On the new text of the oath of lawyers - AJBH-EN
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null On the new text of the oath of lawyers
On the new text of the oath of lawyers
Press release:
On the new text of the oath of lawyers
AJB-3615/2012
The stipulation of secrecy has been eliminated from the current oath of lawyers, which is contrary to Hungarian legal traditions; furthermore, it can destabilise the confidence-based relationship between clients and lawyers – the Ombudsman has found in the first report of his comprehensive inquiry into the profession of lawyers. Moreover, the fact that the oath confuses public law officials and lawyers working in the private sphere gives the impression that members of the profession of lawyers form part of the body of civil servants.
In his project ‘The situation of the profession of lawyers and the protection of the rights of lawyers and their clients' started this year, the Commissioner for Fundamental Rights examined first the modified text of the lawyer's oath. The oath does not contain any more the passage stipulating the professional secrecy of lawyers. In this regard the Ombudsman points out in his report that the inclusion in the oath of the moral obligation of secrecy is an ancient Hungarian tradition, so its elimination breaks the continuity of this accepted legal custom and in any case weakens the confidence-based relationship between clients and lawyers.
The Commissioner for Fundamental Rights also emphasises that the new text of the oath may create confusion in the public as to the roles of lawyers and public law officials. Namely part of the text of the oath has become identical with the text of the oath of public law officials, although this is not justified in any way; moreover, it is also misleading. On the basis of the oath lawyers have to make their clients comply with the rules of law, though they have no right or possibility to do so. In the new text the references to the interests of the client and the community are of equal weight, whereas professionally the lawyer has to represent the private party – stresses the Ombudsman. In the legal system the profession of lawyers counterbalances state power; therefore the constitutional regulation of this profession is of special significance, since the right to a fair trial and legal certainty can only be guaranteed in this manner.
On the basis of the above considerations the Ombudsman has established that the new regulation constitutes an impropriety in terms of the requirement of legal certainty as it follows from the principle of the rule of law and with the right to a fair trial. At the same time he has initiated that the Ministry of Public Administration and Justice consider amending the Act on Lawyers and restoring the original text in accordance with the Fundamental Law. The Commissioner has invited the Ministry to consult the Bar Association in the future when adopting or amending rules directly affecting the profession of lawyers.