusses the establishment of a bar
association. Part III then looks at the development of the bar association. To enhance
this comparative approach, this paper also includes annexes providing overviews of bar
associations, as well as links to enabling legislations, by-laws, and codes of conduct.
January 2010 INPROL Consolidated Response (10-001) Page 1 of 33

I. Assessing the Legal Profession in a Post-Conflict State
A good assessment of the legal profession and the bar association, if one exists, should
precede any reform efforts. The assessment is not only important for the information it
provides, but it is also crucial in reaching out to stakeholders in a participatory fashion
from the outset: a best practice standard in rule of law programming.
An assessment 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.1 The second component narrowly assesses both the formal and informal
legal profession and legal education system. The Consolidated Response focuses on
the latter.
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.
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.2 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.3 The LPRI advises an assessment team
to consider the following:
1. Professional Freedoms and Guarantees

• Ability to Practice Law: Lawyers are able to practice without improper
interference, intimidation, or sanction when acting in accordance with the
standards of the profession.
• Professional Immunity: Lawyers are not identified with their clients or their
clients' causes and enjoy immunity for statements made in good faith on
behalf of their clients during a proceeding.
• Access to Clients: Lawyers have access to clients, especially those

deprived of their liberty, and are provided adequate time and facilities for
communications and preparation of a defense.
1
See, e.g., The United Nations Office on Drugs and Crime, Criminal Justice Sector Assessment Toolkit
(2006).
2
Legal Vice Presidency, The World Bank, Legal and Judicial Sector Assessment Manual (2002): 20-25.
3
The ABA Rule of Law Initiative – the Legal Profession Reform Index (accessed October 15, 2009).

• Lawyer-Client Confidentiality: The state recognizes and respects the
confidentiality of professional communications and consultations between
lawyers and their clients.
• Access to Information: Lawyers have adequate access to information

relevant to the representation of their clients, including information to
which opposing counsel is privy (equality of arms).
• Right of audience: Lawyers who have the right to appear before judicial or
administrative bodies on behalf of their clients are not refused that right
and are treated equally by such bodies.
2. Education, Training, and Admission to the Profession

• Academic Requirements: Lawyers have a formal, university-level, legal
education from academic institutions authorized to award degrees in law.
• Preparation to Practice: Lawyers possess adequate knowledge, skills, and

training to practice law upon completion of legal education.
• Qualification Process: Admission to the profession of lawyer is based

upon passing a fair, rigorous, and transparent examination and the
completion of a supervised apprenticeship.
• Licensing: Admission to the profession of lawyer is administered by an

impartial body, and is subject to review by an independent and impartial
judicial authority.
• Non-Discriminatory Admission: Admission to the profession of lawyer is

not denied for reasons of race, sex, sexual orientation, color, religion,
political or other opinion, ethnic or social origin, membership in a national
minority, property, birth, or physical disabilities.
3. Conditions and Standards of Practice

• Formation of Independent Law Practice: Lawyers are able to practice law
independently or in association with other lawyers.
• Resources and Remuneration: Lawyers have access to legal information

and other resources necessary to provide competent legal services and
are adequately remunerated for these services.
• Continuing Legal Education: Lawyers have access to continuing legal

education to maintain and strengthen the skills and knowledge required by
the profession of lawyer.

• Minority and Gender Representation: Ethnic and religious minorities, as
well as both genders, are adequately represented in the profession of
lawyer.
• Professional Ethics and Conduct: Codes and standards of professional

ethics and conduct are established for and adhered to by lawyers.
• Disciplinary Proceedings and Sanctions: Lawyers are subject to

disciplinary proceedings and sanctions for violating standards and rules of
the profession.
4. Legal Services
• Availability of Legal Services: A sufficient number of qualified lawyers
practice law in all regions of a country, so that all persons have adequate
and timely access to legal services appropriate to their needs.
• Legal Services for the Disadvantaged: Lawyers participate in special

programs to ensure that all persons, especially the indigent and those
deprived of their liberty, have effective access to legal services.
• Alternative Dispute Resolution: Lawyers advise their clients on the

existence and availability of mediation, arbitration, or similar alternatives to
litigation.
5. Professional Associations
• Organizational Governance and Independence: Professional associations
of lawyers are self-governing, democratic, and independent from state
authorities.
• Member Services: Professional associations of lawyers actively promote

the interests and independence of the profession, establish professional
standards, and provide educational and other opportunities to their
members.
• Public Interest and Awareness Programs: Professional associations of

lawyers support programs that educate and inform the public about its
duties and rights under the law, as well as the lawyer's role in assisting the
public in defending such rights.
• Role of Law Reform: Professional associations of lawyers are actively

involved in the country's law reform process.
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. For example, conflict often deprives citizens of higher
education, and thus there may not always be a domestic legal education system to

assess. Furthermore, there is often ambiguity as to the definition of a lawyer. While
there is often an understanding and even regulation of the formal lawyers, more often
than not there is an informal legal profession that gives advice on legal matters.4 It will
be necessary to assess the number of and services provided by both formal and
informal lawyers remaining in the state.
It is also not a foregone conclusion that a bar association will already exist. For
example, prior to international donor efforts, Afghanistan did not have a professional
bar,5 and thus the factors discussed previously for assessing professional associations
would not apply.
Another key element of the assessment is an ascertainment of whether the legal

profession is willing and able to regulate itself: the assumption has been made in the
past that this is always true, however, that may not be the case. Often times, bar
associations do not want to discipline their own members.6 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. A
malleable assessment will have the capability to uncover these nuances.
As part of the assessment, the team will also likely target a representative audience. 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.
II. Setting up a Bar Association
If a decision is made to establish or reform a bar association, the next process requires
the drafting and passing of enabling legislation. Subsection A reviews variations of
different models of bar associations; the precise character of the new bar association
will need to be determined while drafting legislation on the basis of these different
4
Russell G. Pearce & Samuel J. Levine, “Rethinking the Legal Reform Agenda: Will Raising Standards
for Bar Admission Promote or Undermine Democracy, Human Rights, and Rule of Law,” Fordham Law
Review 77 (2009): 1643-44. China maintains a formal profession of lawyers, but also has two lower tiers
of informal advocates. The first, termed Basic Level Legal Workers, have some training and a license by
provincial justice bureau and can handle all but criminal cases. The second, termed barefoot lawyers, are
self-trained, unlicensed individuals, usually operating in the rural and poor villages where they offer legal
advice to their community.
5
International Bar Association, “A Bar Against the Odds,” Daily News, October 14, 2008: 11.
6
In Pakistan, for example, the bar councils have relative independence. The bar association has
regulated the profession through ethic and conduct codes; however, they rarely discipline lawyers. Thus,
they are largely ineffective in regulating themselves. See United States Agency for International
Development, Pakistan Rule of Law Assessment – Final Report (2008): 28-29.

models. Subsection B provides an overview of core issues that should be addressed in
the enabling legislation.
A. Determining What Type of Bar Association to Establish
1. Local versus Unified Bar Associations
Each country will need to decide whether to create a local or unified bar association
system. In a localized system, major cities and provinces have their own bar
association. Prospective members apply to the bar association that governs the location
where they wish to practice. The enabling act will likely list the separate systems,
although the enabling act needs to govern each equally. Haiti has implemented this
localized system, with the Port-au-Prince Bar Association being the largest. 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.
Furthermore, although best practices support the establishment of strictly objective
admissions criteria, there will always be a subjective element. Thus, with some bars
being easier to get into or providing more services, prospective lawyers may opt in to
the bar association that has the easiest entry requirements.
In countries with historically localized bar associations, 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. For example, the United Kingdom’s Law Society and Bar
Council are national bodies, to which all local Law Societies and Inns of Court (the
subsidiaries to the Bar Council) belong. Lawyers only need to have membership in a
local bar to practice throughout the country. The national bodies have representation
from each of the local bars, making policy decisions on behalf of all the bars. Other
countries that follow this model include Canada and Japan.
In contrast, other countries have one 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.
2. Merged versus De-merged Bars7
As discussed below, bar associations have three major functions: regulation, education,
and representation of the members. Some countries have created independent
organizations that carry out the various functions of bar associations, considered de-
merged bars. The United Kingdom has recently moved towards this de-merged system.
7
See David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales,
Final Report (2004).

