“JUSTICE” STATE PROGRAM: WHO CAN REPRESENT OUR INTERESTS IN COURT

O.CHIZH – It is 16:35 in Moscow.

T.DZYADKO – We greet our guest. Yury Pilipenko is the Managing Partner of the Law Firm "YUST", and Vice-President of the Federal Chamber of Advocates. We will talk about the “Justice” state program and who can represent our interests in court. Such is our subject. Good afternoon.

Y.PILIPENKO – Good afternoon.

T.DZYADKO - +7-985-970-45-45, there is also the Twitter account @vyzvon. Let us start from the beginning. Please explain what exactly this “Justice” state program is.

Y.PILIPENKO – This is an official document that was approved by the Government several months ago. It deals with the measures that the Ministry of Justice should take in the sphere of justice in order for justice in our country to be even more efficient. But one item concerns advocacy, of course, and it contains remarkable things, from my point of view, which indicate that the advocate’s monopoly to court representation is being implemented in our country. I believe that that idea is the key moment of the program and I would like to dwell on it.

O.CHIZH – Then it is so that if I want someone to represent my interests in court, I cannot just take a simple lawyer. I have to pick someone with the status of an advocate.

Y.PILIPENKO – Yes. It would be very good if the person, who will represent your interests in court, were an advocate and complied with all requirements and standards, which are applied to the attorneys in courts everywhere in the world.

O.CHIZH – But what is the problem? Suppose I have someone I trust very much. I don’t trust the advocate by appointment and I have no money to hire one. Why cannot I pick the person I trust?

Y.PILIPENKO – Will the person accompany you to the court for free?

O.CHIZH – This is the matter of an agreement between that person and me.

Y.PILIPENKO – The problem is as follows. Of course, many people believe that the phrase “advocate’s monopoly” is not very fortunate, and we all think that any monopoly leads to less quality and more pay etc. But as far as the advocate’s monopoly goes, I may freely say that this monopoly is a natural one. There is a law on natural monopolies in our country. That includes, if I am not mistaken, railway transport, gas pipelines and the like. But the advocate’s monopoly is as natural as the medic’s. Nobody doubts that only a person with medical education and a certain professional experience may do any medical manipulations with an ill person. Healing is a separate sphere, which I would not like to touch now. But jurisprudence is in the same situation. An advocate is a special person, and different from your acquaintance, who may or may not be a lawyer. I’d like to explain the difference between the lawyer – or no-lawyer – you know and decide to bring in for assistance and the advocate. We should understand that the advocate is different from a commoner, who wishes to help you in court, in 5 to 7 ways. First of all, the advocate has to be capable, and the capability of your helper is unknown. The advocate has to have a complete legal education. And some people in our country practically represent the citizens’ interests without having not just legal education but sometimes no higher education at all. The third difference if professional experience, of which the advocate must have at least two years. This is still more proof that the person has some life and professional experience. Furthermore, the advocates all pass exams. Very complicated exams. I can give you an example: in Moscow, approximately one half of the aspiring advocates are separated at the exams stage. This is an additional professionalism screen. Next, the advocate is obliged by law to constantly improve his qualification, to follow the changes to the legislation and so forth. Those people who are not advocates have nothing of this. Moreover, all advocates are members of autonomous organizations that have their own Code of Professional Ethics, professional standards and disciplinary liability. All this is what really sets the advocates apart from those who want to assist you in court for pay, or for free, or voluntarily. And I think you will agree that this is a certain guarantee that the legal assistance will be more or less qualified and conforming to certain standards.

O.CHIZH – But this is no proof against a certain factor of corruption during the exams, say. A person has to work, has to pass the exam.

