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Vadim Klyuvgant: "Introduction of responsibility for illegal interference in the advocate's activity is an urgent task. It's high time it was done". GARANT.RU, 28 May 2018

The Conception of the professional legal assistance market regulation worked out by the Russian Ministry of Justice which provides, in particular, granting the right to exercise legal services including representation in the court of law, to advocates exclusively, is in principle supported by the advocates' community. Vice-President of the Moscow Chamber of Advocates, deputy  chairperson of the Commission of the Council of the FCA RF for protection of the rights of advocates, partner, co-head of the criminal-legal practice of attorneys at law Pen & Paper Vadim Klyuvgant  gives a proper appreciation of the key positions of the Conception and of some other initiatives for adjustment of the normative regulation of the advocate's activity, which are currently under consideration, at the request of the international portal GARANT.RU just before the Day of the Russian Legal Profession (31 May).  

- Vadim Vladimirovitch, do you support the proposal of the Russian Ministry of Justice to fix legislative regulations which allow advocates to conclude work contracts with advocacy establishments?

- As a matter of fact, professional hire of advocates also exists nowadays, and actually, these relations have little difference with the work ones. This is well known to everyone connected with the management of modern advocacy establishments and disciplinary practice. But, since the law prohibits an advocate to conclude officially a work contract as an employee, various "by-pass maneuvers" are used. For instance, an advocate concludes an agreement with another advocate on legal assistance in the defense of their common principal. Then the first one actually becomes an employer to the second advocate-"sub-contractor". Or there is another variant: an advocate receives as a fee a stated monthly income from an advocacy establishment, regardless of the factual revenues from principals. How to deal with such practice? There are two possible options: either continue to pretend that it doesn't exist and push the situation into the shade and punish for deviations from the ban prompted by life itself, or go forward and face the realities just as making a path across a loan in the place were it has been already trodden. I tend to choose the second approach, but on condition that the advocate's independence during exercising their professional activities is guaranteed and relations between an advocate and a principal continue to be based on mutual trust. Practice of the countries with the advanced law and order shows that it is quite possible to combine and provide these things. 

- What are pros and cons of the work under contract for advocates?

- To my mind, it is more correct not to speak about pros and cons, but about better flexibility and opportunity to take into consideration individual peculiarities when there are several variants of organizing work. Some advocates don't have any problems with attracting principals, but for several reasons (a lot of work, lack of required qualification and so on) they face difficulties in the proper provision of all principals who turn to them with their own professional legal assistance. The others, on the contrary, don't attract principals well enough, but they are able to satisfy their  clients' requirements for legal assistance in a highly professional way and do it for the stated fee from an employer. There are also advocates who have no problems with both, everything is well balanced, and they don't need to be neither employees, nor employers in their advocate's activity. In that case nothing should be changed. But advocates of the first two types should be given an opportunity to meet each other and unite their efforts with no harm to fundamental requirements to the quality of work and profession itself. 

Work relations suppose a steady income of an employee which is not at all guaranteed to a self-employed specialist who works exclusively at their own risk, and also a duty to observe work regulations and other requirements of an employer. I would like to emphasize once again: only legal requirements which do not encroach on the advocate's professional independence. Let everyone decide for themselves what suits them better. 

- Do you consider it necessary to establish advocacy institutions in the form of commercial organizations?

