Extensive agenda of the PASO Council meeting

On March 30, the regular meeting of the Council of the Chamber of Advocates of the Samara Region was held. It began with the oath taking by 24 applicants who successfully passed the qualification exam.

The Council received three applications for status suspension, seven for termination, and one for renewal. Six lawyers were included in the SJUP system. The lawyers notified the Council about the establishment of four and the liquidation of one law office. Five lawyers were credited with hours of professional development and professional development. Ten lawyers were thanked based on the applications of their clients.

Two lawyers filed applications for early removal of disciplinary sanctions. In the first case, the lawyer was given a warning and more than six months had passed since the imposition of the penalty. In this regard, the Council decided to remove it. The second lawyer was given a warning about the termination of his status four months ago. He was denied early removal of the penalty.

The PASO Council considered eight disciplinary proceedings. Two proceedings were initiated based on a complaint filed by a client against two lawyers who had jointly entered into an agreement to defend a criminal case. According to the complainant, the lawyers had arbitrarily withdrawn from the case, leaving her without a defense. The Qualification Commission established the fact that the lawyers who had accepted the assignment had indeed withdrawn from the case before the parties' arguments, since the client had stopped paying her fees and travel expenses. The lawyers, having notified the court of their withdrawal from the case and without informing the client of their decision, stopped appearing at the trial. The Qualification Commission established that the actions constituted a disciplinary offense. Both lawyers practice in the same law firm and had entered into agreements individually with an identical subject. In their explanations, the lawyers indicated that they stopped executing the assignment by oral agreement with the client, since long before that she stopped paying for their work and travel to a remote settlement where the case was being heard. No written agreement to terminate the agreement was presented, due to which the Qualification Commission reasonably came to the conclusion that there was no such agreement. The situation was mitigated by the fact that at the time of her colleagues' withdrawal from the case, the former client entered into an agreement with another lawyer, to whom all the documents on the case were transferred. Thus, the defendant was not left without protection. The PASO Council explained that a lawyer can terminate the execution of an assignment in a criminal case only if there is a written agreement to terminate a previously concluded agreement. Even if the former client refuses to sign, the lawyer must have evidence of sending such a document for signing. In addition, in such a case, the text of the agreement on the provision of legal assistance must provide for the possibility of its termination due to the impossibility of fulfilling the obligations to pay or the client's evasion of the payment provided for in the agreement for the lawyer's travel to the place of consideration of the case and the fee during a lengthy consideration. This directly follows not only from the requirements of the KPEA, but also from the Explanation of the Commission on Ethics and Standards of the FPA dated 12/15/2022.

During the meeting, the lawyers assured the Council that they would exclude such violations in the future and had already implemented the experience gained during disciplinary proceedings in their practical activities, revised the texts of agreements and algorithms for working with clients. Under such circumstances, some members of the Council considered it possible to terminate the proceedings due to insignificance. The number of votes in favor of such a decision slightly exceeded the number of members who voted for the reprimand. The disciplinary proceedings were terminated.

The second proceedings were initiated at the request of the investigator. At the end of the investigative action in the pre-trial detention center, the lawyer refused to sign the protocol. Instead, she filed a motion to remove the investigator and left the pretrial detention facility.

