The so-called “Audios” case, whose investigation remains open, revealing new facts and involvement – which the public has learned as the Public Ministry advances in the investigation of the case – which revealed a defense strategy of the lawyers designed, apparently , committing crimes of corruption and leaving aside ethics and probity, which is supposed to be the essence of the exercise of the profession. Thus, in the audio you can hear how the client and his lawyers – Daniel Sauer, Luis Hermosilla and Leonarda Villalobos – boast of having bribed officials of the Internal Revenue Service (SII) and the Commission for the Financial Market (CMF) to obtain privileged information and favors that benefited the defended businessman.
Recently, it has come to light that the lawyer Álvaro Camus Cruz, of the law firm Guzmán y Asociados SpA, directed by Antonio Guzmán Neira – currently charged with the crimes of fraud and malicious use of a private instrument – in the context of the millionaire fraud that affects Primus Capital, confessed to having falsified a CMF document which was presented in an arbitration, before the Arbitration and Mediation Center (CAM), between two companies, which led to the raid of the firm and the seizure of computers and lawyers’ cell phones. The reasons given by the lawyer who, until now, has assumed full responsibility, would have been “look good with the team, thinking that this action could bring some benefit in the future”.
Some questions arise here: How is the correct exercise of the profession and high professional standards guaranteed for those represented? What happens in other jurisdictions?
In many countries with the same legal tradition as ours, there is mandatory tuition, such as France, Germany, Italy or Argentina. The same situation occurs in the countries of Common Law like the United States and England. In the United States, for example, the American Bar Association (ABA), founded in 1878, is the professional body of lawyers responsible for regulating the legal profession in that country. Although there is no single federal bar and each State has its own Bar Association, most require mandatory membership to practice as a lawyer. The best known and most demanding are those of New York and California, which include educational requirements prior to the exam and ethics standards that are minimum standards of conduct required of the lawyer. For example, during the practice of the profession, the State Bar of California, in order to protect those represented from dishonest or unethical conduct, is authorized to receive formal complaints and evaluate whether it can sanction the lawyer. And, the DHC or Disciplinary Commission can suspend or prohibit the exercise of the profession for up to five years.
In our country, since the issuance of Decree Law 3621 of 1981, which established the rules on professional associations, all of these became trade associations and it is not mandatory to be affiliated with the Bar Association to practice the profession, nor does it have the power to suspend or prohibit the practice of those lawyers who cross the thresholds of ethics, probity or who commit crimes as part of the design of their defense strategy for their clients.
Every time there is a discussion about reinstating the mandatory membership of the Bar Association and the possibility that, in the event of serious breaches of ethics regulated in the Code of Ethics, sanctions may be applied that could reach the prohibition of professional practice – such as It was until before 1981 – some voices are raised that argue that article 19 No. 15 of the Political Constitution would be violated. However, the countries mentioned above that have established mandatory tuition do not consider it this way even though their constitutions also guarantee freedom of association.
Currently, since there is no obligation to affiliate, the system protects non-registered lawyers more since they are not subject to any ethical and effective control. In theory and in accordance with current legislation, the courts would be the ones who should take charge, which in practice does not exist. And for those lawyers who are members, they supposedly have the control carried out by the Bar Association and the Ethics Court, but the sanctions are not really effective since they cannot suspend professional practice as the maximum sanction.
Perhaps, the time has come in Chile to open this discussion without restricting it exclusively to the field of coercion of people’s freedom, studying the experiences of the jurisdictions of those countries that have implemented a corporate regime, through which lawyers organize themselves. obligatorily to practice their profession, subjecting themselves to ethical and legal standards that regulate their professional activity as a way of protecting those who, trusting in the person or prestige of the lawyer, entrust him with the representation of their conflicts and litigation only to end up being defrauded by the same professional who He had to look after his interests or, in the worst case as we have seen, participating in the commission of crimes together with his lawyer.
The aforementioned cases do nothing more than continue to degrade the trust of citizens in public and private institutions, in the authorities, in the judicial system, etc., and now, in those who represent them judicially in their cases, without having the seriously distorted message for future lawyers who are going to practice.
Can we really continue to allow ourselves the luxury of inviting corruption to continue piercing our foundations of the Rule of Law?
