Vadim Klyuvgant: Discredit of fee is unacceptable. Advokatskaya Gazeta, 21 August 2018
About artificial criminalization of advocatory fee and working out recommendations for minimizing risk
The ways of opposing advocatory activity are diverse, their number is increasing with ingenuity worth of much better use. Lack of responsibility for such an opposition and a steady reluctance of the authorities to introduce it produce a powerful impetus to this doubtful creative work. It looks as if another way of opposing has been actively "tried" recently: discredit and disavowal of the advocatory fee by its artificial criminalization as well. And, of course, such actions are followed by the seizure of the received fee which is post factum declared something bad.
Here l need to say that, unfortunately, sometimes principal's money is illegally withdrawn under cover of legal assistance which is not provided, and as it were a fee. Also, a principal may have not received the assistance meant by a contract, and an advocate refuses to return the unearned fee. Such actions, if they are properly documented, must be followed by responsibility provided by the law. There is neither a novelty, nor a topic for discussion in it.
Now about three situations where a principal confirms getting legal assistance, a fee for the accomplished work paid according to a contract. But, in spite of it, post factum, by the will of some third powers – arbitral managers, investigators, public prosecutors and more and more willingly joining them courts of law, it suddenly "occurs" that the contract is "fictitious" or "doubtful", the fee size is "overestimated" or "unreasonable". As a result, the already paid fee for the work done is exacted from an advocate. This happens mainly during the procedure of bankruptcy at the request of arbitral managers claiming that the deal on getting legal assistance and paying a fee for it is "doubtful". It is even worse when criminal cases against advocates are instituted and they are charged with fraudulent theft of money by means of getting fees.
The number of such alarming examples is increasing. The case of Moscow advocate Igor Tretiakov is very exemplary in that sense. According to open sources of information, he is charged with fraud by getting a fee by agreement with a principal – a state enterprise. At the same time, a public prosecutor has brought a civil lawsuit to recognize that the agreement on legal assistance is null and void, and the application of its consequences are invalid. How do these genres go together? What is this combination for? Is it coordinated or goes within relations between "competing firms" of the top brass? – It is a matter of a separate talk. Now I am speaking about the very fact and ways of persecution for getting an advocatory fee.
The situation becomes even more acute because not just a fee, but a fee for success – a proportion of won, or, vice versa, defended money in the court in property disputes, becomes the subject of criminal-legal claims. The size of that fee (which is really small) is exaggerated and talked about with a kind of envious malicious joy. But, firstly, the size of a fee can't be estimated correctly, it is determined out of the volume, difficulty, urgency, duration of the work done by an advocate, and taking into consideration some other circumstances. Secondly, who cares about the terms of an agreement between an advocate and their principal? If a principal, being even a state corporation, has paid a fee to an advocate for legal assistance according to an agreement, it is a prerogative of a principal and their advocate only. By the way, it is protected by the advocatory privilege and does not provide any legal grounds both for material and criminal-legal claims against an advocate. There can't be any legal grounds for the revision of an agreement on legal assistance from the outside on the subject of adequacy of its terms including the fee size and its structure, the presence of a fee for success and its size, in property dispute cases. Without any doubt, a fee for success is a fully legitimate form of reward to an advocate in such cases. The fact that it is not directly mentioned in the Law on advocatory activity and advocacy (it would be a useful thing to do, especially in the present situation), but only in the Code of professional advocatory ethics, does not change anything in the estimate of its legitimacy: it is a condition of an agreement which is not banned by the law, the result of the parties' free will expression.
And it is absolutely unthinkable that some outsider would decide whether a principal needed to receive help from a particular advocate, even if there were employees – lawyers or some other advocate (examples of such claims also exist).
