Date when decision was rendered: 14.3.1997

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report No. 1012; R95/1454

Reference to source

KKO 1997:29.

Decisions of the Supreme Court 1997 I January-June

Högsta domstolens avgöranden 1997 I januari-juni

Korkeimman oikeuden ratkaisuja 1997 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: The Supreme Court

Date of publication: 1997

Pages: pp. 124-132

Subject

fair trial, oral hearing, lawyers, disciplinary punishment,
rättvis rättegång, muntligt förfarande, jurister, disciplinärt straff,
oikeudenmukainen oikeudenkäynti, suullinen menettely, lakimiehet, kurinpitorangaistus,

Relevant legal provisions

Sections 3-3-3 and 7-3 of the Advocates Act

= lag om advokater 3 § 3 mom. 3 punkten, 7 § 3 mom.

= laki asianajajista 3 § 3 mom. 3 kohta, 7 § 3 mom.

ECHR-6

Abstract

A, who was an attorney, had for several years been heavily in debt owing mainly to his involvement in risk-bearing business.Efforts had been made to recover the outstanding debts through execution.The Finnish Bar Association had received several complaints regarding A's debts and decided to initiate disciplinary proceedings against him.A was asked to give an account to the disciplinary board of the Association of his debts and his financial situation.He was also offered an opportunity to be heard at the meeting of the disciplinary board.A argued that he had no duty to give any such clarifications and that the matter was not within the disciplinary competence of the Finnish Bar Association.He did not participate in the disciplinary board's meeting.With reference to the Act on Attorneys, to the regulations concerning professional ethics and to the statute of the Finnish Bar Association, the disciplinary board dismissed A from the Finnish Bar Association.The decision was confirmed by the executive committee of the Association.The main reasons for the dismissal were A's considerable debts and his insolvency owing to which A could not be regarded as a suitable person for practising his profession as a lawyer.A appealed to the Helsinki Court of Appeal which did not change the decision of the Finnish Bar Association.In his appeal to the Helsinki Court of Appeal, A referred to Article 6 of the ECHR, especially as regards the fairness and publicity of the proceedings.The court of appeal stated that A had been given an opportunity to be heard before the disciplinary board, but he had not used this opportunity.He had not requested an oral hearing before the court of appeal either.

A appealed to the Supreme Court.The main issue in this case was whether A's insolvency could be regarded as a valid reason for his dismissal from the Bar.In the Supreme Court an oral hearing was held.A referred to Article 6 of the ECHR and stated that he had not been informed beforehand that his possible dismissal from the Finnish Bar Association would be discussed at the meeting of the disciplinary board to which he had also been invited.The Supreme Court stated that A had been given the opportunity to be heard.The correspondence regarding the case between the Finnish Bar Association and A had been going on for a longer period of time.On the basis of this correspondence, A should have know that his dismissal would be discussed at the meeting of the disciplinary board.The Supreme Court concluded, among other things, that taking into account the reasons for A's debts, the period of time he had been in debt and the way he had met his liabilities, A was not a suitable person to practise his profession as a lawyer and could thus be dismissed from the Bar.

2.4.1998 / 10.4.2007 / RHANSKI

Date when decision was rendered: 9.2.2009

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 185; R2008/50

Reference to source

KKO 2009:10.

Decisions of the Supreme Court 2009 I January-June

Avgöranden av Högsta domstolen 2009 I januari-juni

Korkeimman oikeuden ratkaisuja 2009 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2009

Pages: pp. 100-108

Subject

freedom of expression, limitations of rights and freedoms, lawyers, disciplinary punishment,
yttrandefrihet, inskränkningar av friheter och rättigheter, jurister, disciplinärt straff,
ilmaisuvapaus, oikeuksien ja vapauksien rajoitukset, lakimiehet, kurinpitorangaistus,

Relevant legal provisions

section 5 of the Advocates Act; section 12 of the Constitution Act

= lag om advokater 5 §; grundlagen 12 §

= laki asianajajista 5 §; perustuslaki 12 §.

ECHR-10

Abstract

The disciplinary board of the Finnish Bar Association had decided to issue a caution to advocate X.Considering the contents of certain announcements X had published in the newspaper and in the internet, the board found that X had acted in violation of the rules of proper professional conduct for advocates and the rules concerning advertising and marketing of legal services.X appealed against the decision, referring to his freedom of expression as guaranteed in the Constitution Act and the ECHR.

Both the court of appeal and the Supreme Court upheld the decision of the board.In its decision, the Supreme Court noted that commercial expression and advertising are not at the very core of the right to freedom of expression.Marketing practices may be limited but only to the extent it is necessary with respect to the interests protected.The Court pointed out that the purpose of the rules governing advertising and marketing of legal services is to prevent unfair competition and untruthful advertising and, more generally, to ensure respect for the profession of advocates.With reference to the case law of the European Court of Human Rights, the Supreme Court found that the assessment as to what kind of restrictions can be placed on the contents of marketing of legal services in order to ensure respect for the profession, varies in different countries and at different times (Casado Coca v.Spain, judgment of 24 February 1994).In striking a balance between the right to freedom of expression and other interests involved, national authorities have a wider margin of appreciation where there is no common ground among the Member States of the Council of Europe or there is a diversity of moral conceptions regarding the assessment at issue (Stambuk v.Germany, judgment of 17 October 2002).The Supreme Court held that in this case, the interference with X's right to freedom of expression was limited to the manner in which X marketed his services.The acceptability of X's marketing practices was assessed on the basis of regulations the members of the Finnish Bar Association themselves had chosen to impose on advertising and marketing of legal services in order to uphold respect for the profession.The Supreme Court concluded that the disciplinary board had not exceeded its discretion and that the limitation on X's right to freedom of expression, as a result of the Bar's regulations, their supervision and disciplinary sanctions, could not be considered disproportionate to the aim pursued.

5.2.2010 / 5.2.2010 / RHANSKI