An independent body regulates legal professionals, receiving complaints and issuing
disciplinary rulings. A separate association then carries out the educational and
representative functions. This is discussed in more detail, both under the functions of a
bar association and under the disciplinary system of a bar association.
3. Voluntary versus Mandatory Bar Associations
Bar associations are either mandatory or voluntary. Although the focus of this
Consolidated Response is on mandatory associations, various voluntary bar
associations carry out educational and representative functions for their members.
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. Membership will
usually only require an application and entrance fee. Voluntary associations may also
accept prospective members or trainees. Rather than operating as an administrative
organ, these associations tend to be non-governmental organizations. As the primary
difference between mandatory and voluntary bars, this Consolidated Response will
focus on the regulatory functions set out in the enabling legislation.
B. Drafting Enabling Legislation
In developing the framework for an independent bar association, the first step is
determining the functions of the bar association. Once the functions are determined, the
rest of the enabling legislation can be drafted. Subsection 1 looks at the possible
functions of a bar association. The contents of the legislation will largely depend on the
functions that have been decided upon, but generally enabling legislation addresses the
following: definition of the term “lawyer,” the structure of the bar, admission standards,
and the disciplinary system. Subsections 2-5 look at these issues.
1. General 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.8 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
8
At times, some countries create two independent bar groups: a regulatory bar, which includes continuing
legal education; and a representative body. For example, England and Wales have recently overhauled
their dual-legal profession system. While they still maintain separate bars for solicitors, The Law Society,
and barristers, the Inns of Court and Bar Council, both the Law Society and Bar Council have separated
their regulatory and representative capacities. For more information, see Annex A. About Us: The Bar
Standards Board (accessed October 22, 2009); The Law Society – About Us (accessed October 22,
2009).

behalf of the bar, and provide services to members and society-at-large. Prior to drafting
the enabling act, it is important to create clear objectives and principles that will drive
the bar association.9 Clearly, a participatory and inclusive process would be required to
engage relevant stakeholders in this process of determining the essential functions of
the new bar association. Once the functions are determined, the next step is drafting the
components of the enabling act.
2. Definition of a Lawyer – whom the bar governs
The enabling act should provide a clear definition of a “lawyer” and whom the bar will
regulate. The Council of Europe proffers a general description of a lawyer, stating that
“‘lawyer’ means a person qualified and authorized according to the national law to plead
and act on behalf of his or her clients, to engage in the practice of law, to appear before
the courts or advise and represent his or her clients in legal matters.”10 Often, a bar
association does not govern judges and prosecutors,11 though that is not always the
case.12 Thus, the definition should consider what acts – appearing in court, writing a
pleading or brief, giving any advice – will require a lawyer and whether judges and
prosecutors will be governed by the bar association. Furthermore, many bar
associations govern trainees, among other non-lawyers. In such cases, the enabling law
will likely provide a definition of other groups the bar governs, and more importantly,
clarify the differences.
Example of Defining the Practice of Law and “Lawyer”
The Law Society of British Columbia (Canada) defines the practice of law as:
(a) appearing as counsel or advocate,
(b) drawing, revising or settling [legal documents]
...
(c) doing an act or negotiating in any way for the settlement of, or settling,
a claim or demand for damages,
(d) agreeing to place at the disposal of another person the services of a
lawyer,
(e) giving legal advice,
(f) making an offer to do anything referred to in paragraphs (a) to (e), and
(g) making a representation by a person that he or she is qualified or
entitled to do anything referred to in paragraphs (a) to (e),13
The enabling legislation specifically excludes the following from the definition:
(h) any of those acts if not performed for or in the expectation of a fee,
gain or reward, direct or indirect, from the person for whom the acts are
9
David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales, Final
Report (2004): 2 (stating that the Law Society in England had “no clear objectives and principles which
underlie this regulatory system; and the system has insufficient regard to the interests of consumers”).
10
Council of Europe, Committee of Ministers, Recommendation No. R(2000)21 (2000): preamble.
11
The Advocates’ Law [Afghanistan], art. 7 (2007).
12
State Bars in the United States govern prosecutors, defense attorneys, and private attorneys.
13
British Columbia Law Society Legal Profession Act (1998): art. 1(1).

performed,
(i) the drawing, revising or settling of an instrument by a public officer in
the course of the officer's duty,
(j) the lawful practice of a notary public,
(k) the usual business carried on by an insurance adjuster who is licensed
under Division 2 of Part 6 of the Financial Institutions Act, or
(l) agreeing to do something referred to in paragraph (d), if the agreement
is made under a prepaid legal services plan or other liability insurance
program[.]14
The Afghanistan Advocates’ Law defines a lawyer as “a person who is included in the
Roster of practicing advocates and is entitled to defend and represent the rights of
his/her client before a court of law, other authoritative tribunals, or initiate judicial
proceedings, in accordance with the provisions of the law.”15
Kosovo defines legal activities, which the bar regulates, as:
1.1. provision of legal advice;

1.2. representation and defence of clients in judicial and other governmental
institutions enforcing the laws;
1.3. defence and solicitation for clients in arbitration bodies and other
independent organisations;
1.4. defence of clients in their legal relations with other physical and legal
entities;
1.5. preparation of lawsuits, presentations for legal prosecution and appeal
remedies;
1.6. preparation of legal documents conducive to or aiming at legal consistency,
such as: contracts, wills, statutes, etc.
1.7. preparation of expertise for various legal issues, and
1.8. other actions as provided by Law.16
The text box examples only serve as examples of the definition of a lawyer.
Another important consideration is each society’s particular view of a lawyer’s
role. Each enabling act should include a clear and concise definition of the term.
3. Structure of the Bar Association
There are no international standards regulating bar association structure, although the
Council of Europe has issued basic guidelines for transitional states. 17 The Council,
14
Ibid.
15
The Advocates’ Law [Afghanistan], art. 5 (2007).
16
Law on the Bar [Kosovo], art. 2 (2009).
17
The Council of Europe found that government entities were retaining control, and thus not providing the
independence Bar Associations needed. Council of Europe Legal Co-operation with Central and Eastern
European, The Role and Responsibilities of the Lawyer in a Society in Transition (1997): 4.

seeking to protect bar associations from influence or harassment from government
branches, stated:
The Bars, representing the interest of lawyers and the interest of

individuals, in relation to the profession, should be representative of all
members, properly elected and independent of the State. . . The State
should simply provide by law the framework for the establishment of the
Bars, leaving it to the latter to regulate themselves.18
A comparison of bar associations around the world illustrates commonalities in

structure. Bar associations generally include an executive authority, usually a president
or chairman with a number of other officers. 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 explicitly in the enabling act. 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.19
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.20
Enabling acts commonly create the basic structure of a bar, while by-laws fill in the
overall structure with additional committees and descriptions of their authority and
duties. The common standing committees that could be created, either in the enabling
act or the by-laws, include an ethics committee,21 a disciplinary committee,22 and an
admissions committee.23
4. Admission Standards/Requirements
The enabling legislation should also define the criteria for admitting individuals into the
bar. These criteria can vary considerably. International standards provide only broad
guidelines on qualification and training. The United Nations Basic Principles on the Role
of Lawyers states that “lawyers [should] have appropriate education and training and be
made aware of the ideals and ethical duties of the lawyer and of human rights and
fundamental freedoms recognized by national and international law.”24 While there is a
18
Ibid.
19
International Legal Assistance Consortium, “Rebuilding Justice Systems,” Annual Report (2008).
20
Bar Association Law [Israel], § 6 (1961). Even bar associations with a legislative body will often have
standing committees. See Act No. 86.1996 on the Legal Profession [Czech Republic], § 47 (1996).
21
Bar Association Law [Israel], § 6 (1961) (where the enabling act created a national and district ethics
commissions).
22
Act No. 86.1996 on the Legal Profession [Czech Republic], § 47 (1996) (where the enabling act created
a disciplinary commission); Bar Association Law [Israel], § 6 (1961) (where the enabling act created
national and district disciplinary courts within the bar association)
23
Act No. 86.1996 on the Legal Profession [Czech Republic], § 41 (1996) (where the enabling act created
an examination board to oversee the admission examinations)
24
United Nations Basic Principles on the Role of Lawyers (1990), para. 9. The Council of Europe
Recommendation 21 states that “[a]ll necessary measures should be taken in order to ensure a high

