The modern reform of advocacy. Advocate’s monopoly. Advocate’s ethics

The recording of the program is available here.
The source of the publication – official website of the Echo Moskvy radio station

Y.ROZOVA – My name is Yana Rozova. Good afternoon. I am accompanied by Yury Pilipenko, author of the “Legal Aspect” program, Managing Partner of the Law Firm "YUST", vice-president of the Federal Chamber of Advocates of Russia.

Y.PILIPENKO – Good afternoon.

Y.ROZOVA – Our today’s guest is Evgeny Semenyako, Honorary Lawyer of the Russian Federation, President of the federal Chamber of Advocates of Russia, laureate of F.N.Plevako Gold Award. The today’s subject is the famous Beilis case and its effect on the flow of history. Let us speak on how many reforms of the advocacy have occurred and whether the advocates today need another one.

Y.PILIPENKO – The point is not just that today is the 100th anniversary of the celebrated case. Today is the 100th anniversary of the trial held in Kiev. The trial began on September 28 and was concluded in the days that we are on air.

Y.ROZOVA – The trial took more than a month. The accused was investigated and stayed in prison for more than a year.

DOSSIER

The Beilis case became the most celebrated case in the pre-revolutionary Russia. Menachem Mendel Beilis, accused of murdering a 12-yeal old student of the Kiev-Sofia religious school Andrey Yuschinsky, stood at the dock. The trial was held in Kiev in 1913 and was accompanied by, on one side, an active anti-Semitic campaign and on the other side – by public protests at the all-Russian and international scale.

Y.ROZOVA – Why do all specialists, lawyers cite this case as an example? Why are films made, books written, performances staged on the basis of it? Why is it still remembered?

E.SEMENYAKO – I believe this is one of the cases in our history, in which each may find the respective arguments for himself and his own position. No wonder that the so-called anti-Semitic groups paid this case so much attention and interest. I am convinced that even today it is a kind of a treat to those who are unable to get rid of such, to put it mildly, prejudices. But we, modern-day lawyers, who operate today, what conclusion can we draw from that story?

Y.PILIPENKO – What is the legal aspect?

E.SEMENYAKO – The thing that today is called “booking order”, at the level of the minister of justice, was inherent in that case. The booking order to find and sentence a criminal for precisely religious reasons. And so the fitting character is found. And the entire police force is directed not at searching for the real perpetrators but at encountering the way to accuse the person that was nominated as the criminal beforehand. The civil society in Russia is at that point in embryo.

Y.PILIPENKO – Just like today.

E.SEMENYAKO – Our country is peculiar in the way that all things civil are always in embryo. And then the period before the revolutionary days, the February and the October revolutions of 1917 apparently enable us to believe that the civil society has spoken. In reality, the revolutionary speak was spoken by the civil society the weakest. But I’d like to get back to the Beilis case. I have already described the position of the government official bodies in the story. This is the case that we call today a “booking order case”, when there is a political component, and the entire story follos the same track. The Kiev judge – there have always been men of integrity, men of honor, who understand their duty and what is expected of them – the Kiev judge refuses to chair the trial. Then a judge is found, who is promised a promotion, and agrees. A prosecutor is selected…

Y.ROZOVA – Investigators who refused to cooperate were fired.

E.SEMENYAKO – Fired as they were, without severance pay.

Y.PILIPENKO – With the “white ticket”.

E.SEMENYAKO – So what happens then? Efforts are made to select the correct jury…

Y.ROZOVA – Peasants of little literacy.

E.SEMENYAKO – Or none at all…

Y.PILIPENKO – Seemingly prejudiced.

E.SEMENYAKO – People of the group, where the anti-Semitic prejudices have always been popular. This is the trait that characterizes every society, even the most advanced one, and not only in Russia but even today in many other countries that aspire to calling themselves advanced and democratic. But look at what is the jury trial. It is perhaps of utmost importance for our society. All that effort to accuse the poor guy, who was nominated murderer. And 12 people specially brought together to execute that order. And all of a sudden, those 12 persons, that jury brings in the verdict of not guilty. And the entire structure falls apart within moments, in the blink of an eye. And so it becomes understandable why in Russia the trial by jury, from the viewpoint of certain public officials – I’m formulating this carefully, just in case, in the hopes that there are other public officials – have always opposed the jury trial. Look, the jury trial in the pre-revolution Russia has lost almost a half of its competence by 1911. We are facing a similar situation nowadays.

