Anna Kozmenko
The quality and quantity of professional lawyers is not sufficient in the Russian Federation nowadays. High qualified professionals are in sharp deficit.
Valery Zorkin,
Chairman of the Constitutional Court of the Russian Federation
Introduction
Lawyers play an important role in upholding the rule of law, including defending the rights of individuals and companies and, more broadly, ensuring their access to justice. In Russia, however, the number of qualified lawyers is insufficient to provide quality legal services to all who need them. And the high cost of the services that are available, coupled with a dearth of free legal aid programs, negatively affects the public’s perception of Russia’s lawyers.
These problems can be traced to the insufficient regulation of the legal profession. During the 1990s, little attention was given to the legal profession, and numerous economic and political changes affected regulation of advocates’ organizations and the legal profession. At the same time, Russian lawyers assumed new roles as they responded to new demands for their services created by the changing economic and political order.
Most notable of these new demands was a sharp increase in the need for lawyers to represent businesses. In response to this need, the advocatura,[1] the organized bar that carried over from the Soviet era, was challenged by a new group of lawyers. These lawyers, who were not part of the advocatura and thus not governed by its traditions and principles, were completely unregulated. And their practices expanded rapidly, mirroring the growth of other businesses in Russia’s emerging market economy. This left Russia’s lawyers where they are today, divided into two groups -members of advocatura and the non-advocates, sometimes called the “alternative collegia.”[2] “[T]he relationship between these groups of lawyers is often confrontational.”[3] Yet, whatever the level of disagreement between these two groups, the greater concerns of Russia’s citizens are the quality and accessibility of legal services throughout Russia. This article examines the differences between these two groups of lawyers and the consequences of Russia’s inadequately regulated legal profession. It also comments on proposals for change, including a much-discussed draft law on the regulation of legal profession in Russia.
The Regulation of the Legal Profession in the Early 2000s: Two Groups of Lawyers.
The first major step in regulating Russia’s legal profession was the 2002 adoption of the law “On Advocates’ Practice and the Advocatura in the Russian Federation.” This law is significant because, among other things, it defined the advocate’s status, rights, and responsibilities and created a new structure for the advocatura. Its adoption was followed by the first All-Russian Convention of Advocates in January 2003, where the advocatura’s new structure was confirmed and its new leadership was elected. But, as significant as these developments are, not many changes have followed.
In many respects, the authority of advocates (members of the advocatura) and other lawyers (who do not have membership in an organized body governed by professional rules) is overlapping. For example, both advocates and non-advocates can give legal advice and represent clients in a variety of matters, including civil and arbitrazh[4] matters. However, only advocates are allowed to represent clients in criminal matters.[5]
Lawyers who are not interested in practicing criminal law are free to practice as non-advocates; the law does not require them to pass any special examination or to join a bar. In fact, any person can provide legal assistance to a consenting client in any matter except criminal matters and proceedings before the Constitutional Court of the Russian Federation. In those instances, the representative has to either be an advocate or have an advanced law degree (master’s degree, candidate of sciences or doctor of sciences).[6]
Advocates in the Russian Federation
Statistical information about advocates is maintained by regional Advocates’ Chambers. Officially, 61,422 advocates practice in Russia.[7] The number of male and female advocates is almost equal, 54.9% and 45.1%, respectively. The majority of advocates, 76.5%, are between 30 and 60 years old, 15.4% are under 30, and 8.1% are older than 60.[8] Advocates are not evenly distributed throughout Russia’s different regions. The biggest concentration of advocates is in Moscow, where there are about 7,500 advocates.[9]
The number of non-advocates anywhere is impossible to determine accurately; because they are not regulated, no official statistics are available on their numbers or their whereabouts. Nonetheless, the number of non-advocates substantially exceeds the number of lawyers who are practicing as members of advocates’ chambers. According to unofficial data, more than 300,000 non-regulated lawyers practice in Russia in law firms, NGOs, and businesses. As Russian Federation President Medvedev has noted, “the number of lawyers is way out of bounds.”[10]
The advocatura’s organizational structure is regulated by the 2002 law. Under this law, each Russian region has a single advocates’ body called an Advocates’ Chamber.[11] Currently, there are 83 Advocates’ Chambers, one in each of the Russian Federation’s administrative regions.
