Background for Creation of the Corps of Commissioners for Protection of Attorneys' Professional Rights in the St.-Petersburg Bar Chamber
During recent years, professional rights (including non-procedural rights) of attorneys at law become abused more and more often. Among other, this includes such cases as:
— denial of access to defendants kept in investigative bodies and in remand prisons;
— physical expelling of attorneys at law;
— inspections and searches in attorneys' homes and offices;
— summons for an attorney at law as a witness in his/her defendant’s case.
It should be pointed out that any abuse of attorneys' professional rights abuses also rights of their defendants. For instance, a search of an attorney’s home or office causes a risk of client-attorney privilege abuse since searchers can seize documents, equipment, or other carriers containing information on client’s cases.
There are commissions for protection of attorneys' rights in the Federal Bar Chamber of Russia and in regional bar chambers. However, under aggravating pressure against attorneys, the commissions' capacities and response methods become insufficient.
The commissioners of the St.-Petersburg Bar Chamber point out that such a commission is oriented more for protection of attorneys' procedural rights. Moreover, an attorney’s application to the Commission or the Council of the bar chamber can be under review for several months. Meanwhile, non-procedural abuse (such as a search) is sudden, unpredictable, and needs urgent timely response. From an Idea to the Project
Since 2016, at a number of events (first of all, those organized by the Prague Club), participants discussed possibilities for creation of an efficient tool for counteraction of non-procedural abuse of attorneys' professional rights by investigative, inquiry, and judicial bodies.
Yuri M. Novolodsky, Deputy Chair of the Federal Bar Chamber’s Commission for Protection of Attorneys' Rights and Vice President of the St.-Petersburg Bar Chamber, proposed an idea to create a special collegial institution consisting of attorneys at law that will be able to help timely a colleague of theirs whose professional rights are abused.
At the early discussion stages, members of the professional community proposed various names for the institution: "Institution of Commissaries for Protection of Attorneys' Professional Rights", "The Corps of the Bar Guards" or "The Corps of the Bar Knights", "Institution of Commissioners for Protection of Attorneys' Professional Rights".
Upon completion of the discussion, the Prague Club’s project
was titled "The Institution of Bar Chambers' Commissioners for Protection of Attorneys' Professional Rights
" (Russian: "Институт полномочных представителей адвокатских палат по защите профессиональных прав адвокатов
"). Yuri Novolodsky is its supervisor.
At the Prague Club meetings, participants discussed legal basis for creation of the institution of commissioners and such issues as: who can become a commissioner; how many commissioners a regional bar chamber needs; what are their tasks, and how soon they must respond to reports on violations of attorneys' rights.
In November 2017, the Prague Club website published a draft of the normative act regulating organization and functioning of the institution in question: a model Statute on Commissioners for Protection of Professional Rights of Attorneys at Law
(authors: Yuri Novolodsky and Aleksandr Meleshko). In October 2018, the new version of the Statute was published.
In November 2017, the Prague Club website published the Concept for Creation of the Institution of Regional Bar Chambers' Commissioners by Yuri Novolodsky. Creation of the Institution of Commissioners in St.-Petersburg and Organization of Its Work
On December 6, 2018, the Council of the St.-Petersburg Bar Chamber approved the Statute on the St.-Petersburg Bar Chamber’s Commissioners for Protection of Professional Rights of Attorneys at Law
. Therefore, the first structure of that kind was created and approved in Russia.
The Statute defines legal basis and organizational forms of the commissioners' activities. According to it, potential commissioners are nominated by members of the St.-Petersburg Bar Chamber Council and then the Council approves the candidatures. Status of a commissioner is certified by a proxy notice signed by the President of the bar chamber.
According to the Statute, the key task of a commissioner is to respond timely to a report on abuse of attorney’s professional rights, to fix the fact of abuse, and to inform on it the head of the government body whose official (s) commit abuse.
In the case of search, inspection, or seizure in an attorney’s office or at his/her home, a commissioner should enable inviolability of information carriers containing any information comprising client-attorney privilege.
