“Lawyers are not born, they must become one”
JUDr. Martin Vychopeň has been the President of the Czech Bar Association (ČAK – Česká advokátní komora) since 2009, before that being its Vice President for six years. He is a member of ČAK’s delegation to the Council of Bars and Law Societies of Europe (CCBE – Conseil des barreaux européens) and also a ČAK examiner. He works in Benešov, and is a partner at the Camrda, Premus, Vychopeň, Vachoušek, Zeman a partneři, sdružení advokátů law offices. He acquired his legal education at Charles University’s Faculty of Law. He works at CU as a member of the Scientific Board and an external civil law teacher. Coincidentally, JUDr. Vychopeň was the first trainee lawyer whom the Czech Bar Association entered on its list of trainee lawyers following its establishment in 1990 in line with the new Act on the Legal Profession. As a side note, there are roughly 12 000 lawyers in the Czech Republic, and 1 000 000 in the whole EU.
Mr President, how do you see the current ČAK, its mission and evolution?
The Czech Bar Association is a professional organisation, a statutory body with two roles. First of all, it provides self-regulation of the legal profession and secures its independence. Second of all, it exercises its powers on departments of public administration, in particular registry, control and disciplinary powers. ČAK’s main mission is to ensure lawyers’ independence from the state, because the independence and freedom of the lawyer is an essential condition for a fair trial. It is also often said that lawyers are a wider part of justice.
The Czech Bar Association has experienced very dramatic developments in recent year in a number of areas. The number of lawyers and trainee lawyers has grown significantly – today over 12 thousand lawyers and 3.5 thousand trainee lawyers are registered. Similar dramatic developments have been seen in the ever expanding computerisation of human communication and justice itself. Nevertheless, regardless of this the mission of the legal profession remains the same: to provide high quality legal services for our clients independently of the state. It should also be noted here that self-regulation and independence also mean economic self regulation and independence, i.e. our activities are not funded by the state, but rather by contributions from lawyers themselves.
And how do you think the legal profession is developing? One major Czech layer has complained that the legal profession is becoming ever more of a commodity.
My colleague’s complaint is probably based on the fact that some lawyers see their work merely as a source of income. Being a lawyer is not just a career; it is a kind of mission. We mustn’t forget that the legal profession is not a business in the normal sense of the word. Lawyers work with clients, with people with problems, in a complicated status or life situation and they must use the law above all to solve their problems, something which is certainly not a standard commercial commodity. You cannot drily apply economic rules about profit and financial gain to a lawyer’s actions. Lawyers’ work also includes activities which are normally termed pro bono (legal assistance to the poor and needs). If a lawyer prioritises solely profit, then they are generally not a good lawyer.
You have said yourself that “you are not born a lawyer; you must become one. It is usually a free choice for a liberal profession.” You say the term liberal profession means taking full responsibility for what you do; it means you have to take care of absolutely everything from the office to liability insurance.
The legal profession comes across to me as a client service with everything that entails. What does the public not know about lawyers? What prejudices do you still face? Probably the most widespread error the general public make is to think that lawyers make their clients’ decisions for them. What kind of suit to bring, and when to bring it, what its subject will be, whether they appeal and so on. That is a gross error. Lawyers cannot make decisions for their clients. The fundamental rule is that lawyers must carry out the client’s instructions, and in carrying out their profession they must respect the law fully and exploit all the options which the law provides the client in his position.
The public often identify lawyers with their clients. Criminal defence lawyers in particular often find that when they work in very complex, serious or medialised cases, they are often equated with their clients. It is very hard to change this perception. When I train lawyers or give talks to the general public, I always say that you need to look at the issue like this. We are all equal – that’s rule enshrined in the constitution. And if we’re all equal then we are all entitled to legal assistance. Legal assistance and legal services should only be provided by professionals, and these legal professionals are for the most part lawyers. Although comparisons aren’t great, let me give one by way of illustration for better understanding. Even murderers are entitled to medical assistance, and nobody equates the doctors with them. Similarly, murderers are entitled to legal assistance. Sometimes this can be hard to grasp, and it can be very difficult for the lawyers themselves to defend or represent certain clients.
You are also a ČAK examiner. How do you see the new generation of lawyers?
I wouldn’t like to give a general assessment of the new generation of lawyers en masse; I think any generalisation is a mistake. I try to avoid stereotyping generations in the sense that young lawyers are inexperienced, understand nothing and will be the ruin of the legal profession.
As ever and as in any profession, it depends on the personal and professional qualities of the individual lawyer, regardless of their age. As any young person setting out on an active life, even young lawyers show less humility in regard to human fates and to themselves, but this is something that occurs in the development of every human, and young lawyers are no different.
There is a lot spoken about mediation; what other trends are there in the legal profession?
In terms of mediation, it is still too early to be able to assess mediation in a comprehensive manner. Furthermore, I am not the right person in this regard, because I am not involved in mediation and I am not a mediator.
As far as other trends in the legal profession, I can only put forward guesses. Certainly a major trend is the ever more widespread and growing provision of on-line legal services. ČAK is trying to accommodate this in that we are currently building a new IT system which should allow lawyers to undertake their work through websites etc. Although the Bar Association is looked on unfavourably in this regard by young lawyers in particular, the position of many lawyers is very conservative because the on-line provision of legal services can and does bring with it serious problems, such as in the event of conflicts of interest, client identification, the movement of funds, etc.
In one interview, you said that Czech justice is suffering from the closed nature of individual legal professions. In the West, it is common for lawyers to begin on the bar, or as a notary and then become a judge. In contrast, after a certain period judges become lawyers. Here, the judiciary and notaries are very closed to change. Can we expect any change? And which of our neighbouring countries do you think offers the optimal model?
Our system suffers because individual legal professions are closed off, although recently there have been intimations that a change may occur. To be honest, however, I don’t expect any fundamental change in terms of the permeability of judicial professions.
In regards to neighbouring countries, it is hard to say which offers the optimal model. Like us, our neighbouring countries have their own historic tradition from the Austro-Hungarian period in terms of the judiciary. The situation is particularly complex in Poland and Hungary at the current time. I think there is no ideal option or ideal solution; I would rather support using solution methods proven in other countries and applying them to the Czech context.
A final word…
Over more than twenty-seven years of practice, I have experienced massive booms in the fax (which today no-one uses any more), mobile telephones, computers, the internet. It is not just the legal profession which is experiencing rapid change, but the whole of society too. But in terms of the legal profession, regardless of where things develop, the legal profession must preserve, maintain and fight for its freedom, independence and self-regulation. Without that, justice will never be served.
By Linda Štucbartová