growing trend to standardize admissions requirements, it is unlikely that a single
solution could ensure that individuals licensed as lawyers are fully capable of carrying
out their duties.25 Admissions standardization comprises five primary elements:
education, practical experience, exam, moral standards, and oath.
4.1 Education
Often, enabling acts require a four-year university degree in law or a master’s degree.26
The educational component, however, has its critics.27 The Chinese government is
moving towards stiffening its certification standards, potentially excluding many
presently practicing legal professionals. In China currently, non-lawyers (those not
certified) are still able to practice law and give advice. Apart from a certificate of training
no other educational requirements are required to offer legal advice. Many of these
practitioners are the primary defenders of human rights in rural areas.
If the admission procedure requires a higher degree of education, the enabling act or
by-laws should also indicate which types of degree qualify and which schools are
eligible. Frequently, it is sufficient if the ministry or government body that oversees
higher education recognizes or approves the institution. For example, Afghanistan
requires approval by the Ministry of Higher Education for non-law degrees. In Israel, an
applicant must have a degree from an institution recognized by the Council for Higher
Education or a foreign institution recognized by the Hebrew University in Jerusalem.28
Bar associations often operate their own training and education. The South Korean
government created the Judicial and Research Training Institute29 and applicants are
required to take the bar examination and complete two years of courses at the
Institute.30 Other bar associations that educate and train lawyers prior to giving them full
membership include the United Kingdom and Ireland. 31
standard of legal training and morality as a prerequisite for entry into the profession and to provide for the
continuing education of lawyers.” (Principle 2, para. 2).
25
Russell G. Pearce & Samuel J. Levine, “Rethinking the Legal Reform Agenda: Will Raising Standards
for Bar Admission Promote or Undermine Democracy, Human Rights, and Rule of Law,” Fordham Law
Review 77 (2009) (describing the American Bar Association’s growing trend to standardize the education
requirement for admission to practice).
26
The Advocates’ Law [Afghanistan], art. 6 (2007) (requiring either a bachelors in law or Sharia, or a
higher degree approved by the Ministry of Higher Education). Cf. Act No. 86.1996 on the Legal
Profession [Czech Republic], § 5 (1996) (requiring a Masters in Law or a recognized equivalent foreign
education).
27
See, e.g., Russell G. Pearce & Samuel J. Levine, “Rethinking the Legal Reform Agenda: Will Raising
Standards for Bar Admission Promote or Undermine Democracy, Human Rights, and Rule of Law,”
Fordham Law Review 77 (2009) (arguing that China and South Africa serve as examples that an increase
in admission to bar associations will diminish human rights, and in the case of China likely increase
corruption and decrease the rule of law).
28
Bar Association Law [Israel], § 25 (1961).
29
Korean Bar Association, Qualifications for Attorney-at-law (accessed October 15, 2009).
30
This is an interesting divergence, but it does pose serious risks – the government runs the institute;
therefore, questions of whether the legal sector is truly independent if they are required to complete a
government-run education may be valid.
31
See Annex I for more information.

4.2 Practical Experience
Although not always mandatory, admission to the bar may require practical experience.
This training experience varies from bar to bar. Variations include the time period of the
traineeship/apprenticeship and the bar’s oversight. Georgia requires one year of legal
training, or two years with a law-related NGO, before admission to the bar. In Kosovo,
trainees are still overseen by the Chamber of Advocates.32 Where there is no oversight
of the trainees, lawyers may not receive the requisite experience. Rather than require
general practical experience, the Port-au-Prince Bar Association in Haiti runs its own
two-year course.33 While enrolled during the course, lawyers are limited to practicing
criminal matters and matters before the peace court.34 The course offers practical
experience in the day-to-day operations of the legal system, especially the courts, in
Haiti.
4.3 Examination
As with education and practical experience, another admission requirement could be an

examination. The Czech Republic, Kosovo, the Philippines, and Israel all have an
examination as a prerequisite to admission to the bar association. If the enabling act
requires a bar examination, relevant issues include:
• Who writes the bar exam? Often times, there is a committee formed to write
the exam.
• When is the bar exam offered? The enabling act or by-laws should specify
how many times per year the exam is offered.35
• What will the bar distribute prior to exam? Lawyers will often request exam
material and practice questions well in advance of the test date.36
4.4 Moral Standards and Oath
The final two components – moral standards and an oath – have occasionally created
controversy. If admission to the bar requires “good moral standards,” it is vital to make
objective criteria to gauge morality. More often than not, an enabling act states that
admission to the profession requires “good moral character,” providing admissions
committees with significant latitude for subjectivity. Some bar associations attempt to
32
Law on the Bar [Kosovo], art. 34-38 (2009).
33
In Haiti, prospective lawyers only need a four-year university degree and successful completion of the
training course – they do not need to pass an examination. Afghanistan also offers a practical training
course that lawyers must pass, as an alternative to an examination.
34
The training course gives exams to ensure students are learning the relevant material, and students
are required to donate minimum hours to the poor and needy criminal defendants.
35
As the bar is still in its early years, the bar often does not offer the exam as often as the enabling act
requires. Although this is likely, it is important to still include when it is offered in order to both give
guidance to the bar and give redress to prospective applicants that are deprived on admission when the
exam is not offered.
36
See, e.g., Law No. 02/L-40 on Bar Examination [Kosovo] (2006).

employ more objective standards by denying admission to individuals with criminal
convictions related to fraud and perjury.
Oaths may be problematic, depending on whom the oath is given to and the contents of
the oath that must be stated. It is not unheard of for those administering the oath to add
statements requiring loyalty to the government, thus diminishing the independence of
both the lawyer and the legal profession. In ensuring the independence of lawyers, an
oath should not coax lawyers into a duty towards the bar, political branch, or
government that could potentially place a lawyer in conflict with his or her own clients. If
an oath is to be required, it should be written into the enabling act. Kosovo’s recently
adopted “Law on the Bar” provides the precise language of the oath and to whom it is
administered,37 helping ensure that the oath cannot be changed by those administering
it.
5. Discipline System
International standards recommend that the bar association or an independent panel

initiate disciplinary proceedings of a lawyer, ensuring both a fair hearing and due
process, with appeal to an independent body.38 The United Nations Basic Principles on
the Role of Lawyers states that:
“26. Codes of professional conduct for lawyers shall be established by the

legal profession through its appropriate organs, or by legislation, in
accordance with national law and custom and recognized international
standards and norms.
27. Charges or complaints made against lawyers in their professional

capacity shall be processed expeditiously and fairly under appropriate
procedures. Lawyers shall have the right to a fair hearing, including the
right to be assisted by a lawyer of their choice.
28. Disciplinary proceedings against lawyers shall be brought before an

impartial disciplinary committee established by the legal profession, before
an independent statutory authority, or before a court, and shall be subject
to an independent judicial review.
29. All disciplinary proceedings shall be determined in accordance with the

code of professional conduct and other recognized standards and ethics
of the legal profession and in the light of these principles.”39
37
Law on the Bar [Kosovo], art. 7 (2009).
38
United Nations Basic Principles on the Role of Lawyers (1990), art. 26-29; Council of Bars and Law
Societies of Europe, CCBE Recommendations on Disciplinary Process for the Legal Profession (2007);
African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial
and Legal Assistance in Africa (2005).
39
United Nations Basic Principles on the Role of Lawyers (1990) (italics added).

