The Qualification Commission has established the composition of four disciplinary offenses

On 17.10.2024, the regular meeting of the Qualification Commission of the Chamber of Advocates of the Samara Region was held.

The agenda of the meeting included consideration of four disciplinary proceedings initiated on the basis of a court report, a submission by the Office of the Ministry of Justice of the Russian Federation for the Samara Region, a submission by the Vice President of the Chamber of Advocates of the Samara Region, and a complaint from a client.

The Qualification Commission considered the issue of admitting applicants for status to take the qualification exam.

All proceedings were considered on the merits, and in all cases, the Commission found elements of disciplinary offenses in the actions of the lawyers.

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From the report of the judge of the Novokuibyshevsk City Court of the Samara Region, it followed that the court was handling a criminal case against three defendants. The defendant K.'s defense attorney by agreement is attorney M. During the consideration of the said criminal case, attorney M., having been duly notified of the date, time, and place of the court hearings, repeatedly failed to appear at the court hearings scheduled for May 22 and 30, 2024, June 26, 2024, and July 10, 2024. Attorney M. did not submit to the court any motions for adjournment or documents confirming the existence of valid reasons for failure to appear. The consideration of the criminal case against three defendants, two of whom are minors, was adjourned four times due to the failure of the defense attorney by agreement, attorney M., to appear, which is unacceptable and leads to delays in the trial and violation of the deadlines for considering the case. In an additional message, the judge indicates that in the previously mentioned criminal case, lawyer M. also failed to appear at the court hearing, which was postponed until 15.08.2024 at 15:00; no motions for postponement or valid reasons for failure to appear were submitted to the court.

The circumstances specified in the message are confirmed by copies of the minutes of the court hearings and other evidence submitted by the court.

In her explanations, lawyer M. indicates that the reason for her failure to appear at the court hearings of the Novokuibyshevsk City Court of the Samara Region on the dates specified in the original message, with the exception of July 10, 2024, was that she was on sick leave, about which she notified the court in advance by e-mail. It was not possible to send a certificate of incapacity to the court.

The Commission found violations of the legislation on advocacy and the Bar in the lawyer's actions, indicating that a lawyer, when carrying out professional activities, is obliged to honestly, reasonably, conscientiously, principledly and promptly fulfill his duties, defend the rights and legitimate interests of the client by all means not prohibited by the legislation of the Russian Federation, and comply with the Code of Professional Ethics of a Lawyer (subparagraphs 1 and 4 of paragraph 1 of Article 7 of the Federal Law "On Advocacy and the Bar in the Russian Federation", paragraph 1 of Article 8 of the Code of Professional Ethics of a Lawyer).

Based on Part 2 of Article 7 of the same Law, a lawyer shall bear liability for failure to perform or improper performance of his professional duties, as provided for by this Federal Law.

When participating in legal proceedings, a lawyer must comply with the norms of the relevant procedural legislation, show respect for the court and the persons participating in the case, and when objecting to the actions (inaction) of judges, a lawyer must do so in a correct form and in accordance with the law (Article 12 of the Code of Professional Ethics of a Lawyer).

In accordance with Part 1 of Article 14 of the Code of Professional Ethics of a Lawyer, “If it is impossible for good reasons to arrive at the appointed time to participate in a court hearing or investigative action, or if there is an intention to request that another time be set for them, the lawyer must, if possible, notify the court or investigator of this in advance, as well as notify other lawyers participating in the proceedings, and agree with them on the time for performing the procedural actions.”

In violation of the specified rules of the legal profession, the need to comply with which follows from the fact of being assigned the status of a lawyer, lawyer M. violated the requirements of Part 1 of Article 14 of the Code of Professional Ethics of a Lawyer.

