Advocates were ordered to keep their secret more strictly, threatening more severe sanctions

The Federal Chamber of Advocates presented a draft of the changes to the Advocate’s Code of Professional Ethics, which had been adopted by the first All-Russian Congress of Advocates back in 2003.

Ten years have passed, and the aspect of the advocates’ community has changed greatly, thus requiring that the rules of the game be corrected.

The given edition of the Code introduces new rules for the advocates’ conduct. The document puts even more significance into the attorney-client privilege and stresses its secrecy, adds new sanctions for offenders, makes it possible to bring the presidents of the regional advocates’ chambers to disciplinary responsibility, for which purpose the Ethics Committee under the Federal Chamber of Advocates is created.

Attorney-Client Privilege

Only the client may free the advocate from the obligation to keep the attorney-client privilege. This provision was introduced by the previous edition of the Code. The submitted draft expands this requirement in the following manner: “the client’s consent for termination of the attorney-client privilege must be expressed in writing in the presence of the advocate, in the conditions, which exclude any influence over the client from the advocate and any third parties”.

Advocate Yury Larin is convinced that the adoption of such amendment serves the interests of the clients, as it makes it easier for them to prove the disclosure of attorney-client privilege. The draft Code also stipulates that the advocate must not “disclose, without the client’s consent, any information communicated by the client to the advocate in connection with the rendering of the legal services to him, nor use this information in his own interests or in the interests of any third parties”.

One could surmise that the necessity to correct and expand the term of the “integrity of attorney-client privilege” was caused by the case of the First Deputy Prime Minister Igor Shuvalov: Pavel Ivlev, his former attorney, supposedly disclosed confidential information about the public official’s assets. The disputes on whether P.Ivlev had violated the professional ethics or not were futile, even though his former colleague – Artem Dymskoy, managing partner of the advocates’ bureau “ALM Feldmans”, declared his intention to request the Moscow Chamber of Advocates to strip P.Ivlev of the advocate’s status.

Yury Pilipenko, head of the workgroup tasked with the elaboration of the draft, claims that that incident was not what triggered the development of the amendments. Y.Pilipenko said: “The corrections, which were offered for discussion, have been long since thought over and cherished. This year’s acclaimed events did nothing but confirm the urgency of our work”.

Advocate Yury Larin also pointed out that the amendment, which expanded the term “client” was urgent and important. According to the Draft, a client is not only a person, who receives aid by appointment or by contract, but any person, who informally contacts an advocate for legal advice. The information that becomes available to the advocate during consulting in such situations is also protected by attorney-client privilege legislation and must not be disclosed. Y.Larin noted that this construction of the term was first given in the Constitutional Court ruling dated July 06, 2000, on the complaint by advocate Victor Parshutkin. Y.Larin believes: “Life and disciplinary practice show that legal positions of the Constitutional Court hold no weight for some of the advocates”.

In this connection, it is worth remembering that advocate P.Ivlev, when he responded to the colleagues’ accusations of violation of attorney-client privilege, explained that the public official was not his client, meaning that they had not executed a formal agreement.

The Draft Code also increased the number of the persons involved in attorney-client privilege. The document says: “Assistants and interns of the advocates as well as other employees of advocates’ associations are informed in writing of the obligation to keep attorney-client privilege against signature and undertake to not disclose it”.

Y.Larin points out that an assistant and an intern is party to attorney-client privilege, but lacks the immunity, which means that he may be interrogated as a witness. Y.Larin concludes: “Hence, if an assistant says too much, the advocate will bear the responsibility for this”.

Advocates and authorities

Another clause newly added to the Code is worthy of attention. It says that “cooperation with investigation bodies during the advocate’s activity is incompatible with the advocate’s status”.

The Law “On advocacy” has a similar provision, so advocate Victor Parshutkin says that it would be logical to include such norm in the Code.

He pointed out that lately “operatives with advocate cards started appearing frequently”. V.Parshutkin explains that they persuade their clients to confess to crimes, communicate information protected by attorney-client privilege to investigators. According to him, the case of Alexey Malkov, an ex-investigator, was a good example of cooperation between advocates and investigation bodies. A.Malkov’s mother aspired to strip three advocates – Viacheslav Leontiev, Vladislav Musiyaka and Alexey Semenov – of their status. V.Parshutkin informs that they represented the interests of the victim – the briber – in the case and participated in the delivery of the money. He presented as proof the advocates’ writs of cooperation with the investigation bodies, but the Chamber of Advocates of the Moscow Region refused to strip them of the status, saying that such cooperation was acceptable as a part of the fight against corruption.

V.Parshutkin is glad that the Code will directly prohibit such actions, for he believes that “cooperation of advocates with the law enforcement agencies destroys the profession’s confidentiality”. He is convinced that “the essence of our work is contained in the clients’ trust, and such cooperation undermines the people’s confidence towards advocacy”.

He reminded that the jury had completely and unanimously acquitted the investigator A.Malkov, stating that no crime at all had happened. V.Parshutkin stressed: “Such outcome of the case once again supports my opinion that the advocates’ cooperation with the law enforcers is unacceptable”.