Y.PILIPENKO – So like today.

E.SEMENYAKO – When the competence of the jury trial is, to put it mildly, abbreviated in a way. And the motivation is voiced: they say that you see, the people lack legal culture, they do not know the laws, how can they judge? Meanwhile, the way the jury trial judges is not based on the knowledge of the law but on the basis of the so-called social conscience. This is the court of social conscience.

Y.ROZOVA – And so it happens that the jury trial was instrumental in that case.

E.SEMENYAKO – Of course. Had the jury trial, as some say, also given in to the respective “booking order”, poor Beilis would have remained a historical figure, but not as an example of the triumphant court but as another innocent victim of arbitrariness. Even today we have certain persons, who are doctors of sciences and professors, and who publicly – I have seen it myself – declare that the jury trial is obsolete, that it is crowd justice, and how can one entrust such court with serving justice. Had a couple of specially selected law-abiding judges been in the place of those jurymen, there would be no doubts at all regarding the outcome of the case. It would have ended predictably.

Y.PILIPENKO – And the Beilis case was the hour of triumph of the jury trial. Not the only one, but one of.

E.SEMENYAKO – You got my meaning right. I think that there have been several hours of triumph for the Russian justice. We mentioned the case of Vera Zasulich last time. One may say that the Beilis case can and should be evaluated in the similar manner. And I think that today, in our discussions on the fate of the jury trials, on their role, on that the jury trial actually holds a certain special significance for the judicial system, well, I think this is the answer to many arguments of many opponents of that type of trial. And there are quite a few of those, unfortunately.

Y.ROZOVA – Who now decides whether a trial will be held by jury?

Y.PILIPENKO – The law, first and foremost.

E.SEMENYAKO – Besides, the cases that fall within the competence of the jury trial are responsible for less than 1% of all criminal cases. This is such a small segment that influences nothing in the modern-day…

Y.PILIPENKO – But, according to the statistics, a common court of general jurisdiction passes less than 1% not-guilty verdicts on criminal cases. While the jury trial passes some 20% of those. As a result, we get approximately 1% of acquittals in the entire country.

E.SEMENYAKO – This is yet another peculiarity of the jury trial. By the way, quite a few lawyers, our advocate colleagues, are not interested in the shrinking of the competence of the jury trial. Quite the contrary, we are convinced that many criminal and also civil cases could easily fall within the competence of the jury trial.

Y.PILIPENKO – I think that only the jury trial may restore or improve the authority of the Judicial, which has lately been, in my opinion, not on its due level.

Y.ROZOVA – Can any trial be held in the presence of a jury?

E.SEMENYAKO – No. There is a category of the so-called heinous crimes, where the jury trial is possible. The accused decides whether the case will be tried by jury or by common court. The accused, who awaits the sentence…

Y.PILIPENKO – Who may insistently demand the trial by jury. But not on any case, only on those cases that fall within the category, fixed by law, of competence of the jury trial.

Y.ROZOVA – And so we change the subject to the reform of the judicial system.

E.SEMENYAKO – I think that this subject is even more topical for us, who live in the modern day, than the Beilis case.

Y.PILIPENKO – I’d like to specify. The reform of the advocacy has been much spoken about recently. And I have a question to ask you. Just how much does the advocacy as an institution that has become accomplished and has taken shape in the last 10 years need an independent reform? Or should certain changes, amendments to the activity of the advocates be linked with the reform of the entire judicial system?

E.SEMENYAKO – As they say in such cases, thanks for asking. The point is, in my opinion, that some substitutions of the subject, which, I’d say, our lawmakers and society, the judicial and, of course the advocates’ community, should concern themselves with, occur. Our situation is as follows: we have an institution of Russian advocacy, which is fully regulated by law. Pursuant to that law, the only function and the meaning of the advocates’ activity is rendering qualified legal assistance. That assistance is done as follows: each advocate undertakes to protect the rights and interests of his clients. This is the objective of advocacy, and it was not invented by our lawmakers. That has always been the objective of the institute of advocacy, and we have already said that it has existed for a very long time. When they discuss the reform of the advocacy, they mean a different problem. The problem is the following: a huge number of people, who de facto render legal assistance, are active in the same territory, where the encounter of a civilian and a professional lawyer occurs, parallel with or besides the advocates. Such professional lawyers should act as counsels, defenders of the citizens, not those people, who have no juridical education at all but act as individual entrepreneurs in the sphere of legal services. The advocates’ community has disbarred those people, but they keep practicing.

