Meeting of the Qualification Commission

On August 17, 2023, the regular meeting of the Qualification Commission of the Chamber of Advocates of the Samara Region was held.

The agenda of the meeting included twenty-five disciplinary proceedings for consideration, two of which were initiated based on reports from judges, nine - based on the submission of the Vice President (five for failure by lawyers to fulfill the obligation to improve their professional level, three - failure by lawyers to fulfill the obligation to pay membership fees), eleven - based on complaints from clients, as well as the issue of admitting applicants for status to take the qualification exam.

All but one of the proceedings were considered on the merits.

In three cases, the Commission came to the conclusion that it was necessary to terminate the disciplinary proceedings due to the absence of violations in the actions of the lawyers, three disciplinary proceedings were terminated due to the withdrawal of appeals, one was postponed for reasons recognized by the Commission as valid, in the remaining cases, violations were found in the actions of the lawyers.

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The members of the Commission noted that recently there has been an increase in the number of requests and complaints about improper registration of relationships with clients (lack of agreement), which is a violation of the requirements of the legislation on advocacy for a lawyer and indicates a failure to fulfill his professional duties.

The Commission also noted an increase in the number of violations of financial discipline by lawyers.

Thus, in two cases, lawyers who carry out professional activities in a lawyer's office accepted funds from clients into personal bank accounts, while lawyers who carry out legal activities in a lawyer's office are equated with citizens who carry out entrepreneurial activities without forming a legal entity in terms of the procedure for keeping records of business transactions.

When a lawyer carries out professional activities in a law office, an account must be opened in a credit institution on balance sheet account No. 40802 "Individual Entrepreneurs" of the Chart of Accounts for Accounting in Credit Institutions, approved by the Bank of Russia on November 24, 2022 No. 809-P, and not on balance sheet account No. 40817 "Individuals".

In three cases, lawyers who are members of the colleague carried out activities without concluding an agreement, accepted funds from clients to personal accounts (cards), which is unacceptable.

Funds for the provision of legal assistance and compensation for expenses associated with the implementation of advocacy activities cannot be received on the lawyer's personal account opened in banks and other credit institutions, but must be credited exclusively to the account of the advocacy entity.

In accordance with Part 2 of Art. 25 of the Federal Law "On Advocacy and the Bar in the Russian Federation", an agreement on the provision of legal assistance is a civil-law contract concluded in simple written form between the principal and the lawyer (lawyers) for the provision of legal assistance to the principal himself or to the person appointed by him.

The absence of an agreement indicates improper fulfillment by lawyers of the requirements of the law.

In all cases, the Commission found violations by lawyers of the norms of the legislation on advocacy and the bar.

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The Commission paid special attention to disciplinary proceedings (there were eight of them) initiated for failure by lawyers to comply with the requirements of the law on improving their professional level.

Following the review, the Commission came to the conclusion that it is necessary to focus the attention of lawyers on the provisions of paragraph 3 of paragraph 1 of Article 7 of the Federal Law "On Advocacy and the Bar 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 Lawyers on 18.04.2019, “the main objective of training and professional development of lawyers in accordance with the Standard is to ensure continuous and ongoing improvement of knowledge.

Lawyers with less than three years of experience must annually improve their professional level by at least 40 academic hours, with more than three years of experience - 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 to 60 academic hours (clause 13).”

The Commission reminds that a lawyer who fails to fulfill the obligation to constantly improve his/her 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 the professional level may be subject to disciplinary liability in accordance with the Code of Professional Ethics of a Lawyer (paragraph 31).

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The Vice President of PASO has submitted three representations regarding lawyers who have arrears in monthly payments for the maintenance of the Chamber of Advocates of the Samara Region, 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 in all three cases the presence of disciplinary offences, the Commission draws the attention of colleagues to the fact 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 subject 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, 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 is the basis for the adoption by the Council of the Chamber, based on the conclusion of the Qualification Commission, of a decision to terminate the status of a lawyer.

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The members of the Commission paid special attention to the disciplinary proceedings on the complaint of citizen Yu. against lawyer P., from which it follows that he was a defendant in a criminal case received by the Leninsky District Court of Samara for consideration on the merits. On September 27, 2022, in accordance with Art. 50, 51 of the Criminal Procedure Code of the Russian Federation, he was assigned a defense attorney P., while the requirement of Art. 217 of the Criminal Procedure Code of the Russian Federation was met in the criminal case. On October 6, 2022, he filed a petition with the investigator for joint familiarization with the defense attorney with the materials of the criminal case, which was satisfied by the investigator, the lawyer was notified of this. However, the lawyer did not familiarize herself with the case together with the client, in connection with which, on October 9, 2022, she again filed a petition for joint familiarization with the defense attorney P. with the materials of the case. This petition was granted by the investigator, lawyer P. was duly notified again, however, they never reviewed it together.

The applicant wrote two appeals to lawyer P., to which he never received responses. According to the protocol of reviewing the criminal case materials, the lawyer "allegedly reviewed 180 volumes of the criminal case from September 27, 2022 to November 28, 2022, without actually doing so." However, when the Zheleznodorozhny District Court of Samara considered the petition to set a deadline for reviewing the criminal case materials against the applicant, this fact became decisive. The Qualification Commission came to the conclusion that the applicant's rights to both defense and, in general, to receive qualified legal assistance were grossly violated. These circumstances were confirmed in the private ruling issued by the Zheleznodorozhny District Court of Samara against the investigator, according to which, when fulfilling the requirements of Art. 217 of the Code of Criminal Procedure of the Russian Federation, the applicant was deprived of qualified legal assistance, which significantly violates the right to defense.

On 26.12.2022, the applicant, together with defense attorney P., signed a protocol of familiarization with the materials of the criminal case, in which the applicant reflected all of the above. Attorney P., as follows from the specified protocol, did not support this position, on the contrary, contrary to what her client stated, she indicated that she was familiar with the case materials in full.

On the merits of the complaint filed, attorney P. presented explanations that do not refute the applicant's arguments. Moreover, from the submitted response of attorney P. to the applicant's appeal, it follows that as of 28.11.2022, the attorney had studied more than 50, but not more than 70 percent of the materials of the criminal case.

The Commission found in the actions of the attorney violations of the norms of the legislation on advocacy and the bar, the Standard for the implementation of defense by an attorney in criminal proceedings, adopted by the VIII All-Russian Congress of Advocates, both in form and content.

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The Commission unanimously voted to allow twenty-six 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 31.08.2023.

PASO Press Center