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Grigory Pasko: The Independence of Lawyers

The Independence of Lawyers – a bone in the throat of the Russian power? A new draft law has been approved which will make legal assistance even more expensive for citizens By Grigory Pasko, journalist The announcement that the authorities are trying to disbar Mikhail Khodorkovsky’s lawyer Karinna Moskalenko probably didn’t raise very many eyebrows among those familiar with Russian justice, as the so-called law-enforcement organs are known to periodically pressure the former YUKOS head’s lawyers. It is enough to recall that Robert Amsterdam went through the same thing in his day, brutally cast out beyond the confines of Russia. No doubt so he wouldn’t interfere in the perpetration of lawlessness.

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Illustration from the website Newsru.com

In the building where I live, there is a lawyer’s office and a notary’s office. There is a line of people standing outside both all day. This despite the fact that the fees both of them charge for their services are mind-boggling, even by Moscow standards. The legal profession was popular it Russia at one time. During the time of the presidency of Vladimir Putin, it has become devoid of respect and one could almost say persecuted. This was particularly evident in the YUKOS case, when the lawyers of the former heads of the company were subjected to unprecedented pressure on the part of the authorities. In many ways, the lawyer’s profession is becoming useless in Russia. Judge for yourselves: a lawyer tries for all he’s worth to defend the interests of his client in a court of law, and does this absolutely brilliantly, from the point of view of the law. However, in the courtroom his opponent becomes not only the procurator in his capacity as the prosecuting party, but also the judge, in his capacity as an ally of the procurator! How can even talk about a “level playing field” or “equality of arms” or an “adversarial process” in a situation like that? Needless to say, the lawyer nearly always loses. Attempts had been made on numerous occasions to try and incorporate the legal community into the infamous Putinite vertical of power. Many believe that the current law «On the bar and lawyers’ activities» is a good one (although I’m prepared to argue that this isn’t exactly true). In this law, for example, it says that a person who has previously been held criminally liable can not be a lawyer, or even a lawyers’ assistant. In Putin’s Russia, where they’re constantly locking up anybody and everybody left and right, this innovation has turned out to be very apropos indeed for the new power. All they need to do is open a criminal case in relation to an overenthusiastic lawyer, and voila! – he is automatically deprived of the opportunity to work as a lawyer. This is how people like Sergey Brovchenko and Mikhail Trepashkin were removed from the bar in their day. True, Brovchenko was subsequently reinstated, but Trepashkin remains imprisoned in a camp to this day). It became known a couple of months ago that the consultative council attached to the Federation Council [the upper chamber of Russia’s parliament—Trans.] had already approved a draft law “On legal services”. According to this draft, only lawyers, notaries, patent attorneys, and employees of the legal departments of companies will have the right to provide legal assistance to organizations and citizens. In the opinion of the drafters, this is a first step towards the establishment of a lawyers’ monopoly on representation in court, something that exists in many foreign countries [but not currently in Russia, where even a non-lawyer can officially serve as a defender in court—Trans.]. This means that citizens and companies can not appear in court on their own behalf, without the assistance of a lawyer accredited to the given court. The reference to foreign experience seems justified only at first glance. In reality, as is always the case in Russia, everything is completely different from what the drafters of the innovations and lobbyists for the draft law are asserting. Indeed, in England, for example, there exists a distinction between court lawyers – barristers – and the huge army of solicitors, who actually interact with clients and act as intermediaries between them and the barristers. But what the lobbyists aren’t telling us is that the distinction between solicitors and barristers is already beginning to blur even in England, where the court lawyers were granted the right to work with clients directly last year. What can dividing lawyers into a court and non-court variety lead to in Russia? No question about it – it will lead to a significant increase in the cost of legal services, inasmuch as a client will be forced to pay both the former and the latter. Nor should we forget that in Russia, unlike in civilized countries, there are in practice no alternative methods for settling disputes, such as arbitration tribunals, ombudsmen, or conciliators. It could also happen that the courts are going to start exerting influence on “their” lawyers, while these, in their turn – fearful of losing their status as court lawyers – will start to play along with the judges. In this case, retaining the status of a court lawyer will have taken precedence over the desire to make money off of a client. While I was in prison myself, I had a chance to read through a very large number of verdicts of my fellow inmates. It became obvious to me that people were being sentenced to lengthy terms of deprivation of liberty merely because they didn’t have a lawyer representing them in court. I would ask them why they hadn’t hired a lawyer. In the majority of cases, the answer was: “Too expensive”. The new draft law will without a doubt make legal assistance completely beyond the means of many people.