Vladislav Musiyaka and Alexey Semenov refused to comment to RAPSI on the story.

The Draft Code also says that advocates may not render legal aid by appointment from inquest bodies, preliminary investigation authorities or court with violations of the procedure of rendering such aid fixed by the Council’s decision.

Advocates and press

Yury Pilipenko includes among this year’s celebrated events, besides the case of advocate P.Ivlev that confirmed the need to amend the Code, another example – that of advocate Dagir Hasavov, who spoke on the air of RenTV television channel, loudly demanding to reinstate Shariah courts in Russia and allegedly promising to “drown Moscow in blood” unless it is done.

Accidentally or not, but the new edition of the Code mentions this: “advocate shall, in all circumstances, keep the honor and dignity inherent in the profession, avoid making actions (in particular, public declarations, including in the media), which could harm the authority of advocacy and its business reputation”.

D.Hasavov’s declaration astounded the advocates’ community. However, colleagues refrained from “stoning” him and turned down the request by the Ministry of Justice to strip D.Hasavov of the advocate’s status. But he could not avoid initiation of criminal proceedings for his words. D.Hasavov currently stays outside of Russia.

Ethics Committee

In the Draft Code, it is suggested to establish a new body, which would, inter alia, approve the initiation of disciplinary proceedings against presidents of regional chambers of advocates.

Yury Pilipenko explains that there is need for the Committee because “during the ten years the Code has been in effect, certain divergences arose in the practice of its application in the situations relating to questions of ethics beyond the scope of any single chamber”.

Y.Pilipenko says that, when bringing the president of a chamber to responsibility, certain peculiarities, including purely formal ones, are unavoidable.

Y.Pilipenko elaborated: “A chamber’s president is, by position, the chairman of the qualification committee and a member of the council, and therefore he obviously cannot consider a case against himself (or even initiate it!). An opinion has been voiced that no special procedure is required for bringing the president of a chamber to responsibility, since no such attempt has ever been made. And this amendment will allegedly only stimulate artificial initiation of such proceedings. But an order must be established even before the thunder claps, as a Russian saying goes, because if proceedings against the chamber’s president are initiated, either a precedent will have to be created with no exact normative regulation, or some hasty amendments will have to be made, which will later be considered adopted for a concrete disciplinary case. Haste makes waste, after all. This is the exact reason why we will discuss this amendment to the Code many times in the future, and I hope that the advocates’ community will adopt a balanced and farsighted decision on the procedure of bringing presidents of chambers of advocates to disciplinary responsibility”.

Advocate Victor Parshutkin believes that the issue of creation of an ethics committee is connected with the offences during the acceptance of new advocates, which have grown in frequency. V.Parshutkin says: “The chairman of the qualification committee is, as a rule the president of the chamber of advocates. Acceptance of new advocates is an outrage, especially in the regions: they are accepted for their money, not for their knowledge”. According to him, there is an “uninterrupted flow” of the former law enforces, prosecutors and judges towards the advocates’ community, not of legal advisers favoring advocacy. V.Parshutkin hopes that, with the establishment of the Ethics Committee, heads of advocates’ associations will become more responsible.

New sanctions

Nowadays, there are the following measures of disciplinary responsibility: admonition, warning and termination of the advocate’s status.

It is suggested to expand the list of the sanctions in the Draft Code: ban from performing advocate’s activity for up to one year, disqualification for up to one year.

And one other limitation: “the persons, whose advocate’s status was terminated for violation of the legislation on the advocate’s activity and advocacy and of this Code, are not allowed to take qualification exams for the advocate’s status during five years since the day of termination”.

According to Y.Pilipenko, the expansion of the list of disciplinary measures is connected with the unreasonably large gap (in “strictness”) between admonition and warning, on one side, and termination of the advocate’s status – on the other. In practice, there are many situations, when a warning is too mild a punishment for the advocate’s offense, and stripping of the status – too harsh. In this connection, Y.Pilipenko believes that “one more measure is needed – something between warning and status termination in form and in essence. Thus completed. Disciplinary responsibility will be more efficient”.

The periods of bringing to disciplinary responsibility have also been increased. The Draft Code suggests taking disciplinary measures within one year (currently – six months) of the discovery of the offense, not counting the time of the advocate’s illness or vacation.

Desides, according to the draft, disciplinary measures may be applied to an advocate, if no more than two years have passed since the moment of his offence (currently – one year).

Yury Pilipenko says that the reason for the extension of the periods is a purely practical one: “Unfortunately, it is not always possible to timely deal with all details of each case within the currently existing short periods. But this amendment is precisely what causes the divergences, and we will have to get back to it”.

Also, a separate article appeared in the Code, which fixes the procedure of bringing presidents of regional chambers of advocates to disciplinary responsibility.

The Advocate’s Code of Professional Ethics is currently offered for discussion of the advocates’ community. The workgroup will request the Council of the Federal Chamber of Advocates to finish the discussion by the end of the year, and that the draft itself should be included in the agenda of the All-Russian Congress of Advocates, which will occur next year.

Source of the publication – see here.