Question answer

The defender entered the criminal case at the request, in the course of the preliminary investigation the defender had a need to file a complaint with the court in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation. Acceptance of this complaint in court is possible only with the attachment of a warrant. The court did not send claims to the center of SJP, since there is no complaint in the court in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation. Does a defense lawyer have the right to lodge a complaint under Art. 125 of the Code of Criminal Procedure of the Russian Federation, by attaching an order issued upon request to it?

The entry of a lawyer into the case on the basis of the request of the body of inquiry or investigation gives the lawyer the powers defined by Article 53 of the Criminal Procedure Code of the Russian Federation, including the right to appeal against actions (inaction) and decisions of the inquiry officer, head of the inquiry unit, head of the body of inquiry, body of inquiry, investigator , the head of the investigative body, the prosecutor in accordance with Art. 125 of the Criminal Procedure Code of the Russian Federation. A lawyer has the right to issue a warrant (s) in the amount necessary to perform duties in the framework of protecting the interests of the client in this particular case. The column "grounds" indicates the number of the originally received claim for participation in the case at the stage of inquiry or preliminary investigation.

Please tell me what documents are required to suspend the status of a lawyer in connection with the birth of a child? And for how long can the status be suspended for this reason? Thank you in advance for your help

The Federal Law "On advocacy and the legal profession" does not provide for the length of the suspension period for the status of a lawyer. A package of documents required to suspend the status of a lawyer in connection with the birth of a child: - Application for the suspension of the status of a lawyer; - sick leave or birth certificate; - a lawyer's certificate, which is subject to delivery.

Does a lawyer have the right to sell or otherwise legally sell legal books of which he is the author?

Based on the systemic interpretation of the norms established by the Federal Law of May 31, 2002 N 63-FZ "On advocacy and the legal profession in the Russian Federation" and the Code of Professional Ethics of a Lawyer (adopted by the I All-Russian Congress of Lawyers on January 31, 2003) (as amended on April 20, 2017) , as well as the provisions set out in Clarification No. 05/17 of the Commission on Ethics and Standards on the Application of Clause 3 of Article 9 of the Code of Professional Ethics of a Lawyer (approved by the decision of the Council of the Federal Chamber of Lawyers of 17.02.2017, Protocol No. 9) it follows that the lawyer is not entitled to: - engage in other paid activities in the form of direct (personal) participation in the process of selling goods, performing work or rendering services, with the exception of scientific, teaching, expert, consulting (including in the bodies and institutions of the Federal Chamber of Lawyers and bar chambers of subjects Russian Federation, as well as in lawyers' formations) and other creative activities; - does not have the right to enter into labor relations as an employee, with the exception of scientific, teaching and other creative activities, as well as to hold public offices of the Russian Federation, public offices of the constituent entities of the Russian Federation, public service posts and municipal offices. - outside the framework of advocacy, provide legal services (legal assistance), with the exception of activities for the settlement of disputes, including as a mediator, arbitrator, as well as participation in charitable projects of other civil society institutions, providing for the provision of legal assistance free of charge. A lawyer has the right to engage in scientific, teaching, expert (including in the bodies and institutions of the Federal Chamber of Lawyers and Bar Chambers of the constituent entities of the Russian Federation, as well as in lawyer formations) and other creative activities, as well as the right to invest funds and dispose of their property, including real estate , as well as derive income from other sources, for example, from the lease of real estate (rent), if this activity does not involve the use of the status of a lawyer (Article 9 of the CPEA). Moreover, the implementation of other activities by a lawyer should not discredit the honor and dignity of a lawyer or damage the authority of the legal profession. At the same time, the fulfillment of professional duties on the accepted assignments should have priority for a lawyer over other activities. In connection with the above, in the opinion of the PASO Council, a citizen with the status of a lawyer has the right to receive income from the sale of works of which he is the author. At the same time, we draw your attention to the fact that the lawyer is not recommended to engage in activities for the sale of literary works in the form of direct (personal) participation in the process of such sale of goods by Clarification No. 05/17 of the Commission on Ethics and Standards on the Application of Clause 3 of Article 9 of the Code of Professional Ethics of a Lawyer which the PASO Council supports. In addition, a lawyer is directly prohibited from simultaneously being an individual entrepreneur and carrying out, in addition to advocacy, entrepreneurial activity in the sale of works of science, literature and art. This conclusion was made, in particular, in the letters of the Ministry of Finance of Russia dated 20.05.2013 No. 03-11-11 / 17741, dated 20.05.2009 No. 03-11-09 / 178. The Council of the Chamber of Lawyers of the Samara Region supports lawyers engaged in literary creativity and scientific activities, since works of science, literature and art created by lawyers that do not defame the honor and dignity of the lawyer and do not harm the authority of the legal profession, increase the prestige of the legal profession and testify to high intellectual and creative the status of its members.

