Final meeting of the PASO Council
On December 23, the final meeting of the Council of the Chamber of Lawyers of the Samara Region took place.
It began with the solemn swearing-in of two applicants who successfully passed the qualifying exam in November.
The Council then proceeded to work on the agenda.
The applications of two lawyers to change their membership in the PASO to bar chambers of other regions were considered.
The council renewed the status of three and suspended four lawyers. The status of seven lawyers was terminated on the basis of personal applications. Two of them were credited with professional development hours. The lawyers notified the Council of the establishment of two and the liquidation of three lawyers' offices.
Twenty-one more lawyers are included in the SJA system. Thus, the number of lawyers included in the system of providing subsidized legal aid on demand is approaching 900, which is half of the total number of lawyers in the Samara region.
The PASO Council reviewed fourteen disciplinary proceedings.
One of them was initiated at the request of a court in another region. A Samara lawyer accepted an assignment to defend a nonresident defendant. The verdict in the case was passed almost a year ago. The court appealed to the PASO with a complaint about the fact that on November 24, 2020 the lawyer did not appear at the court session, about which he was notified in advance. In addition, according to the court, the lawyer behaved incorrectly in the process, for example, “demonstratively throwing a pen on the table” and “grinning”. Regarding the failure to appear at the court session, the lawyer explained that this was due to extreme weather conditions - a strong snowstorm - which did not allow to go by car to another city, about which he notified the court. In confirmation, a certificate from the Meteorological Service has been submitted. To verify the rest of the court's arguments, the PASO Qualification Commission requested the court minutes of the proceedings, which it was denied. In the absence of evidence of the lawyer's guilt, the PASO Council agreed with the Commission's conclusion and terminated the disciplinary proceedings.
Two disciplinary proceedings were initiated against lawyers who jointly provided legal assistance to one client on the proposal of the Directorate of the Ministry of Justice of the Russian Federation for the Samara Region, made on the basis of an appeal by the Head of the Samara Customs.
As part of the provision of legal assistance, the lawyers arrived at night in private cars to the place of detention of vehicles in respect of which customs control was carried out. According to the Samara customs, it was thanks to the intervention of lawyers that truck drivers and vehicles left the customs control zone. On these facts, the Samara customs office filed a criminal complaint, the initiation of which, based on the results of the check, was denied. The Qualification Commission established the existence of agreements on the provision of legal assistance - as a legal basis for the presence of lawyers in the customs control zone. In such circumstances, the Commission did not find a disciplinary offense in the actions of the lawyers. The PASO Council agreed with her conclusion and terminated both disciplinary proceedings.
Two more proceedings were initiated at the request of judges. The first - in relation to the lawyer, who did not appear at the hearing four times. At the same time, she always referred to the presence of a certificate of incapacity for work, but did not warn the court about this in advance and did not provide sick leave. At the same time, she continued to go to her second job - a teacher in a college - all this time regularly and held classes with students on the days of court sessions according to the curriculum. The Qualification Commission found a disciplinary offense in the actions of the lawyer. The PASO Council negatively assessed the behavior of the lawyer for the lawyer's failure to fulfill his professional duty about the need for advance notification of the impossibility of being present at the trial and the provision of documents justifying the failure to appear, which is regarded as contempt of court. When deciding on the choice of the type of disciplinary punishment, the opinions of the members of the Council were divided, and only because of the presence of sick leave confirming the fact of the disease, the members of the World did not unanimously, but voted for the termination of production due to their insignificance.
The second proceedings were initiated at the request of a judge of the Samara Regional Court.