An advocate must be a member of a Chamber. But an advocate in any Chamber can practice throughout Russia. Advocates’ Chambers are created “for the purposes of ensuring the provision of qualified legal assistance, access to it for citizens throughout the territory of a particular region of the Russian Federation, organization of legal aid, representation and protection of advocates’ interests before governmental institutions, local self-government, public associations and other organizations, control over professional competence of those admitted to practice as advocates, and compliance with the advocates’ code of professional conduct.”[12]
Advocates’ Chambers are governed by general meetings of their respective members and by Councils whose members are elected at general meetings. Councils cannot have more than 15 Chamber members, and one-third of their membership rotates every two years. Each Council elects a President from its members for a four-year term. Council functions include providing legal services, defining fees for legal services, interacting with courts and the procuracy, organizing continuing legal education, and making final decisions on disciplinary complaints.
Each Chamber also includes a 13-member Qualification Board. The Qualification Board is entitled to decide on the admission of new advocates to the Chamber in accordance with the advocate’s examination, to conduct disciplinary proceedings, and to prepare draft decisions on disciplinary complaints, which must be approved by the Council. The Chamber’s President presides over the Board. Seven Board members are Chamber members with at least five years of experience as advocates; two members are representatives of the local Ministry of Justice office; two members are representatives of the local legislature body; one member is a judge from the local appellate court of general jurisdiction; and one member is from the local arbitrazh appeals court.[13]
All of the regional Chambers are members of an association called the Federal Advocates’ Chamber, which has its headquarters in Moscow. The Federal Chamber is authorized to represent advocates and the regional chambers in their relationships with federal governmental agencies on matters that affect the interests of the advocates’ community. Federal Advocates’ Chamber decisions are binding on regional Advocates’ Chambers, but, in practice, the decisions almost always are cast as recommendations.
The 2002 law on advocatura specifies four organizational forms in which advocates are eligible to practice: individually or in a collegium, bureau, or juridical consultation. A collegium is simply an association of individual lawyers who manage the resources together but bear individual responsibility for their respective cases. A bureau is a kind of partnership that provides legal services on behalf of all of its partners who bear joint responsibility for the partnership’s actions. Juridical consultations are created by regional advocates’ chambers based on a decision taken by local authorities in “court districts where the number of advocates is lower than two per one judge.”[14] These consultations are funded from the budgets of the administrative constituents of the Russian Federation.
However they practice, advocates are not considered entrepreneurs, because Russian law denies entrepreneurial status to law practice. This means that advocates cannot establish commercial entities regulated by the Civil Code. Instead, an advocate’s practice is governed by the 2002 law, although some regulatory provisions are also found in the criminal, civil and arbitrazh procedure codes and in the Code of Ethics. Also, advocates are not allowed to enter into any other employment relationship, except for employment involving “academic, teaching, and other creative activities.”[15]
To become an advocate one has to pass a special examination. Eligibility to take the examination requires a first degree in law from an officially recognized Russian higher education institution and either two years of employment in law or the completion of a traineeship with an advocate for one to two years after graduating from law studies.
The exam has two parts – a written part and an interview. A candidate who fails can try again a year later. Candidates who pass the exam receive a special identification document, which is necessary to represent a client in a criminal case. The new advocate also is automatically included in a local register and can practice throughout Russia.
General norms of professional conduct and the basic rules for disciplinary proceedings for advocates are covered by the Code of Ethics. The general norms include independence, diligence, confidentiality, fairness, and avoidance of conflicts of interest.
