The freedom to Practice law in Cuba
Letter #29 by Yanelis Ramírez Cruz.
In July 2019, Civil Rights Defenders invited Cuban human rights defenders and civil society organisations to contribute with texts on how the European Union should work towards Cuba. This letter is written by Yanelis Ramírez Cruz.
The freedom to practice law in Cuba
Law is one of the oldest professions in the world, because regulation of conduct has been critical for the harmonisation and proper channels of human relationships. Conflicts and questionable conduct have required the presence of professionals that defend and advise people in need of judicial services. This is the key to the importance of law, as a profession, because the rights in play throughout history have been mainly three: life, liberty and property.
It is difficult to write this, but it is true. In Cuba there is no freedom to practice law or to be an attorney. To explain this, I must describe how the Cuban system works in regard to legal representation.
The procedural law for penal, civil, administrative, labour or economic matters has the prerequisite of having a licensed attorney to represent any person, either natural or judicial. Secondly, and more importantly, is that the attorney has to be a member of the National Association of Collective Law Offices. This membership is accredited in court with a contract of representation.
However, it is important to highlight, that not all attorneys can belong to the National Association. And an attorney that does not belong to it cannot represent anyone in court.Cuban citizens facing legal problems have to request a lawyer at this association, and the attorney there defends the interest of the State more than those of the client’s.
With this explanation, we can understand that it is very difficult to defend the rights of civil society in Cuba, if the people who can defend them in court are defending the interests of the State.
An attorney that cannot or does not want to be part of this organisation will be limited in the exercise of its profession, and in the defence of civil society. An attorney cannot, and under any reason, work independently or with a group or organisation outside the one prescribed by the law, to defend and represent before any instances a person of independent Cuban civil society.
We must also underline that civil society members do not have the right to an attorney, when they are detained by the National Police or State Security Forces.
Based on this, it can be established that Cuban civil society is in a vulnerable situation in respect to their rights, if at the moment that a human rights violation takes place, they must seek for an attorney at an organisation that represents the interests of the State and theirs.
A lawyer that cannot or does not want to belong to the National Association, will be limited in its exercise of the law, and in the defence of people’s rights.
It is an established legal principle that people have the right to an attorney at the moment of arrest or to resolve any legal matter.
To exercise law constitutes a social service, hence the State must guarantee that lawyers can choose the best way to represent the citizens and achieve justice.
The attorney-client relation ought to be of mutual trust. An attorney can only take a case if hired by the client, or at the request of an attorney that represents the client, or by a court order. The attorney must check the identity and capacity of the person requesting legal services. The attorney must identify him or herself to the client, even if a third party is involved when providing the service. The attorney must also identify him or herself if the consultation is by phone or through a computer network. They must also inform the client what firm they work for.
We cannot do this in Cuba.
An attorney is free to accept or reject the matter or request of service, without justifying the decision. The attorney can abstain or cease services when there are discrepancies with the client. That must always be done when circumstances can affect the freedom and independence of the defence, or the obligation of attorney-client privilege. We cannot do this in Cuba.
An attorney that ceases services on a matter ought to take necessary action to avoid the client’s lack of defence. When it is a defence appointed by a court, the acceptance, rejection, abstention or cessation must take place according to norms of pro bono justice and these types of designations. We cannot do this in Cuba.
An attorney ought not to accept to represent or take part on a legal matter, when that would amount to a conflict of interests. But the attorney can intervene in the interest of all parties in the role of mediator, or in the preparation of documents of a contractual nature, while maintaining strict and precise objectivity. We cannot do this in Cuba.
An attorney should not accept professional tasks that imply acting against a prior client, when there is a risk of confidential information from the prior attorney-client privilege could be inappropriately used or is being used to benefit the new client. We cannot do this in Cuba.
An attorney must also refrain from a matter that affects a set of clients, when there is a conflict of interest among them, when there is a risk of violating attorney-client confidentiality, or when his or her freedom and independence can be hindered. We cannot do this in Cuba.
When a group of attorneys form or collaborate in the same office, regardless of the legal association used, norms shall be applied to the group as a whole, and to all and every member. We cannot do this in Cuba.
An attorney will not accept any matter if it is above his or her competency level, unless another is able attorney in providing assistance. We cannot do this in Cuba.
An attorney has the obligation to tell the client, even in writing, when requested to do so, his or her opinion on the potential results of the case. We cannot do this in Cuba.
It is important for the European Union to make efforts to foment in Cuba the freedom to practice law, and that Cuban civil society have the right to choose its attorney in cases that need representation, as well as for lawyers to have the right to do the things that I described in this document and that are currently prohibited in Cuba.
Yanelis Ramírez Cruz, Cuban Law Association
Yanelis Ramírez Cruz
Yanelis Ramírez Cruz was born in Holguin, Cuba, in 1980. She is an independent lawyer who could not practice her profession. Since 2010, she works for the Cuban Law Association providing advice and training to Cuban civil society regarding human rights violations.