Pervonachal'no po delu rabotal po soglasheniyu advokat SHCH.. S yego uchastiyem v zhilishche podzashchitnogo byl proveden obysk, na chto advokatom byla podana zhaloba. Zatem v delo vstupila advokat N. - takzhe po soglasheniyu. Vmeste s doveritelem oni izbrali inuyu pozitsiyu po delu o priznanii viny i zaklyuchenii dosudebnogo soglasheniya o sotrudnichestve. Pri takikh usloviyakh obzhalovaniye obyska advokat sochla netselesoobraznym. Odnako, vmesto togo, chtoby raz"yasnit' doveritelyu neobkhodimost' svyazat'sya s advokatom SHCH. s predlozheniyem ob otzyve zhaloby, advokat N. trizhdy ne yavlyalas' v zasedaniya po yeyo rassmotreniyu, motiviruya eto tem, chto po usloviyam soglasheniya u neye otsutstvuyut polnomochiya po podderzhaniyu zhaloby. Neiskushennyy v tonkostyakh ugolovnogo sudoproizvodstva doveritel' nastaival, chto u nego novyy advokat po soglasheniyu, kotoryy dolzhen uchastvovat' vo vsekh razbiratel'stvakh s yego uchastiyem. V zasedaniye Komissii advokat deystvitel'no predstavila soglasheniye imenno s takoy formulirovkoy: «ne prinimayet na sebya polnomochiy po podderzhaniyu zhaloby advokata SHCH.» za podpis'yu yeye i doveritelya. Pri vsey spornosti etogo soglasheniya kak dokazatel'stva, ne prinyat' yego vo vnimaniye Sovet ne mog i prekratil distsiplinarnoye proizvodstvo. Dva drugikh proizvodstva byli vozbuzhdeny po zhalobam doveriteley, utverzhdavshikh, chto advokaty prinyali, no ne oprikhodovali gonorary. V odnom sluchaye, advokat zaklyuchil soglasheniye s doveritelem, uzhe nakhodyashchimsya pod strazhey, u kotorogo byl zashchitnik po naznacheniyu. Yakoby, raneye znakomyye drug s drugom advokat i doveritel' vstretilis' v koridore otdela politsii i tam i podpisali soglasheniye, gonorar po kotoromu dolzhny byli vnesti rodstvenniki zaderzhannogo. Podzashchitnomu dvazhdy prodlyalas' mera presecheniya, advokat ni razu yeye ne obzhaloval, raspiskoy otkazy doveritelya ot obzhalovaniya oformleny ne byli. Ne obzhaloval advokat i prigovor – 15 let v kolonii strogogo rezhima. takzhe Osuzhdennyy vynuzhden byl sostavit' zhalobu samostoyatel'no. Pomimo pretenziy k kachestvu raboty advokata doveritel' zayavlyal, chto gonorar, vyplachennyy advokatu, oprikhodovan ne byl. Pozitsiya advokata svodilas' k tomu, chto gonorar oplachen ne byl. V soglashenii ob okazanii yuridicheskoy pomoshchi v narusheniye st. 25 FZ «Ob advokatskoy deyatel'nosti i advokature v Rossiyskoy Federatsii» otsutstvovali usloviya o poryadke i srokakh vneseniya denezhnykh sredstv. Ne bylo v nem i ukazaniya na litso, kotoroye budet oplachivat' yuridicheskuyu pomoshch', yego soglasiya na eto, a takzhe otmetki, chto na moment zaklyucheniya soglasheniya denezhnyye sredstva ne peredany. Advokat ne predstavil nikakikh dokazatel'stv, chto pytalsya poluchit' nevyplachennyy gonorar. Pretenzii ili uvedomleniya o ne postuplenii sredstv v adres doveritelya im ne napravlyalis', da i napravleny byt' me mogli, poskol'ku soglasheniya s litsom, kotoryy dolzhen byl proizvesti oplatu, v soglashenii ne ukazano, a podzashchitnyy takikh obyazatel'stv na sebya ne bral i ne mog vzyat' poskol'ku soderzhalsya pod strazhey, a zatem byl napravlen v mesta otbyvaniya nakazaniya. Sovet soglasilsya s Zaklyucheniyem Kvalifikatsionnoy komissii o narushenii poryadka zaklyucheniya soglasheniya, ustanovlennogo st. 25 FZ «Ob advokatskoy deyatel'nosti i advokature v RF», otsutstvii osnovaniy dlya vstupleniya v delo i nenadlezhashchem ispolnenii professional'nykh obyazannostey po zashchite prav doveritelya, naznachiv distsiplinarnoye vzyskaniye v vide preduprezhdeniya. Analogichnoye razbiratel'stvo na predmet ne vneseniya gonorara na raschetnyy schet advokatskogo obrazovaniya vmeste s pretenziyami k kachestvu raboty advokata zakonchilos' napravleniyem distsiplinarnogo proizvodstva v Kvalifikatsionnuyu komissiyu dlya povtornogo rassmotreniya. Advokatom predstavleno soglasheniye, v kotorom ukazan razmer gonorara za zashchitu interesov doveritelya v razmere 100 000 rubley. Kakikh-libo ogovorok o ne vnesenii oplaty pri podpisanii soglasheniya ili ustanovlenii inykh srokov oplaty ne ukazano. Cherez god soglasheniye bylo rastorgnuto. V tekste soglasheniya o rastorzhenii soglasheniya v otnoshenii gonorara takzhe nikakikh ogovorok ne sdelano. Advokat v ob"yasneniyakh ukazala, chto za rabotu v techeniye goda yey ne zaplatili. Kachestvennoye vypolneniye obyazannostey podtverdila, predostaviv dva toma advokatskogo dos'ye. Distsiplinarnaya praktika v etoy chasti v PASO vystroyena davno: yesli denezhnyye sredstva ne peredayutsya v moment podpisaniya soglasheniya, ob etom dolzhno byt' pryamo ukazano v yego tekste. Yesli storony prishli k soglasheniyu o boleye pozdnikh srokakh oplaty libo oplate chastyami, advokatu nadlezhit fiksirovat' etot fakt v tekste soglasheniya otdel'no. Pri nepostuplenii oplaty v ogovorennyy usloviyami soglasheniya sroki, advokatu nadlezhit napravit' storone soglasheniya - platel'shchiku uvedomleniye, pretenziyu ili inoy dokument podobnogo roda, podtverzhdayushchiy otsutstviye oplaty. Analogichnoy pozitsiy priderzhivayutsya nalogovyye organy, dlya kotorykh dostatochnym dokazatel'stvom vneseniya denezhnykh sredstv podchas yavlyayetsya dopros doveritelya. Zaraneye dokumental'no obespechit' svoyu zashchitu v takoy situatsii – obyazannost' advokata. Sem' proizvodstv byli svyazany s neuplatoy yezhemesyachnykh otchisleniy na soderzhaniye PASO.