On February 22, 2019, proxy notices authorizing to represent the interests of attorneys performing their professional activities in St.-Petersburg were handed to commissioners of the St.-Petersburg Bar Chamber.
As at December 2019, the St.-Petersburg Bar Chamber’s group of commissioners includes 31 attorneys at law.
The group lead is Aleksandr I. Changli, Council Member and Deputy Chair of the Commission for Protection of Attorneys' Professional Rights in the St.-Petersburg Bar Chamber. The group deputy leads are Nadezhda N. Zhirnova, Aleksandr V. Meleshko, and Vladimir F. Soloviev, Attorneys at Law.
The Steering Board performs day-to-day supervision of the commissioners' activities. According to the Statute, the Board includes the bar chamber Vice President supervising this activity direction, the head and deputy heads of the Commission for Protection of Attorneys' Professional Rights, and the lead and deputy leads of the group of commissioners.
The Board has prepared the Explanations on Actual Issues Arising within Activities of the St.-Petersburg Bar Chamber’s Commissioners for Protection of Attorneys' Professional Rights
approved by the bar chamber Council on 17 September 2019 and published at the bar chamber’s website. The document includes explanations not only on organizational issues but also on such issues as the commissioners' communication with security bodies, and so on.
A. Changli, the lead of the group of commissioners, has informed that letters clarifying the commissioners' activity and its legal basis (first of all, Article 450.1 of the Criminal Procedural Code of Russia regarding searches of attorneys' homes and offices) were submitted to the St.-Petersburg City Court, the city prosecutor, investigative committee, department of interior, and to all investigative bodies of St.-Petersburg. Those letters contained also the commissioners' contact phones. The information is also brought to investigative bodies' heads at meetings.
The commissioners are united into "fivesomes", each "fivesome" is on duty for a week.
Attorneys' reports on abuses of their rights come to the Bar Chamber, to the group lead A. Changli, or to the group deputy leads. All the reports are forwarded to the lead of the "fivesome on duty" who enables the field visit of commissioners on duty.
Also, information on all facts of abuse is placed in the special WhatsApp group. In this group, the commissioners on duty inform what commissioner is near to the abuse place and can visit the attorney needing assistance. This enables interoperability of the commissioners and helps to respond timely to all abuse reports.
The first field visit of commissioners upon a report abuse took place on 27 February 2019, soon after their proxy notices had been handed.
Answering a survey, members of the group of commissioners inform that key types of attorneys' rights abuse they meet are violations of or attempts to violate the client-attorney privilege within searches or inspections as well as when an attorney at law is summoned for questioning. They mention also denial of access to clients; however, during the last months, that practice is reducing in St.-Petersburg.
In many cases, a commissioner’s visit helps to prevent abuse of an attorney’s professional rights.
If violation of an attorney’s professional rights has been already committed or is not stopped, the most important task of a commissioner is to fix it. Later, the document describing the specific abuse fact is reviewed by the bar chamber’s Commission for Protection of Attorneys' Professional Rights.
In total, from late February till late October 2019, the commissioners received 37 reports. Most reports (22) regard search, inspection, or seizure in attorneys' offices or at their homes, causing risk of client-attorney privilege abuse.
Article 451 of the Criminal Procedural Code of Russia permits to seize objects and documents clearly stated in the court search order. However, the commissioners point out that in practice an order usually does not include such a clear list due to a simple reason: searchers can find something not known before. But, as a result, investigators and the police interpret the law rather widely so that they can seize almost anything.
Article 8 of the Federal Law On Legal Practice and the Bar in the Russian Federation
protects the client-attorney privilege. The latter means "any information related to provision of legal support by an attorney at law to his/her principal". The attorney’s documents and any other carriers containing information on his/her principals' cases cannot be used by the prosecution as evidence. A commissioner’s task at a search of an attorney at law is to prevent abuse of client-attorney privilege.
During the reporting period, commissioners were also called upon denial of access to a defendant (principal) for an attorney (4 reports), denial of access to the place of search (2 reports), summons of attorneys for questioning (2 reports) and other violations of attorneys' rights.
