Report from conference on Independence of Lawyers

Online event on current issues of independence of lawyers took place on May 12, 2021. It was a common initiative of the European Association of Lawyers (AEA-EAL), Polish National Bar of Attorneys-at-law and Warsaw Bar of Attorneys-at-law.

During the opening speech Włodzimierz Chróścik, President of the Polish National Bar of Attorneys-at-law noted that independence is a core value common for all lawyers, regardless their jurisdiction and legal culture and free lawyers are indispensable for democratic society. Monika Całkiewicz, Dean of the Warsaw Bar of Attorneys-at-law said that one of crucial condition for lawyers’ independence is free and self-governing bar association. Ara Zohrabyan, Chairman of the Armenian Bar Association, who spoke on guarantees for advocates in his country. Advocates’ independence is guaranteed in Armenian constitution and in other legal acts, however there is a problem of „inequality of arms”. State has all powers, police, prosecutors and secret services. Lawyer has only his knowledge, know-how and procedural safeguards. Therefore, it is crucial that this single advocate has a strong Bar Association, which can defend him. Ara described also main guarantees for lawyers related to freedom of speech, search of his/ her property or seizure lawyer’s documents. Professor Liudmila Uliashyna, Head of the Committee Program “Law, Political Science and Economics”, Centre for Constitutionalism and human Rights of the European Humanity University, who presented an exhaustive information on formal and practical persecutions of lawyers and situation of legal profession in Belarus. She noted that situation in Belarus is exceptional. Lawyers, human rights defenders and all other legal practitioners are acting in de facto martial law state. Firstly, professor Uliashyna described how legal profession in Belarus was systematically harassed, legally limited in its powers and persecuted for regular lawyers’ work. Secondly, she talked about the main tool used for silencing independent lawyers by Ministry of Justice – possibility of revoking lawyer’s license for professional practice. Thirdly, she spoke about criminal means used against lawyers by the state: arrests and detentions, false accusations, persecution for public information about cases, open violations of legal guarantees, etc. It has to be underlined that people’s right to be represented by a lawyer was almost totally eliminated in administrative cases (most fines are imposed in those kind of proceedings) and recent amendments to the Law on Advocacy eliminated individual and private law offices. Liudmila Uliashyna called for international solidarity and to undertake interventions in every case of violation of lawyers’ rights in Belarus. David Asatiani, President of the Georgian Bar Association and AEA-EAL Vice-President, who gave a Georgian perspective of way ahead for progress of legal profession. He focused on elements that may make legal profession and the whole justice system stronger. He underlined that key factor should be profession’s unity towards the state. Every state, also democratic, has a tendency to eliminate independent institutions, which may watch its actions. Therefore, strong Bar Association, independent organizationally and financially is a crucial condition for lawyers’ independence. In this context it is very important to monitor constantly every activity of state institution that may lead to limitation citizens’ rights and legal guarantees for lawyers. Another important issue is protecting and building social trust towards profession. Therefore, entry conditions for future lawyers should be as high as possible to select people with the best moral and intellectual standards. To deal with judges and prosecutors, Georgian Bar Association, the Supreme Court and Prosecutor General created a Consultative Council to discuss issues of common interest and to undertake common efforts to improve Georgian justice system. David underlined also the significance of international cooperation of Bars and individual lawyers. Angela Popil, member of the Board of the Moldova Bar Association, who spoke on threats and challenges for Moldovan lawyers during coronavirus pandemic period. She also described experiences of Moldovan lawyers in recent times. Since 2002 there are legal guarantees for independence of advocates and the Bar and this year’s amendments strengthened independence of the profession. Also, in  this country state authorities tried to persecute lawyers for their professional activity (cases were successfully resolved in 2019). The main problem is identification of lawyers with their clients, which is the case not only in relation to the public, but – sometimes – to authorities. Pandemic period came with several restrictions and limitations imposed by the state like problem with access to imprisoned and arrested clients, closing of courts and many further measures well-known from other countries. Other issue is lack of continuing professional education and no control of access to the profession (i.e., examination) for former judges, who are entitled to become lawyers without any entry conditions. The bright side of pandemic period is faster digitalization of the Bar and the Administration of Justice. Elena Avakyan, Council Member of the Russian Federal Bar Association who intervened on digitalization as a key factor for maintaining lawyers’ independence. In her opinion, Russia reflects all problems with independence that were raised in previous presentations, however situation is not so bad as in Belarus. Like in Moldova, there is no lawyers’ monopoly for representation in courts, except of criminal cases. Lawyers may work as employees, which is relatively new possibility for Russian advocates. What is typical for Russian Bar’s structure is that 85 reginal Bars are independent associations, and the Federal