Final meeting of the PASO Council

On December 21, the final meeting of the Council of the Chamber of Advocates of the Samara Region was held for the outgoing year.

The Head of the Justice Department of the Samara Region P.V. Sokol presented certificates to the applicants who had acquired the status of an advocate.

The Vice President of the Chamber of Advocates of the Samara Region D.A. Taraborin was awarded the Silver Medal of the Ministry of Justice of the Russian Federation "For Assistance". Those present warmly congratulated Dmitry Alekseevich on the government award.

The Council of the Chamber of Advocates of the Samara Region adopted the Decision "On convening the Twenty-fourth (regular) annual conference of advocates of the Samara Region".

The conference will be held on April 18, 2024 at 11:00 in the Conference Hall of the Ice Sports Palace.

The Council took the oath of office of three applicants who successfully passed the Qualification Exam in November. President of the Chamber of Advocates of the Samara Region T.D. Butovchenko presented them with lawyer badges and wished them to wear them with pride, dignity and success.

Three applications for suspension of lawyer status were satisfied, one for renewal and one for early removal of disciplinary action.

Two lawyers notified PASO about changing their membership to a bar association of another region, two more about establishing offices. Two lawyers were included in the SJUP system, one received credit for hours of professional development.

The PASO Council considered nine disciplinary proceedings.

The first was initiated based on a complaint from a client who had entered into an agreement with the lawyer to draft a claim for the division of property with her ex-husband and represent her interests in a court in one of the districts of the Samara Region. The lawyer received a fee, a power of attorney and the necessary documents for work on the case from her. The client inquired about the progress of the case, to which the lawyer reported that the claim had been filed, and the hearings were postponed for various reasons. Everything happened in the correspondence in instant messengers, which the applicant attached to the complaint. A few months later, the applicant came to the court office to find out what date the consideration of the case was postponed once again. Having found out that not a single case with her participation was registered in court, no statement of claim in her interests was received, the dates of the hearings that the lawyer named were fictitious. The indignant and upset client sent a very emotional complaint about the actions of the lawyer to the PASO. At the meeting of the Qualification Commission, the lawyer admitted guilt and returned the fee to the applicant. The complainant was concerned not so much about the money paid, but about the fact that during the time while the lawyer was inactive, a three-year period from the date of divorce had expired. The applicant went to court with the help of another representative. The ex-husband stated that the statute of limitations had expired. The case is currently being considered in court and a decision on it has not been made. In this regard, the applicant is extremely worried that the court may share the position of her ex-husband, apply the statute of limitations and thereby deprive her of her property.

The PASO Council fully shared the findings of the Qualification Commission and the applicant's indignation at the violations committed by the lawyer. During the Council meeting, he was unable to explain the reasons for which he had not fulfilled his obligations under the agreement for several months and had provided the client with false information. Under such circumstances, the Council members were put to a vote on the issue of applying a disciplinary measure to the lawyer in the form of termination of his status.

At the same time, the members of the Council, acting as lawyers, tried to explain to the applicant that the statement about the expiration of the limitation period in this case is unfounded and is not subject to satisfaction by the court. Based on paragraph 2 of Article 9 of the Family Code of the Russian Federation, as well as paragraph 1 of Article 200 of the Civil Code of the Russian Federation, the three-year limitation period for claims for the division of property that is the common joint property of spouses whose marriage has been dissolved should be calculated from the day when the spouse learned or should have learned about the violation of his or her right to common property.

The Supreme Court also adheres to this approach. Thus, according to paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998, No. 15 "On the application of legislation by the courts when considering cases of divorce", which states that the three-year limitation period for claims for the division of property that is the common joint property of spouses whose marriage has been dissolved (paragraph 7 of Article 38 of the Family Code of the Russian Federation) should be calculated not from the time of termination of the marriage (the day of state registration of the divorce in the register of acts of civil status in the case of divorce in the civil registry office, and in the case of divorce in court - the day the decision comes into legal force), but from the day when the person learned or should have learned about the violation of his or her rights. A more recent example is the RF Supreme Court Ruling No. 4-KG19-19 of July 2, 2019 (http://vsrf.ru/stor_pdf.php?id=1783620 ) Thus, the limitation period for claims for the division of common property of spouses whose marriage has been dissolved is calculated from the moment when the former spouse should have become or became aware of the violation of his or her right to common property, and not from the moment other circumstances arose (registration of property rights for one of the spouses, termination of marriage, etc.). Although the degree of harm caused to the applicant by the lawyer is less than she fears, this cannot justify his clearly unfair behavior. This lawyer had never been subject to disciplinary liability before, and during the meeting of the Qualification Commission and the Council, he assured that he realized the inadmissibility of his behavior, returned the fee to the client and apologized. Due solely to these circumstances, and not unanimously, the Council considered it possible to maintain the colleague's status and issue him a warning.