Possibilities for questioning of an attorney at law are restricted by the above-mentioned Article 8 of the Law On Legal Practice…:
"An attorney at law may not be summoned and questioned as a witness on circumstances learnt by him/her due to an application to him/her for legal support or to its provision". Practice Cases: The St.-Petersburg Bar Chamber’s Group of Commissioners Case 1 June 2019
The commissioners' WhatsApp chat got a report that at 7 AM the next morning, there would be searches (at several addresses simultaneously, including the attorney’s home) within criminal proceedings against an attorney at law. Commissioners visited all addresses of the searches. The search order stated that "objects relevant to the criminal case" should be seized. In the attorneys' residence flat, a commissioner objected to seizure of electronic information carriers and a computer (according to her, the computer in question obviously was a child’s one). The commissioner told that if they were seized, she would contest that since the carriers in question can store information comprising client-attorney privilege. Such information, even if not stored explicitly at a carrier, can be restored after deletion if it was there earlier. The commissioner’s oral warning on unlawful seizure appeared to be enough to prevent abuse of the attorney’s professional rights. The investigator agreed with the commissioner’s reasons so that the computer and the electronic data carriers were not seized.
The commissioner’s comment: "That was one of my earliest' field visits. Today, I would mention that a paper notebook also can contain client-attorney privilege. At that time, notebooks were seized". Case 2 November 2019
An attorney at law who had been invited to the Investigative Committee for acquaintance with case materials upon completion of investigation reported on abuse of her rights. The investigator offered her to study about a ten of case volumes, sitting on a metallic chair in the corridor, with rather poor light. Had she refused to study the case materials in those conditions, they could have involved witnesses and made a protocol on her refusal, not stating that conditions for studying the case materials were inappropriate for the attorney. It took about an hour to solve the problem: after commissioners contacted the investigator and the unit head by phone, the attorney at law was provided with appropriate conditions for studying the case materials.
The commissioner points out that although the specific case was successfully solved, the problem is systemic and needs additional regulation. Attorneys at law must be provided with appropriate conditions for studying case materials: a room or at least part of it, a free table, and possibility for copying documents. Case 3 July 2019
An attorney at law reported by phone to the bar chamber about a search of her cohabiting partner’s apartment flat where she lived together with him. The court search order did not take into account that at attorney at law (a "special subject") lived in a flat to be searched. A commissioner arrived in an hour and explained to the investigator that without a different court order, the search would be unlawful. The investigator decided not to search the flat and left it.
The commissioner explains: "If a search order is issued on another person but a visit to the residential place reveals that an attorney at law also lives there, a different court order is needed to perform a search, taking into account the necessity to observe the client-attorney privilege. Had the search been performed, commissioners would have contested the court order in this respect and the investigator’s actions". Case 4 2019 fall
A report on inspection of an attorney’s office by a regional FSB department officers came to the bar chamber. The inspection took place within law enforcement intelligence operations upon suspicion of a crime.
Commissioners could arrive in an hour. The Russian law does not provide participation of a bar chamber’s commissioner in an inspection (not a search) of an attorney’s home or office. In other words, before initiation of a criminal case, client-attorney privilege is not protected by law by means of presence of a bar chamber’s representative at an inspection.
In this case, commissioners were allowed to visit the place, checked powers of the court order, explained to the searchers that it was inadmissible to seize any objects containing information comprising client-attorney privilege, and filed a written application and comments to the protocol of the inspection. Thanks to their activity, no objects or documents were seized. They also explained to the FSB department officers that, to inspect an attorney’s home or office, they should apply to the bar chamber. Case 5 September 2019
A report on an inspection of an attorney’s car and personal belongings at the scene of an accident came to the bar chamber. The investigative officers planned to seize the attorney’s phone "on purpose of interest for the investigation". Having arrived to the scene, commissioners asked the attorney whether his phone contained any data regarding his work and comprising client-attorney privilege. After he confirmed that, the commissioners explained to the investigative officers inadmissibility of the phone seizure. The commissioner’s oral statement appeared to be enough to prevent the phone seizure.