Advocates who violate a legal provision related to their status are subject to disciplinary proceedings and subsequent sanctions. Disciplinary proceedings against an advocate can be initiated before the Advocates’ Chamber by another advocate, a client or a client’s representative, a person who requested and was denied civil legal services, the President or Vice-President of the Advocates’ Chamber, the governmental agency supervising the Advocates’ Chambers (the Ministry of Justice), or a court or judge.[16]
Reform of the Regulation of the Legal Profession in Russia
Although the activities of advocates are extensively regulated, the activities of non-advocates are not regulated. Thus, while advocates are licensed and must adhere to rules governing their professional activities, non-advocates are not bound by any professional rules. This regulatory imbalance, together with concern over the advocatura’s status, has led to a proposed draft law on the legal profession in Russia that, if enacted, would remedy this imbalance.
As troublesome as having a group of unregulated lawyers is, calls for reform reach beyond regulating the practices of non-advocates. To some extent, the advocatura itself is in crisis because it is subject to external pressures and to the influence of the procuracy. The advocatura also is criticized for its lack of cooperation with bar associations outside of Russia. For example, only recently has the Moscow Advocates' Chamber joined the International Bar Association, and the Federal Advocates' Chamber has just started to cooperate with foreign lawyers.
The unregulated activities of the non-advocates were the focus of the first recent attempt at reform, which was made in September 2008, when the Joint Commission on Issues of Qualified Legal Assistance, headed by the First Vice-Speaker of the Council of the Federation (the Russian parliament’s upper house), made public its draft law “On the Provision of Qualified Legal Assistance.”[17] The draft law’s primary thrust is that all legal services should be provided exclusively by advocates, notaries, patent agents, and those holding an advanced academic degree in law. The only exceptions are made for state legal bureaus and in-house counsel, who can provide legal assistance only to their employers. The draft defines qualified legal assistance as any independent activity involving the provision of legal services on a permanent basis.
The draft law’s main provisions are the following:
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Under the draft law, only advocates, notaries, and patent attorneys who meet all necessary qualification requirements would be permitted to provide legal assistance on a paid and permanent basis. However, federal law can provide for certain exceptions that would allow legal assistance to be provided by other entities such as banks or auditors.
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Only legal assistance that is provided on a professional and permanent basis would be regulated.
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Free legal assistance is omitted from the draft law as this is a very complex issue that should be addressed in a special act.
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In general, foreign lawyers would be allowed to render legal services in Russia only regarding foreign laws. To practice Russian law, foreign lawyers would have to pass the Russian bar exam.
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Lawyers who have practiced law for at least two years either as individual entrepreneurs or heads of law firms can become advocates without taking an examination if they apply within six months of the law’s effective date.
The draft law reflects the advocatura’s view that professional legal aid should be provided only by qualified lawyers who have graduated from recognized law schools and have passed the state advocates' examination. This view holds that permitting anyone who has a consenting client to provide legal assistance to that client is unreasonable and even contradicts the Constitution of the Russian Federation, which guarantees a right to professional legal services.[18]
Moreover, advocates object to existing law’s disparate treatment of advocates and non-advocates. An advocate must pass a difficult exam and meet high professional standards. But the professional activity of non-advocates is not regulated at all. This, advocates claim, is unfair.
The draft law’s supporters also want to change the current regime that permits any person, even a person without any legal education or with a criminal record, to provide legal services except in criminal cases.[19] In other words, supporters of the draft law want to bring the Russian legal profession in line with the norm that lawyers should be properly educated, be qualified by character, and be subject to prescribed standards of conduct.
The limitations on the practice of foreign lawyers in the draft law would be a sharp departure from current law, which does not include any restrictions against foreign lawyers practicing in Russia. Indeed, foreign attorneys currently practicing in Russia are not even required to know the Russian language or Russian law. This puts Russian lawyers at two disadvantages. First, since Russian lawyers practicing abroad usually must satisfy local requirements in order to practice, they face requirements that foreign lawyers in Russia do not face.