The lawyer receives a request to participate in the court hearing on the consideration of the FSIN's application for parole. The defendant does not apply for his personal participation in the court session, however, he does not submit a direct application for the consideration of the case without his participation. How should a lawyer fulfill his duty to agree on a position with the client, if the latter does not participate in the meeting? Should a lawyer insist on the mandatory participation of the client himself in the court session (or at least raise a question about it), if the client himself does not ask for it? Should a lawyer, in accordance with paragraph 4 of Art. 13 KPEA appeal against such a court order? It follows from this provision that the duty of a lawyer to appeal applies to sentences, not decisions. However, if desired, this rule can be interpreted broadly. In addition, how should a lawyer find out the position of the defendant about his desire (or unwillingness) to appeal the decision? Should a lawyer, in accordance with paragraph 4 of Art. 13 KPEA to take away from the client a written statement about his desire (or unwillingness) to appeal the decision? If so, how? Does the requirement of this provision (in terms of withdrawing an application) apply to other judicial acts, in addition to sentences?

Good law practice that satisfies the term "qualified legal assistance" implies a meeting of the lawyer with the client to clarify during the interview all possible questions, including agreeing on the position and the need for the client to participate in the court session. Regulatory regulation and court practice indicate that such activities of a lawyer (meeting with a client) are payable, and related costs (transportation, etc.) are compensated. If a meeting of a lawyer with a client is organizationally impossible or difficult, then information about the position of the client can be obtained with sufficient completeness in the course of familiarization with the materials submitted for the trial, which often record the client's opinion about his desire or unwillingness to personally participate in the trial. If there is a reasonable doubt about the intention of the principal to participate in the court session, the lawyer must proceed from the need for such participation, making an appropriate request or expressing his opinion when the court listens to the views of the parties on this issue. If the court in the final judicial act did not share the position of the client, the lawyer must appeal against such a court decision. A different position of a lawyer in such a situation can definitely be regarded as a refusal to defend. Legal grounds for appeal, as a rule, are always there, since the court of first instance, when making a decision, is guided, incl. assessment of evidence and their inner conviction, i.e. evaluative categories, which may be different for the defense side, which is an admissible ground for appealing a judicial act on appeal. When deciding on the appeal of a judicial act in which the court did not share the position of the defense, the lawyer is guided by the presumption of the need for such an appeal. Derogation from the need to act in accordance with this presumption is possible only on the basis of a corresponding written statement of the principal on the refusal to appeal the court decision. Such a statement may be the result of a decision made by the client independently, or the will of the client based on the results of a discussion of this issue with a lawyer. We believe that this position should be taken into account by the lawyer when deciding whether to appeal not only the verdict (part 4 of article 13 of the Code of Professional Ethics of a Lawyer), but also other judicial acts in which the court did not share the position of the defense, and which significantly affect the interests of the client ... Definitely, the issue of parole significantly affects the interests of the person, since it affects the rights and freedoms that are very significant for a citizen, therefore, in the specific situation set out in the question, it is necessary to be guided by the above positions.

