Preserving values of the profession
On May 19, the International Conference of the Russian Federal Chamber of Advocates, one of the key events of the VI St. Petersburg International Legal Forum
At the Annual International Lawyers’ Conference titled “Current challenges for the legal profession: Russia and worldwide”, which was held as a part of the VI St. Petersburg International Legal Forum, predictions were made as to development of the Bar for the next few years. The general trends are a unified profession and unified standards, implementation of up-to-date technologies, participation in the improvement of legal systems and socially important projects.
In his welcome speech, president of the Russian Federal Chamber of Advocates Yury Pilipenko named globalization as the main reason for all current challenges of the contemporary Bar, which manifests not only in expanding cross-border activity of advocates, but also in increasing activity of the state and the impact of business on age-old values of the legal profession.
To meet the challenges of time, the Bar should be open to communication with all aspects of society and state. Use of new technologies, development of further training systems, contribution to improvement of the legal system, legal education, enhancement of the role of law - these are the directions of work due to which the Bar will substantially change, strengthening the fundamental principles of its activity.
Vladimir Pligin, chairman of the Committee of the State Duma on constitutional legislation and state-building, also spoke of the challenges of time. In the changing world, lawyers should find new ways of providing their services, such as Internet technologies, and establish the rules regulating them. However, the scale of values is also subject to changes - what was considered a value yesterday, is no longer so today. It should not be allowed that the law becomes a disappearing value, it is necessary to preserve its importance as a regulator.
Project of reforms
Chairman of the Committee of the Council of Federation on constitutional legislation and state-building Andrey Klishas mentioned that “the role of state increases in our lives when the self-regulating institutions weaken”. He reminded that one of the purposes of the state is to grant the constitutional right to professional legal assistance. “A rule-of-law state is one where the mechanisms of restoration of violated rights are effectively functioning.”
In this context the activity of the Bar is especially important, therefore, the state pays much attention to it, dedicating a special section in the “Justice” State Program to protection of public interests: “The project of governing professional legal assistance was much in discussion, but the Federal Chamber of Advocates was a reliable partner for the legislative power branch, and we managed to resolve a lot of controversies. It is necessary to restore justice: legal assistance should be provided by persons that match certain requirements, including qualification ones”.
State secretary - deputy minister of justice of the Russian Federation Yury Lubimov commented on the situation around adoption of the new version of the “Justice” program. “We consider unification of legal advising community and the Bar in a common profession strategically correct, as the persons providing services to the population should have unified rules and a unified code of conduct. However, technically it is very difficult to execute, and in my opinion the only chance to carry out the reform is to reach consensus between the advocate community and other segments of the market”, he underlined.
Deputy minister named two conditions for a successful reform: readiness of the Bar to accept new members as equal partners, on conditions comfortable for everyone, and decision on an entity form that allows legal consulting as part of advocate’s activity. There are two options: establishing a new form of legal practice or using a commercial structure with special legal capacity (in case advocate’s activity is recognized as business).
According to Mr Lubimov, the Ministry of Justice is ready for public discussion of the draft Concept of regulating the professional legal assistance market. The work on it will be continued in summer and fall, and it should be brought in before the Government by the end of 2016.
President of the German Federal Bar Ekkehart Schafer mentioned that a condition for development of a rule-of-law state is a strong and independent Bar providing access to law: “We are not law dealers. If our clients think we are affected by financial interests we will lose their trust. According to our law, the Bar is an independent judicial body - this is a very accurate description of an advocate’s status in our state.”
For instance, in Germany it is prohibited to attract investment to law offices from people not connected with the Bar. “The investor will expect that his investments pay off, and his interests may become contrary to the advocates’ tasks. Such investments are unacceptable for the German Bar”.
Another important purpose of the Bar along with providing access to the law is providing quality of justice. Currently in Germany the participation of an advocate is necessary in most civil cases and in almost all criminal cases. However, as it requires state expenses for government-funded legal assistance to persons who cannot afford an advocate, there is a matter in discussion: should the legal services market be more free and open for other legal professions?
“These expenses are extremely important to preserve vitality of the state system”, Ekkehart Schafer says, “as they allow to provide access to law for the population. Moreover, the amount saved on their decrease will not be that significant. Politicians sometimes do not understand the consequences of limiting access to law. We should constantly improve the quality of our services, upgrade our skills and counter deregulation of the legal services market at all costs.”
Another important mission of the Bar in a rule-of-law state is the social one. For example, since lately Germany has accepted a great number of refugees, advocates help to consider applications for the refugee status. To accelerate this process, an additional specialization was introduced - immigration law.
Stephen Hung, the president of the Law Society of Hong Kong dedicated his speech to such aspects of globalization as advocate’s activity in other jurisdictions. He gave a detailed explanation of the conditions on which foreign advocates are admitted to practice in Hong Kong.
More than 1300 lawyers from 31 states are currently certified in Hong Kong. “Why are we attracting representatives of the legal profession to Hong Kong? There were concerns that opening of the market might cause unemployment for our lawyers, but it did not happen. On the contrary, foreign firms significantly enriched our experience”, Stephen Hung says.
According to the law, foreign lawyers must register with the Law Society of Hong Kong or with the Hong Kong Bar Association. Foreign law firms are also subjects to mandatory registration. Foreign lawyers may practice consulting but are not entitled to represent clients in courts by themselves. Temporary practice is possible: a foreign lawyer may practice international or foreign law during three consecutive months or 90 days a year.
