Where can a lawyer live well?

On February 9, 2022, the Chamber of Advocates of the Samara Region, with the support of the Karpov, Taraborin and Partners Law Office, held a training webinar "Professional ethics, limits of procedural rights and disciplinary practice in the activities of lawyers in European states".

The webinar participants (131 lawyers) got an idea about the professional rights and obligations of colleagues operating in the UK, France and the Czech Republic; learned how the lawyers of these states defend their professional interests, where the boundaries of what is permitted in the defense of principals lie for them, and compared the mechanisms of disciplinary proceedings in these countries with the procedures used in the disciplinary practice of the Chamber of Lawyers of the Samara Region.

The educational marathon connected Samara with Voronezh, Prague and London. The following colleagues acted as speakers:

Dmitry Gololobov, professor at the University of Westminster, Russian lawyer and English solicitor

Denis Kashitsin, lawyer of the Czech Bar Association, Doctor of Law

Evgeny Panin, Advisor to the President of the Bar Association of the Voronezh Region, President of the Union of Young Lawyers of Russia

Tatyana Butovchenko, President of the Chamber of Advocates of the Samara Region

The event was moderated by Dmitry Taraborin, Vice-President of the Chamber of Advocates of the Samara Region.

French deontology

Evgeny Panin, based on the experience of cooperation with foreign colleagues, shared with the webinar participants his knowledge about the rules for advocacy in France, the procedure for obtaining a lawyer status, and the specifics of disciplinary practice in this country.

According to the speaker, in accordance with French law, lawyers with higher education who have the right to apply for lawyer status must undergo a mandatory three-stage training at the Regional Training Center, the activities of which are supervised by lawyers' self-government bodies, authorized authorities in the field of justice and education. . According to Yevgeny Panin, already at the first stage of training, applicants, among the subjects approved by the Ministry of Justice, study the basics of a lawyer's professional ethics, as well as a foreign language. At the second stage, students master individual programs, and then for six months they are trained by experienced lawyers who are fully responsible for the training of interns.

The implementation of the Center's curriculum, attendance at classes and internships (includes the study and drafting of legal documents, receiving clients, participating in meetings of judicial institutions and commissions, in preliminary investigative actions), even the moral character of applicants are under the closest control. In case of non-fulfillment of any requirements, disciplinary sanctions are applied to future lawyers: warning, reprimand, temporary exclusion. After successfully passing the final exam at the Regional Center for Vocational Training, the applicant is allowed to pass the qualifying exam for the status of lawyer. However, attempts to pass the qualifying exam are limited: after the third unsuccessful attempt, the applicant is forever deprived of the right to obtain lawyer status.

Evgeny Panin drew the attention of the webinar participants to the attitude of French lawyers towards their profession: happy holders of the lawyer's status know that classifying the legal profession (along with medicine and architecture) as a "free profession" does not mean permissiveness. French lawyers are limited by strict legal frameworks, not only in professional activities, but also in private life. For any violation of the professional and ethical requirements of a lawyer, they can be subject to disciplinary liability, and both the chairman of the bar and the district attorney have the right to initiate a verification procedure against a lawyer.

As part of the complaints check, it is acceptable to interview any interested person. Consideration of disciplinary proceedings takes place by analogy with a court session, and the decision of the Council is equated to the decision of the court. The decision can be appealed by a lawyer, the chairman of the bar or the district attorney in the court of appeal.

French lawyers are subject to such disciplinary measures as a warning, reprimand, temporary (no more than three years) deprivation of the right to practice law and exclusion from the register, the latter measure meaning a lifetime ban on advocacy.

As Yevgeny Panin noted, in contrast to Russian realities in France, the relationship between lawyers and clients is regulated by insurance companies. The lawyer is obliged to conclude a professional liability insurance contract, which allows to resolve many contradictions outside the framework of disciplinary proceedings.

Summarizing all that has been said, the speaker said that the profession of a lawyer in France is one of the most prestigious; lawyers enjoy the same honor in the country as judges. However, they themselves formed such an attitude, demonstrating, first of all, self-respect and not allowing themselves to go beyond professional and ethical standards.

Rules of a Czech lawyer

As noted by the Czech lawyer Denis Kashitsin, in the Czech Republic, the "monopoly" of the bar is legally fixed, excluding representation by proxy even in a civil court.

