Vadim Klyuvgant: "Tretiakov's case" – attempt of artificial criminalization of fee for success? Advocatory Chamber of the city of Moscow, 1 August 2018
Advocate Igor Tretiakov was detained in the airport Sheremetievo where he arrived from Irkutsk, about nine pm last Sunday.
– As soon as we got out of the plane and went down a gangway, six men in civil clothes approached us and asked my husband to follow them. I have seen him no more since then, – wife of the advocate Anna told journalists.
Igor and Anna got to know that advocate Tretiakov was put on the Federal wanted list as a person involved in a criminal case as a suspect who had allegedly stolen more than 350 million roubles from the state corporation "Roscosmos", on lake Baykal where they were spending their holiday. Director-General of the SPA named after S.A.Lavochkin Sergey Lemeshevsky and head of the enterprise's legal management Yekaterina Averianova have been already taken into custody in the course of the case. According to the version of the investigation, the leadership of the SPA concluded fictitious contracts with the advocatory office "Tretiakov and Partners" for legal services which were supposedly provided by the staff of the legal department of the SPA. But both the investigators and the court of law were well aware that the leadership of the SPA began to conclude contracts with "Tretiakov and Partners" after its lawyers had lost several lawsuits brought on behalf of the state corporation "Roscosmos".
But when the lawyers of "Tretiakov and Partners" began to represent interests of the SPA named after Lavochkin in the Arbitration Tribunals, "Roscosmos" started losing lawsuits, and the advocatory office began to get 'fees for success" which were not fixed but depended on the sums of money mentioned in the lawsuits. As a result, money under twenty three contracts equal to 8% of the won cases were transferred to the account of "Tretiakov and Partners".
"Attempt of artificial criminalization of fee for success?"
Vice-President of the Advocatory Chamber of the city of Moscow Vadim Klyuvgant told "Novaya Gazeta" that an attempt in the "Tretiakov's case" to criminalize the term of an agreement on the so-called fee for success which is officially recognized as acceptable and is often used in the agreements between principals and advocates in cases related to disputes about property, seems to be quite new and extremely dangerous both for the advocacy and for potential principals of advocates.
"We still have got neither time, nor opportunity to understand the actual circumstances properly in order to express the official position of the community. Though, I think, we'll come back to it one day.
Since, according to the current criminal procedure, a representative of the advocatory chamber should be present as an observer during a search at an advocate, advocate Alexander Pikhovkin, deputy chairperson of the Commission on Defense of Rights of Advocates of the Council of the city of Moscow Advocatory Chamber, was present during the search in the advocatory establishment "Tretiakov and Partners" 25 July. He claims that serious violations of law, including infringement of advocate's privilege, took place during the search: not only 23 contracts with the SPA named after Lavochkin, but other documents, from other advocate's files in particular, were withdrawn. Such a behaviour of the investigation and the law court which gave its permission for that, cannot be regarded as correct and legitimate. Therefore, the representative of the Chamber appealed against the decision of the District Court to issue a search warrant to the Moscow City Court. Let me express even a harsher opinion: the investigation had no right to ask permission of the court for withdrawal of documents without naming them, of "other documents related to the fulfilment of obligations under contracts", as well as for withdrawal of everything it considered to be of some importance, especially concerning other cases not connected with the subject of investigation. Though, unfortunately, unlawful practice of issuing such indefinite and broadly interpreted permissions exists.
As for the essence of the charges against the leadership of the SPA named after Lavochkin and advocates of the advocatory office "Tretiakov and Partners", as far as I know from mass media and the Internet, first of all, it is important to know whether the appropriate assistance really took places. As far as I know, participation of advocates of this college in corresponding court sessions has been already checked and proved through official information bases of judicial cases and decisions. If it is true, it means that legal assistance has been provided, and payment for it is not the way to conceal stealing of money.
It means that we come across another attempt to criminalize civil-legal relations, and, consequently, the ones subordinated to the principle of optionality (freedom of contracts). An opportunity to settle the sum of a fee between an advocate and their principal is also mentioned in clause 25 of the Law on advocatory activity and advocacy. The volume and difficulty of cases also differ. Personal qualities also matter: experience, qualification and even name. There can't be any price lists here except for the work by appointment – only this kind of work is estimated (or rather underestimated – but it is another story) by the state itself.
It is not the first attempt of artificial and unlawful criminalization of the civil-legal contract relations. A false charge of "theft" in the so-called "first YUKOS case" was framed exactly in the same way. This pattern has been used rather extensively since then, including the case of the Navalny brothers. An investigator and then a court arbitrarily and God knows why estimate retrospectively the cost of works or services under contract, and the difference between the actual payment and their subjective estimate and even the whole sum of payment under the contract are presented as "the stolen sum of money"(the scheme is especially 'reliable' when it comes to budget money).
What seems new and extremely dangerous both for the advocacy and for all our potential clients in the 'Tretiakov case', is an attempt to criminalize the term of the contract on the so-called fee for success which is officially recognized as acceptable and is often included in the contracts between advocates and principals in cases related to property disputes. Sometimes, when a principal is short of money in the beginning of a dispute, there is even no other variant. In that case a fee is divided into two parts: money for work, and this sum may happen to be worth a penny, and bonus money equal to a certain percentage of the sum won or, vice verse, saved, which depends on the efficiency of an advocate's work.
The existence of the 'fee for success' is fixed in the Code for professional advocatory ethics adopted by the All-Russia Congress of Advocates. At present a group of senators and Duma deputies wants to fix it in the Law on advocatory activity and advocacy. That seems to be quite reasonable and correlates with the meaning of the civil-legal relations and the established practice. On that background attempts of artificial criminalization of a fee for success cause our great concern, and we would be glad to oppose them, collectively of course, using every means not prohibited by the law".