Difficult decisions

On October 26, the next meeting of the Council of the Chamber of Advocates of the Samara Region was held.

Before its start, the President of the PASO T.D. Butovchenko and the Deputy Head of the Department of the Ministry of Justice of the Russian Federation for the Samara Region E.V. Seredavina ceremoniously presented certificates to twenty-two lawyers who successfully passed the qualification exam and took the oath in September of this year.

The Council granted one application for renewal of status, one for suspension, four for termination of lawyer status, and one application for changing membership in PASO to a bar association of another region. Ten lawyers are included in the SJUP system.

The status of two lawyers was terminated due to death. The Council of the Bar Association of the Samara Region expresses its deep condolences to the families and friends of lawyers Vladimir Aleksandrovich Kashevarov and Elina Leonidovna Korotkova.

The Bar Association of the Samara Region received three applications for early removal of disciplinary sanctions.

According to paragraph 1 of Article 26 of the Code of Professional Ethics of a Lawyer, “if within one year from the date of imposition of a disciplinary sanction, the lawyer is not subject to a new disciplinary sanction, he is considered to have no disciplinary sanction. The Council has the right to remove a disciplinary sanction before the end of the year on its own initiative, at the request of the lawyer himself, at the request of the bar association of which the lawyer is a member."

Based on this norm, the Council has the right, but is not obliged! to satisfy the lawyer's petition. The PASO Council traditionally goes to meet its colleagues and does not refuse to remove sanctions early. However, after reviewing the applications received, the members of the Council did not consider it possible to do this in any of the cases.

The first petition was drawn up with gross violations of the norms of the Code of Professional Ethics of a Lawyer and the Federal Law "On Advocacy and the Bar in the Russian Federation." The lawyer, who had already challenged in court the order to initiate disciplinary proceedings, the conclusion of the Qualification Commission and the Decision of the Council dated March 30, 2023 on the application of a disciplinary measure in the form of a warning, after receiving court decisions that had entered into legal force to refuse to satisfy all of her claims, in an application submitted to the Council with reference to the norm of paragraph 1 of Article 26 of the Code of Professional Ethics of Lawyers, asked to terminate the disciplinary proceedings initiated against her due to their insignificance (?!). The members of the Council were left with an open question about the quality of the legal assistance provided by this lawyer to clients, if, when defending his own interests, a colleague makes such gross procedural errors.

The PASO Council dismissed the second application due to the severity of the offense committed, which was expressed in the fact that when conducting a quality check of the work as assigned, the lawyer completely ignored the requirement to provide lawyer files. When filing an application for early removal of the disciplinary sanction, the lawyer simultaneously asked to be included in the List of lawyers working by appointment of the bodies of inquiry, preliminary investigation or the court. The Council considered that a lawyer who violated the Rules for participation in cases by appointment cannot be admitted to this type of activity early.

The third application for early removal of the disciplinary sanction is motivated by the fact that, when considering the disciplinary proceedings, the Qualification Commission incorrectly established the circumstances of the offense committed, which was expressed in sending offensive messages to the female investigator via WhatsApp messenger, and presented new arguments that had not previously been voiced at meetings of the Commission and the Council. Based on the norms of the Code of Professional Ethics of a Lawyer, when deciding on the early removal of a disciplinary sanction, the PASO Council does not have the right to re-evaluate the circumstances in connection with which it was imposed. This application was also recognized as unfounded.

The PASO Council considered seven disciplinary proceedings.

The consideration of the first of them was postponed twice at the request of the participants in order to ensure the possibility of providing additional evidence that allegedly could not be presented during the proceedings by the Qualification Commission. As a result, the parties never presented new evidence, and the Council made a decision based on the conclusion of the Commission.

Briefly about the circumstances established by the Qualification Commission: the lawyer entered into an agreement to provide legal assistance to the defendant in the claim of SKS LLC, received the fee on a personal bank card, and did not deposit it into the cash register. He did not appear at the first court hearing, did not notify the court in advance, and did not provide evidence of a valid reason for his failure to appear. Subsequently, he participated in only one procedural action, did not draw up any documents on the case, and did not honor the final court hearing with his participation. The case on the merits was considered in his absence. The court satisfied the plaintiff's claims in the amount of more than 1,800,000 rubles. The lawyer's file did not contain any traces of the lawyer's work on the case. The lawyer returned the fee transferred by the client during the meeting of the Qualification Commission.