Initially, the lawyer Sh. Worked on the case under an agreement. With his participation, a search was carried out in the client's home, against which the lawyer filed a complaint. Then the lawyer N. entered the case - also by agreement. Together with the client, they chose a different position on the plea case and the conclusion of a pre-trial cooperation agreement. Under such conditions, the lawyer considered it inappropriate to appeal the search. However, instead of explaining to the client the need to contact lawyer Shch. With a proposal to withdraw the complaint, lawyer N. did not appear at the hearings for its consideration three times, arguing that, under the terms of the agreement, she did not have the authority to maintain the complaint. The client, inexperienced in the intricacies of criminal proceedings, insisted that he had a new lawyer by agreement, who must participate in all proceedings with his participation. At the meeting of the Commission, the lawyer really presented an agreement with exactly this wording: "does not assume the authority to support the complaint of lawyer Shch." signed by her and the principal. With all the controversy of this agreement as evidence, the Council could not disregard it and terminated the disciplinary proceedings. Two other proceedings were initiated on complaints from the principals, who argued that the lawyers accepted, but did not record fees. In one case, a lawyer entered into an agreement with a client who was already in custody, who had an appointed lawyer. Allegedly, the lawyer and the client, who were previously familiar with each other, met in the corridor of the police department and there signed an agreement, according to which the relatives of the detainee were to pay the fee. The measure of restraint was extended twice to the client, the lawyer never appealed against it, the client's refusal to appeal was not issued with a receipt. The lawyer did not appeal against the sentence - 15 years in a strict regime colony. also the convict was forced to draw up a complaint on his own. In addition to complaints about the quality of the lawyer's work, the client stated that the fee paid to the lawyer was not capitalized. The lawyer's position was that the fee was not paid. In the agreement on the provision of legal assistance in violation of Art. 25 of the Federal Law "On advocacy and the legal profession in the Russian Federation" there were no conditions on the procedure and timing of the deposit of funds. It also did not contain an indication of the person who will pay for legal assistance, his consent to this, as well as a note that at the time of the conclusion of the agreement, the funds were not transferred. The lawyer did not provide any evidence that he was trying to collect the unpaid royalties. Claims or notifications about the non-receipt of funds to the client were not sent to them, and they could have been sent to them, since the agreement with the person who was supposed to make the payment was not specified in the agreement, and the client did not take on such obligations and could not take because was held in custody, and then was sent to places of serving the sentence. The Council agreed with the Conclusion of the Qualification Commission on the violation of the procedure for concluding an agreement established by Art. 25 of the Federal Law "On advocacy and the legal profession in the Russian Federation", the absence of grounds for entering the case and improper performance of professional duties to protect the rights of the client, imposing a disciplinary penalty in the form of a warning. A similar proceeding on the subject of not paying the fee to the current account of the lawyer's education, together with claims to the quality of the lawyer's work, ended with the sending of disciplinary proceedings to the Qualification Commission for reconsideration. The lawyer presented an agreement, which indicates the amount of the fee for protecting the interests of the principal in the amount of 100,000 rubles. There are no reservations about not making payment when signing an agreement or setting other payment terms. After a year, the agreement was terminated. In the text of the agreement on termination of the agreement, no reservations were made with respect to the fee. The lawyer explained in her explanations that she was not paid for her work during the year. She confirmed the high-quality performance of her duties by providing two volumes of the lawyer's dossier. The disciplinary practice in this part in the PASO has been built for a long time: if funds are not transferred at the time of signing the agreement, this should be directly indicated in its text. If the parties have come to an agreement on later terms of payment or payment in installments, the lawyer should record this fact separately in the text of the agreement. If payment is not received within the timeframe stipulated by the terms of the agreement, the lawyer should send the party to the agreement - the payer, a notification, claim or other document of this kind confirming the absence of payment. The tax authorities adhere to a similar position, for which the interrogation of the principal is sometimes sufficient evidence of the deposition of funds. It is the duty of a lawyer to document in advance your defense in such a situation.
Seven industries were associated with non-payment of monthly deductions for the maintenance of PASO. In three cases, the lawyers paid off the debts immediately after they learned about the initiation of proceedings - they were terminated due to their insignificance. Three more lawyers contributed funds on the day of the meeting of the Council - they received comments. One lawyer on the date of the hearing paid off the debt in only two months, although he had to - in four. The council issued a warning to him about the termination of the status.
Eight lawyers were given gratitude based on the statements of the principals.
At the end of the meeting, the members of the PASO Council warmly congratulated the Vice-President of the PASO Natalia Yurievna Sukhova on her last birthday and the member of the Council, Igor Alekseevich Zhdanov, on his anniversary. PASO President T. D. Butovchenko wished her colleagues to always be in demand and successful in their professional activities.
PASO Press Center