Y.PILIPENKO – I don’t think so. Regarding the Moscow City Chamber of Advocates, nobody has ever as much as hinted at such moments and all. Corruption may exist or not, but we are speaking about institutions, not exceptions; about the rules and not exceptions to them. Moreover, I would like to point out that there is in principle no environment in which there would be more competition than in the advocacy. It is that the advocate’s assistance is rendered on the basis of the advocate’s autonomy. The advocate is autonomous. There are approximately 70 thousand advocates in our country, and roughly 8,5 thousand of them, I think, in Moscow. And each advocate, for the reason of being an autonomous unit, is a competitor of another. Therefore, competition among the advocates is natural and very high due to the very nature of the advocacy.

O.CHIZH – Are there any data on the number of people, who work in the courts without being advocates?

Y.PILIPENKO – The Federal Chamber of Advocates, of which I am Vice-President, made several attempts at ascertaining the number of the “partisans”, as we call them. Each time the results were different. Sometimes it seemed to us that there were hundreds of thousands of them in our country, and sometimes – that they were not that numerous. I evaluate that there are approximately as many of them as of advocates. One should understand that people, who are not advocates, appear and offer their services everywhere, where there is economic activity, middle class, where frequent appeals to courts are needed, be it on everyday matters or commercial issues. And our country has many places, where economic life is extremely slow, and where there are virtually no advocates aspiring to court representation. I’ve talked to colleagues from Tyumen recently, and they believe that there are as many persons, who do court representation without being advocates as there are advocates. The situation in Moscow seems similar. And I have recently visited Bryansk region, and there is not a single lawyer, who goes to courts on a non-advocate’s power of attorney. There is no need for them, no market, and no demand for such services.

O.CHIZH – Irina, for example, writes: the program of legalization of the advocate’s monopoly is nothing more than “washing out” of human rights activists. They are actually ousted from a large segment of the proceedings.

Y.PILIPENKO – Human rights activists and advocates are not quite the same. On the other hand, we match. Therefore, nobody prevents a human rights activist, provided he meets the requirements presented to an advocate, to become an advocate. Moreover, there is another very important thing. The “Justice” state program is only aimed at the introduction of the advocate’s monopoly to court representation, and I stress, not only to all consultations, it is aimed at inclusion of all non-advocate lawyers, who have reasons, into a single corporation. The human rights activists may become advocates too. I see no obstacles to that.

T.DZYADKO – And what is the procedure of becoming an advocate? Are there some exams or what?

Y.PILIPENKO – This problem is being discussed presently. There is no final decision. There are various points of view. One of them says that the aspirers should pass some additional exams. I personally have my own idea of how those, who are not advocates at the moment the advocate’s monopoly is enacted, may become advocates. I’m inclined to think that three things are required. First thing is the proven relevant higher legal education. I don’t believe anyone doubts that. Second thing is the proven practice, the proof that you have already practiced in courts, have been there etc., or have worked anywhere as a lawyer. I don’t believe anyone doubts that also.

O.CHIZH – Experience.

Y.PILIPENKO – And third is my personal viewpoint, to which I have not yet accrued supporters. Still, I believe that recommendations of 2 or 3 advocates from the chamber of advocates, where the candidate wishes to enter, would suffice. But this is at the stage of development, and there is no final decision on the way of the merger as yet.

O.CHIZH – Does this mean that the procedure of receipt of the advocate’s status may be reconsidered, when the “Justice” state program itself starts working, including the advocates’ monopoly?

Y.PILIPENKO – The procedure is actually not elaborated yet. There is no mechanism of how the merger will take place. It is under discussion. By the way, I would also like to draw attention to one circumstance. The advocates are frequently scolded for not behaving in a professional manner somewhere and often justly so. But the problem is that the Bar has conducted a very thorough self-cleaning during the last 10 years, say. Approximately 10% of the advocates, who were in its ranks during the last 10 years, were disbarred. Where else will you see an organization that purges itself of dishonorable members? But such purging cannot be efficient for the flowing reason. Today a person works as an advocate and is criticized by clients and by colleagues respectively, then is disbarred, and then simply goes and begins representing in courts under a power of attorney. Therefore, the efficiency of the disciplinary liability imposed by the advocates’ corporation in such situation approaches zero. If we want the Bar to be efficient, we should eliminate this gap, this possibility to keep earning, to keep breaching even after disbarment.