Y.PILIPENKO – And sometimes there are gentlemen with a criminal record among them.

E.SEMENYAKO – Please note that this situation is unprecedented in the Russian history, when people without juridical education would render legal assistance professionally – though the word “professionally” is not applicable here.

Y.ROZOVA – This is valid for absolutely all spheres: architecture, education…

E.SEMENYAKO – I agree that when people, who lack the basic knowledge of architecture, attempt to prove themselves in that profession. But suppose a person, who does not know anatomy, starts a surgery in a medical institution. I think this may only cause horror.

Y.ROZOVA – You mean that the advocate’s monopoly is still necessary.

E.SEMENYAKO – Not just the advocate’s monopoly, the professional’s monopoly. And the advocates’ community is the corporation that unites professionals, who received adequate education, who have passed the respective qualification tests, who undertake to conform to certain professional and ethical standards of the advocate’s profession. Only when people actually do all this, can they render legal assistance.

NEWS

Y.ROZOVA – We were discussing the necessity to amplify the powers of the existing jury trial and studying the example of the Beilis case. And we made a break at the point of discussion of how great is the need to reform the Judiciary and the advocacy. Let us listen to a brief information.

The first reform of the Judiciary in Russia occurred in 1864. Its objective was unification of the right-protecting and court representation functions. There were just above 1600 barristers, who were assigned to judicial chambers and formed a special bar association under each court chamber. The prosecutor’s office supervised them. However, private attorneys were also entitled to conduct civil and criminal cases. Such institution appeared as a result of counter-reforms of 1874. Those with higher education and who could certify their expertise to the court could become private attorneys. There have been three reforms of advocacy since then.

Y.PILIPENKO – Evgeny Vasilievich, when we talk about the advocate’s monopoly, we often have to face opponents. Those opponents claim that, when the advocates advocate the advocate’s monopoly to court representation, they wish to eliminate competition. Is there any competition here or not?

E.SEMENYAKO – This argument is so sly that I cannot fully understand how to react to it.

Y.ROZOVA – How many advocates are in Russia currently?

E.SEMENYAKO – Some 70 thousand. I have already cited an example, when they say oh, you want to eliminate competition. It is the same thing as saying that the medics want to eliminate competition from their hospitals. This is not competition. Advocacy is all about each advocate practicing as an individual in a way, each one is solely responsible, and each professional competes with another professional.

Y.PILIPENKO – This is called the advocate’s autonomy.

E.SEMENYAKO – Exactly. Advocacy cannot accomplish that task by itself, without the State’s attention to that problem, without the respective legislation. We are not talking about the advocacy reform but about the reform of the sphere of qualified legal assistance. The way to reform that sphere is to eliminate non-professionals. It is the non-professionals, where the fraud combinations are made, where the people’s trust is abused. Can’t help remembering: some time ago I was returning to the Leningrad railway station form Saint Petersburg and saw this announcement at a post: lawyers, telephone, any criminal cases terminated, draft to the Russian Army avoided, grant of parole guaranteed. It would seem that such calls to every passer-by are fully permitted.

Y.PILIPENKO – The most important thing is that there are no laws that would impede such dishonest conduct.

E.SEMENYAKO – We the advocates say: gentlemen, it is not about competition. You should safeguard the citizens from dishonest people.

Y.ROZOVA – What should the law stipulate so that there would be such people?

