Legal status of an advocate
The legal status of an advocate in the Russian Federation is determined by the Federal Law of the Russian Federation dated May 31, 2002 No 63-FZ “On Advocacy and the Bar”.
The Federal Law of the Russian Federation dated May 31, 2002 No 63-FZ
“On Advocacy and the Bar”
Chapter 1.General provisions
Article 1. Advocacy
1. Advocacy is professional legal counselling of individuals and legal entities (hereinafter referred to as clients) provided by persons who have qualified as an advocate in the manner prescribed hereby in order to protect their rights, freedoms and interests, as well as to enable access to public justice.
2. Advocacy is not a business.
3. Advocacy does not include legal assistance rendered by:
- the staff of legal departments of legal entities (hereinafter referred to as entities), or the staff of central and local governmental authorities;
- the shareholders and staff of corporate providers of legal services, or sole traders;
- notaries, patent agents, except where an advocate serves as a patent agent, or by other persons who are expressly authorized by law to engage in their professional activities.
4.Nor does this Federal Law apply to authorities and persons that provide representation by operation of law.
Article 2. Advocate
1. An advocate is a person who has qualified in the manner prescribed hereby as an advocate and is entitled to be engaged in the practice of law. An advocate is an independent legal counsel. An advocate may not enter into employment relations other than in academic, teaching and other creative contexts, or hold public office in the Russian Federation, public office in the constituent entities of the Russian Federation, or positions in the central or local government.
2.In the context of providing legal aid, an advocate shall:
1) give advice and opinions on legal matters, either orally or in writing;
2) draft applications, complaints, petitions and other legal paperwork;
3) represent a client in constitutional proceedings;
4) take part as a client’s representative in civil and administrative court proceedings;
5) take part as a client’s representative or defender in criminal and administrative offence proceedings;
6) take part as a client’s representative in proceedings before an arbitration tribunal, international commercial arbitration tribunal (court) and other conflict settlement bodies;
7) represent a client before central and local government authorities, non-governmental associations and other organizations;
8) represent a client before public authorities, courts and law enforcement agencies in foreign jurisdictions, international judicial authorities and non-governmental entities in foreign jurisdictions, unless otherwise provided for by the legislation of foreign jurisdictions, constituent instruments of international judicial authorities and other international organizations, or treaties of the Russian Federation;
9) take part as a client’s representative in enforcement proceedings, as well as in the administration of criminal punishment;
10) serve as a client’s representative in tax matters.
3.The advocate shall be entitled to provide such other legal assistance as is not prohibited by federal law.
4.Representation of organizations, central and local government authorities in civil and administrative court proceedings and administrative offence proceedings is only available to advocates, except where this is the responsibility of employees of said organizations and central and local government authorities, unless otherwise provided for by federal law.
5.Advocates of a foreign jurisdiction can provide legal assistance within the Russian Federation on the matters of law of the foreign jurisdiction.
Advocates of a foreign jurisdiction are barred from providing legal assistance within the Russian Federation in the matters involving state secrets of the Russian Federation.
6.Advocates of a foreign jurisdiction who practise law within the Russian Federation shall be registered by the federal executive authority for justice (hereinafter referred to as the federal justice agency) on a special register, to be maintained as prescribed by the competent federal executive authority.
It is forbidden for advocates of a foreign jurisdiction to practise law within the Russian Federation unless registered on the said register.
Article 4.Legislation on advocacy and the bar
2.Adopted in the manner prescribed hereby, a Code of professional ethics of advocates lays down the rules of conduct binding upon every advocate when practising law, as well as the grounds and procedure for holding an advocate liable.
Article 5. Use of the terms employed herein
The terms “advocacy”, “the bar”, “advocate”, “bar chamber”, “legal practice”, “legal clinic” or phrases incorporating these terms may only be used in the names of entities and NGOs by advocates and organizations established in the manner prescribed herein.
Chapter 2.Rights and obligations of an advocate
Article 6.Powers of an advocate
2.Where provided by federal law, an advocate must have a mandate for execution of the instruction issued by a respective legal practice. The form of a mandate shall be approved by the federal justice body. Otherwise, an advocate shall represent a client under a power of attorney. No one may demand from an advocate and his/her client presentation of a legal services agreement (hereinafter also referred to as an agreement) for the advocate to join the case.