Bar is not a supervisory body but rather a creator of common standards. Common problem for the Justice system is that lots of judges have prosecutors’ or public service’s background and few of them know lawyer’s practice. Therefore, judicial judgments and decisions are very strict for accused people. Lawyers often facing problems with access to courts, state institutions and prosecutor’s offices. We see digitalization as one of ways to improve the situation and to make lawyers’ position better towards other actors of justice. In 2020 all Russian bars introduced a unified digital system for lawyers, including single register of advocates connected with regional databases, videoconferencing, exchange of official documents with state catalogues and archives, system of assignment of cases, reimbursement of fees, online continuing legal education structure and electronic law office – a tool for every lawyer, etc. System is designed to deal with various electronic tools used by regional bars and law offices. For the future we are working on single financial account for each lawyer to process online income and expenditures. We are also preparing system of electronic bar examination. Dr Vitalii Vlasiuk, Head of International Law Committee of the Ukrainian National Bar Association and advisor to the Prime Minister of Ukraine, who presented most important challenges for lawyers during the past year. The most important feature was Covid-19 pandemic. Some limitations were imposed – prohibition of involvement of the public and media in court hearings, many courts did not accept Covid-19 infection as a reason for lawyers’ non-participation in hearings. The Bar undertook several initiatives to deal with the issue – proposal of legislative amendments, talks on covering lawyers with priority lines towards vaccinations, etc. Similarly to Russian colleagues, we also commenced works on digitalization, like single lawyers’ register, e-cabinets for lawyers and online training. Some threats arisen from actions of Anti-corruption Agency, which demanding from lawyers – members of Qualification and Disciplinary Committee of the Bar – submission of electronic information on financial income, which is required from all state officials. The Bar refused arguing that lawyers performing their duties in Bar’s organs are not state officials but members of independent self-government. Such action of the Agency is widely seen as an attempt to limit Bar’s independence. Dr Mateusz Woliński, talked on disciplinary liability and the independence of Polish attorneys-at-law. He noted that there are several dimensions of lawyer’s liability – legal (civil, administrative, criminal or professional), social, economic, towards clients and colleagues, etc. He underlined that professional liability is crucial for securing independence. It is the case why disciplinary proceedings should be conducted by a body independent from state – in Polish case within the Bar. Mateusz described in details existing provisions of liability and their practical functioning. Regulations are set both in state act of Parliament and in Bar’s byelaws in the Code of Conduct of attorney-at-law. Independence described in Polish documents are seen as /1/ independence from the state, /2/ independence from client or any third party, and /3/ independence from personal interest of a lawyer. Nowadays we can see a tendency to appropriate the sphere of self -governments of all kinds (local or professional) by the state as a sign of lack of trust to independent bodies. Among others, we can observe trials to influence disciplinary proceedings by Minister of Justice despite of existing state large powers on this field. The event was concluded by Maria Ślązak, AEA-EAL President and Michał Korwek, Vice-President of the Polish National Bar of Attorneys-at-law. Maria expressed her gratitude to all speakers for providing information and possible remedies. The independence of lawyers has a crucial value for society and for justice. She indicated key factors of independence raised by speakers – independence itself, preserving professional secrecy and avoidance of conflict of interests. Then freedom of association and establishing strong self-governments – Bars, clear entry requirements, independent from state organs (except of courts) disciplinary proceedings and highest possible standards of knowledge and qualifications including continuing legal education. After all – freedom of choosing lawyer by clients. All those factors can create strong, independent legal profession playing key role in providing justice to citizens. Maria said also it is a common problem for all jurisdictions that lawyer is often identifies with his client. Another one is limitation of freedom of speech that occurs in many countries, also those seen as “old democracies”. Three good remedies were called – a forum for exchange of opinions between lawyers, judges and prosecutors, a committee for constant monitoring of state activities and a rapid group to react immediately for infringement of lawyers’ rights. Maria pointed out also significance of international cooperation of lawyers and creation of a positive image of the profession towards the public. Finally, she informed on works of the Council of Europe on drafting the Convention on a profession of a lawyer. Michał Korwek thanked to Maria for her excellent summary and to all speakers, participants and organizers. He said that independence is not a general matter far from us but touches each individual lawyer in his daily work.

There were two moderators of the conference: Joanna Wisła-Płonka, Chair of the Foreign Affairs Committee of the Polish National Bar of Attorneys-at-law and Chair of the European Lawyers Committee of the Council of Bars and Law Societies of Europe (CCBE) and Magdalena Bartosiewicz, Chair of the Foreign Affairs and Human Rights Committee of the Warsaw Bar of Attorneys-at-law.