Attorneys' workloads in the group of commissioners vary, depending on the functions performed. For instance, A. Changli, the group lead, spends 15−20 hours per month for the group activity coordination.
Other members of the Steering Board also spend their time, solving organizational issues and coordinating the activities.
Commissioners estimate their field visit workloads as several hours per month at average: one visit can take one hour and another from four to six hours. Frequency of field visits for one commissioner depends directly on their number: the larger the group is, the less is its single member’s workload. Clearer duty distribution and elaborated action algorithms also can reduce the workloads. Individual attorneys at law estimate their commissioners' workloads as about two days per month.
Besides field visits, group meetings, training sessions, and document preparation also takes the group members' time.
Material and technical support of the commissioners' group is provided at the St.-Petersburg Bar Chamber’s expense. In accordance with the Statute, the bar chamber’s estimate of expenditures should include commissioners' fees and coverage of the group’s expenses caused by the activities on protection of attorneys' professional rights. Commissioners have right to remuneration: 5,000 rubles for a field visit. Efficiency of and Prospects for the Institution of Commissioners
Commissioners of the St.-Petersburg Bar Chamber say that the institution was created "in response to an acutest need" and "unfortunately, keeps getting demanded more and more".
Together with the general trend for growth of abuse of attorneys' professional rights, the commissioners point out also obvious efficiency of the institution. It is enabled by timely response, publicity, and collective activities: a visit of more than one commissioner often can help to "strengthen" the position for defense of an attorney’s rights.
Thanks to timely response to reports abuse is often prevented or stopped. In many cases, it appears also very important and useful to fix the offence. As one commissioner states, no field visit on an abuse report has been useless.
Launch of the institute of commissioners has strengthened the "pro-attorney" trend in the activities of the St.-Petersburg Bar Chamber: it has become more obvious for attorneys meeting abuse of their professional rights. For less than a year, activity of the commissioners' group has become known: many attorneys at law in St.-Petersburg, knowing on them, contact the bar chamber and ask for a commissioner if their rights are violated.
Aleksandr Changli, the group lead, points out that there are complications also: the attorneys asking for assistance often show little activity after the direct hazard is stopped. Any case should be followed through but this is rather difficult without participation of the attorney protected.
It is necessary to seek for the right for commissioners themselves to contest investigators' decisions and actions court: this is a key aspect of the commissioners' interaction with investigative and judicial bodies. The approach supposing that a commissioner has no independent procedural interest restricts the commissioners' capacities in protecting the client-attorney privilege. Today, a commissioner can make statements but has no other capacities if an investigator disagrees.
It is necessary to meet with law enforcement officers and to explain that a commissioner is a participant of the investigative process. The bar community should be actively involved in the formation of law implementation practice when a commissioner will be able to contest the violations he/she has fixed.
The commissioners also point our necessity of professional skills upgrading, elaboration of algorithms for faster and more efficient performance, and further elaboration and improvement of methodical guides. Prospects for Development of the Institution of Commissioners
At present, an inter-regional group of commissioners for St.-Petersburg and the Leningrad Region is formed. This is an important step for both regions: for instance, an attorney at law can be a member of the St.-Petersburg Bar Chamber and a search may take place in his/her country house in the Leningrad Region.
But the problem is broader: for instance, if an attorney at law from Tver cannot attend his/her client detained in St.-Petersburg, the commissioners are unable to protect the attorney’s rights since he/she is not a member of the St.-Petersburg Bar Chamber (that can do that if the attorney is searched in St.-Petersburg, such a case is regulated by law). Therefore, they need special powers, extension of interaction between regions, and introduction of the institution of commissioners at the Federal Bar Chamber level, with relevant powers.
Therefore, the growing number of violations of attorneys' professional rights, on the one hand, and successful launch and functioning of the institution of commissioners protecting those rights in St.-Petersburg, on the other hand, prove the necessity to introduce that practice over the whole Russia. This is logic: development of the institution of commissioners will become an important influence tool for the bar self-governance bodies.