- I think, we should distinguish between terminological and intrinsic aspects of this problem. The latter one is obviously much more important than the game of words. I'm convinced that making profit as a goal is incompatible with the very essence of the advocate's activity, the mission of which is to provide everyone with qualified legal assistance and thus guarantee realization of the public-legal function. Besides, the advocate-principal relationship doesn't tolerate prevailing of the profit-making spirit in it, because it ruins that very trust the absence of which makes efficacious advocate's assistance and existence of advocacy itself impossible. At the same time, income from an advocate's activity is the only source of existence for the overwhelming majority of advocates and of revenues of the advocacy establishments which receive money from the advocate's fees. Cases where an advocate not only runs their principal's affairs, but also "sews a little" as that tsar from an anecdote, are so rare that can be ignored. Besides, an advocate's work is hard, hence, it should be well paid. I suppose, one shouldn't indulge hypocrisy and unreasonably prevent advocates from getting additional earnings, if only it doesn't breach guarantees of an advocate's independence. The fact that a lot of advocates invested substantial money in their advocacy establishments and their development also can't be ignored. These investments should be protected, as well as any other ones. Besides, there should be reasonable protection from the mercenary spirit, loss of the advocate's professionalism, breaching and by-passing fundamental ethical requirements. 

- What organizational-legal form is preferable? 

- First of all, differentiation between "traditional advocacy" and a "business" one and between areas of their activity which was obvious in the past, is not topical nowadays. Everything is closely interconnected. And business structures as principals have their own requirements to and preferences for their organizational forms where their legal advisers act, and that must be taken into consideration. Therefore, together with preserving traditional organizational forms of advocacy establishments it is necessary to create and use such forms which will enable the required balance of interests and preservation of the main professional values. It should be done with the study and clever use of the experience of the countries where advocates have already found answers to these questions. It could also be new organizational-legal forms which provide special, very diverse conditions, as in Germany and Great Britain, deliberately introduced in advocacy establishments. Though, I suppose that only advocates should be the founders and participants of all advocacy establishments - it is an important guarantee for preservation of professional values. 

- Is it necessary to determine separate categories of citizens and organizations (e. g. human-rights ones) that won't be subject to the general requirements concerning representatives in case of complete transition to the professional judicial representation provided by the draft law 1 SC RF on the reform of the Processual Legislation?

- Human-rights activity is necessary, therefore it should be carried out smoothly , in the form of judicial representation as well. The optimum decision on this issue is yet to be found. Besides, everyone has the right to defend their rights and interests on their own, no matter whether they are a natural person, or a juridical one. But these are really necessary exceptions. In the General Law judicial representation should definitely be professional and carried out by advocates. 

- What do you make of an idea to simplify the procedure of joining advocacy for people practicing legal services, that is without passing qualification examination for getting the status of an advocate?

- I regard it as unreasonable simplification. My own opinion on the matter is based on my personal experience. I became a member of the advocacy at 47 and was already a successful man with such professional and life experience that not every lawyer had. I passed my qualification exam on general conditions not expecting any preferences or "simplifications". And I still don't see anything unfair or even humiliating in it. On the contrary, I suppose that preparation for this exam is a proper reason to update and deepen one's knowledge and understand peculiarities of the advocate's activity better. Besides, I think that a decision to join advocacy should be well reasoned and meaningful, but not formal, for every lawyer. That is why I consider the problem of simplifying receiving the status of an advocate, which is a matter of vigorous discussions nowadays, to be contrived and in many respects speculative. 

- In your opinion,what measures of responsibility are able to put an end to obstruction of an advocate's activity? 

- First of all, such a responsibility should be established. It may sound pretty strange, but at present there isn't any responsibility for illegal interference in and obstruction of an  advocate's activity. As a result, a ban on such actions established by the law (p.1 cl.18 of the Federal Law from 31 May 2002 No 63-FL "On advocate's activity and advocacy in the Russian Federation") remains a declarative wishful thinking without any support. This is not the only and the last reason why counter actions against advocate's activity becomes more and more aggressive, and the variety of obstructive methods constantly increases. Such state of affairs is absolutely intolerable especially because of the public-legal function of advocate's activity and lack of alternative to it. Therefore, introduction of responsibility, both an administrative and a criminal one (depending on the degree of public menace of the actions and gravity of the consequences) and strict application of this responsibility in the law enforcement practice, are the most urgent tasks that should have been realized long ago. Increased responsibility for obstructing advocate's activity by using power of authority should be introduced without any doubt. 

- Is it acceptable to introduce cease of the advocate's status as responsibility for people who do not improve their qualification? 