To obtain permission, it is necessary to fill out a special form, submit a certificate of a practicing lawyer in the lawyer’s own country, a certificate of professional material liability insurance, confirmation of employment. Before admission to practice in Hong Kong, a foreign lawyer must undergo special training and pass qualification exams - five written ones and an oral one. If the lawyer’s work record in his own jurisdiction exceeds five years he may be exempt from one or two exams (for example, in civil and procedural law).
Jonathan Smithers, president of the Law Society of England and Wales, analyzed the British legal services market which is according to him very diverse - solicitors may use different legal structures.
Currently solicitors are free to choose the legal structure of their business. They may establish limited companies, limit their responsibility through corporate structures, hire solicitors, establish partnerships without limitation of the number of partners. However, they must strictly comply with ten key principles of the profession set out in the Code of professional conduct and extensive clarifications to it: 1) supporting rule of law and due delivery of justice; 2) acting in good will; 3) not allowing for loss of their independence; 4) acting to the benefit of their clients; 5) providing proper standards of services; 6) acting in a way to maintain public trust towards themselves and the provision of legal services; 7) complying with obligations provided by law, interacting with the regulator and ombudsman openly and timely; 8) doing business or playing a role in business efficiently, according to principles of proper management and careful handling of finances and risks; 9) doing business or playing a role in business maintaining equal opportunities and respect to diversity; 10) protecting the clients’ money and property.
Since October 2011, the so-called “result-oriented regulation” applies (as an alternative to rule-oriented regulation): people who are not solicitors may be among the owners of law firms (on condition of special permission), and moreover, multidisciplinary practices can be established, uniting, beside lawyers, auditors, accountants, appraisers, tax consultants, and other professionals.
According to Mr Smithers, currently there are about 4000 law firms in the form of limited companies and about 200 partnerships, among which the majority are limited liability partnerships. Business is conducted not by lawyers but by professional managers. Simple partnership is an unpopular entity form, as the partners are personally responsible to the clients and there were cases when the related damages amounted to a million pounds. To decrease this risk, it is necessary to increase the number of partners.
Companies established according to the new models are trying to go beyond the limitations that traditional law firms strictly comply with. “But in practice it turned out”, Jonathan Smithers says, “that it is not that easy to turn legal services into a product. The result was not as expected: a revolution turned into a counter-revolution.”
As for the application of new technologies, the speaker mentioned that law firms are implementing various computer programs, but it is connected with a risk for the business: a hacker may break into the system and steal the data. For their part, clients prefer to use legal information and receive legal advice online, which contains a risk to receive services from an unqualified provider.
“It is necessary to understand what makes our profession special and guarantees rule of law and legal order”, said the treasurer of the French National Bar Council Francois-Antoine Cros. “These are the key principles of our profession: first of all - independence, self-regulation, client-lawyer privilege and fair treatment of clients”. In France these principles are determined by the National Bar Council (a professional organization that currently unites about 65 thousand of advocates).
French lawyers also created a unique set of professional standard which currently have the force of a law (see: Professional standards of the French Bar. M.: Russian Federal Chamber of Advocates, 2015). This edition contains the following documents translated into Russian for the first time: Internal national regulations of the French Bar, Rules of professional conduct for the Paris Bar that complement the provisions of the Internal National Regulations, and Code of Conducts for Lawyers of the European Community with latest amendments (this act is binding in France and is included into the Internal National Regulations as a separate clause).
Concerning the way the changes in the world influence the implementation of principles of the legal profession, Francois-Antoine Cros said that in France, the law of August 6, 2015 allows representatives of certain professions, such as lawyers, notaries, certified auditors and bailiffs, to establish joint companies. Such companies cannot be owned by a person not carrying out professional activity corresponding to the field of the company’s work.
There are concerns that practical application of the new law may lead to violations of the fundamental professional principles. First of all, the contents of codes of conduct will be emasculated, as ethical rules for different professions are not identical. Secondly, the law provides that the client-lawyer privilege shall not impede communication with other employees in the course of providing legal assistance.
Past president of the American Bar Association (ABA) William Hubbard focused on the implementation of new technologies and socially important projects in which lawyers of the US participate.
The educational and professional training system widely implements various computer software and gadgets, webinars are often held.
The main challenge in the American legal system is according to William Hubbard limited access to justice for the disadvantaged population: “80% of the poor in our country do not have sufficient access to the judicial system, 50% do not have it at all, and we are considering ways to eliminate this imbalance”.
William Hubbard said that in terms of affordability legal services in the US rank 67th among 132 countries, therefore during his office as president of the ABA a program was developed to open access to legal services for the indigent. For instance, it is proposed to allow legal practice to persons with a limited license, which grants the right to conduct only a certain category of cases (for example, family disputes). Besides, a rarer use of punishment in the form of imprisonment is proposed, as a prisoner is unlikely to right himself, and prisoner detention in the US costs about 70 billion dollars a year.
William Hubbard mentioned countering domestic abuse, which is very widespread in the US, as another socially important project: “We should give our lawyers the skills to help abuse victims”.
“Our purpose is to become a single voice that expresses all standpoints of the legal system”, he concluded. “Our association maintains common dialogue to ensure the Rule of law”.