The discussion of the type of disciplinary punishment was lengthy. An aggravating circumstance was the fact that the lawyer already had an outstanding penalty in the form of a warning for a similar violation. The first proposal was to terminate the lawyer's status, since the interests of the client were not protected as a result of unprofessional behavior. Only by a small margin did the Council vote for the penalty in the form of a warning, preserving the lawyer's status.

Two other proceedings were initiated based on complaints from two different clients against one lawyer. In the first case, the arguments were not confirmed and the Council, agreeing with the conclusion of the Qualification Commission, terminated the proceedings. In the second complaint, the Commission established that the lawyer received a fee on the card in advance, did not take any measures to fulfill his obligations to the client and stopped communicating with him. The Council issued him a warning about the termination of his status.

In the next complaint, the client also pointed out the fact that the lawyer accepted the fee on a personal bank card, did not issue receipts, and concluded the agreement after a year of work on the criminal case. The lawyer did not deny that he issued an order without an agreement, the fee was not deposited into the bank account of the law firm. In terms of the arguments of the complaint about the provision of unqualified legal assistance, the Qualification Commission, having checked the lawyer's proceedings, found them untenable. From the submitted dossier it clearly followed that the lawyer was actively working on the case in the interests of the client. Solely for this reason, the Council considered it possible to issue a reprimand to the colleague, given his long experience and the absence of disciplinary sanctions. Another proceeding was initiated at the request of the Vice President of PASO based on information provided by the Center for Legal Advisers. The lawyer accepted the request to participate in a court hearing on a day when he already had another hearing scheduled, hoping to make it to both. The lawyer did not make it to the later hearing, and therefore the court was forced to send a request for his replacement to the SYUP Center. Taking into account the measures taken by the lawyer to resolve the conflict situation, his apologies to the court and the participants in the process, the PASO Council considered it possible to terminate the disciplinary proceedings, strictly indicating to the lawyer the violation of the requirements of the legislation on advocacy and the Bar and the Code of Professional Ethics of a Lawyer. In this case, there was a violation of subparagraph 5 of paragraph 1 of Article 9 of the Code of Professional Ethics of a Lawyer, according to which a lawyer does not have the right to accept instructions to provide legal assistance in an amount that is clearly greater than he is able to fulfill. When accepting requests, a lawyer must doubly carefully assess whether he will be able to fulfill it without prejudice to the consideration of previously scheduled cases. If there is a possibility of overlapping the time of two court hearings, the lawyer should certainly refuse to accept the request and give an opportunity to a colleague who is less busy on that day to fulfill the request.

The latest disciplinary proceedings were initiated at the request of the court due to the failure of the lawyer to appear at a hearing, the date of which had been previously agreed upon. The hearing was scheduled for the purpose of forming a jury in a criminal case with several defendants. It followed from the court's request that it was postponed due to the failure of the lawyer to appear, on whose participation the defendant insisted. The lawyer, having been duly notified of the date of the court hearing a month in advance, decided two weeks later to go on vacation, informed the court about this and did not appear on the day of forming the jury.

The Council, taking into account that the lawyer was not the only defender of the defendant, that her colleague participated in the hearing and the right to defense was not violated, as a result of which the court had no obligation to postpone the formation of the jury, considered it possible to terminate the disciplinary proceedings, indicating to the lawyer the inadmissibility of violating the norm of paragraph 3 of Art. 14 of the Code of Professional Ethics of a Lawyer, according to which, when using the right to leave (rest), a lawyer must take measures to ensure the legitimate rights and interests of the client. In this case, the client did not agree to the consideration of the case in the absence of a specific defense attorney, in connection with which the lawyer should, when planning a vacation, not only notify the court at the stage of agreeing on the date of the hearing, but also reach a unified position on this issue with the client.