The defendant refuses to write a written statement to the lawyer in accordance with paragraph 4 of Art. 13 KPEA about his desire (or unwillingness) to appeal the sentence (decision). How should a lawyer act in order to avoid being brought to disciplinary liability on a formal basis, but not through his own fault (ignoring the specified rule), but as a result of the whim of the client?

The defense attorney is obliged to appeal against judicial acts in which the court did not share the position of the defense and which significantly affect the rights and freedoms of the client. This obligation is removed from the lawyer only by a written statement of the client about the refusal to appeal. At the same time, the lawyer is not obliged to seek from the client the drawing up of a written document with one or another position (to appeal or not to appeal). As long as there is no such statement of refusal to appeal from the client, the lawyer must proceed from the absence of a duly formalized position of the client on the refusal to appeal against the judicial act and act accordingly - to appeal against the judicial act.

After the consideration of the criminal case by the court of appeal, the client disagrees with the ruling of the court, he announces to the defender a request to file a cassation appeal with the Presidium of the regional court. The conclusion of an agreement on a gratuitous basis is impossible due to the considerable remoteness of the place of the defendant's detention. The cassation instance did not send claims to the CJS, since there is no reason to send a claim in the form of a complaint. Does a defense lawyer have the right to file a cassation appeal by attaching a warrant issued at the request of the PASO Council?

The PASO Council, either on its own initiative or at the request of the defense lawyer, does not issue requirements for lawyers to formalize powers to participate in any stage of the proceedings, including the stage of cassation appeal. In accordance with the provisions of the criminal procedure legislation (Art. 50 of the Criminal Procedure Code of the Russian Federation), the Rules for the provision of subsidized legal assistance, approved by the Decision of the PASO Council No. 14-11-08 / SP dated November 27, 2014, the coordinator of the PASO Subsidized Legal Aid Center (hereinafter - Center) upon receipt of a request from an inquiry body, a preliminary investigation body or a court in order to provide citizens with legal assistance in a timely manner and to evenly distribute claims among lawyers, immediately distributes it among the lawyers included in the List, and the lawyer accepts for execution the demand distributed to him by the Center. A lawyer participates in a criminal case until the full fulfillment of his obligations, and in the framework of subsidized legal assistance, as a rule, before the entry into force of a judicial act. The costs of attorney salaries are reimbursed from the federal budget. Since the procedural legislation does not provide for the obligatory participation of a defense attorney in the cassation instance, the Samara Regional Court does not send a requirement to ensure the participation of a defense lawyer when filing a cassation appeal in the interests of a specific person to the SJP PASO Center. Thus, in the absence of a court demand for the appointment of a defense lawyer, a lawyer is not entitled to indicate in the order as the basis for extradition the “Demand” when filing a cassation appeal. The insistence of the lawyer in defending the position of the client, in the opinion of the PASO Council, should be welcomed, however, the basis for issuing an order in the situation set out in the question should only be an agreement between the lawyer and the convicted person himself or a third person in favor of the person - the recipient of legal assistance, even if it is concluded free of charge. Payment for the participation of a lawyer in this stage of the trial is not attributed to federal budget expenditures. In case of considerable remoteness of the place of detention of the client, to formalize the relationship with the principal, the means of communication available for specific relationships should be used, including registered mail by Russian Post.

Please tell me in the name of whom it is necessary to write a statement "on the early lifting of a disciplinary sanction from a lawyer." And the grounds for early withdrawal. Thanks in advance for your reply!

In accordance with paragraph 1 of Art. 26 of the Code of Professional Ethics of a Lawyer, if within a year from the date of imposition of a disciplinary sanction a lawyer is not subjected to a new one, he is considered to have no disciplinary sanction. The Council has the right to remove the disciplinary sanction on its own initiative, at the request of the lawyer himself, at the request of the lawyer's education, in which the lawyer is located, before the expiration of a year. The application is submitted to the PASO Council.