Based on these principles, and those echoed by regional recommendations, the
enabling act could set up a disciplinary system in one of two ways.40 In the first, the bar
association operates its own disciplinary body.41 In the second, a separate body,
autonomous from the bar’s leadership and other government offices, operates
disciplinary procedures. The selected system is then responsible for disciplinary
matters, including receiving complaints and issuing findings.
The discipline system has two major components: (1) receiving complaints; and (2)
regulating the lawyers. The complaints procedure will likely allow anyone – another
lawyer, a client, or the bar association – to initiate a complaint. Complaints will need to
be processed, and could lead to disciplinary actions. The disciplinary procedure will
likely involve a hearing, at which a lawyer is afforded due process requirements. The
United Kingdom recently overhauled their disciplinary system to ensure clients – those
most affected by lawyers’ conduct – are able to report misconduct. The Clementi
Report, on which the UK reforms were based, found a lack of independence between
those regulating the lawyers and the lawyers themselves, causing a lack of confidence
in the clients.42 In a post-conflict setting, the lack of independence may become a major
issue. The Clementi Report argues for two separate bodies to accept complaints from
clients and to issue discipline, which may serve as good practice in a post-conflict
state.43
Regardless of the model, the disciplinary system should afford every lawyer due
process. In relation to disciplinary hearings, the international standard of due process
requires the right to a timely, public hearing by an independent and impartial tribunal.
This likely requires a mechanism to ensure the independence of the disciplinary body.
Those deciding disciplinary issues should be protected from reprisal for their decisions,
and only face removal based on serious misconduct or incompetence issues.44
The disciplinary system will likely also have an oversight mechanism. This largely
depends on other legal mechanisms already in place. If the bar association is set up as
an independent agency, public administrative law will likely determine the oversight
function. Examples include appellate relief to the judicial courts and ombudsman
systems.
As part of the disciplinary system, the bar association could also create its own set of
professional ethics and codes of conduct to govern member behavior. These are
discussed in more detail in section 3B below.
40
See David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales,
Final Report (2004): 51 (outlining the two models).
41
See Council of Europe, Committee of Ministers, Recommendation No. R(2000)21 (2000): Principle VI,
para. 2 (“Bar associations or other lawyers’ professional associations should be responsible for or, where
appropriate, be entitled to participate in the conduct of disciplinary proceedings concerning lawyers.”).
42
David Clementi, Review of the Regulatory Framework for Legal Services in England and Wales, Final
Report (2004): 57, 77.
43
Ibid: 64, 78.
44
See Human Rights Committee, General Comment 32 (2007).

C. Time Frame to Establish the Bar from Passage of the Act
The enabling act may also include provisions on implementation. As discussed below,
implementation will vary based on each country’s legislative timetable. This section also
outlines past mistakes in the hopes of alleviating challenges for those drafting enabling
legislation in post-conflict states. In most legal systems, the act outlines the
requirements necessary to effect the bar’s establishment. The act should also reference
either a date or time frame from passage of the bill for the inaugural meeting of lawyers,
as well as the eligibility of participants and quorum requirements.
1. When to Establish
The enabling act often gives both a time frame to establish the bar and general
requirements about how the bar will be established. In terms of a time period, the
enabling act may specify a date when the act, and thus the bar association, becomes
effective. The effective date should provide enough time to conduct, at least, an
inaugural meeting.
For example, the Philippines passed a very short enabling act, giving the Supreme
Court power to establish more narrow guidelines for the bar.45 The act allowed two
years to establish the rules and by-laws of the Bar Association. Once the Supreme
Court affirmed both the rules and by-laws, the Bar was established. Specific dates are
not always necessary. In another example, South Korea’s enabling act provided a
specific date for the inaugural meeting, June 17, 1950. This specificity caused a delay;
because war broke out in late June 1950, the inaugural meeting did not occur until July
28, 1952, with the final establishment on August 28, 1952.46
2. How to Establish
In establishing or reforming a bar association, the enabling act often includes a section
detailing the process of how to establish the bar association. In order to ensure
independence from state organs, sometimes bar associations are set up as
independent corporations. The Israel Bar Association is a corporate body, in which only
the State Comptroller General has supervisory authority over it.47 The Ministry of Justice
was charged with implementing the law and with creating an election council to oversee
the first elections of the Bar’s leaders.48
Other times, the bar is created as an independent non-governmental association.49 For

example, The Afghanistan Advocates’ Law states “[t]he Association of Advocates
obtains legal status upon approval by the [Bar’s] General Assembly, publication of its
45
Philippines Act Providing for the Integration of the Philippine Bar.
46
History of the Korean Bar Association.
47
Bar Association Law [Israel], § 4, 5 (1961).
48
Ibid., § 108, 110.
49
The Advocates’ Law [Afghanistan], art. 4 (2007). (“To regulate and lead all activities of advocates, an
independent non-governmental Association of Advocates (the ‘Association’) shall be established.”).

By-Laws in accordance to the law and upon registration of its Charter with the Ministry
of Justice.”50 It further states that the law becomes effective three months after its
passage.51 Finally, the presidential decree accompanying the act states that “[t]he
Ministry of Justice shall be obliged to take necessary measures for establishing an
independent Association of Advocates within three months from the enforcement of the
Advocates’ Law.”52
In the Czech Republic, the bar association is an administrative organ that governs legal
professionals, and also maintains the status of a legal person.53 Since the Czech
process involved significant reform, their enabling act included a section on transitioning
from the former legal arrangement to the newly established bar; the enabling act was
passed in March 1996 with a provision that the law was effective on July 1, 1996.54 The
enabling act gave transitional authority to the Board of the former bar association, which
included the election of new bar members and hosting the inaugural assembly.55
To ensure clarity, the enabling act should not only provide an effective date of the
legislation, but also any additional requirements that must be met to fully establish the
legal capacity of the bar association.
3. Ensuring Legitimacy
Issues of legitimacy may arise when enabling acts fail to carefully provide specific
procedural guidance. In one example, an enabling act required an inaugural
conference, at which lawyers voted on by-laws that were then registered with the state.
However, since the enabling act did not provide any guidance on the number of lawyers
needed to vote on the by-laws, quorum became an obstacle to the bar’s legitimacy. The
bar approved the by-laws based on a quorum of registered participants, rather than
eligible participants. Dissatisfied lawyers later claimed that the by-laws, and thus the bar
association, were illegitimate.
If a quorum of voters is required, a balance should be struck between a quorum low

enough to obtain, yet high enough to provide the bar association legitimacy. If the
quorum is too low, a single political group constituting quorum could potentially form and
operate the bar, compromising the bar’s independent status. Drafters of enabling acts
should seek to resolve these issues prior to any inaugural conference.
50
Ibid., art. 38.
51
Ibid., art. 44.
52
Presidential Decree, The Advocates’ Law [Afghanistan], art. 2 (2007).
53
Act No. 86.1996 on the Legal Profession [Czech Republic], § 40 (1996)
54
Ibid., § 72.
55
Ibid., § 65, 68.

4. Eligibility of Participants
Often, an independent bar is established because of a lack of effective governing

structure of the legal profession.56 Issues may then arise as to who is eligible to
participate in the establishment of the bar association. In seeking clarity, the enabling
act should set out the criteria for original founding membership, especially if there is no
other document before the establishment of the bar to do so.
In Afghanistan, the Philippines and Israel, lawyers who met the basic criteria to be a
lawyer and were registered with the previous oversight regime were grandfathered into
the new bar. In transitioning to a new bar association, the Czech Republic’s enabling act
stated: “Lawyers having their names entered in the Register of Lawyers kept under the
current legislation shall become lawyers under the Act herein as of the date of effect of
the Act herein; the Bar shall enter their names in the Register of Lawyers without their
applying for such.”57 A second option would require all those interested to sit for an
inaugural exam on top of meeting the other eligibility requirements. Another option, if
there is a list of lawyers already registered with the state, is to grandfather those
lawyers into the new bar association, and allow each to be eligible to participate in the
founding conference. Clarifying criteria for eligibility in the enabling act provides useful
guidance in advance of a founding conference.
III. Developing the Bar Association
As stated above, 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. Furthermore, during this time, prospective lawyers could have the
opportunity to register for the bar, based on the provisions of the enabling act.58 The bar
association will also likely need to acquire office space and staff. Bar associations
frequently host an inaugural meeting during the implementation phase, in which they
pass by-laws, elect leaders and form committees.59 This is outlined in Subsection A.
Once the bar is established, it will likely need to draft a code of conduct or ethical
guidelines. In light of the widespread attention this issue often receives, Subsection B
briefly describes codes of conduct.
56
This is not always the reason for establishing a bar association. In other situations, a unified bar
combined local bars. In situations where former membership in the legal profession was established,
deciding whom is eligible to participate in the founding of the new bar may be an easy solution.
57
Act No. 86.1996 on the Legal Profession [Czech Republic], § 57 (1996). Their act also included a
provision grandfathering in legal trainees. Ibid., § 58.
58
As stated above, the enabling act could set out both the initial requirements to obtaining membership,
including whether there is a grandfather clause, as well as the requirements for new members.
59
As the Afghanistan example illustrates, the enabling legislation may require the Bar Association to
meet, pass the by-laws, and register a charter prior to being recognized as a legal entity. In such a
situation, the Bar Association is likely required to host an inaugural meeting where it can meet the
requirements.