3.An advocate shall be entitled to:
1) collect information necessary for the provision of legal aid, in particular request statements, references and other documents from central and local government authorities, as well as NGOs and other entities according to the procedure established by Article 6.1 of this Federal Law. The mentioned authorities and organizations are required to provide the advocate under the statutory procedure with the documents requested by him/her or with the certified copies thereof;
2) interview any persons, subject to their consent, who presumably possess information related to the case in which the advocate is providing legal assistance;
3) collect and provide items and documents which may be recognized as physical and other evidence in the manner prescribed by the laws of the Russian Federation;
4) involve professional experts on a contractual basis to clarify issues related to the provision of legal aid;
5) meet with the client in private, unopposed, in confidential surroundings (including when held in custody), with no limit on the number or duration of visits;
6) document (including using technical means) the contents of the materials of the case in which the advocate is providing legal aid, with due regard for state and other legally protected secrets;
7) do other things not prohibited by the law of the Russian Federation.
4.An advocate must not:
1) accept instruction from a person seeking legal aid from him/her, if such instruction is knowingly illegal;
2) accept instruction from a person seeking legal aid from him/her, if he/she:
- has his/her own personal interest in the subject matter of an agreement with a client, which is different from the interest of such person;
- was involved in the case as a judge, umpire or arbitrator, mediator, prosecutor, investigator, investigative inquiry officer, expert, specialist or interpreter, is an injured party or a witness in the case, or if he/she was an official empowered to make a decision in favour of such person;
- is related by blood or marriage to an official who was or is involved in an investigation or hearing of such person’s case;
- renders legal aid to a client whose interests are at variance with those of such person;
3) act in the case against the will of a client, except where the advocate is convinced that there is a self-accusation of the client;
4) state publicly that a client’s guilt has been proven if the latter denies it;
5) disclose information provided to him/her by the client in connection with provision of legal aid to the latter without the client’s consent;
6) withdraw from representation.
The advocate is forbidden from clandestine cooperation with investigative bodies.
Article 6.1.Advocate’s request
1.According to the procedure established by this Federal Law an advocate may send to the central and local government bodies, NGO’s and other organizations an official request related to the issues falling within the competence of the said bodies and organizations for production of certificates, characteristics and other documents required for provision of a qualified legal aid (hereinafter referred to as an advocate’s request).
2.Central and local government bodies, NGOs and other organizations at which address the advocate’s request was sent must respond to it in writing within a thirty-day period of its receipt. In cases requiring extra time for collection and production of the requested information the specified time period may be extended but for no more than thirty days, whereby the notice of extension of the term for examination of the advocate’s request shall be sent to the advocate who has sent the advocate’s request.
4.Production of the requested information can be denied to the advocate in case if:
1) the entity which received the advocate’s request does not possess the requested information;
2) the statutory requirements to the form, procedure of drawing up and filing of an advocate’s request were violated;
3) the requested information is classified by law as restricted data.
5.The unfounded refusal to furnish the information which production is envisaged by federal laws, as well as violation of the time limits for production entail the liability established by the legislation of the Russian Federation.
6.In cases where the legislation of the Russian Federation establishes a special procedure of information production the advocate’s request will be examined in accordance with the requirements established by the legislation of the Russian Federation for a relevant category of information.
Article 8.Attorney-client privilege
1.Attorney-client privilege is any information related to provision of legal aid by an advocate to his client.
2.An advocate may not be summoned and examined as a witness about any circumstances that he/she may become aware of in the context of legal aid sought from or rendered by him/her.
3.Investigations and investigative inquiries in respect of an advocate (including in residential and office space used by him/her for the practice of law) are permitted only subject to a court order.
Information, objects or documents obtained in the context of investigations or investigative inquiries (including after the advocate’s suspension or disbarment) may be used as evidence by the prosecution only if not sourced from the advocate’s client files. The above restrictions do not apply to instruments of crime or to statutorily banned or restricted items in the Russian Federation.
Chapter 3.Status of an advocate
Article 9.Acquisition of the status of an advocate
1.Status of an advocate in the Russian Federation can be acquired by a person with a law degree obtained in a government-accredited course or a postgraduate law degree. Said person must also have at least two years of practice of law or have completed his apprenticeship in a legal practice within the time limits set by this Federal Law.
3.The decision on admittance to the bar shall be made by the qualification commission of a bar chamber of a constituent entity of the Russian Federation (hereinafter referred to as the qualification commission) after the aspiring advocate has passed the bar exam.
5.An advocate may carry out legal profession in the whole territory of the Russian Federation without any additional authorization.
Article 14.Registers of advocates
1.The territorial body of the Federal executive body responsible for justice (hereinafter referred to as the territorial justice body) shall keep a register of advocates of a constituent entity of the Russian Federation (hereinafter referred to as the regional register).
Article 18.Guarantees of independence of an advocate
1.Interference with or obstruction of the practice of law conducted in the law-abiding manner is strictly prohibited.
2.An advocate may not be held liable in any way (including after suspension of his/her advocate’s activity or his/her disbarment) for any opinion expressed by him/her during the practice of law, unless the advocate is found guilty of a criminal act (omission) by the final judgment.
