1. The problem of access to the private legal practice.
There are currently around 3 000 persons who have a right to engage in legal practice in the Republic of Belarus. Obviously this number of professionals can render a rather small amount of legal services in the country with population of ten million. The predominant portion of legal services is rendered by persons who have a right to conduct just a certain type of activity yet not having a license for legal practice. Those are: professional equity market makers, patent agents, realtors, insolvency trustees and in-house lawyers.
If we try to characterize the general situation on the market of legal services the following picture shall be obtained:
• The major portion of legal services is rendered by persons who do not have a license yet are providing the services legally.
• There is a large scale illegal practice along with the legal private practice;
• Existence of absolutely different systems of access to the legal practice not corresponding with each other result in absence of the unified qualification requirements.
We believe that the private legal practice is a matter of state importance.
In general, we can propose the following model of access to the private legal practice. All persons having legal education diplomas, holding Belarussian citizenship and wishing to engage in the legal practice should take a bar exam. It necessary to highlight that the right to take the bar exam should not be limited to anything but those two requirements: the legal education and the citizenship. The exception can be made for the lawyers engaged in teaching law. Successful passing of the bar exam provides the lawyer with an opportunity to receive a license to engage in the legal practice. Once the lawyer has received the license he may then choose the area of his specialization and place of work. There may be certain requirements for working in certain areas of law such as a record of service or internship as a lawyer. Another possible requirement is dictated by the specifics of the legal profession establishing that a lawyer should not engage in any other professional activities other than legal practice itself (scientific work and teaching law would have to be the exceptions).
The basics of the private legal practice could be regulated by a unified law – the Law “On Legal Activities in the Republic of Belarus”. The law would reflect the diversity of forms of private legal practice in our country and regulate the most important questions, such as:
- the procedure of access to the legal practice and requirements to the professional qualities of a lawyer;
- organizational forms of engagement in legal practice, including pro bono work;
- principles of lawyer-client relationship;
- liability of a lawyer working in bad faith;
- activities of foreign lawyers on the territory of Republic of Belarus.
The decision on access to the private legal practice upon receipt of the bar exam results should be made by an independent authority. For example, the Ministry of Justice could create a commission consisting of representatives specializing in different areas of law. A right to appeal the decision of the commission should be envisaged.
2. The institute of business lawyers: current status
The need for specialized services in the area of civil and business law arose in Belarus in the beginning of nineties along with introduction of private property and development of market relations. At that very time the first law firms and individual business lawyers that have chosen rendering legal services to businessmen as their main activities were born. Since 1995 rendering of legal services became a licensed type of activity. According to the latest information received from the Ministry of Justice of the Republic of Belarus 147 law firms and 243 individual business lawyers currently hold a license. On average, a law firm employs 5 to 7 lawyers. The institute of business lawyers is currently represented by 1000 lawyers who along with other professionals take part in achievement of one of the most important constitutional principles – providing the citizens of the Republic of Belarus with legal assistance. Giving a due respect to the individual business lawyers who provide businessmen with legal advice we would like to note the role of large law firms in the process of the development of our institute is very important. As of now there are approximately 20 large law firms according to our standards that employ from 10 up to 20 lawyers. These law firms use so-called “team work” style and are capable of working with serious economic projects. This is why the majority of large privatization and investment projects in the country are conducted with the help of law firms. Taking into account the upcoming large scale privatization and serious plans for attraction of foreign investments into the economy, the existence of local professionals who have the necessary experience and are ready to provide legal service in accordance with international standards should be viewed as a positive factor from the state interests standpoint as well as from the view of the development of the institute of the business lawyers.
The emphasis should also be placed on another side of activities of law firms. The firms having financial and other opportunities do a lot for the compliance of the local legal practice with the international standards which along with the placement of the information in the world renowned legal directories, participation in the ratings of law firms and creation of corporate web sites providing for availability of the information about national legislation and the Belarussian legal system in any part of the world.
The institute of business lawyers exists in the country for more than 10 years and it is impossible no to admit that their activity is needed, bares a strictly defined state and social importance as well as acknowledge the perspectives of the development. Unfortunately, the business lawyers are still regarded as the “second class” lawyers even at the level of state agencies and high ranking officials. It is often remarked that “…we have those business lawyers…they are businessmen…they make money…” The attorneys (advocates) in contrario, they say “…are engaged in the protection of rights and legal interests of the citizens and do not make money…”. It is probably about time to break those misleading stereotypes while evaluating the activities of different categories of the practicing lawyers.
In order to recover its monopoly the Bar of Advocates initiated introduction of amendments into the Provision “On Rendering Legal Services” in 1999. The latter amendments prohibited business lawyers to work with civil cases in the general courts. The Management of the Republican Bar of Advocates has initiated preparation of another legal act – the draft of the Decree of the President of the Republic of Belarus “On Certain Measures of Civil Legal Procedure”. The very purpose of the given Decree is to change the Article 72 of the Civil Code of the Republic of Belarus and make an exhaustive list of persons who are allowed to be representatives in civil cases in the general courts and exclude business lawyers from this process.
The Belarussian Association of Business Lawyers has turned to the state agencies concerned asking to not allow for passage of such legal act as it violates the Constitution of the Republic of Belarus, in particular the right of a citizen of the Republic of Belarus to choose its representative in the court.
We consider such actions of the Management of the Bar of Advocates to be a competitive activity in bad faith. We are opposing it and shall remain resisting. At the same time we would once again like to note that we are open for permanent dialogue with advocates on any issues that are of mutual interest, which there are quite a few of. We are convinced that only by means of a combined effort we can reform and democratize the private legal practice in the Republic of Belarus.
3. Belarussian Association of Business Lawyers: the developing trends of the professional organization.
The example with establishing a prohibition for business lawyers to work in the general courts is very representative. It is the evidence that our activity does not have any legal protection. To be completely frank, our professional activity depends from the kind or unkind will of a handful high ranking officials. Obviously, the instability of our position is negatively reflected on the image of the profession. We are viewed as a private business of lawyers, rather than a socially important profession. Taking this into account, the Belarussian Association of Business Lawyers has defined the priority trends of its activities such as promoting the prestige of the profession in the society, protection of professional interests and improvement of the professional qualification of its members. The speech goes on further to basic trends of activities of its members.
The thesis of the speech of the President of the Belarussian Association of Business Lawyers, the Managing Partner of “Vlasova Mikhel & Partners” Law Firm, Liliya Vlasova at International Conference: “Private Legal Practice in The Republic Of Belarus: Current Status And Future Trends Of Development”, Minsk, 28.02.2003 – 1.03.2003
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