A. The Inaugural Meeting of the Bar
Implementation of the enabling legislation often requires an inaugural conference. The

founding conference is charged with complying with the enabling act requirements.
Those that meet quorum will likely need to vote on multiple issues. Thus, participants
may need to be screened at every session to ensure they are qualified. This is an
arduous process, and since there may be multiple sessions, participants are likely to
come and go frequently, placing pressure on the quorum requirements. Proper planning
will help ensure a streamlined conference. Although enforcement of eligibility and
quorum is challenging and time-consuming, the alternative is likely worse; once the bar
is established, opponents could raise issues of legitimacy.
1. By-laws
During the conference, it may also be necessary to pass by-laws. Representative

stakeholders may want to draft by-laws beforehand. It may be helpful to set up a
process to accept and distribute such proposals before the conference, enabling
participation and feedback from members. At the conference, all participants could also
split up into groups to debate proposals for a certain time period, after which they might
submit any opposition to the various proposals. Although there are no guidelines or
standards for how to handle by-law proposals, organizers could review Robert’s Rules
of Order or similar books on parliamentary procedure.
2. Leadership
The enabling act and by-laws describe the organization, including the leadership
positions. Based on these documents, the next step is to ensure a valid nominating and
voting procedure is in place. With regard to the nominating and voting procedure, it is
important to keep in mind the social and cultural context of the country. In one instance,
only one individual was needed to nominate a candidate. Due to social courtesy,
nominations were made for friends, neighbors, and even nearby candidates. It may be
wise, in that situation, to place requirements – either in the form of a specific number of
signatures or particular qualifications needed – that the candidates have to meet before
being placed on a ballot. Once those eligibility criteria are in place, the nomination and
voting procedures can take place.
When creating the nomination and voting procedures, it is important to determine the
sequence of leadership votes. While there are no best practices or lessons learned for
this practice, the process could be greatly enhanced if details are worked out prior to the
conference and voting.
3. Standing Committees
Similar to the leadership positions, the enabling act and by-laws might create statutory
and standing committees, as well as the procedure for filling their seats. Bar

associations typically have at least two standing committees. First, there is usually a
committee to create and update the bar’s ethical guidelines and code of conduct. These
can help ensure a legal community that strives to provide the highest standard of legal
advice.60 In tandem with an ethics committee is a disciplinary system. As described
above, the disciplinary system varies, but it should be set up via the enabling act and
by-laws.
The second committee commonly found in bar associations is an admissions

committee. Not all bar associations have created admissions committees. Indeed, there
is a growing movement among some bar associations, including Kosovo’s, to
establishing their admissions committee as a standing committee in order to limit the
power of individuals in the bar.61
Truly independent bar associations should have the ability to freely admit or deny
applicants. Often, a standing committee to screen applicants created. This component
can be overlooked, as was initially the case in Kosovo.62 The Kosovo Chamber of
Advocates recently reformed their bar application process because the ultimate decision
was left to the head of the Chamber. At present, there is a committee to screen
applicants with strictly objective criteria.63 This has helped remove bias and increase
transparency of the admissions process. In countries with ethnic divisions, a unified bar
association will need to ensure that those in charge of bar admissions are prevented
from favoring or discriminating against particular ethnicities.
B. Code of Conduct
In carrying out their duties, lawyers must maintain a certain level of ethical and
professional behavior. As recommended by international standards,64 enabling
legislations often delegate authority to bar associations to create their own codes of
conduct, which serve as the basis for disciplinary proceedings.
Ethical norms amongst legal professions are usually based on common values,
although variations illustrate the nuanced differences in each country’s legal traditions.65
The American Bar Association’s Professional Legal Ethics: A Comparative Perspective,
analyzes both American and European bar associations and recognizes four common
areas of concern: (1) conflict of interest; (2) confidentiality; (3) competence; and (4)
60
See infra Annex D.
61
See, e.g., American Bar Association, The Legal Profession Reform Index of Kosovo, Volume II (2007):
27.
62
Ibid.
63
Law on the Bar [Kosovo], art. 5-6 (2009).
64
United Nations Basic Principles on the Role of Lawyers (1990), art. 26. See also Council of Europe,
Committee of Ministers, Recommendation No. R(2000)21 (2000): Principle 6, art. 1.
65
Council of Europe, Activities for the Development and Consolidation of Democratic Stability, Ethics of
Lawyers (1999): 4.

independence of lawyers.66 Interestingly, the ABA’s comparative approach found that
the American legal system placed loyalty to the client first, while Western Europe placed
loyalty to the legal profession first.67
The Council of Europe, in a forum to discuss legal ethics, condensed “ethical norms”
into legal and moral obligations that lawyers have to their clients, the court, and the
community.68 Towards their clients, lawyers can defend legitimate interests, maintain
manageable workloads, keep up professional skills, refrain from withdrawing if there is
likely immediate harm to their client, and avoid conflicts of interest.69 Towards the
courts, lawyers should maintain decorum and respect for the court.70 Finally, towards
the community, they should aim to enforce human rights norms in their practice.71
In comparing ethical standards across bar associations, as the ABA noted, these
common norms may be summarized as the following components: (1) the lawyer-client
relationship; (2) the lawyer-lawyer relationship; (3) The lawyer-court relationship; and (4)
the lawyer-society relationship. It should be noted that these ethical norms will vary
depending on the functions of the bar association and the definition of a lawyer.
1. Lawyer-Client Relationship
Ethical norms addressing the lawyer-client relationship often entail the following: (1) the
formation of the relationship; (2) a lawyer’s diligence and confidentiality; (3) conflicts of
interest; (4) fees; and (5) the termination of the relationship.
Codes of conduct often do not address the issue of when a lawyer-client relationship is
created. More often, the ethical norms address relationships that have already been
formed. Ambiguity may arise, however, with regard to whether the relationship exists,
and thus what duty the lawyer has to the client. This oversight may simply be that the
lawyer-client relationship is ordinarily a contractual relationship, and thus contract law
aids in determining if the relationship has been formed. Still, a code of conduct may
want to specify what law applies. Clarity will allow better training and understanding
among the lawyers on when their obligations to the client begin.
Some bar associations have determined that prospective clients are still in need of
protection, especially with regards to information they may give to a lawyer. For
example, in the Model Rules of Professional Conduct, published by the ABA, lawyers
owe duties to prospective clients, especially if they have dealt with confidential
66
American Bar Association Central European and Eurasian Law Initiative, Professional Legal Ethics: A
Comparative Perspective (2002): 1. See also Council of Bars and Law Societies of Europe, Code of
Conduct for European Lawyers (2006): 5.
67
Comparative Perspective (2002): 1.
68
Council of Europe, Activities for the Development and Consolidation of Democratic Stability, Ethics of
Lawyers (1999): 2.
69
Ibid: 2, 4.
70
Ibid: 4.
71
Ibid.