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From the submission of the Department of the Ministry of Justice of the Russian Federation for the Samara Region with reference to information received from the investigative unit for the investigation of organized criminal activity of the Main Investigative Directorate of the Main Directorate of the Ministry of Internal Affairs of Russia for the Samara Region, it followed that lawyer G., who is the defense attorney for the accused in the criminal case, refused to sign the protocol for receiving samples for comparative analysis on July 18, 2024, and did not make any comments on the protocol of the investigative case, which is confirmed by the attached copy of the protocol. The fact of refusal to sign the protocol of the investigative action in accordance with Part 1 of Article 167 of the Criminal Procedure Code of the Russian Federation was entered into the protocol and certified by the signatures of the investigator, as well as two attesting witnesses. The applicant indicated that the legislation does not provide for the right of the defense attorney to refuse to sign the protocol of procedural (investigative) actions, this right belongs to the Client, believes that the actions of lawyer G. indicate his violation of the requirements of the legislation on advocacy and the bar. In his explanations, lawyer G. does not deny these circumstances, indicating that he and his client refused to sign the protocol on familiarization with it, since the investigator refused to allow him to take a photo of the Resolution on obtaining samples for comparative analysis using his own technical means.

The Commission found in the lawyer's actions a violation of Art. 166 of the Criminal Procedure Code of the Russian Federation, Art. 12 of the Code of Professional Ethics of a Lawyer and the Russian Federation and the Standard for the Implementation of Defense by a Lawyer in Criminal Proceedings.

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From the submission of the Vice President of PASO regarding lawyer Z., it was seen that, according to the data provided by the accounting department, as of September 2024, the lawyer has a debt on monthly deductions for the maintenance of the Bar Association for more than three months, which is a violation of the requirements of the legislation on advocacy and the Bar, paragraphs 4.5, 5.2.5 of the PASO Charter.

Having found that the lawyer's actions constituted a disciplinary offence, the Commission indicated that the lawyer is obliged to make monthly contributions for the general needs of the Bar Association in the manner and in the amounts determined by the meeting (conference) of lawyers of the Bar Association of the relevant constituent entity of the Russian Federation, as well as to make contributions for the maintenance of the relevant lawyer's office, the relevant bar association or the relevant law firm in the manner and in the amounts established by the legal entity.

For failure to perform or improper performance of his duties, the lawyer shall bear liability as provided for by the Federal Law "On Advocacy and the Bar in the Russian Federation" (clause 5, clause 1, clause 2, Article 7).

Violation by a lawyer of the requirements of the legislation on advocacy and the Bar and the Code of Professional Ethics of a Lawyer, committed intentionally or through gross negligence, entails the application of disciplinary measures provided for by the legislation on advocacy and the Bar and the Code of Professional Ethics of a Lawyer (clause 1 of Article 18 of the Code).

In accordance with clause 4.5. of the Charter of the Chamber of Advocates of the Samara Region, each lawyer is personally liable to the Chamber for the timely, correct and complete payment of monthly deductions. Failure by a lawyer to make monthly deductions for three months during the year (in a row or in total) without good reason shall be grounds for the adoption by the Council of the Chamber, upon the conclusion of the Qualification Commission, of a decision to terminate the status of a lawyer.

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It followed from the complaint of citizen P. that lawyer A., ​​while defending the interests of the applicant's son in criminal proceedings by agreement, and in her closing speech took a position that differed from the position of the client. Unqualified and dishonest provision of legal assistance by lawyer A. resulted in the unlawful conviction of the applicant's son. The violation of the convicted person's rights to defense, expressed in the statement by lawyer A. in a position not consolidated with the defendant, established by the appellate court, became one of the grounds for the annulment of the sentence.

In his explanations submitted to the Commission, lawyer A. does not refute the arguments set out in the complaint.

The Commission came to the conclusion that the lawyer's actions violated the norms of the legislation on advocacy and the Bar and the Standard for the implementation of defense by a lawyer in criminal proceedings, namely, Part 1 of Article 49 of the Criminal Procedure Code of the Russian Federation, according to which a lawyer must protect the rights and interests of the accused, as well as paragraphs 3, 4 of Part 4 of Article 6 of the Federal Law "On Advocacy and the Bar in the Russian Federation", according to which a lawyer does not have the right to take a position on a case contrary to the will of the client and assert that the defendant's guilt has been proven when the latter does not admit it.

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The Commission voted unanimously to allow twenty applicants to take the qualification exam for the status.

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The Commission's findings are included in the agenda of the meeting of the Council of the Chamber of Advocates of the Samara Region, which will take place on 10/31/2024.

PASO Press Center