In the case of representing two or more defendants in one civil case on demand, is the defense attorney required to issue separate warrants for each defendant? Is the application for compensation in this case filed one or more according to the number of respondents?

In the case of participation of a lawyer in the case by appointment in accordance with Art. 50 of the Civil Procedure Code of the Russian Federation, the lawyer writes out one order, which indicates all the defendants in the case in accordance with the court request received by the Center for Subsidized Legal Aid PASO. The time of employment of a lawyer participating in a civil case as ordered by the court is calculated in the days in which he was actually engaged in exercising the powers of a lawyer in the relevant civil case, regardless of the number of defendants whose interests he was appointed to represent.

The lawyer receives from the PASO coordinator a request to participate in investigative actions at night (from 22.00 to 06.00 according to the Code of Criminal Procedure of the Russian Federation). According to Part 3 of Art. 164 of the Code of Criminal Procedure of the Russian Federation, regulating the general rules for the production of investigative actions, "The production of an investigative action at night is not allowed, except in cases of urgent delay." The criteria and procedure for classifying cases as "urgent" are not legally defined. What position should a lawyer take in relation to the fact of an attempt to conduct an investigative action at night in order, without violating the law, to secure oneself from subsequent possible disciplinary proceedings on the complaint of an overly zealous client that the lawyer allegedly entered into an agreement with the investigator , did not stop the illegality of the investigative action at night, thereby violating the rights of the client as a result of improper performance of his professional duties to the client? Should a lawyer agree to carry out such an investigative action and participate in its conduct, or is he obliged to unambiguously demand that it be postponed until daytime?

In accordance with the provisions of the criminal procedure legislation and the Procedure for the participation of a lawyer as a defense attorney in criminal proceedings, established by the PASO Council, by appointment of the inquiry bodies, preliminary investigation bodies or the court in accordance with Art. Art. 50 and 51 of the Criminal Procedure Code of the Russian Federation and as a representative in civil proceedings by appointment of the court in accordance with Art. 50 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Procedure), the lawyer must accept for execution the request allocated to him by the coordinator of the PASO Subsidized Legal Aid Center and arrive at the time and place agreed with the inquiry officer, investigator to participate in procedural or investigative actions. In the event that the procedural and investigative action is carried out at night and, in the opinion of the defense lawyer and (or) his client, is not urgent, the lawyer must submit a request at the beginning of the procedural or investigative action (oral for entering into the protocol, written in the appropriate column of the protocol or in the form of a separate document for attachment to the criminal case), in which you should substantiate your position, including, since the concept of "urgency" is evaluative, - about the absence of urgency of carrying out a procedural or investigative action, declare a violation of this procedural or investigative action of the order of criminal proceedings, on the inadmissibility of evidence obtained as a result of such investigative actions due to violation of the requirements of federal law, and the impossibility of using them in proving the charge brought, but their admissibility only as evidence to justify the accused (suspect n), as well as declare a violation by such actions of the body of inquiry or preliminary investigation of the right to defend the accused (suspect). In the event that an inquiry officer or investigator conducting a procedural or investigative action at night continues to insist on its conduct, despite the above position of the defense, the lawyer cannot refuse to participate in it and is obliged to perform the functions of a defender during the procedural or investigative action, upon completion of which, in the column of the protocol "Statements of the participants", repeat and substantiate their position on the illegality of the investigative action carried out, the inadmissibility of the evidence obtained and the impossibility of its use in proving by the prosecution. If there are grounds for that, a lawyer should also appeal against such actions (decisions) of an inquiry officer or investigator in accordance with Art. Art. 124 or 125 of the Criminal Procedure Code of the Russian Federation.

Please tell me, can a lawyer perform the functions of an arbitrator or chairman of an arbitration court when considering civil disputes in a permanent arbitration court? Can a lawyer perform the functions of an arbitrator or chairman of an arbitration court when considering civil disputes in a permanent arbitration court?

