Meeting of the Qualification Commission

On August 15, 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 16 disciplinary proceedings for consideration, three of which were initiated based on court reports, 5 - on the submission of the Vice President of the PASO (for failure by lawyers to fulfill the obligation to improve their professional level), three - based on complaints from clients, as well as the issue of admitting applicants for status to take the qualification exam.

All proceedings were considered on the merits, in two cases the Commission came to the conclusion that it was necessary to terminate disciplinary proceedings due to the absence of violations in the actions of lawyers, in other cases, violations were found in the actions of lawyers.

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From the appeal of the judge of the Radishchevsky District Court of the Ulyanovsk Region in relation to lawyer P., it follows that the lawyer is defending the interests of A. in criminal proceedings by agreement.

On March 18, 2024, at the court hearing, defendant A. confirmed to the court the fact of the agreement concluded with lawyer P., and refused the assistance of a lawyer-assigned attorney. A recess was announced in the court hearing on March 18, 2024 until 10:00 on March 19, 2024.

Lawyer P., duly notified of the date, time, and place of the hearing, did not appear at the court hearing on March 19, 2024 at 10:00, having only sent a petition to the court by e-mail on March 19, 2024 to postpone the court hearing due to his employment in another trial in the Kirovsky District Court of Samara, which contradicts the requirements of paragraph 1 of Article 14, subparagraph 5 of paragraph 1 of Article 9, paragraph 3 of Article 10 of the Code of Professional Ethics of a Lawyer.

The lawyer submitted explanations to the Commission in which he disagreed with the court's arguments, stating that the court had been informed of the schedule of court hearings on the criminal case pending before the Kirovsky District Court of Samara during the preliminary hearing, which took place via the VKS.

The Commission found that the lawyer's actions constituted a disciplinary offense.

When reviewing this disciplinary proceeding, the PASO Council decided to send it to the Qualification Commission for a new review to establish the material circumstances.

During the new review, the Commission found that the actions of lawyer P. constituted a disciplinary offense, expressed in his failure to appear at a court hearing, the date and time of which had been deliberately agreed upon by all participants in the process without the lawyer's prior notification of the court. Having concluded that the lawyer violated Art. 14 KPEA, indicated the inadmissibility of such actions on the part of lawyers, since they undermine respect for the activities of a lawyer and the legal profession as a whole, discredit the lawyer as a participant in the proceedings, and cause significant harm to the authority of the legal profession as an institution of civil society.

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From the appeal of the judge of the Samara Regional Court it followed that the court is handling a criminal case against several defendants with the participation of a jury. The defendant K. is defended by lawyer M. by agreement. At 10:30 am on 22.04.2024, the lawyer did not appear at the court hearing. When indicating the reason for her failure to appear, lawyer M. indicated both being on sick leave and participating in a court hearing in the Supreme Court of the Russian Federation. Thus, in the petition dated 18.04.2024, lawyer M. indicated that she would not be able to appear at the court hearings scheduled for 22.04.2024 and 23.04.2024, since she would be participating in a court hearing in the cassation instance of the Supreme Court of the Russian Federation on criminal case No. ... At the same time, on 19.04.2024, she sent a message via e-mail to the Samara Regional Court, according to which she asked to postpone the court hearing due to being on sick leave until 22.04.2024 inclusive. However, lawyer M. did not provide any supporting medical documents to substantiate her petition. In addition, according to information from the website of the Supreme Court of the Russian Federation, the consideration of criminal case No. ... is scheduled for 23.04.2024 at 10:00, i.e. transport infrastructure and logistics allowed lawyer M. to take part in the court hearing in the Samara Regional Court on 22.04.2024 at 10.30. Later, at the court hearing on 14.05.2024, lawyer M. filed a motion to postpone and provided a copy of the sick leave certificate, according to which she had a sick leave certificate for the period from 13.05.2024 to 17.05.2024. Lawyer M. did not appear at the court hearing scheduled for 23.05.2024; it follows from the motions submitted that she was on sick leave on 23.05.2024, 24.05.2024 and 27.05.2024, which, according to her, she notified the court about.

On 05/27/2024, M.'s lawyer also sent a letter stating that she is on sick leave until 05/31/2024 inclusive. The lawyer did not provide any supporting documents.

At the same time, the court draws attention to the fact that the petition filed by lawyer M. was submitted in the form of a simple e-mail, not signed in accordance with the established procedure by means of an enhanced qualified electronic signature of the person filing such an appeal.

The judge points out that the process, which is highly complex to organize, since it is held with the participation of jurors, has been disrupted, and the lawyer has shown disrespect for the participants in the criminal proceedings.