E.SEMENYAKO – There was a rule during the pre-revolutionary period that a person, who lacked juridical education but who, for some reason, believed that he could defend his relatives’ and acquaintances’ interests, and if those were willing to accept him in that function, was able to pay the so-called court certificate. For that, he needed to prove certain properties and qualities, ethical ones included, and that certificate enabled him to go to court on the cases of his pals, relatives and acquaintances up to five times per year. This was the only exception to the general rule. Even 150 years it was believed that no arbitrariness was acceptable in this sphere. There is another problem. They would say that we advocates are misleading people here. Are those non-educated persons the only ones who act in that market or in that area? What about law firms and foreign companies? Granted, the today’s Russia is a Klondike for foreign law firms and foreign lawyers, because this activity is hardly regulated. And I think that the process has started. At least the task to bring the sphere to order (a government program) has been set, and it aims at certain changes. Finally, there is our own viewpoint, which hopefully we will actively defend in front of the lawmakers and the Government. I hope that our opinion will be heard. Why do we do all this? Not only the Russian advocacy’s fate is at stake but rather the interests of the Russian citizens, who, it seems to me, are in a great need of access not to pseudolegal assistance but to qualified legal assistance, as it is said in our Russian…

Y.PILIPENKO – Evgeny Vasilievich, thank you very much. Your position regarding the so-called advocate’s monopoly to court representation is clear. Still, I’d like to raise another issue: the advocate’s ethics. Are advocacy and rules of ethics twin siblings? Are this terms close to each other? Advocates who represent their clients are frequently scolded for incorrect conduct. What could and would you say on this? To what extent, if at all, the advocate is free from certain ethical obligations, rules principles etc.?

E.SEMENYAKO – My personal point of view is that not only is the advocate not free from certain ethical professional rules, but that there is hardly any other profession, where such ethical norms matter as much as they do in advocacy. Good-faith, responsibility, courage to withstand arbitrariness…

Y.PILIPENKO – Of the juggernaut of the State, at times.

E.SEMENYAKO – Unfortunately, the average person’s idea of the advocate’s profession stalks us: the idea was expressed by one of our most famous writers, that the advocate is a purchased conscience. People tend to speak this view until their personal problem or situation forces them to request the advocate’s services. Then the attitude towards those professional changes drastically in 99% of the cases. The person sees that against the juggernaut that, I’m sorry, is thundering towards him and that takes the form of investigators that have already decided that he is guilty, the form of the court…

Y.PILIPENKO – That often agrees with the investigation by default.

E.SEMENYAKO – There is only one person that opposes all this. That is why the profession is special. The point is that not some abstract public interest, not some abstract general security but a certain person is in the center of the advocate’s professional activity. And the more the advocate, I’m sorry, sticks to the ethics, I think, the more adequate to our profession he is. Note that many persons have no idea that the law forbids the advocate acting on a criminal case to refuse the defense he undertook. An average person thinks: the prosecutor has already spoken, the evidence has already been produced, why is he keeps repeating “not guilty, not guilty”? And if the advocate adopts a position, which cannot be different from his client’s position, and that position is that of acquittal, it would be a crime against professionalism and ethics if the advocate refuses to support and to defend that position. That is why the profession is special. This should be simply understood.

Y.ROZOVA – And who controls the advocate nowadays?

E.SEMENYAKO – As far as controlling goes, the Soviet period is a true Guinness book of records. Right now the control is much lighter. The law says that no one may interfere with the advocate’s professional activity. This means that no one is entitled to say that the advocate’s legal position or actual position on any case – civil, criminal, any case at all – is wrong. Yes, we have an educational process, we may have our own opinions, but officially blaming the advocate for erroneous actions is a prerogative of his own conscience. This postulate is very important. But the current situation is the following: we face the fact that it is very important that his ways and means of defense should not be against the law. This requirement is very important. And our advocates, unfortunately, often forget about this. Certainly, there are many reasons for such situation. Many of our colleagues, whom we bring to liability for such offences, say that they do this in response to the investigators’ arbitrariness, and the investigators claim that they deviate from the procedural law because of the arbitrariness of the advocates. A vicious circle.

Y.PILIPENKO – Thank you very much, Evgeny Vasilievich. It was very interesting listening to you and learning your viewpoint.

E.SEMENYAKO – As always, at the most interesting point.

Y.ROZOVA – Yury Pilipenko, author of the “Legal Aspect” program, Managing Partner of the Law Firm "YUST", vice-president of the Federal Chamber of Advocates of Russia, and Evgeny Semenyako, Honorary Lawyer of the Russian Federation, President of the federal Chamber of Advocates of Russia, laureate of F.N.Plevako Gold Award have been in the Echo Moskvy studio today.