information.72 These duties usually include the norms of confidentiality and declining
representation due to conflicts of interest. Bar associations may also limit the solicitation
of prospective clients.73
Non-discrimination clauses frequently appear in many codes of conduct, prohibiting

lawyers from discriminating against their clients. In a post-conflict setting, this may be
very important if ethnic, religious, or gender divisions still persist. Also, it may be wise to
clarify whether a non-discrimination clause should apply to prospective clients. In the
United States, for example, most lawyers can decline representation of a client due to
conflicts with the prospective client’s religious beliefs if it would prejudice the lawyer’s
representation. This is not to say that allowing this decline of representation is the best
choice – in countries with very few lawyers or predominantly one ethnicity, it may serve
society best if lawyers are obligated to take clients regardless of those beliefs. This
section merely emphasizes the need to address these nuanced issues.
Codes of conduct also address conflicts of interest, which arise in three main areas:
personal conflicts, client-to-client conflicts, and third-party conflicts. Within the category
of client-to-client conflicts, sub-categories include former clients, current clients, and
prospective clients. In common-law traditions, the client will likely have the ability to
waive the conflict, and thus allow representation even though a conflict exists.
Conversely, in a civil law tradition, the conflict supersedes the client’s wishes.74
Finally, bar associations usually address attorney fees. Bar associations’ treatment of
fees varies from placing ceilings on what attorneys may charge to merely applying fair
and reasonable standards of contract law. If there are serious concerns about fees
charged by attorneys, bar associations may provide fee guidelines. Bar associations
could go as far as standardizing fees, though they rarely take these drastic steps.
Instead, most bar associations treat fees as a contractual agreement between lawyer
and client. While acknowledging the unequal bargaining power between the two, these
bar associations merely require fees to be fair and reasonable. The Council of Bars and
Law Societies of Europe, for example, simply states that “[a] fee charged by a lawyer
shall be fully disclosed to the client, shall be fair and reasonable, and shall comply with
the law and professional rules to which the lawyer is subject.”75 In some jurisdictions in
the United States, bar associations provide factors to consider the fairness and
reasonableness of fees.76
2. Lawyer-Lawyer Relationship
The norms addressing the lawyer-lawyer relationship can be broken into two parts: the
conduct of lawyers within a practice, and the conduct of lawyers with opposing counsel.
72
The American Bar Association, Model Rules of Professional Conduct, Rule 1.18 (accessed November
13, 2009).
73
Japan Federation of Bar Associations, Basic Rules on the Duties of Practicing Attorneys (2004): art. 10.
74
For more information, see American Bar Association Central European and Eurasian Law Initiative,
Professional Legal Ethics: A Comparative Perspective (2002): 37, 43.
75
Council of Bars and Law Societies of Europe, Code of Conduct for European Lawyers (2006): 11.
76
The American Bar Association, Model Rules of Professional Conduct, Rule 1.5.

The legal practice usually falls into one of the following categories: duties of a sole
practitioner; limits on joint practice (firm); and limits on working with non-lawyers. An
example of a sole practitioner’s duty is to put a plan in place for clients in case of a
lawyer’s death. Not every country permits lawyers to practice in a firm and thus share
profits; however, with transnational practice the trend seems to permit lawyers to share
profits. Most countries still place strict limits on sharing profits with non-lawyers.
Often times, norms will also discuss how a lawyer, in an adversarial situation, should
treat opposing clients and counsel. To opposing clients, a country might place
restrictions on communications a lawyer may have with clients represented by other
counsel. The ABA Model Rules, for example, state, “[i]n representing a client, a lawyer
shall not communicate about the subject of the representation with a person the lawyer
knows to be represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a court order.”77 Finally,
ethical norms may create disclosure rules. Most bar associations in the United States
recognize that not every lawyer has the same capabilities and resources. Thus, in an
attempt to protect all clients, especially those disadvantaged, the Model Rules and most
Rules of Civil Procedure set out broad disclosure rules for adversarial lawyers to adhere
to.
3. Lawyer-Court Relationship
In its relationship with the court, a lawyer will have obligations that range from ensuring
the law and facts are truthfully stated to showing the court deference. The nature of the
lawyer-court relationship is closely tied to the structure of the particular judicial system.
For example, in countries with a civil law tradition, judges are both the finder of fact and
law, which influences the lawyers’ obligation to report false or misleading testimony.
European courts ordinarily do not have a positive obligation to report false testimony of
their clients or witnesses to the court, while conversely most United States courts have
this positive obligation. In most jurisdictions in the United States, lawyers are required to
correct any false statements of law or fact. Codes of conduct often reinforce the norms
of this relationship.
Frequently, codes of conduct will also enforce the lawyer’s deference to the court. For
example, some countries impose attire requirements for attorneys in court. These vary
from formal business suits to robes and wigs,78 and can serve as a visual representation
of the relationship between the lawyer and court.
4. Lawyer-Society Relationship
A lawyer has a general duty to society, whether it is upholding the ethical norms,
addressing lawyers’ advertising and solicitation, or taking pro bono legal work to ensure
77
The American Bar Association, Model Rules of Professional Conduct, Rule 4.2 (accessed November
13, 2009).
78
For example, the enabling acts of both Afghanistan and Georgia give the Bar Associations authority to
set a standard for the Advocates’ Uniform.

access to justice by marginalized populations. Bar associations will often create a self-
regulatory body, as the disciplinary system ordinarily only has independent judicial
review as its check. Thus, lawyers will often have a positive obligation to uphold the
norms of the code of conduct. It is also possible to require lawyers to report any
misconduct to the discipline authority.
Codes of conduct also differ in their treatment of advertising and soliciting clients. In
Europe, for example, advertising and soliciting clients is highly regulated. Europeans
place the legal professional perception high on their lists of priorities, and thus
regulations are in place to decrease “practices which give rise to mistrust and discredit
the legal profession.”79 These regulations may go as far as to prohibit advertising and
solicitation.80 Conversely, the United States Supreme Court has provided a liberal
framework for advertising based on the First Amendment’s freedom of speech clause.81
In other countries, rules stipulate that advertising cannot be false or misleading and it
cannot discredit the dignity of an attorney.82 Finally, some limits prevent advertisements
from harming other attorneys.83
Bar associations ordinarily encourage lawyers to offer in pro-bono legal services. In

many countries, individuals have a constitutional and legal right to access to a lawyer in
criminal cases. The judicial system may have a process of appointing lawyers to
represent these criminal defendants. Bar associations often reinforce this process by
requiring lawyers to accept any court appointments. It should be noted that the United
States is in the minority; if they wish, lawyers may decline court-ordered
representation.84
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.85
Although ethical guidelines vary, bar associations should attempt to address these
issues and craft standards that comport to cultural and societal norms. In order to
provide straightforward professional standards for their members and assist their
79
80
Ibid: 15.
81
Ibid: 11.
82
Japan Federation of Bar Associations, Basic Rules on the Duties of Practicing Attorneys (2004): art. 9.
83
Afghan Independent Bar Association, Code of Conduct (2009): art. 31.
84
As stated previously, the United States does not have a non-discrimination clause with regard to
representation. Most other countries require attorneys to accept representation without regard race, sex,
sexual orientation, color, religion, political or other opinion, ethnic or social origin, membership in a
national minority, property, birth, or physical disabilities.
85

training on ethical obligations, bar associations should strive for clarity in their codes of
conduct.
Note on Annexes
As with any reform process, the establishment or reform of a Bar Association includes
various components. To complement this Consolidated Response, Annex A provides an
overview of selected bar associations. To enhance the comparative nature of this
Consolidated Response, Annex B contains links to various enabling legislations; Annex
C lists links to by-laws, constitutions, and regulations of Bar Associations; and Annex D
offers links to Codes of Conducts.

Annex A
Overview of Selected Bar Associations
I. Countries with Civil Law Traditions
A. Portugal
The Portuguese Bar Association (Ordem dos Advogados) is set up as an independent,

professional organization. In order to practice law, an individual needs a four-year
degree in law, followed by two years of training under a lawyer with at least five years of
experience. The two years are divided into an initial six-month trial period and a second
eighteen-month period. Completion of objective criteria is required to pass from the first
to the second. The training period is followed by both a written and an oral examination.
Trainees, overseen by the bar association, are limited in their practice to legal aid, minor
criminal defense, and civil cases in first instance court. However, prospective applicants
who are law professors or hold doctorate degrees in law do not need to complete the
two-year training period.
B. Czech Republic
The Czech Bar Association is comprised of an assembly, a board of directors, a

president, a supervisory council, a disciplinary commission, and an examination board.
The Disciplinary Commission has a panel to hear complaints at first instance, as well as
an appellate panel. If the commission decides to issue any disciplinary action, their
decision is provided in writing.
The Czech Republic requires applicants to be legally competent, have no criminal or

disciplinary history, hold a completed a master’s in law, finish three years of training,
pass an examination, and take an oath before the president of the bar association.
C. Sweden
The Swedish Bar Association operates in a somewhat different context than most other
bar associations. In Sweden, individuals may represent themselves in court, and may
further be represented by non-lawyers. Even still, lawyers are prevalent due to their
expertise of the law. Membership into the bar association requires residency in Sweden
or an EU member state, a bachelor’s or master’s in law, five years of legal work,
including three as an assistant or runner in a law firm, an examination, and good moral
character.
The bar association has a governing council, which then creates subsidiary committees.
The disciplinary committee oversees complaints made by clients or other involved
parties. At an adjudication hearing, a decision is made whether to issue an appropriate
sanction, refer the matter to the entire committee or take no action. Sweden has also
set a deadline for complaints; they must be made within three years of the event.

