On June 24, 2019, the bar association council amended its rules of procedure by adding to the title devoted to ” relations with institutions the following paragraph:
” The lawyer may not wear with the robe any decoration or sign ostensibly manifesting a religious, philosophical, community or political affiliation or opinion. “.
A student lawyer and her internship supervisor, a lawyer, each lodged an appeal against this deliberation of the bar association council.
On July 9, 2020, the Court of Appeal said:
- declared the recourse of the pupil-lawyer inadmissible, the latter not being yet a lawyer and therefore not having standing to act;
- rejected the request of his tutor to have this deliberation of the Bar Council annulled.
The main questions submitted to the Court of Cassation
- Is the council of a bar association competent to prohibit, in its rules of procedure, the wearing of any sign manifesting a religious, philosophical, community or political affiliation or opinion, with a lawyer’s robe?
- Does this deliberation of the bar association constitute an attack on freedom of religion and freedom of expression?
The answers of the Court of Cassation
The Bar Council is competent
In the absence of a specific legislative provision and in the absence of a regulatory provision enacted by the National Bar Council, it falls within the remit of a bar association council to regulate the wearing and use of the costume of its profession.
The bar association council therefore had the power to modify its rules of procedure in order to prohibit the wearing of any distinctive sign with a lawyer’s robe.
This restriction of freedom of religion and expression is proportionate
By imposing on its members to wear the court dress without any distinctive sign, the bar association council contributes to ensuring equality between lawyers and, through this, equality between litigants. This principle of equality is one of the constituent elements of the right to a fair trial.
Prohibiting the wearing of a sign manifesting a religious, philosophical, community or political affiliation or opinion is thus necessary and adequate, on the one hand, to preserve the independence of the lawyer, on the other hand, to guarantee the right to a fair trial.
This prohibition does not constitute discrimination.