Yury Pilipenko: “I admire outstanding people, but I stick by the institutions”

Interview with Yury Pilipenko, Managing Partner of the Law Firm "YUST", First Vice President of the Federal Chamber of Advocates, Doctor at Law.

- You are a well-known specialist in the area of the legal professional privilege. In your articles and public speeches, you frequently mention the problem of interference of the law enforcement officials with the advocacy. What do you think are the limits of the privilege, when there is need to safeguard the national security and counter the permanent terrorist menace?

- It is a complicated question you ask. But we have answers even for complicated questions.

There is no doubt that terrorism must be fought against, but I am convinced that the legal privilege has never been, and indeed cannot be, an obstacle to that. First, the war on terrorism, as a rule, uses a preemptive strategy, long before anyone contacts an advocate. Second, I can neither recall any case from my practice nor imagine any situation, even theoretically, when the privilege may become an obstacle to the fight against terrorism in the modern conditions of globalization and the today’s well equipped and trained special services.

As far as the legal regulation goes, forgive my lack of modesty, but I have defended my doctor’s thesis, the subject of which was precisely the institution of the legal professional privilege. And I have some uncommon considerations related to the nature of the privilege.

The modern-day regulation of this institution is limited to the following: the legal privilege is absolute, encompassing all information related to the rendering of the legal assistance starting from the very fact of contacting the advocate. Therefore, even the client’s name cannot be voiced. Moreover, there is no time limit for the privilege, and so the advocate may only be freed from his obligation to keep the secret by the client.

Anyway, I wrote in my thesis that I support a reasonable limitation of the professional legal privilege. And one of my theoretical constructions (a purely scientific one, I would not insist on propagating it) is such that there are cases, when an advocate should be entitled to dispose of the classified information as he sees fit. I reiterate that this is no duty but a right, when the advocate introduces his own discretion in this mechanism.

The current regulation only provides for a single case, when this is possible: the advocate may, without the client’s consent, use the information communicated to him by the client inasmuch as the advocate believes is reasonably necessary for justifying his position in a civil case between him and the client, or for his own defense under disciplinary proceedings or a criminal case brought up against him (clause 4 of Article 6 of the Advocate’s Code of Professional Ethics).

I believe that if an advocate learns of a crime that is being planned and aimed at a human’s life, he should also be entitled to not keep the privilege and to take measures to prevent the crime. Including by informing the law enforcers. I am convinced that the protection of a human life is at least as important a task as the advocate’s protection from his own responsibility to the client.

It appears that the legal professional privilege, just like any other institution, becomes illusory, when a human life (or of a group) is put on the other side of the scales. That is why, in my opinion, the fight for human life should (and must) be a criterion for limiting the privilege. But terrorism is a wider concept than attempt at a life, and that is why the fight against terrorism may not be such criterion. Otherwise the advocate would be forced to report, for example, money transfers.

Another thing if the advocate, for example, becomes aware, in the course of rendering legal assistance, of a planned bombing of a railway station. In this case he should be entitled to communicate that, in my opinion. In most part because human lives are in danger and not because this is terrorism. And the Code of Professional Ethics, as I see it, should exempt the advocate from observing the privilege if the advocate knows of a criminal attempt at a human life, including terrorism, is being planned.

Though I am not sure if most my colleagues share this view.

- Much is being told about the perspective of the advocate’s monopoly, of which you are a known supporter. Do you believe it is an archaic European institution? Doesn’t Russian law grant other means of influencing dishonest persons in the legal services sphere?

- I admire outstanding people, but I stick by the institutions. The institute of advocacy has efficiently functioned in a certain sphere of social relations, and I am not aware of any instances of the advocate’s monopoly becoming archaic or being practically replaced by anything remotely as reasonable. I am convinced that the introduction of the advocate’s monopoly to court representation is a civilized approach to the regulation of the sphere of legal assistance, and Russian law contains no other instruments, which would affect the quality of the assistance rendered to the citizens.

In our country, the State proclaims in the Constitution the right of each one to the qualified legal assistance, which can only be rendered by persons, who pass certain requirements. There is no other way.

Currently, advocates as well as practicing lawyers without advocate’s status render legal assistance: two groups of roughly the same (according to my estimates) number (approximately 70000 people each), but completely disparate in regard of the conditions they operate in: the activity of the Bar is regulated by a law, the activity of the entrepreneurs is not regulated in any way.

The law lays out specific requirements for advocates: obligatory legal education, two years of work experience, a special exam, the need to improve the qualification; adherence to the Code of Ethics; disciplinary liability etc. This requires that the quality of the services rendered by the advocates be higher than the quality of the services of entrepreneurs, to whom such requirements are not even presented. Anyway, an advocate can be influenced through the Bar. As an exchange for conforming to those requirements, the State has implemented certain legal privileges for the advocates: judicial and investigation immunity, attorney-client privilege. So it happens that the State lays out requirements for one group of those who render legal assistance, but no requirements – for the other. It is thus impossible to influence the other group by legal means. And in this case, the market will never regulate anything, as equal conditions are required for the competition, and there are none.

Only a healthy legal regulation is able to ensure the pressure on dishonest persons in the sphere of legal assistance. And the best way of such regulation is making membership in the Bar – an independent self-governing corporation – obligatory for all who render legal assistance and court representation in particular. To integrate all practicing lawyers into the Bar is to realize each one’s constitutional right to qualified legal assistance.

- What do you think of the perspectives of improvement of the Advocate’s Code of Professional Ethics?

- For me, this question appears especially interesting as it is topical <…>

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