A judge is a completely different activity, not a lawyer's: the function of resolving a dispute, not providing legal assistance. There is no ban, as such, on this type of activity. An attorney may be an arbitrator. The chairman of the arbitral tribunal is an administrative position, it requires payment, and this is already prohibited for persons with the status of a lawyer.

The client categorically refuses to sign the protocol of the investigative action. Part 1 of Art. 167 of the Criminal Procedure Code of the Russian Federation imperatively determines: “In case of refusal of the suspect, the accused, the victim or another person participating in the investigative action to sign the protocol of the investigative action, the investigator makes a corresponding entry in it, which is certified by the signature of the investigator, as well as the signatures of the defender, legal representative, representative or attesting witnesses if they participate in an investigative action. " From this provision of the law follows the direct obligation of the lawyer to certify in the protocol of the investigative action the fact of the client's refusal to sign the protocol. However, on the other hand, according to paragraph 3 of paragraph 4 of Art. 6 of the law "On advocacy ..." and paragraph 2 of paragraph 1 of Art. 9 KPEA “a lawyer is not entitled to take a position on the case that is opposite to that of the client and to act against his will”. Moreover, according to paragraph 1 of Art. 10 KPEA “Law and morality in the profession of a lawyer are above the will of the client. Any wishes, requests or demands of the principal aimed at non-observance of the law or violation of the rules provided for by this Code can not be fulfilled by a lawyer. " How should a lawyer act in such a controversial situation so that, without violating the law, protect himself from subsequent possible disciplinary action on the basis of the client's complaint that the lawyer allegedly again colluded with the investigator, acted contrary to the position and will of the client, thereby violating the rights of the client as a result of improper performance of his professional duties to the latter?

In this situation, a lawyer must, first of all, be guided by the Criminal Procedure Code of the Russian Federation and the provisions of paragraph 1 of Art. 10 of the Code of Professional Ethics of a Lawyer, according to which the law and morality in the profession of a lawyer are above the will of the client; no wishes, requests or demands of the principal aimed at non-compliance with the law or violation of the rules provided for by the Code of Professional Ethics of an Attorney can not be fulfilled by a lawyer. In addition, the lawyer should distinguish between the concepts of "the position of the principal" and "the specific situational behavior of the principal", which, as in the above example, sometimes may not coincide. At the same time, if a lawyer follows the position of the client and does not contradict it, his actions cannot be regarded as a violation of the provisions of the legislation on the legal profession and professional norms on the prohibition to take a position in the case that is opposite to that of the client and to act against his will. In the situation set out in the question, the defender, first of all, must find out from the principal the reasons for his refusal to sign the protocol and the motives by which the accused (suspect) is guided by refusing to sign. A lawyer must explain to the client the requirements of the law in relation to the situation in question if he does not have such knowledge or he is mistaken in the legal assessment of the situation. As a rule, such behavior of the accused (suspect) has certain reasons and is motivated, for example, by a violation of the procedure for conducting a procedural or investigative action, objections to the behavior of the parties (usually representatives of the prosecution) during the procedural or investigative action, and dissatisfaction with its result. The defender should identify the reasons and motives for the behavior of the client, incl. using the procedural right to have a private conversation with the client, formulate the position of the accused (suspect) in legal language, explaining to him that fixing the procedural position in the protocol is an effective way of defense, as opposed to refusing to sign the protocol without showing it in any way. In the event that the client continues to refuse to sign the protocol, the defender should perform the above actions, sign the protocol indicating the defense's objections, guided by the above-mentioned norm of clause 1 of Art. 10 of the Code of Professional Ethics of a Lawyer.

The court extends the term of the defendant's detention in custody without his participation in the hearing in connection with a serious illness, confirmed by a medical report that it is impossible to personally participate in the hearing. Should a lawyer, in accordance with paragraph 4 of Art. 13 KPEA to take away from the client a written statement about his desire (or unwillingness) to appeal the decision? If so, how, if the client, for example, is inpatient treatment at the Department of the Federal Penitentiary Service with a severe form of tuberculosis?