Second, Russian lawyers and law firms currently compete with well-resourced international law firms that have offices in Russia staffed in part by foreign lawyers. Because of concerns over foreign law firms becoming dominant in at least some sectors of the legal market, the draft law provides that foreign lawyers who have not been admitted to the Russian Advocates’ Chamber may only provide legal assistance on issues related to their respective countries’ domestic law and in other limited cases provided for by federal law and international treaties.
The net effect of the proposed draft law would be to create an organized and regulated bar. Generally, and as to most legal matters, only bar members could practice law. In order to help non-regulated lawyers make the transition to the new system of regulation, the draft law provides that for six months after the law enters into force, those who have been providing legal services for at least two years either as individual entrepreneurs or heads of law firms may apply to Advocates’ Chambers for an advocate’s status without taking the required examination.
Reaction to the Draft Law
The draft has received mixed reactions. For instance, most of the advocates’ community strongly supports because it treats advocates as the true representatives of the legal profession. But non-advocates are not pleased with the prospect of being regulated.
Opponents also argue that the proposed draft law aims to limit competition and give advocates a monopoly. As one critic puts it: “[t]he problem of poor legal education escalates, becoming a problem of the state and society. However, it does not mean that we need an advocates' monopoly in the sphere of legal services.”[20] But supporters of the law argue that the law will create useful competition in the sense of requiring lawyers to vie for the status of advocate by satisfying standards of professional competence.
Still, the draft law, if enacted, could have substantial economic and other consequences. According to data published by the Russian firm Pepeliaev, Goltsblat and Partners[21] in 2008, the average hourly rate of an advocate was about $200. Others say, however, that hourly rates can vary from $100 to $1200. And the services provided by lawyers working at law firms are 30-40% less expensive than the services provided by advocates possessing the same level of qualification.[22]
Some lawyers believe that the law can lead to a collapse of the legal services market, which is represented by thousands of lawyers who do not have advocate status. Bringing the profession into conformity with the law will take years. In the meantime, law practices and individual careers built in reliance on the continuation of the current law will be forced to adjust. And this adjustment is likely to be disruptive, perhaps even chaotic.[23]
Arrangements to skirt the law might develop.[24] For instance, currently unregulated law firms might continue their activities but hire one advocate who will formally render legal services to every client, while all the work will be done by others in the firm.
Representatives of large law firms that provide legal services to businesses have said that it is a strategically wrong decision to weld together lawyers from absolutely different groups under the auspices of the advocatura, which began and developed in the context of rendering services to individuals and small businesses, and that the structure of the advocatura cannot meet the requirements needed for working with big businesses. It has also been suggested that the tax regime applicable to the advocatura will not work for big firms, who pay large sums in VAT for their high operating costs, but will not be allowed to collect VAT for services to clients if the law firms will be subject to the current tax regime for advocates.
Some advocates do not support the draft law because they do not know how the law might influence their practices. Others point out that the draft law is not complete because it does not address free legal aid. Objections also include the argument that it is not appropriate to open the doors to the advocatura to those who, for some reason, had not become advocates earlier. Finally, some advocates claim that the draft law will negatively influence the already established structure of advocates' chambers.[25]
Notwithstanding these objections, most Russian lawyers believe that the legal profession in Russia needs to be regulated. The platform for this reform might be not the proposed draft law, as many experts state that the advocatura is not ready to act as a base for creating the general Russian Bar.
On the other hand, Minister of Justice Alexander Konovalov notes that corporate lawyers need to be integrated into the advocatura as it will strengthen their status and raise the quality of the advocatura. However, he noted that this issue should be decided only after scrupulous review and discussion with the legal community.[26]
President Medvedev has said that there are too many unprofessional and poorly prepared law school graduates whose professional activity might be even dangerous and harmful.[27] And Minister Konovalov has stated that “it is frightening not even to let some advocates to go before courts, but just to send them to bring some vodka.”[28] Hopefully, these statements will not continue to be the sad truth in the future, and legal services in Russia will become more organized and reliable.