D. France
The French legal profession has localized bar associations, the largest of which is the
Paris Bar Association (Ordre des Avocats des Paris). Applicants must possess a
master’s degree in law, and nationality in France or an EU member state. They then
apply to the Institute of Judicial Studies, where they prepare for the entrance exam to
the Training Bar. The Training Bar, comprised of eighteen months of study, provides
both theoretical and practical training. Finally, the applicant must pass an examination
and take an oath.
E. Japan
Japan has created a unified, umbrella system. The Japanese Federation of Bar
Associations oversees the fifty-two local bars. The JFBA has a legislative body
consisting of the House of Delegates, Board of Governors, and Board of Executive
Governors. The Boards of Governors and Executive Governors consist of the president,
vice presidents and governors. The House elects the Vice Presidents and Governors,
while all members directly elect the president. The Practicing Attorney Law creates the
Qualifications Screening Board, a Disciplinary Actions Committee, Discipline
Maintenance Committee, and Complaints’ Grievance Panel.
In order to qualify as an attorney in Japan, the applicant must complete law school, a
bar examination, and one year training at the Legal Training and Research Institute of
the Supreme Court. Japan is currently in the middle of reforming their entrance
requirements. In 2011, they will create a shortcut route for applicants who pass a
preliminary test, enabling them to sit for the bar even if they have not finished law
school. Applicants apply to both the local bar they will practice under and the JFPA.
The local bar and JFPA jointly discipline lawyers. Anyone may file a complaint against
an attorney, at which point the local bar’s Discipline Maintenance Committee
investigates. The Committee decides whether to initiate formal proceedings. If so, the
Disciplinary Actions Committee investigates and imposes disciplinary actions. The local
bars may impose disbarment for three years, loss of status, suspension of practice for
two years, or a reprimand. The attorney then has a right to appeal to the JFBA
Disciplinary Actions Committee.
F. Afghanistan
The Afghan Independent Bar Association has a General Assembly, President,

Executive Board and regular members. Membership into the Afghani Independent Bar
Association requires Afghan citizenship, no criminal convictions, a bachelor’s in Sharia
law or a higher degree approved by the Ministry of Higher Education, and completion of
a training course. In terms of the disciplinary system, anyone may issue a written
complaint to the monitoring board. If a complaint is made concerning a lawyer, the

monitory board holds a hearing. Should the Board issue disciplinary actions, the lawyer
has a right to appeal the punishment to the court system.
G. Kosovo
The Kosovo Chamber of Advocates, first established in 1973 and reformed in 2001, has
recently completed a second round of reform. Their new enabling act, published in
March 2009, creates a general assembly (containing all lawyers), a president, a board,
a disciplinary committee, and an audit committee. The boards are elected to four year
terms, while the president has a two year term. The Discipline committee refers
complaints to a three person panel, one of whom is a lay person. Finally, prospective
members are required to be a citizen, complete a law degree, pass an examination, and
complete practical training. Training consists of one year as a law clerk or intern with a
lawyer or judge, or two years a legal-based NGO.
H. Israel
Israel has maintained the same bar association since its inception. The bar has a
president and national structure made up of the national council, national ethics
committee and national disciplinary courts. It also has a decentralized system, with
central and district committees, as well as district disciplinary courts and district ethics
committees. The discipline system accepts individual or ethics committee referrals. The
courts have closed hearings, at which the district courts provide a written opinion.
Attorneys may then appeal to the national disciplinary court. At the moment, there is a
bill that would overhaul this disciplinary system.
The Israeli Bar is in charge of admitting new members. With the enabling act providing
substantial definitions of all the requirements, it essentially requires the completion of a
higher legal education, one year as a legal intern, and an examination. The examination
is given after completion of the legal internship.
I. Kenya
The Law Society of Kenya is a unified bar association. It has both a Council and
Secretariat. The Council is comprised of all lawyers, who elect a chairman and vice-
chairman bi-annually. Elections are made via postal ballots. The Secretariat, comprised
of staff, then manages the Society’s daily affairs. The Law Society maintains over a
dozen committees, including the Disciplinary Committee. The Disciplinary Committee is
made up of the Attorney-General, or an individual appointed by the Attorney-General,
and six advocates with at least ten years of experience, and three lay persons
nominated by the Society and appointed by the Attorney-General. The Committee
receives complaints and issues rulings.

II. Countries with Common Law Traditions
A. The United Kingdom
The United Kingdom has a bifurcated bar association system. The Law Society is the
governing association of the Solicitors, while the Bar Council governs Barristers.
Consistent reforms have lessened the relevance of the distinctions between the two
professions – both solicitors and barristers are able to represent clients before the high
courts, as well as outside the court system. Historically, barristers were referred to
clients by solicitors; however, referrals are on the decline as clients seek barristers on
their own.
In order to practice law as a barrister, an applicant must meet the academic

qualifications, namely a bachelor’s degree in law followed by a conversion course. It is
then followed by the Bar Professional Court, which is either one year full-time or two
years part-time. It is a practical course, involving case management skills (preparing a
case and conducting legal research), written skills, interpersonal skills, and legal
knowledge.86 Finally, applicants must complete a one-year apprenticeship under an
experienced barrister. The first six months are considered “non-practicing,” followed by
the second six months of “practicing.”87
In order to practice law as a solicitor, an applicant must complete the academic stage, a
conversion course, the Legal Practice Course, and a trainee period. It is very similar to
the barrister’s membership requirements, and is overseen by the Solicitors Regulation
Authority.88
B. Canada
The legal profession in Canada consists of local bars for each province. The following
provides a synopsis of one such local bar, the Law Society of British Columbia.89 The
links provided in the following annexes note which provincial bar they represent.
British Columbia requires applicants to complete a Bachelor of Laws degree (either from
a Canadian law university or a foreign law degree and a certificate of qualification), the
Law Society’s Admission program (nine months of apprenticeship), followed by a ten-
week Professional Legal Training Course, and an examination.
The Law Society is granted all three functions – regulatory, education and
representation. It is governed by the Benchers, 25 elected lawyers and up to six non-
lawyers. The senior Bencher serves a one-year term as President. The Benchers have
oversight powers and establish the code of conduct.
86
The Bar Council, Bar Professional Training Course (accessed October 28, 2009).
87
The Bar Council, The Barrister’s Pupilage (accessed October 28, 2009).
88
See Solicitors Regulation Authority – Becoming a Solicitor (accessed October 28, 2009).
89
See The Law Society of British Columbia (accessed October 28, 2009).

Finally, the Law Society has created a complaints and disciplinary procedure. Once
complaints are received, Law Society staff determine if formal or informal mechanisms
will resolve the issue. Lawyers are asked to respond, and staff then make necessary
inquiries. If the staff determines a formal resolution is needed, they refer it to the
Discipline Committee. The Discipline Committee has the power to form a disciplinary
hearing or make informal inquiries. A hearing is comprised of three Benchers, at which
testimony is given under oath, in a public hearing, and a formal decision is given.
C. South Africa
South Africa, in its Common Law tradition, has bifurcated the legal profession into
advocates, who represent clients in court, and attorneys, who conduct transactional
legal services.
“The advocates' profession in South Africa is a referral profession. This means that a
client approaches an attorney who, in turn, instructs an advocate.”90
In order to practice as an advocate or attorney, individuals must be twenty-one years

old; be fit, proper, and qualified to be admitted; have a Bachelor of Laws from either a
four-year program or three-year undergraduate degree, followed by a two-year
vocational training program; and pass an examination.
D. Philippines
The Integrated Bar of the Philippines comprises all members on the roll of the Supreme
Court. The Supreme Court is still charged with admission of lawyers to the profession.
The bar, however, regulates those lawyers. The bar has a House of Delegates, which
has one hundred twenty members from local chapters, a Board of Governors,
President, and Executive Vice-President. The Executive Vice-President rotates by
region. The bar has disciplinary authority; however, the Supreme Court has the final
word on the suspension or disbarment of individuals.
In order to become a lawyer, individuals must be Filipino citizens, be twenty-one years

of age, and hold legal residence. They must also have good moral character, no
criminal charges of moral turpitude, a law degree and bachelor's degree from a Filipino
university, successfully pass the examination, and take an oath before the Supreme
Court. The roll of lawyers is then kept by the Supreme Court.
90
The Legal System in South Africa, The General Council of the Bar (GCB); The Attorneys Act [South
Africa] (1979).

