Chile’s Constitutional Court Strikes Down Mandatory Free Legal Advice

The avarice of lawyers seems to be a widely-shared belief. Not in vain has the so-called legal profession received too many critiques around the world, being as they are often the most radical adversaries of the lower classes. I still remember a cartoon I once saw which said: “Little money… little law,” evidently suggesting (and dramatically describing) those who have money to pay fancy and well-trained lawyers will have greater chances of being satisfied in a trial. Are these unfair sayings?

Chile’s Bar Association (“El Colegio de Abogados”) recently filled a petition before the Constitutional Court, arguing the unconstitutionality of mandatory free legal advice (article 595 of the C.O.T.). According to a legal regulation which lasted almost 60 years – but which can be traced back in the Middle Ages, according to Fernando Orellana Torres – lawyers were bound to provide free legal assistance to people living in conditions of poverty who could not afford a private lawyer. Lawyers were designated by a lot conducted by the Judiciary and, once assigned, were “on duty” for a month – and were required to continue providing legal advice until the end of their client’s case. In practical terms, free legal advice never posed a serious demand on lawyers since it coexisted with the Legal Assistance Service – a government-rooted office, which also provides legal counsel to people who cannot afford a private lawyer. In this latter case, law students – who did not get paid – carried out most of the work. (In fact, this so-called “legal practice” lasts for six months, and is a necessary requirement to becoming a lawyer in Chile.)

Criminal cases (including those before military trials) might have presented a different situation; lawyers designated to their “on duty” role were normally consulted in criminal cases, while in labor and civil cases, people preferred to ask the Legal Assistance Service. Currently, free legal advice in criminal cases is assumed by a public office (“Defensoría Penal Pública”) – implemented with the reform to the criminal proceedings which started in 2000.

What were the Bar’s main arguments? It basically claimed the violation of two constitutional rights. First, that mandatory legal duties were violations of the equality clause, since the mandatory free legal advice imposed disproportionate legal duties on a specific class of people, namely lawyers – when compared with other mandatory legal charges for which people get paid (i.e. military service). Secondly, it also claimed the violation of the right to get fairly retributed (meaning paid) for a job, a right that – so the Colegio claimed – emanates from the liberty to conduct economic enterprises, a right recognized in the Chilean Constitution.

The field was in some way prepared. The Court had previously declared the inapplicability of the same institution – a requirement needed to be met in order to ask for the nullification of a law – so that the “Colegio” relied heavily on the Court’s previous decision. According to this previous decision (Constitutional Court, Rol No 755, 24th June, 2008), the Constitutional Court decided that the duty’s lack of payment was unconstitutional, though the purposes sought by the government (that of providing free legal advice to those who cannot pay private counsel) were not. In implementing that decision, the Supreme Court essentially designated the lawyers “on duty” anyway, by asking them to sue the government for recovering the salary due because of their job. The Bar also claimed this was a new undue public charge on lawyers, who would face new costs in suing the recovery.

The Court limited its decision to the duty’s payment – according to the previous inapplicability decision – and also remarked that the unconstitutionality of the law was something exceptional, considering the “respect towards the legislator’s labor”. In that light, it struck down the duty’s lack of payment, therefore ordering the legislator to regulate the way designated lawyers working “on duty” will get paid. The Court’s main arguments were the following.

Regarding the right to equality before the law

According to the Court, people are treated with equal respect and consideration as long as they receive same governmental treatment when under the same circumstances. Therefore, those in different circumstances may receive different legal treatment. The Court did find reasons to justify lawyers’ different legal treatment. As the Court said, when analyzing other liberal professions we found no other workers being legally required to work freely to satisfy a governmental end. However, lawyers, who are invested by the judiciary, fulfill a quite different social role: that of being actual justice’s assistants.

Even when the distinction was reasonably justified (on the grounds of considering lawyers to play a crucial social role), the Court decided to determine whether the State was by means of this distinction pursuing a constitutional (and legitimate) end. The Court again concluded that it was. The state was legitimately and constitutionally seeking to provide every people who cannot afford private counsel with legal advice. That end was itself established in the Constitution.

Equality before the law, however said the Court, demanded much more than just reasonable distinctions and the pursuing of constitutional ends – already fulfilled. It also demanded the analysis of the means by which the ends were to be achieved. According to the Court, equality before the law is affected when the right’s regulation (in this case the reasonable distinction) is inadequate, unnecessary, and intolerable. In other words, the Court decided to evaluate the proportionality of the restriction imposed on the right (the unequal legal treatment). In assessing the proportionality the Court insisted on the end’s legitimacy while it rejected the means used. Lack of payment – the court argued – posed on lawyers an unreasonable charge their social role was not meant to bear.

Was the “duty” a disproportionate public charge too? Chile’s Constitutional system allows the imposition of public charges, understood – as the Court quoted – as “personal or patrimonial charges being not taxes, the law may impose on people in pursuing ethic, moral and legal ends.” Military service is an example of personal charge. According to the Constitution, however, public charges were to be imposed equally, meaning charges cannot be discriminatory duties imposed only on a certain class of people. The “duty” of mandatory free legal advice imposed upon lawyers, the Court said recalling its previous arguments on equality, was discriminatory since it was a public charge not remunerated – as it does occur with military service. Curiously enough, the Court decided public charges impose on the State the duty to remunerate them, a constitutional duty it extracted from the mere fact other public charges were.

Did the gratuity of the “duty” also affect the right to work? The Court said it did; since lawyers were not allowed to charge their honoraries, the “duty” had become – so the Court said – a sort of forced work, which the Constitution forbids. Declaring these legal duties to be within constitutional bounds would eventually lead to the total abrogation of the autonomy to determine whether to perform a work (or not) and what work. Besides that, it was (and is) the Constitution itself that enshrines the right to a fair retribution – even when the work is legally imposed.

The Constitutional Court decided that the State acted pursuing a constitutional end, which also was a constitutional duty. In fact, the Court argued the State not only acted well in trying to provide the worst-off with legal advice, but also acted in that way because the Constitution itself imposed that obligation. However, the means chosen by the State were measures that affected lawyers’ rights in a disproportionate way. Being forced not to charge for their legal advise meant, the Court said, that the State discharged its obligation (of providing free legal counsel to the worst-off) on lawyers who, after all, are private people like any other.

Though noticing the “duty” had become a default assistance and barely used, its lack of payment proved to be highly violating of several constitutional rights – as showed above. One of the factors had caused a decreasing use was that of the implementation of public legal assistance services (in criminal, family law, and labor rights proceedings); hence the Court called upon the legislator to implement a public service alike. This decision – the Court was clear – should not be interpreted as constitutionally allowing lawyers to charge their clients with a fee, but to seek its professional retribution from the state.