On the issue of juridical technique of the Advocate’s Code of Professional Ethics

Vasiliy Raudin Lawyer of the Law Firm "YUST", Post-graduate of the Chair of Advocacy and Notarial System Of the Oleg Kutafin Moscow State Academy of Law

The draft of changes and amendments to the Advocate’s Code of Professional Ethics (hereinafter – the Draft), which was published in the “Novaya Advokatskaya Gazeta (New Advocate’s Newspaper)” No. 17 (131) and placed at the official website of the Federal Chamber of Advocates, provoked great interest of the colleagues and became widely discussed in the advocates’ community. In this connection, I would like to join the discussion and call the attention to some drawbacks of the Draft’s juridical technique.

1. It would be worthwhile to make some corrections to the text of Article 4.1, the inclusion of which into the Advocate’s Code of Professional Ethics (hereinafter – the Code) is provided for by the Draft. This Article deals with the Ethics Committee of the Federal Chamber of Advocates.

First, the wording of clause 1 of Article 4.1 “Completion of the tasks imposed by the Advocacy Law and the Code” needs correcting for the following reason.

Neither the Federal Law No. 63-FZ “On the advocates’ activity and advocacy in the Russian Federation” dated May 31, 2002 (hereinafter – the Law), nor the Code charge the advocates’ community with any tasks. It would be more correct to refer to the goals, for which advocacy was created and functions.

Said normative acts define the objective of the advocates’ activity (clause 1 of Article 1 of the Law), the objectives of the activity of regional advocates’ chambers (clause 4 of Article 29) and of the Federal Chamber of Advocates (clause 2 of Article 35), the objectives of adoption of the Code (preamble).

Second, it would appear that the word “is created” does not fit well in the context of Article 4.1 of the Code.

The Law fixes the procedure of creation of the bodies of the chambers of advocates in the same clause, where the general description of the respective body is given: advocates’ assembly (Article 30 of the Law), council of the chamber of advocates (Article 31), revision committee (Article 32), the All-Russian Congress of Advocates (Article 36), Council of the Federal Chamber of Advocates (Article 37).

Besides, a separate mention of the creation of the Committee seems redundant from the juridical and technical point of view, since clause 3 of the Code stipulates the procedure of its creation (election). In this connection, the provisions of clauses 1 and 3 of Article 4.1 seem largely duplicating.

It would seem reasonable to merge both said clauses into clause 1 worded as follows:

“For the purposes of assistance to the advocates’ community in reaching goals imposed by the Federal Law “On the advocates’ activity and advocacy in the Russian Federation” and by this Code, the All-Russian Congress of Advocates elects the Ethics Committee of the Federal Chamber of Advocates of the Russian Federation (hereinafter – the Ethics Committee)”.

Third, the phrase “consents to” used in clause 5 of Article 4.1 and clause 3 of Article 25.1 of the Code as edited by the Draft is not fully appropriate as applied to the considered provisions. There is no doubt that the Ethics Committee issues a certain “conviction” with the respective reasoning, on the basis of which the Council of the Federal Chamber of Advocates decides on the necessity to initiate proceedings against the president of the regional chamber.

However, it should be noted that the Council does not request any consent of the Committee as of the moment of giving such consent by the Committee, because it appears as a participant of the discussed “impeachment” procedure at a later stage than the Ethics Committee.

The legislation, which governs similar matters, uses an established term “opinion”. For example, for the State Duma to be able to charge the President with a heinous crime, an opinion of the Supreme Court on the presence of criminal elements in the President’s actions and an opinion of the Constitutional Court on observance of the due procedure of laying charges are required (part 1 of Article 93 of the Constitution of the Russian Federation).

Further, the Draft wording of clause 5 of Article 4.1 of the Code repeats the wording of clause 3 of Article 25.1 almost word-for-word. From the point of view of juridical technique, the following edition of the amendments in question appears to be better:

- “The Ethics Committee takes part in the initiation of disciplinary proceedings against presidents of the chambers of advocates of the units of the Russian Federation pursuant to Article 25.1 hereof” (clause 5 of Article 4.1 of the Code);

- “The Ethics Committee issues an opinion on the necessity to initiate disciplinary proceedings against presidents of the chambers of advocates of the units of the Russian Federation and submits it for consideration by the Council of the Federal Chamber of Advocates” (clause 3 of Article 25.1 of the Code).

2. The wordings of Article 9 of the Code as edited by the Draft also appear in need of some improvement.

First, the content of the suggested amendment to subclause 4 of clause 1 of Article 9 of the Code should correlate with clause 4 of Article 6 of the Code.

In particular, according to clause 4 of Article 6 of the Code, an advocate may, without the client’s consent, use the information communicated to him by the client, in the amount as the advocate sees fit, for his own protection (representation of interests) in a criminal, disciplinary or civil case.

The current edition of subclause 4 of clause 1 of Article 9 of the Code contains no mention of the use by the advocate of the information communicated to him by the client, and consequently requires no reference to clause 4 of Article 6 of the Code.

Should said provision be expanded by adding the words “and use it in his own interests or in the interests of third persons”, a formal contradiction with the provisions of clause 4 of Article 6 of the Code arises.

In this connection, the following variant of subclause 4 of clause 1 of Article 9 of the Code may be suggested:

“1. An advocate may not… 4) disclose, without the client’s consent, the information communicated by the latter to the advocate in connection with the rendering of legal assistance to him, and use it in his own interests or in the interests of third persons, with the exception of the cases provided for by the legislation on advocates’ activity and advocacy and by this Code”.

Second, for the purposes of terminological uniformity of the Code, it appears that the text of subsection 9 of clause 9 of the Code as edited by the Draft should correlate with the wording of clause 7 of Article 15 of the Code, which fixes the advocate’s obligation to take part in the legal support by appointment according to the procedure defined by the chamber of advocates of the unit of the Russian Federation.

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Full version of the publication – New Advocate’s Newspaper, №18 (131), 2012.