O.CHIZH – A line on a paper changed, but the person still works.

Y.PILIPENKO – Of course.

O.CHIZH – After those changes, after the enactment of the advocate’s monopoly, will one still be able to defend oneself in court?

Y.PILIPENKO – Yes. We act on the premises that a citizen is fully entitled to represent himself in court and protect his own interests. However, as a variant, there is a very popular European experience. Professional attorneys will be mandatory in certain court instances. For example, there is the collective procedure of case consideration, when three judges are present. Why three? Perhaps, because the case is exceptionally important and additional qualification is required. Not one judge but three. And in this connection, I believe, it would be correct to suppose that the attorney should also be a professional. Finally, there are the higher courts.

T.DZYADKO – Why?

Y.PILIPENKO – Because of the higher stage of responsibility.

T.DZYADKO – The person decides that he wants to defend himself.

Y.PILIPENKO – Exactly. But I am speaking about the European experience. Only an official attorney may protect the citizen’s interests in many European countries in collectively considered cases. In the higher courts, for instance. And of course, nobody will strip the citizens from their right to defend his interests. Moreover, I believe that not all categories of the cases really need the advocate to represent in the court. Labour disputes, possibly, or administrative proceedings, of which there are many in the country. It is just that even if advocates merge with non-advocates, they will hardly cope with such an amount of court cases. Thus, much thorough work is needed here in order to understand, where an advocate is required, and where the citizen himself may manage. Moreover, I understand that the idea of the upcoming advocates’ monopoly is based on that legal entities – corporations, companies – may represent their own interests, including through in-house. Just as it was several years ago: some 10 years ago the Arbitration Procedural Code stipulated that advocates or employees of the companies may represent in the courts of arbitration. In this sense, neither the state program nor its ideology attempt against the right of the legal entities to represent their own interests through their representatives.

O.CHIZH – So the program will affect the individuals, the citizens?

Y.PILIPENKO – Yes. I act on the premises that it is about the individuals and the courts of general jurisdiction, courts of arbitration where the employees of those companies do not do representation.

O.CHIZH – Well, there are listeners who disagree with you. Vitaly: “This is not quite a natural monopoly. Such system is active in Germany, but their level of development of law and democracy is somewhat different from ours. By the way, I was harmed by an advocate there. What will happen here?”

Y.PILIPENKO – An advocate can harm you anywhere – here or there. But we are not talking about isolated cases but about the institution. I, for one, am convinced that there are fully positive, very professional people among the non-advocate lawyers. And I can prove it, I know some such people. But I’d like to state that we should speak not of personalities but of institutions. And the advocate’s monopoly is a matter of institution, and not whether the certain person is good or bad.

O.CHIZH – You have also mentioned that the advocate’s monopoly will enable the professional community to regulate itself. That is, those persons who were disbarred for some offences will be unable to practice. Is it a problem for them to get their advocate’s status back?

Y.PILIPENKO – Of course it is a problem. The current regulation stipulates the following. A disbarred advocate may only aspire to get the status back, when at least 3 years have passed.

T.DZYADKO – Such a blacklisting of sorts.

Y.PILIPENKO – Yes. I am altogether sure that there is nothing extraordinary in this. This is no profession ban; this is a kind of a disciplinary punishment. And you understand that there are people who should not be allowed into advocacy. Certainly both you and I may give examples of people, who have advocate’s status that is completely unwarranted. But we have to put up with this, because what is the use if such a person is disbarred today and keeps practicing in court tomorrow. I don’t know if I was able to persuade you or the listeners, but such is my position and the position of the Federal Chamber of Advocates.