The President of the PASO and representatives of local government bodies have repeatedly explained to lawyers during training seminars, webinars and other events that the position of "getting up and leaving" is unacceptable for a lawyer, since it is not provided for by the Criminal Procedure Code and directly contradicts the Code of Criminal Procedure. Leaving the place of the investigative action before its completion means leaving the client without protection, which is directly prohibited by the Code. Similarly, the Criminal Procedure Code does not provide for the lawyer's right not to sign the protocol of the investigative action. The client can afford this. The lawyer's task is to find out the reasons why he does not want to sign the protocol and record them in the text of the document under his signature. Otherwise, the investigator's violations will remain without proper recording, and the protocol will appear in the case materials without the signatures of the defense. Having recorded the fact of the lawyer's refusal to sign, the prosecution gets the opportunity to make any changes to this protocol, and they will appear in the case as legitimate. The legal significance of the lawyer's signature in the protocol is that it testifies, firstly, to the presence of the lawyer during the investigative action, and secondly, to whether he agrees or disagrees with the fact that the content of the protocol reflects the investigative action that was carried out. Thus, if the content of the protocol does not correspond to the investigative action that was carried out, the only legal way for the lawyer to record this and counter this is to reflect the violations in the protocol and sign the document. If necessary, the defense attorney can write his position not on the protocol form, but on a separate sheet of paper and make a reference to it in the protocol. Such recording of violations gives the lawyer grounds for further appeal. If, instead, the lawyer refuses to sign and, moreover, leaves the client alone with the investigator and leaves, the violations of the investigative bodies will remain unrecorded, and the text of the protocol drawn up by the investigator will be attached to the case materials. The Qualification Commission, and then the members of the Council, tried to convey all this to the lawyer who committed such a violation. During the disciplinary proceedings, the lawyer repeatedly changed her position. At first, she pointed out that the application for recusal of the investigator gave her the right to get up and leave, then she said that she left the detention center due to her deteriorating health, and she claimed that it was her refusal to sign the protocol that helped her achieve the replacement of one investigator with another... At the Council meeting, she voiced all of these versions. At the same time, it was obvious from the lawyer's explanations that she did not understand or did not want to understand the illegality of her behavior, considered herself right, and if such a situation were to happen again, she would again find valid reasons to act in the same way and leave her client without protection. The PASO Council issued a warning to the lawyer about termination of her status.

Two disciplinary proceedings were terminated due to the absence of violations in the actions of the lawyers, as established by the Qualification Commission.

The Council issued warnings to three more lawyers. One - due to failure to appear without good reason at a pre-agreed hearing in the Samara Regional Court. Two other lawyers had accumulated arrears in monthly payments for the maintenance of PASO, which were only liquidated after the initiation of disciplinary proceedings.

The PASO Council received an appeal from a lawyer asking for an explanation of the position of the Bar Association in relation to the following problem: the utility provider charges for electricity consumed in the premises where his law office is located at rates for commercial consumers, and not for residential premises. Moreover, this does not concern the apartment in which the lawyer who established the office lives, but the premises used as an office. The PASO Council prepared a response to the lawyer's appeal.

The Council considered the appeal of the assistant to the President of the Togliatti representative office of PASO, which reported the rude and aggressive behavior of the lawyer, who was denied a new order book for work on demand. In 2020, the lawyer received two order books and has so far refused to account for them, demanding the issuance of new orders. The lawyer believes that he is not obliged to submit to such control. The PASO Council did not share this position of the lawyer, since the obligation to report on the orders used is directly enshrined in the Decision of the PASO Council of 01.03.2007 "Methodological recommendations on the procedure for producing, storing and issuing orders to lawyers", as well as the Rules for the provision of subsidized legal aid dated 27.11.2014. Violation of these rules entails the exclusion of the lawyer from participation in the SLP system.

The PASO Council prepared a notice to the lawyer who was summoned by the investigator for questioning regarding the circumstances included in the subject of the agreement he had concluded on the provision of legal assistance. The lawyer appealed this summons in accordance with Article 125 of the Criminal Procedure Code, but the court of first instance refused to satisfy the complaint. The preparation of an appeal against this ruling was entrusted to the Commission for the Protection of Professional Rights of Lawyers.

The Chamber of Lawyers of the Samara Region received an appeal from the deputy of the State Duma of the Federal Assembly of the Russian Federation of the VIII convocation, deputy head of the United Russia faction Morozov S.I. with a proposal to participate in the legislative work. The PASO Council decided to accept this proposal and prepare a package of legislative initiatives.

The Council approved sending an appeal to the Chairman of the Samara Regional Court with a request to take response measures against investigators who send materials to the court on extending the period of detention later than the 7 days established by Article 109 of the Criminal Procedure Code of the Russian Federation and the court's obligation to consider these materials no later than 5 days. Failure to comply with these deadlines disrupts the timely consideration of materials, since lawyers are deprived of the opportunity to familiarize themselves with the submitted materials in a timely manner, which entails the postponement of cases, which in turn disrupts the work of the courts.

PASO Press Center