What Makes a Lawyer a Lawyer?

What makes a lawyer a lawyer? The question sounds elementary, yet legal systems rarely confront it directly. Ordinarily, they need not to: the role is constituted through a familiar constellation of duties, privileges, and institutionalized relationships that cohere without requiring explicit theorisation.

Regvar v. Slovenia (App. No. 36538/25), communicated to the Government on 11 December 2025, puts that constellation under significant strain. Slovenia’s legal-aid scheme for asylum seekers requires state-appointed refugee counsellors to disclose client information to the asylum authority and prescribes dismissal if they fail to comply. The Government defends the measure as necessary to reduce abuse of the asylum process and increase its efficiency.

But the case raises a prior question: at what point do disclosure obligations imply that the role of “lawyer” can no longer be performed? It gives the European Court of Human Rights (ECtHR) the opportunity to further clarify, particularly in light of Michaud v. France, the structural prerequisites of legal representation within judicial review proceedings against executive action, and the extent to which the Convention constrains States in reconfiguring them.

What Regvar is About

The applicant serves as a refugee counsellor, representing asylum seekers in judicial review proceedings before the Administrative Court and the Supreme Court. Article 9(10) of Slovenia’s International Protection Act provides that the justice minister shall dismiss a refugee counsellor if it is established that they possess certain information, including the applicant’s true identity or facts indicating ineligibility for protection, and fail to report it to the asylum authority.

The reporting duty is a comparatively recent innovation, introduced through the ZMZ-1A reform package. A Government bill tabled in December 2020 proposed adding this new ground for dismissal, framed as a response to recurring administrative difficulties in asylum procedures and embedded in a wider set of changes to the governance of asylum and migration in Slovenia.

This legislative development reflects broader tensions in European asylum governance. Identity verification difficulties, documents emerging late in proceedings, and age disputes present real administrative complications. States have legitimate interests in maintaining system integrity and face sustained pressure to accelerate asylum processing and swiftly address claims they consider manifestly unfounded. Other states have similarly attempted to redesign their legal-aid systems toward greater governmental control, encountering domestic judicial resistance in the process. Slovenia’s Constitutional Court, however, upheld the arrangement in Partial Decision, U-I-52/22-24 of 19 June 2025, albeit with dissent.

The scheme raises multiple questions the ECtHR can engage with: the determinacy of the statutory terms, the broad scope of the disclosure duty, and the absence of independent filters. It is also worth noting that refugee counsellors represent asylum seekers only at the litigation stage, not during the initial fact-gathering process, which raises a further question about whether the measure’s design is rationally connected to its stated aims.

At the heart of the case, however, lies a structural question: whether a state may oblige lawyers to disclose critical client information to the very authority whose decisions they are tasked to contest – and whether what remains still constitutes legal representation.

Why the Convention is Engaged

The ECtHR has long treated confidential lawyer-client communications as falling within the scope of Article 8. This protection rests on a functional premise: the administration of justice depends on clients being able to consult legal advisers candidly, and on advisers being able to perform their function without constraints that compromise confidentiality. Confidentiality is partly constitutive of legal representation.

The interference here does not require that reports have actually been filed or dismissals imposed. In Michaud v. France, the Court treated the regulatory dilemma itself – comply and breach confidentiality, or refuse and face professional consequences – as sufficient to engage Article 8 rights. The applicant argues that she faces a comparable dilemma, except in a context involving not transactional advice but representation in proceedings challenging administrative decisions.

The consequences extend beyond individual consultations. Clients aware that their representative is required to disclose information to the authority will calibrate their communications accordingly. Counsel, facing reporting obligations whose application may be uncertain in particular circumstances, may err on the side of disclosure in ambiguous situations. The difficulty of distinguishing between clients concealing material facts and clients uncertain whether truthful accounts will be properly understood could affect the relationship before any specific communication occurs.

What Michaud is About

The ECtHR’s communicated questions explicitly invite comparison with Michaud v. France, emphasizing the relevance of professional privilege, as well as safeguards and scope limitations designed to protect confidentiality. Michaud concerned French reporting duties in the context of anti-money-laundering and terrorist financing. The Court found no violation, but two features of the French scheme proved decisive.

First, the reporting duty did not extend to the role lawyers played in defending their clients or to matters relating to judicial proceedings. The Court distinguished between lawyers giving legal advice in transactional contexts and lawyers engaged in defence functions, finding that the duty “does not go to the very essence of the lawyer’s defence role” (§ 128).

Second, France interposed an independent filter: reports went through the Bâtonnier, the Chair of the relevant Bar, who served as an institutional safeguard for professional secrecy. This filter served not merely to reduce the incidence of disclosure but to preserve the structural relationship between lawyer and client by interposing professional judgment between the lawyer’s knowledge and the state’s access to it.

The scheme discussed in Regvar departs from both features. The duty applies specifically in the context of court proceedings and concerns the lawyer’s function of representing clients in those proceedings. The compelled items – such as facts that disqualify an applicant from protection status – are precisely the materials elicited in confidential consultations to structure an appellate strategy, manage credibility issues, and calibrate arguments. Moreover, disclosure goes directly to the competent authority, without any independent filter. The fight against money laundering and terrorist financing can also justify more far-reaching interference with professional privilege compared to the prevention of abuse of asylum proceedings or the pursuit of administrative efficiency.

Michaud thus cannot legitimize Regvar. Read carefully, it does not establish that reporting duties can generally coexist with professional privilege where safeguards exist. It addresses the narrower question of duties operating outside the essence of the defence function and filtered through independent professional bodies. Michaud identifies the outer boundary of permissible interference; Regvar tests what lies beyond.

What Remains

Thus, Regvar offers the ECtHR an opportunity to articulate more clearly what Michaud presupposed: the structural conditions under which the lawyer-client relationship can function as such. Two propositions, implicit in the existing case law on Article 8, merit explicit recognition.

First, certain modifications to the lawyer’s role are more than limitations on professional privilege. They are eliminations of the lawyer’s very identity. A lawyer required to disclose to the opposing authority information obtained in confidence for the purpose of litigation is requested to become something other than a lawyer. Article 8 thus protects the confidentiality conditions under which legal representation can continue to function.

Second, the distinction matters because of what legal representation makes possible. Adversarial structures, or review inter partes, are characterised by a particular division of labour. The advocate’s partisanship is integral to such systems. Through it, the tribunal reaches determinations that neither party alone could produce. In short, the lawyer’s undivided loyalty serves the systemic function of the proceeding itself.

Conclusion

The Court’s response to Regvar will shape the conceptual vocabulary available for assessing how states may redesign the role of legal representation through legislation. The decisive factors in Michaud – the exclusion of defence functions, the presence of an independent filter, and the context of anti-money laundering and financing of terrorism – are absent here. If Michaud represents the outer boundary of permissible interference where safeguards exist, Regvar requires the Court to clarify more precisely the contours of the principle underlying them.

The principle, this analysis suggests, concerns role-constitution: there are modifications to the institutional structure of legal representation that do more than burdening professional privilege or the right to confidential communication. They dissolve the relationship that makes these meaningful. In an adversarial setting, a lawyer who must report critical client information to the opposing party is thus a contradiction in terms.

This research was funded in whole or in part by the Austrian Science Fund (FWF) 10.55776/PAT3567024. This work was also supported, in part, by the European Research Council 2022 Starting Grant Gatekeepers to International Refugee Law—The Role of Courts in Shaping Access to Asylum (grant agreement No 101078683).