T.DZYADKO – Andrey writes: you take the right of choice from people and put some institutions above personal rights. Your answer?

Y.PILIPENKO – This collision is rather artificial, unlike the advocate’s monopoly. I would not draw any collision between the interests of institutions and of persons. A person’s interest cannot be protected outside institutions.

T.DZYADKO – No, Andrey means that you deprive people of the right to choose between concrete persons, who will represent those people in the trial room.

Y.PILIPENKO – Today the Bar includes 72 thousand persons, 8,5 thousand of them in Moscow. We very much expect that number to double the moment the advocate’s monopoly is enacted, due to the integration of non-advocates, inter alia. And the citizen will be able to choose any attorney to represent his interests out of those 170, 180, 200 thousand. I can see no deprivation of the right to choose here.

O.CHIZH – Ruprecht goes straight on: confess that you just want to trim the market. What will happen to the market? This may seriously affect some companies.

Y.PILIPENKO – There is no way this would affect the interests of companies. A clear misrepresentation. I am a practicing advocate, managing partner of a Russian and Moscow company, and as such am very little interested in the advocate’s monopoly, because we in this connection lose and gain nothing. In this case I persuade and prove the necessity of the advocate’s monopoly as the Vice-President of the Federal Chamber of Advocates. Frankly speaking, I am fighting for the interests of the estate. But I also mean the interests of the citizens. Because I would like to point out once again that a person often without education, without disciplinary responsibility, without self-regulation poses a serious threat for the citizens as a whole, not in each particular case, unlike the advocates, with whom one may work, who can be influenced via the self-regulation bodies, the Code of Professional Ethics, through disciplinary liability.

O.CHIZH – The interests of the citizens is all good and well, but if I am forced to hire a professional advocate, and I don’t trust the appointed advocate…

Y.PILIPENKO – A hired advocate and an appointed advocate are different things still.

O.CHIZH – Still, if I don’t trust the advocate I can get for free, but it has to be an advocate with the status – is this not a reason to raise the prices?

Y.PILIPENKO – First, God forbid you should get a free advocate, as advocates are free, as a rule, for criminal cases under Article 51 of the Penal Procedural Code. Let us rather speak of the situations, when it is best to hire an advocate in a civil dispute. Family matters, inheritance and so on. Should you not like a particular advocate, and if we are talking about the hire, or, more politely, invitation, you may choose. About the prices. I repeat that we join two processes: introduction of the advocates’ monopoly and the consolidation of all lawyers in a single corporation. That is, the people are not going anywhere from the market. And the number of the people, who are able to represent you in court, remains the same. So I see no reasons for the price increase in the market of legal services.

O.CHIZH – The competition will regulate itself.

Y.PILIPENKO – Of course. There is no sphere in our country, which would be as competitive as the advocacy.

T.DZYADKO – And when will this state program start working?

Y.PILIPENKO – It has already started, because it is adopted and approved by the resolution of the Government, it is split into stages, which I will be hard put to naming exactly. But it is for 2 or 3 years. This program is scheduled to be implemented within the nearest two to three years.

T.DZYADKO – Will it be gradual or come tomorrow, only the advocates will be able to represent interests in courts?

Y.PILIPENKO – Nothing can be done in sudden here. You see, the measures included in the state program require changes to the current legislation. This is elaboration, preparation, text, discussion, submission to the State Duma, debates, first reading, second reading, third reading and so on.

O.CHIZH – And no law.

Y.PILIPENKO – No law as a measure of realization of those ideas. The laws are currently under preparation.

T.DZYADKO – So those procedures are still being elaborated.

Y.PILIPENKO – Yes. Nothing will occur in a sudden.

O.CHIZH – Well then. Yury Pilipenko - the Managing Partner of the Law Firm "YUST", and Vice-President of the Federal Chamber of Advocates.

T.DZYADKO – Thank you.

Y.PILIPENKO – Thank you and good bye.

See the source of the publication here.