- I think that getting higher qualification should be encouraged by positive stimuli rather than by threat of punishment, especially such as excommunication to profession. It is necessary to create conditions and opportunities to improve qualification, find modern ways of doing it. And it definitely shouldn't be carried out at the expense of work and earnings accordingly. Attempts of excessive administrating in that area will only cause bureaucratic expenses including use of all kinds of simulators, if not fake documents, in "accounts". Advocates are not schoolchildren, they are interested in the development of their professional potential in order to be more in demand and successful. If there is someone who doesn't realize it, they are doomed to loose in the competitive struggle, and this struggle between advocates is very tough. And there is something else: we learn on every case, and this education can't be replaced by anything, it can and must be properly supplemented. 

- What is, in your opinion, the optimal daily fee for an advocate by appointment?

- I suppose that it should be much higher than the current one - humiliating and absolutely inexplicable [daily fee for an advocate who participates in a criminal case and is appointed by an inquirer, investigator or law court is 550-1200 roubles at day time and 825-1800 at night (p.23 of the Regulation on recovery of expenses for proceedings, criminal proceedings, civil and administrative cases consideration, and also for implementation of requirements of the CC RF). - GARANT.RU]. It is important that the fee should be paid without delay and references to lack of money. To achieve it, corresponding budget money must be protected, and decisions to pay it must not depend on opponents of an advocate in the process. 

- What is your estimate of the perspective of the use of only an automated informational system for errand distribution among appointed to defend advocates? 

- I consider this to be a proper and inevitable result of work on ordering the procedure of appointing advocates acting as defenders which is carried out now, because only this method fully guarantees the absence of the "otherworldly" influence on distribution of cases among advocates, no matter where it comes from. Therefore, application of this very method will allow to protect clients' interests from such an ugly phenomenon as "pocket" advocates-traitors, and other kinds of abuse. But it is important to realize that this method can't be introduced at once and everywhere as the only one, due to objective reasons. I think, independent call-centers can be used as a transitional stage where it is necessary. But, l suppose that any forms of case distribution by appointment in "manual mode" should be abandoned: they have played their part and must be replaced by more modern and efficacious ones. 

- Could you name the main current problems occurring during provision of legal assistance by advocates, which need to be resolved on the legislative level?

- In addition to what we have already discussed, I consider it necessary to realize the following:

- unconditional recognition as unacceptable proof the suspect's and defendant's evidence received with participation of a defender appointed not in accordance with the order established by the chamber of advocates, or in the absence of a defender under contract, if he/she was not given an opportunity to participate in the proceedings in accordance with the law [it is emphasized in the information sheet on condition of advocacy and advocate's activity in 2017 published on the site of the FCA RF, that the number of refusals on the part of the investigation to give advocates the right to participate in proceedings increased by 23.3% (from 60 to 74) compared with 2016. - GARANT.RU];

- raising the status of advocate's request and identity document to the level that guarantees realization of advocate's professional activity including access to the state institutions and other organizations, and also activity of proving [according to the above mentioned information sheet, the number of refusals to provide advocates with requested information and documents increased by 40.5% (from 116 to 163) last year. - GARANT.RU];

-establishment and strict execution of legislative guarantees of equality of the parties in the process and realization of the internationally recognized principle of favorability towards the defense;

- Cardinal change of the current discriminating practice of recovery expenses for judicial representation. 

Summing up, I would like to emphasize that all authorities should regard advocates as rightful members of juridical community, but not as outcasts from the "other side of a barricade". And advocate's mission should be taken as participation in administering justice which is of the same importance, as missions of a judge, public prosecutor and investigator. Along with this, as it was already said, there should be unbreakable guarantees of unobstructed and efficacious carrying out advocacy, for in this activity advocates are confronted by the whole state machine. Those who don't agree with such an approach had better 'try' the situation 'on' themselves, for, as it has been proved by life many times, never say "never".  

Maria Shuvalova