The PASO Council discussed with great concern the information first voiced on September 28, 2023, during an extraordinary meeting of the Council of the Federal Chamber of Lawyers of the Russian Federation, and subsequently widely publicized in the media, about the situation in the Bar Association of the Republic of North Ossetia - Alania.

Thus, on October 10, 2023, the following information was published on the Legal Report portal:

“Criminal cases have been opened in North Ossetia against seven lawyers of the Bar Association of the Republic of North Ossetia-Alania, who are suspected of fraud with payment for work as intended.

According to the investigation, from September 26, 2022, a group of appointed lawyers provided deliberately false information to the preliminary investigation bodies and the court about visiting their clients held in a pre-trial detention facility for a year. Based on the decisions of investigators, inquiry officers and the court, the lawyers received appropriate payments for the legal services provided. The investigation established that more than 535 thousand rubles were paid from the federal budget for allegedly providing assistance to 27 accused and defendants. Some of the documents for payment of procedural costs for a total of 140.5 thousand rubles were seized by FSB officers during searches.

Currently, investigative actions are being carried out against seven lawyers (their names are not disclosed). Depending on their actions, they are charged under Part 1 of Article 159 and Part 3 of Article 30, Part 1 of Article. 159 of the Criminal Code of the Russian Federation (fraud and attempted fraud), the press service of the Republican Investigative Committee reported.

In light of the current situation, appeals received by the Chamber of Advocates of the Samara Region regarding the integrity of lawyers when invoicing the budget for legal assistance provided are checked with particular care.

In addition, inspectors, who are currently meticulously assessing the execution by lawyers of the Decision of the PASO Council No. 14-11-08/SP of 11/27/2014 in the Kuibyshevsky and Sovetsky districts of the urban district of Samara, in the Komsomolsky district of the urban district of Tolyatti, in the urban district of Novokuibyshevsk, in the Kamyshlinsky and Klyavlinsky districts of the Samara Region, are recommended to pay particular attention to “interesting” cases.

Thus, the PASO Council, having considered one of the latest appeals of the Investigative Committee of the Russian Federation for the Samara Region on cases of unjustified filing of an application for payment from budget funds for participation in cases by appointment, although it did not find grounds for submitting a motion to initiate disciplinary proceedings against a specific lawyer, nevertheless accepted the “signal” and sent a response to the appeal to the Head of the Investigative Department of the Investigative Committee of the Russian Federation for the Samara Region with the following content:

“The Chamber of Advocates of the Samara Region shares your concern about the targeted use of budget funds when paying for the work of lawyers in criminal proceedings by appointment, fully aware of the extent of its responsibility to the state for compliance by lawyers with the requirements of regulatory and legal acts governing the procedure for making the relevant payments.

Any attempts to artificially, in the absence of grounds provided by law, inflate the cost of legal assistance provided by lawyers are unacceptable and cause serious concern for the lawyer community of the region.

Among other things, the Chamber of Advocates of the Samara Region also includes the unjustified performance of procedural actions by lawyers on weekends and holidays, or at night, with the subsequent presentation of a demand for payment for such actions at a qualified (increased) rate.

Lawyer K. was instructed on the inadmissibility of committing such actions and the need to comply with the principle of reasonableness when determining the actual volume and cost of the work performed.

At the same time, there are currently no grounds for initiating disciplinary proceedings against K., since the final assessment of the validity of the lawyer's claims for payment for procedural actions performed on weekends or holidays will be given by the Krasnoyarsk District Court of the Samara Region, following the consideration of the complaint filed by the lawyer in accordance with Article 125 of the Criminal Procedure Code of the Russian Federation.

For my part, I kindly ask you to immediately report to the Chamber of Advocates of the Samara Region any identified cases of unfair behavior by lawyers when they receive payment for their work as assigned by the preliminary investigation bodies, so that the corporate self-government bodies can promptly take effective response measures."

For reference: during the consideration of the complaint against the investigator's refusal to collect payment for drafting a petition on a day off and filing it the next working day, the lawyer changed the demands, limiting them to a statement on payment for one day of participation at a rate of 1,560 rubles, which was satisfied by the court. The PASO Council expresses deep concern about the situation and calls on lawyers to strictly follow current legislation.