Since the issue of extending the detention of the defendant in custody significantly affects his rights, the defense counsel can only be relieved of the obligation to appeal against the court order to extend the term of the accused's detention in custody by a written statement of the principal refusing such an appeal. As long as the defense does not have such a statement from the client, the lawyer must act accordingly - to appeal the court order, in which the court did not share the position of the defense. If the lawyer has a reasonable assumption that the client intends to refuse to appeal the judicial act on the extension of the period of detention, then he should obtain written confirmation of this position of the principal by correspondence with him and the further withdrawal of the previously filed appeal, if a written refusal to appeal was received from the principal after its submission. It is possible to resolve this situation by more expedited procedures: sending an appropriate request through the administration of the institution at the place of detention of the client personally, by courier, fax, e-mail, telephone message, observing the principle of minimum sufficiency in the presentation of information in such requests in order to preserve attorney secrecy, or by meeting in person with the client, if there is, in the opinion of the lawyer, a clear need, in compliance with all health precautions, incl. the places of detention of the client recommended by the medical personnel.

The defendant in case of a particularly dangerous relapse in accordance with Art. 58 of the Criminal Code of the Russian Federation is appointed to serve the sentence in a special regime penal colony. In this case, the law does not provide for any other softer options. The defendant, despite the lawyer's explanation of the impossibility of satisfying the client's desire (due to its illegality), nevertheless demands to appeal the sentence in order to mitigate the regime to a strict one, (i.e., softer), which is directly prohibited by law. How should a lawyer act to protect himself from disciplinary proceedings? In accordance with paragraphs. 1 p. 4 art. 13 KPEA, a lawyer is obliged to appeal the sentence at the request of the client. At the same time, in accordance with paragraph 4 of Part 1 of Art. 389.6 of the Code of Criminal Procedure of the Russian Federation, the appeal must contain: “4. the arguments of the person who filed the appeal or presentation, indicating the grounds provided for in Article 389.15 of this Code; ". Should a lawyer appeal against such a verdict if there are no legal grounds for changing it? If so, what grounds should he indicate in the appeal?

At first glance, the question posed refers to the competition of legal norms (clause 1, clause 4 of article 13 of the Code of Professional Ethics of a Lawyer and clause 4 of part 1 of article 389.6 of the Criminal Procedure Code of the Russian Federation). However, we believe that in this case there is no such competition. When deciding whether to appeal the sentence at the request of the client, it is necessary to establish the presence or absence of legal grounds for the appeal. If there are no such grounds, and the court fully shared the reasoned and well-grounded position of the defense when considering the case on the merits, then it is necessary to be guided by the previously mentioned provisions of paragraph 1 of Art. 10 of the Code of Professional Ethics of a Lawyer on the prevalence of the law over the will of the principal and the impossibility of fulfilling the wishes, requests or requirements of the principal aimed at non-compliance with the law. If the arguments set out by the lawyer do not satisfy the client, and he wants to appeal the sentence even in the absence of legal grounds for this, the defense lawyer should explain to the client the procedure for appealing against the judicial act and support the client's complaint in the appellate instance, explaining to the court that the law obliges the defense lawyer to adhere to the client's position, in at the same time, the lawyer does not have a legal basis for this position.

Please tell me whether the work of a lawyer is payable for drafting and filing an appeal in the case in the order of appointment under Art. 50 Code of Civil Procedure of the Russian Federation?

The work of a lawyer in drawing up and filing an appeal in the case in the order of appointment under Art. 50 of the Code of Civil Procedure of the Russian Federation is paid similarly to work in accordance with Art. 50 of the Criminal Procedure Code of the Russian Federation. To be exempted from paying state fees, a lawyer submits an application. In the Samara region, a stable judicial practice has been formed on this issue.