The circumstances stated in the appeal 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 hearing of the Samara Regional Court on 22.04.2024 was her being on sick leave from 18.04.2024 to 22.04.2024 inclusive, about which she notified the court in advance by e-mail. It was not possible to send the certificate of incapacity to the court due to a failure on the State Services portal, and later - due to a busy schedule of court hearings. On 14.05.2024, she filed a motion for postponement and provided a copy of the sick leave, according to which the sick leave was opened for the period from 13.05.2024 to 17.05.2024. Due to the busy schedule of court hearings - 4 days a week from 10.30 to 18.00 - the lawyer was unable to see the doctor to extend the sick leave. Later, the certificate of incapacity was opened on 24.05.2024. It was also not possible to send the certificate of incapacity to the court due to a failure on the State Services portal. Moreover, the lawyer attached only one certificate of incapacity to his explanations - for the period from 13.05.2024 to 17.05.2024. The lawyer did not provide any other evidence of validity of his failure to appear at the court hearings.

The Commission found violations of the legislation on advocacy and the Bar in the actions of the lawyer, stating that when carrying out professional activities, a lawyer 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 manner 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, as well as if the lawyer intends to request another time for holding them, the lawyer must, if possible, notify the court or investigator of this in advance, as well as notify other lawyers participating in the process of this, and agree with them on the time for performing 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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It follows from the Private Ruling of the Judge of the Zheleznodorozhny District Court of Ulyanovsk that lawyer S., who is defending K.'s interests in criminal proceedings, duly notified of the date, time and place of the hearing, failed to appear at the court hearings on 05/07/2024, 05/31/2024, 06/17/2024, 06/20/2024, and the court did not notify in advance of the impossibility of arriving at the appointed time to participate in the court hearing for good reasons. The failure of lawyer S., who is defending the accused K. by agreement, to appear at the court hearings resulted in repeated postponements of the consideration of this criminal case, which resulted in an unjustified delay in the consideration of the case.

The Private Ruling on these circumstances was not appealed to the lawyer.

The lawyer submitted explanations to the Commission, in which he indicated his disagreement with the arguments set out in the court's appeal, since he was not properly notified of the court hearing on 07.05.2024, and did not appear at the remaining court hearings for valid reasons ("the client's inability to finance the lawyer's travel to court hearings during her illness and treatment, given the obvious impossibility of conducting a judicial investigation in her absence").

The Commission found violations of the legislation on advocacy and the Bar in the lawyer's actions, drawing attention to the fact that the lawyer was absent from court hearings without good reason, and did not notify the court in advance and in due form.

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It follows from M.'s complaint against lawyer U. that the lawyer, who accepted the assignment to protect M.'s interests in criminal proceedings by appointment, received documents from the defendant's parents confirming his permanent place of residence for the purpose of filing a motion to change the preventive measure. However, the lawyer did not appear at the court hearing on the issue of extending the period of detention, and did not submit documents to the court, which resulted in the refusal to satisfy M.'s motion to change the preventive measure from detention to house arrest.

On the merits of the complaint filed, lawyer U. presented explanations that do not refute the applicant's arguments. The lawyer did not submit a lawyer's dossier.

The Commission found violations of the legislation on advocacy and the Bar Association and the Standard for the Defense by an Advocate in Criminal Proceedings in the lawyer's actions

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Following the consideration of disciplinary proceedings against five lawyers initiated for failure to fulfill the obligation to improve their professional level, the Commission came to the conclusion that it was necessary to draw the attention of colleagues to the provisions of paragraph 3 of paragraph 1 of Article 7 of the Federal Law "On Advocacy and the Bar Association in the Russian Federation", according to which a lawyer is obliged to constantly improve his knowledge independently and improve his professional level in the manner established by the Federal Chamber of Advocates of the Russian Federation and the bar chambers of the constituent entities of the Russian Federation.

In accordance with the Standard of professional training and professional development of lawyers and interns, approved by the IX All-Russian Congress of Advocates on 18.04.2019, "the main objective of training and professional development of lawyers in accordance with the Standard is to ensure constant and continuous improvement of knowledge as a requirement of the mandatory standard of the advocacy profession. Lawyers with less than 3 years of experience must annually improve their professional level by at least 40 academic hours. Lawyers with more than 3 years of experience must annually improve their professional level by at least 30 academic hours. Bar associations of constituent entities of the Russian Federation may decide to increase the minimum required number of hours for lawyers to improve their professional level per year, but not more than 60 academic hours (clause 13).

A lawyer who fails to fulfill the obligation to constantly improve their professional level in the manner prescribed by the Standard and in accordance with the decision of the council of the bar association of the relevant constituent entity of the Russian Federation on issues of improving their professional level may be subject to disciplinary liability in accordance with the Code of Professional Ethics of Lawyers (clause 31).

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The Commission unanimously voted to admit twenty-four applicants for the status to take the qualification exam.

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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 08/29/2024.

PASO Press Center