TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 588/2001

21 of December of 2001

Headnotes:

When seeking to safeguard lawyers' independence in practising their profession, it is difficult to predetermine how public interests will affect other occupations, given the almost infinite number thereof and the virtually unforeseeable variety of circumstances. However, the public interest cannot be upheld to the detriment of the essential substance of the right freely to choose one's occupation in a democratic society, to the point where individuals are forced to carry on an occupation against their will or prevented, in an arbitrary, unreasonable manner, from practising or continuing to practice their occupation.

Since legal representation by counsel contributes to the administration of justice - a fundamental task of the state - there would seem to be no question that it must be governed by rules based not only on protection of lawyers' own status, and the professional dignity inherent therein, but also on the public interest.

Freedom to work entails free choice of the type of work, which consists in the right to choose one's preferred occupation, entails a right to change jobs at will and includes the possibility of choosing the working conditions that best suit one's needs, in terms of working hours, remuneration or other conditions. Yet, it is clear that both of these freedoms must respect certain limits, which restrict their scope. The constitutional provisions on free choice of an occupation uphold certain restrictions imposed in the public interest or inherent in individual capabilities. In other words, parliament can in principle lawfully subject enjoyment of a fundamental right, such as that at issue here, to conditions or restrictions. A restriction is unlawful only if it violates the principles set out in Article 47.1 of the Constitution or if it serves no purpose or is unreasonable or disproportionate in its effects, with the result that it disregards the limits laid down in Articles 18.2 and 18.3 of the Constitution.

Summary:

An appeal was lodged with the Constitutional Court against a decision by the Bar Association to suspend a lawyer's membership on the ground that practice of the profession of lawyer was incompatible with performance of the duties of auditor. The appeal referred to Article 68 of the Bar Association Regulations, according to which "practice of the profession of lawyer shall be incompatible with any other occupation or office which may undermine the independence and dignity of the profession".

The appellant maintained that the Bar Association's interpretation, whereby the simultaneous performance of the two above-mentioned occupations was deemed incompatible, failed to respect the rights freely to choose and to carry on more than one occupation. Both followed from the right to free choice of an occupation enshrined in Article 47.1 of the Constitution. The appellant further asserted that, since this right was part of the corpus of rights, freedoms and guarantees, it could be limited only under the conditions laid down in Articles 18.2 and 18.3 of the Constitution and came within parliament's legislative preserve, as provided for in Article 165.1.b of the Constitution.

The Constitutional Court noted that parliament was clearly concerned to lay emphasis on the Bar's ethical and social role and, consequently, to guarantee that its members' professional and civic conduct, both in the practice of their profession and in other capacities, distinguished them as servants of justice and the law. This aim was obvious from the section of the Bar Association Regulations devoted to professional ethics, particularly with regard to the requirement of professional secrecy, the system of incompatibilities and the impediments to practising the profession laid down therein. The incompatibilities provided for were based on an ethical model. Preventing simultaneous practice of the profession of lawyer and performance of other occupations or duties from jeopardising the ethical principles and code of conduct which must govern the profession was hence a constant underlying objective.

According to the Constitutional Court's reasoning, parliament was in principle lawfully entitled to subject the exercise of a fundamental right, such as that at issue here, to conditions or restrictions. It therefore held that there had been no breach of Article 47.1 of the Constitution nor of the principles of necessity, appropriateness and proportionality in relation to the desired ends, which made the reference to Articles 18.2 and 18.3 of the Constitution irrelevant. There had also been no interference with the partially exclusive legislative powers of the Assembly of the Republic in this field.

Supplementary information:

The Constitutional Court had already had occasion to give judgment on the incompatibility rules applying to the profession of lawyer, although under different angles.

In its Judgment no. 143/85 it gave a generally binding finding of unconstitutionality concerning a rule of the Bar Association Regulations "in the part stating that teaching of subjects disconnected with the law is incompatible with practice of the profession of lawyer". The possibility of including the rules on incompatibility among the measures designed to safeguard lawyers' status was then envisaged, since safeguarding the profession's independence and dignity entailed guaranteeing lawyers' availability and devotion to their duties. This was a means of simultaneously guaranteeing lawyers' skills and their related professional reputation.

Later, in Judgments nos. 169/90 and 106/92, the Court gave decisions on the incompatibility of practice of the profession of lawyer with performance of the duties of a civil servant or any other central, regional or local government employee. The Court held, in particular, that, if parliament wished performance of public duties to be generally incompatible with practice of the profession of lawyer, it could make this plain either by listing the duties or activities attaching to the profession of lawyer which were incompatible with the performance of public duties or when laying down the rules applicable to public-sector employees.