However, to obtain a lawyer's status, you need a Czech diploma of higher legal education (even Oxford and Harvard are not listed!), 3 years of internship with an acting lawyer and successful passing of a qualifying exam. The law outlines the responsibility of the curator-attorney, who is obliged not only to coordinate the work of the trainee, but also to prepare him for the exam and attend it. The exam, which consists of a written and an oral part, presents a certain difficulty, since the commission includes experts in constitutional, criminal, commercial, administrative law and legal regulation.

According to Denis Kashitsin, lawyer status obliges colleagues to “keep up the mark”. It is absolutely not allowed in the Czech Republic to demonstrate contempt of court. Even the most “hype” Czech lawyers (two or three in the whole country can be classified as such) do not go beyond what is permitted, since this is fraught with the termination of a lawyer’s career.

According to the Czech colleague, lawyers "should not make a problem where there is none." So, calmly treat the requirements to provide identification documents, in addition to a lawyer's certificate; inspection of personal belongings at the entrance to the court building; wearing a robe (a fine is imposed for ignoring this requirement), etc. The lawyer's provocative, conflict-producing behavior will inevitably reflect on other members of the corporation, so it is not permissible under any circumstances.

Denis Kashitsin spoke in detail about the peculiarities of disciplinary practice in the Czech Chamber of Lawyers.

Upon receipt of a complaint against a lawyer, which any person is entitled to file, the Control Commission initiates disciplinary proceedings and submits the materials to the Disciplinary Commission. The lawyer is sent a letter with a request to state his vision of the situation, after which most of the disciplinary proceedings are terminated.

The relationship between a lawyer and a client, Denis Kashitsin believes, greatly simplifies professional liability insurance, which is mandatory for a Czech lawyer, since the insurance company, and not the disciplinary commission, deals with the contradictions that have arisen in this case. The estimated cost of basic insurance is 300 euros per year, he said.

The meeting of the disciplinary commission (as a rule, it is held in another region) in the Czech Republic is similar to the criminal process. The person involved in disciplinary proceedings can even conclude an agreement for his defense with another lawyer, invite witnesses, and also challenge members of the commission. Most often, the defendants admit their guilt and agree to pay a fine (about 1,000 euros) to the Bar Association. The commission provides such an opportunity, based on the seriousness of the misconduct and property status (the commission asks for a tax return). The mark of the disciplinary sanction is kept by the lawyer for a year.

According to the Collection of Disciplinary Decisions, published by the Czech Chamber every six months, frequent violations by lawyers are untimely recording of funds received from a client in the electronic accounting system, disclosure of attorney-client secrets (for example, the very fact of contacting a lawyer), violations when certifying a signature and storing the property of the principal. The following disciplinary measures are possible: a reprimand, a public reprimand, a fine (up to 40 thousand euros), a temporary ban on advocacy, removal from the register of the bar association. Of these, reprimands and fines are most often used.

Disqualification, usually for breach of attorney-client privilege, embezzlement of entrusted funds, or falsification of evidence (conviction automatically entails disbarment), is possible by decision of a chamber or court. This measure leads to a ban on legal activity for up to 10 years, and restoration is allowed no earlier than after 5 years.

It is easier to prevent the initiation of disciplinary proceedings against oneself, for which there are plenty of reasons in the Czech Republic, than to prove one's innocence later, - Denis Kashitsin is sure. For himself, he developed a number of rules that he shared with his Russian colleagues.

In accordance with legislative requirements, a Czech lawyer proceeds from the presumption of the reliability of evidence, but must receive a guarantee of reliability from the principal. Therefore, Denis Kashitsin asks the client to sign the relevant document on the information provided by him. In addition, the lawyer in any case enlists the consent of the client to terminate the attorney-client privilege.

Although the conclusion of an agreement for all lawyer actions (for example, a consultation) is not required, an experienced lawyer draws up protocols of his communication with clients and records every movement in the work on the case.

To avoid possible complaints in the future, Denis Kashitsin also recommended that colleagues communicate with principals, having secured their written consent in advance, via e-mail and telephone, completely excluding instant messengers.

At the request of the webinar listeners, Denis Kashitsin spoke about three systems of remuneration for a lawyer in the Czech Republic. He said that a system of payment for each legal action is applied to the work of public defenders, which is considered to be a two-hour participation in the process, or an hour-long consultation, or one petition on a case, etc.