Conclusion
Reforming the legal profession in Russia continues to be discussed and debated. Opinions about reform abound, and it is unlikely that a consensus solution will be found soon.
Much work needs to be done to regulate the legal profession in Russia. Beyond dispute, the existence of two big groups of lawyers with different status remains the major difficulty and promotes confusion. The ongoing reform should decide the issues of whether the advocates’ monopoly on legal advice and representation should be established, whether this monopoly will really raise quality of legal services all over the country, or whether there should be some other solution.
Taking into account international practice as well as the diminishing quality of legal services in Russia outside of the large law firms and the respected advocates’ organizations, I believe that it is necessary to create a Bar system in Russia and admit to practice only those lawyers who have passed special exams and have met all the necessary requirements. Those admitted to the Bar should be subject to professional responsibility rules and face consequences for violating them.
Whether the Bar should be created on the advocatura’s platform or whether it should be something completely new is a very complex question and still cannot be resolved by the most lucid minds in Russia’s legal community. Although there will not be a perfect solution that will suit the interests of everyone, and any solution will take decades to implement, the sooner this work begins, the better.
[1] Advocatura usually refers to the organized community of advocates whose aim is to provide individuals and companies with legal assistance in all areas of law in defending their rights and legal interests. [2] See D. Shabelnikov. “The Legal Profession in the Russian Federation,” Materials for the workshop “Reform of the Legal Profession and Access to Justice”, sponsored by OSCE/ODIHR, November 2008, p. 2. [3] Final Report from the Expert Workshop on Reform of the Legal Profession and Access to Justice organized by Organization for Security and Cooperation in Europe (Krakow, Poland, Nov. 13-14, 2008), at 2. [4] Arbitrazh courts have jurisdiction over commercial disputes between legal entities. [5] See Art. 49(2) of the Code on Criminal Procedure of the Russian Federation December 18, 2001. [6] Federal Constitutional Law No. 1-FKZ “On the Constitutional Court of the Russian Federation,” July 7, 1994, Art. 53. See F. Kupriyanov “Analysis of contemporary laws on Advocatura: Advocate’s trainee. Whether a trainee can represent parties in a court?,” available at http://www.kupriyanov.org/rus/sales_department/page104.html (last visited July 21, 2010) [9] For further information see Shabelnikov, supra note 2. [11] The Advocates’ Chamber is sometimes called the Bar Chamber. The “Bar” in Russia is not the same as state bars in the U.S., because in Russia non-members of the Advocates’ Chamber also can practice law. Instead, it can be understood as including those lawyers who can represent clients in criminal and other matters. [12] See Shabelnikov, supra note 2, at 5. [13] The arbitrazh courts in Russia deal with commercial disputes between legal entities. [14] Federal Constitutional Law No. 1-FKZ, “On the Constitutional Court of the Russian Federation,” July 21, 1994, Art. 24. [15] Federal Law “On Advocates’ Practice and the Advocatura in the Russian Federation,” May 31, 2002, Art. 2(1). [16] Code of Professional Advocate’s Ethics, January 31, 2003, Art. 20.1.1. [18] See P. Barenboim, H. Reznik, V. Mozolin,”Legal Reform in the XXI Century and Advocatura,” Moscow, 2007. [19] The only exception can be found in the Civil and Arbitrazh Procedure Codes saying that one cannot be represented in a court by a disabled (mentally incompetent) person. [21] The firm’s current name is “Pepeliaev Group” [22] Krashenninikov, supra note 21. [23] V. Crec, “Whether there is a Chaos?,” Legal Business Magazine No. 10, November 2008, at 28-29. [25] See A. Galoganov, “In Capture of Short-Signed Ambitions,” Russian Advocate, No. 1, 2009, at 26-27.