Annex B:
Enabling Acts
Afghanistan The Advocates’ Law
Canada
Alberta Law Society Legal Profession Act
British Columbia Law Society Legal Profession Act
Manitoba Law Society Legal Profession Act
Nova Scotia Barristers Society Legal Profession Act
Czech Republic Act on the Legal Profession
Germany Federal Lawyers’ Act
The Israel Bar Association Law
Japanese Practicing Attorney Act
Kosovo Law on the Bar
Malaysian Legal Profession Act of 1976
Norway Regulation for Advocates
Philippines Act Providing for the Integration of the Philippine Bar
South Africa Attorneys (Solicitors)
Sweden
Turkey Attorneyship Law

Annex C:
By-Laws/Constitution/Regulation
Canada
The Rules of the Law Society of Alberta
The Manitoba Law Society Rules
Nova Scotia Barrister’s Society Regulations
The Articles of Association of the Japan Federation of Bar Associations
The Statute of the Kosovo Chamber of Advocates
The Nigerian Bar Association Constitution
The By-laws of the Norwegian Bar Association
The By-laws of the Integrated Bar of the Philippines
The Constitution of the Law Society of South Africa
Sweden

Annex D:
Code of Conduct/Ethics
The Code of Conduct for the Council of Bars and Law Societies of Europe
Albania Attorney Ethics Code
The Code of Conduct for the Afghan Independent Bar Association
Armenia Code of Advocates' Ethics
Belgium
Bulgaria Attorneys-at-Law Ethics Code
The Canadian Bar Association’s Code of Professional Conduct
The Law Society of Alberta’s Code of Professional Conduct
The Law Society of British Columbia's Code of Professional Conduct
The Law Society of Manitoba's Code of Professional Conduct
The Nova Scotia Barrister's Society Legal Ethics
The Croatian Bar Association Attorneys’ Code of Ethics
The Cyprus Bar Association Code of Conduct
The Czech Bar Association Code of Conduct
The Japanese Basic Rules on the Duties of Practicing Attorneys
The Kosovo Chamber of Advocates Professional Rules of Ethics of Attorneys
The Integrated Bar of the Philippines Code of Professional Responsibility
The South African Bar Council’s Uniform Rules of Professional Responsibility
United Kingdom
Barristers – Bar Standards Board
Solicitors – Code of Conduct
American Bar Association’s Model Rules of Professional Conduct

Compilation of Resources
International and Regional Organization Documents
United Nations Basic Principles on the Role of Lawyers (1990)
African Commission on Human and Peoples’ Rights, Principles and Guidelines on the
Right to a Fair Trial and Legal Assistance in Africa (2005)
Council of Bars and Law Societies of Europe, CCBE Recommendations on Disciplinary

Process for the Legal Profession (2007)
Council of Bars and Law Societies of Europe, Code of Conduct for European Lawyers
(2006)
Council of Europe, Committee of Ministers, Recommendation No. R(2000)21 (2000)
Council of Europe Legal Co-operation with Central and Eastern European, The Role
and Responsibilities of the Lawyer in a Society in Transition (1997)
Council of Europe, Activities for the Development and Consolidation of Democratic

Stability, Ethics of Lawyers (1999)
Assessment Related Documents
Legal Vice Presidency, The World Bank, Legal and Judicial Sector Assessment Manual
(2002).
The ABA Rule of Law Initiative – the Legal Profession Reform Index
Reports and Other Documents
American Bar Association Central European and Eurasian Law Initiative, Professional
Legal Ethics: A Comparative Perspective (2002).
David Clementi, Review of the Regulatory Framework for Legal Services in England
and Wales, Final Report (2004).
Russell G. Pearce & Samuel J. Levine, “Rethinking the Legal Reform Agenda: Will
Raising Standards for Bar Admission Promote or Undermine Democracy, Human
Rights, and Rule of Law,” Fordham Law Review 77 (2009).

Establishing and Reforming Bar Associations in Post-Conflict States (CR 10-001)

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Establishing and Reforming Bar Associations in Post-Conflict States (CR 10-001)

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Establishing and

Drafted by Christina Murtaugh

With contributions from:

1. Wendy Betts, National Center for State Courts

UNMIT's Administration of Justice Support Unit is currently planning to assist in

This Consolidated Response focuses on methodologies and comparative approaches to

January 2010 INPROL Consolidated Response (10-001) Page 1 of 33

1. Professional Freedoms and Guarantees

• Access to Clients: Lawyers have access to clients, especially those

January 2010 INPROL Consolidated Response (10-001) Page 2 of 33

• Access to Information: Lawyers have adequate access to information

2. Education, Training, and Admission to the Profession

• Preparation to Practice: Lawyers possess adequate knowledge, skills, and

• Qualification Process: Admission to the profession of lawyer is based

• Licensing: Admission to the profession of lawyer is administered by an

• Non-Discriminatory Admission: Admission to the profession of lawyer is

3. Conditions and Standards of Practice

• Resources and Remuneration: Lawyers have access to legal information

• Continuing Legal Education: Lawyers have access to continuing legal

January 2010 INPROL Consolidated Response (10-001) Page 3 of 33

• Professional Ethics and Conduct: Codes and standards of professional

• Disciplinary Proceedings and Sanctions: Lawyers are subject to

• Legal Services for the Disadvantaged: Lawyers participate in special

• Alternative Dispute Resolution: Lawyers advise their clients on the

• Member Services: Professional associations of lawyers actively promote

• Public Interest and Awareness Programs: Professional associations of

• Role of Law Reform: Professional associations of lawyers are actively

January 2010 INPROL Consolidated Response (10-001) Page 4 of 33

Another key element of the assessment is an ascertainment of whether the legal

II. Setting up a Bar Association

January 2010 INPROL Consolidated Response (10-001) Page 5 of 33

A. Determining What Type of Bar Association to Establish

1. Local versus Unified Bar Associations

In countries with historically localized bar associations, there is a growing movement to

2. Merged versus De-merged Bars7

January 2010 INPROL Consolidated Response (10-001) Page 6 of 33

3. Voluntary versus Mandatory Bar Associations

B. Drafting Enabling Legislation

1. General Functions of the Bar Association

January 2010 INPROL Consolidated Response (10-001) Page 7 of 33

2. Definition of a Lawyer – whom the bar governs

Example of Defining the Practice of Law and “Lawyer”

January 2010 INPROL Consolidated Response (10-001) Page 8 of 33

Kosovo defines legal activities, which the bar regulates, as:

1.1. provision of legal advice;

3. Structure of the Bar Association

January 2010 INPROL Consolidated Response (10-001) Page 9 of 33

The Bars, representing the interest of lawyers and the interest of

A comparison of bar associations around the world illustrates commonalities in

January 2010 INPROL Consolidated Response (10-001) Page 10 of 33

January 2010 INPROL Consolidated Response (10-001) Page 11 of 33

As with education and practical experience, another admission requirement could be an

4.4 Moral Standards and Oath

January 2010 INPROL Consolidated Response (10-001) Page 12 of 33

International standards recommend that the bar association or an independent panel

“26. Codes of professional conduct for lawyers shall be established by the

27. Charges or complaints made against lawyers in their professional

28. Disciplinary proceedings against lawyers shall be brought before an

29. All disciplinary proceedings shall be determined in accordance with the

January 2010 INPROL Consolidated Response (10-001) Page 13 of 33

January 2010 INPROL Consolidated Response (10-001) Page 14 of 33

Other times, the bar is created as an independent non-governmental association.49 For

January 2010 INPROL Consolidated Response (10-001) Page 15 of 33