The speaker, whose erudition and lively manner of communication caused a lot of positive feedback from the audience, wished his Russian colleagues to comply with the standards of advocacy accepted in the country, take measures for their own safety when communicating with clients, and always and everywhere preserve the honor of a lawyer.

Rule of British law

The participants of the webinar called the lecture “Basic principles for the provision of legal services in Britain”, presented by Dmitry Gololobov, professor at the University of Westminster, “mega-informative”. The lecturer spoke about the traditional UK division of lawyers into two qualifications: solicitors (a wide range of legal services) and barristers (representation in court); named the requirements for them.

According to D. Gololobov, English regulation is dozens of times higher than Russian.

The legal regulation system in the UK is based on 7 principles. The law states that professionals must carry out their activities as follows:

ensuring the maintenance of the constitutional principle of the rule of law and the proper administration of justice,
ensuring public respect and trust in professionals and the services they provide,
while maintaining proper independence,
honestly,
in compliance with all established principles,
in a manner that ensures the maintenance of equality and equal access in the profession,
taking into account the main interests of clients.

In addition, 17 rules formulated in two Codes require lawyers to maintain trust and act with integrity; provide competent services; ensure the safety of clients' money and assets; not act in a conflict of one's own interests; behave properly in court, etc. The following rule seemed interesting and unusual for Russian lawyers: “If principles come into conflict, those that provide for the protection of more important public interests (such as the rule of solicitor) shall take precedence over the individual interests of clients.”

As the participants of the webinar learned, English solicitors are forbidden to threaten the court, generate excessive expenses, use the ignorance of clients, mislead the court, conduct deliberately losing cases, and deceive. Otherwise, the Disciplinary Tribunal (it consists of 50 people, and each separate tribunal consists of 2 solicitors and one non-professional) has the right to deprive a lawyer of his license, remove him from practice, impose a fine, issue a reprimand, award reimbursement of expenses.

According to the lecturer, the practice of applying disciplinary sanctions in the UK is such that the discovery of dishonest behavior almost inevitably leads to the revocation of a license, as well as financial violations, especially misuse of client funds. D. Gololobov drew the attention of the webinar participants to the fact that the behavior of a solicitor must be impeccable not only during the provision of professional legal services. The SRA Solicitors Regulatory Authority noted that “both in practice and out of practice, behavior that undermines the trust of the public not only harms every person involved, but also jeopardizes the ability of legal professionals as a whole to serve the public.” As the President of the Solicitors' Disciplinary Tribunal stated, a solicitor's private life "cannot be completely ignored" in the realm of professional misconduct. More recently, sexual misconduct and offensive social media posts have come under the microscope. So, a fine of 10 thousand pounds was paid by a lawyer who sent an offensive message to a woman on Facebook.

In addition to an overview of disciplinary practice in relation to British lawyers, the lecturer told the audience in detail about how to qualify as a solicitor, what the qualification exam is, about the principles of formation of lawyers' remuneration and the importance of pre-trial dispute resolution.

D. Gololobov recommended that lawyers, including Russian ones, exercise reasonable discretion in dealing with clients and record all communications, as is customary in the UK.

Russian experience

During the webinar, Tatyana Butovchenko, President of the Chamber of Advocates of the Samara Region, drew parallels between foreign legal practice and Russian reality, and continued with vivid cases from the disciplinary practice of the PASO.

“From my point of view, the procedures for bringing to disciplinary responsibility in the Russian Federation are more favorable for lawyers,” she said. “Not everyone has the right to file a complaint against a Russian lawyer, but if a complaint does come to us, the Chamber first of all informs the lawyer and actively contributes to the settlement of his conflict with the client.”

A comparative analysis of the standards of advocacy in France, the Czech Republic, Great Britain and Russia, made during the educational marathon, showed that lawyers in European countries, continuing the centuries-old traditions of a lawyer monopoly, have broader powers compared to Russian colleagues (for example, the right to certify transactions), but together with however, their activities are subject to more severe restrictions and severe sanctions in case of violations.

The webinar participants warmly thanked the speakers for their willingness to share their knowledge and experience with colleagues, for meaningful presentations and valuable recommendations. Once again convinced of the imaginary correctness of the principle “It is good where we are not”, PASO lawyers came to the conclusion that it is necessary to do everything in their power to make it better where they are.

PASO Press Center