Another complaint was filed by a client with whom the lawyer entered into a gratuitous agreement. An elderly woman suffering from multiple illnesses was being cared for by a caregiver. Using access to the client's bank card, the caregiver withdrew a large sum of money from it and appropriated it. The lawyer drew up a statement of claim free of charge and represented the plaintiff in court. By the court's decision, the caregiver was ordered to pay over 500 thousand rubles. No agreement was concluded with the lawyer at the appellate instance, so she did not participate in the regional court hearing. The appellate court reduced the amount of unjust enrichment by approximately 30 thousand rubles. Dissatisfied with this result, the plaintiff filed a complaint with the PASO against the lawyer for failing to represent her interests in the appeal. The Qualification Commission concluded that the lawyer had conscientiously fulfilled her voluntary obligations to represent the client free of charge in the court of first instance, and that her actions did not constitute a disciplinary offense. The PASO Council agreed with the Commission's conclusion and terminated the proceedings.

The third case was initiated in connection with the defense in a criminal case. During the investigation of the criminal case, the client's position completely changed. Immediately after his arrest, he testified, cooperated with the investigation, and, with the help of a lawyer, filed a motion to conclude a pre-trial cooperation agreement, which was granted. After he fulfilled the terms of the pre-trial agreement and changed the measure of restraint to house arrest, the client changed his position, and his previous testimony and actions, according to him, were caused by pressure from law enforcement agencies and the lawyer. In support of his words, the applicant presented audio recordings with a large number of noises and voices of different people. However, he was unable to confirm the authenticity of the recordings and whose voices were on them. How he could not answer the question of the members of the Qualification Commission, and then the Council, how he, being detained and subsequently in custody, was able to make audio recordings using a technical device.

In addition, the applicant claimed that the lawyer received funds from his wife to pay part of the fee under the agreement in cash, but he could not confirm this fact either. The terms of the agreement provided for the term of payment of the fee "within a year". The lawyer claimed that he did not receive money from the client.

The Qualification Commission considered that the client did not provide evidence of his arguments and, based on the presumption of good faith of the lawyer's actions, came to the conclusion that there were no signs of disciplinary misconduct in his actions. The PASO Council agreed with its findings and terminated the proceedings on this basis.

Three proceedings were initiated based on reports from judges.

In one case, the lawyer did not appear at the court hearing scheduled for 11:00, did not submit any motions, and did not report his delay. The magistrate adjourned the hearing. The lawyer showed up after this, at 11:10. The secretary told him that the hearing had been postponed due to the absence of the defendant and his defense attorney, and told him the date of the next hearing. After this, the lawyer went into the judge's office without permission, where he expressed doubts about whether the court hearing had actually taken place. He was asked to review the minutes and audio recording. After this, the lawyer said that he wanted to include participation in this hearing in the application for payment. The judge explained to him that the hearing had already taken place, the minutes had been drawn up, and it reflected that he had not taken part in it, and therefore the demand for payment for this court day was unfounded. After this, the lawyer, while in the judge's office, moved on to emotional and offensive statements about the court.

The Qualification Commission unanimously found that the lawyer's actions constituted a disciplinary offense, since there were many unflattering statements about the court, including that "judges are not people." Having agreed with the Commission's Conclusion, the Council applied the provisions on insignificance to the disciplinary offense, terminated the proceedings, and pointed out to the lawyer that such behavior was unacceptable.

It followed from another appeal of the court that the lawyer had failed to appear at the hearing without a valid reason. She did not deny this. The Council issued her a reprimand.

The third case was also related to the fact that the lawyer failed to appear at the previously agreed time of the hearing without a valid reason. A message was sent to the Chamber of Advocates of the Samara Region about the violation of the requirements of the law by lawyer F. - paragraph 2, part 1, article 7 of the Federal Law "On Advocacy and the Bar in the Russian Federation" and article 6.1 of the Criminal Procedure Code of the Russian Federation. After the first appeal, the PASO Council decided not to apply disciplinary measures and sent the lawyer a Warning about the inadmissibility of violating the requirements of the law. Despite this, the lawyer, having been duly notified of the date and time of the next court hearing, again failed to appear in court. Thus, knowing the date and time of the court hearing, lawyer F. again failed to appear in court for the same case, which indicates abuse of rights. He explained his actions by the fact that he was "feeling sick", did not seek medical help, and had no opportunity to call the court in advance, since it was a weekend. The PASO Council chose a warning about the termination of status as a disciplinary punishment. Two more proceedings were initiated at the request of the Vice President of PASO against lawyers who failed to comply with the Standard for Continuing Professional Development. Earlier, both were given a warning about the termination of their status and an additional 4-month period to comply with the Standard. However, the lawyers did not take any action during this time and they stopped communicating with the Chamber. Under these circumstances, the Council decided to terminate their status and set a one-year period during which they cannot apply for admission to the qualification exam.

Photos from the procedure for handing over lawyer's certificates are available at the link

PASO Press Center