There is every reason to believe that forceful attempts to decide for an independent subject of the constitutional law whether legal assistance was really necessary, and the payment relevant or not, are the continuation and development of the practice of artificial and illegal criminalization of business turnover. The beginning was made in the "YUKOS case" fifteen years ago. Phantasmagoric by the degree of obscurantism unlawful constructions of "fictitious owners" (and also "juridical", "actual" and owners "only by documents"), "thefts by means of purchase and sale at reduced prices", and other similar things from the same post-Kafkian row were created exactly there. Besides, "inadequately low" prices, "incorrectness" of owners and all other "signs of theft" were determined exclusively by "revolutionary legal consciousness" of the persecution bodies supported by the courts. It was done with total ignoring fundamental civilized postulates on property, freedom of will, freedom of contract, freedom of enterprise, compensation and gratuitousness. A sinister term "criminal civil law" appeared in connection with the above mentioned "discoveries". It has deservingly supplemented another term of the same kind and origin – the "Basman justice". Later criminal proceedings on "theft by means of purchasing and selling (or supplies) at inadequately reduced/inflated prices" under these patterns were put on a conveyer belt in such a scale that it stopped surprising and became an everyday occurrence. At present only the significance of people involved can attract attention to such cases and help some people to realize the absurdity of charges of that kind.
Now it's turn of the advocatory activity. Indeed, it is as good, as the entrepreneurial one. Why not apply to it the latest achievements of the repressive progress such as "doubtful-fictitious agreements", "inflated (or "reduced", if it is more suitable) fees, as well? It's needless to mention that the non-entrepreneurial peculiarities of the advocatory activity, the fiduciary nature of the advocate-principal relations based on the personal trust in the freely chosen juridical representative simply don't fit that logic and are thrown away as a chimera, rubbish. At the same time, this simple and efficient instrument allows to take in hand the non-submissive advocatory tribe which time and again obstructs the uncompromising struggle for the universal triumph of the criminal punitive measures by means of objection to them, complains, petitions and all kinds of other ways which are not banned by the law. Take in hand by striking a blow to a single source of the advocatory income – a fee, and simply hang the Damocles sword over the advocates' heads: "then we are going to you". The practice of a forced, in court, withdrawal of a fee received by an advocate for legal assistance to a debtor in the bankruptcy proceedings belongs to the same category and with the same consequences for the personal advocate's fate, though not as heavy, as criminal punitive measures.
It is quite clear what this practice will result in: principals will be afraid to turn to advocates for legal assistance, and advocates – to provide it. This will cause even more arbitrariness. It is also clear who will benefit from it: only opponents of advocates when the latter defend the rights and legal interests of their principals. It's true that, as life teaches, everything may easily change tomorrow, and today's persecutors might turn into victims. Then they themselves will need advocatory assistance. It's not bad to bear it in mind, but nobody does it well enough...
A working group for creating recommendations for advocates on minimizing such risks has been established by the Council of the Moscow Advocatory Chamber. It has a difficult and important task. Besides, the first universal recommendation is obvious: a complete order in the documents regulating advocate-principal relations which means explicit and unambiguously formulated subject of an agreement always corresponding to what an advocate actually does. All agreements must be in written form only, according to the law. The existence of a complete set of documents which confirms a proper fulfilment of obligations under an agreement on legal assistance for which a fee has been received in whole and each of its parts separately. Personal execution of an assignment by an advocate who has concluded a contract and is mentioned there is obligatory. Involvement of other colleagues is possible in addition only, but not instead. Tax payments and tax documents must be in good order. Strict observance of the commandment from clause 10 of the Code of professional advocatory ethics: "Law and morals in advocacy prevail over the will of a principal. None of the principal's wishes, requests or demands aimed at non-compliance with the law or breach of rules provided by the present Code can be fulfiled by an advocate". This set of conditions is of great importance when it comes to the defence against infringement on an advocate's fee and their good name, on the freedom of professional activity and personal freedom. Efficacious methods of such a defence adequate to contemporary challenges should be worked out together.
Vadim Klyuvgant, vice-president of the AC of Moscow, deputy chair of the Commission of the Council of the FAC, partner, co-head of the criminal-legal practice of Pen & Paper