The above restrictions do not apply to an advocate’s civil liability towards a client in accordance with this Federal Law.
3.It is forbidden to demand from advocates or the staff of legal practices, bar chambers or the Federal Bar Chamber the production of information related to provision of legal assistance rendered in specific cases.
4.The advocate, his/her family members and their property are under the protection of the government. The internal affairs bodies are required to take measures necessary to ensure the safety of the advocate, his/her family members and their property.
5.Criminal proceedings against an advocate shall be pursued subject to the safeguards provided for the advocate under the criminal procedure legislation.
Chapter 4. Organization of advocacy and the bar
Article 20. Forms of legal practice
1.There are the following forms of legal practice: private legal practice, collegium of advocates, advocates bureau, and legal clinic.
2.In accordance with this federal law an advocate is free to choose on his own the form and place of legal practice. An advocate shall notify the council of the bar chamber of the chosen form and place of legal practice in the manner prescribed herein.
3.Where provided for by Article 24 hereof, an advocate shall practise law in a legal clinic.
Article 21.Private legal practice
1.An advocate who has at least five years of working experience in legal profession and who has made a decision to practise law individually shall have the right to set up a private legal practice.
2.The advocate shall send by registered letter to the council of the bar chamber a notice of establishment of a private legal practice, specifying the advocate’s details, the location of his/her private legal practice, and contact information for telephone, telegraph, postal and other communications between the council of the bar chamber and the advocate.
3.A private legal practice is not a legal entity.
4.The advocate who has set up a private legal practice opens bank accounts in accordance with the legislation, has a seal, stamps and letterheads with the address and name of the private legal practice, indicating the constituent entity of the Russian Federation where the private legal practice has been set up.
5.Agreements for provision of legal aid in a private legal practice shall be made between the advocate and a client and shall be registered in the records of the private legal practice.
6.The advocate shall be entitled to use for the purposes of private legal practice the living space owned by him/her or members of his/her family, with the consent of the latter.
7.Any living space occupied by the advocate and members of his/her family under a lease can be used by the advocate for the purposes of private legal practice with the consent of the lessor and all adult cohabitants of the advocate.
Article 22.Collegium of advocates
1.Two or more advocates may set up a collegium of advocates. Among founders of a collegium of advocates there should be at least two advocates with no less than five years of experience in legal profession.
2.A collegium of advocates is a non-profit organization based on membership and operating under its charter approved by its founders (hereinafter also referred to as the charter), and the founders agreement entered into by them.
9.A collegium of advocates is a legal entity, has a stand-alone balance sheet, opens bank accounts in accordance with the legislation of the Russian Federation, has a seal, stamps and letterheads with the address and name of the collegium of advocates, indicating the constituent entity of the Russian Federation where the collegium of advocates is incorporated.
10.A collegium of advocates shall be entitled to set up branches throughout the Russian Federation, as well as in foreign jurisdictions, if provided for by the legislation of the foreign jurisdiction.
The advocates who practise law in a branch of the collegium of advocates are members of the collegium of advocates that has set up a respective branch.
12.Members of a collegium of advocates may not be held liable for its debts; a collegium of advocates may not be held liable for the debts of its members.
13.Under the laws of the Russian Federation, a collegium of advocates is a tax agent for the advocates who are its members in respect of the income earned by them in connection with practising law, as well as their representative in the settlement of accounts with clients and third parties and in such other matters as may be provided for by the constituent documents of the collegium of advocates.
15.The agreements for provision of legal aid in the collegium of advocates shall be made between an advocate and a client and shall be registered in the records of the collegium of advocates.
16.Nothing in this article may be construed as limiting the advocate’s independence in execution of the client’s mandate or his professional liability towards the latter.
Article 23.Advocates bureau
1.Two or more advocates shall be entitled to set up an advocates bureau.
2.The relations arising in connection with setting up and operation of an advocates bureau shall be governed by the provisions of Article 22 hereof, unless otherwise provided for in this article.
3.The advocates who have set up an advocates bureau shall enter into a partnership agreement in writing. Under the partnership agreement, the partner advocates undertake to pool their efforts to provide legal assistance on behalf of all partners. The partnership agreement is not required for the public registration of an advocates bureau.
4.The partnership agreement shall specify:
1) the term of the partnership agreement;
2) the procedure for decision-making by partners;
3) the procedure for electing a managing partner and his remit;
4) other material terms.
5.The advocates’ bureau shall be managed by the managing partner, unless otherwise provided for in the partnership agreement. A legal aid agreement with a client shall be entered into by the managing partner or another partner on behalf of all partners based on the powers of attorney granted by them. The powers of attorney shall specify all restrictions of the competence of the partner entering into agreements and transactions with clients and third parties. The above restrictions shall be notified to the clients and third parties.
6.A partnership agreement shall terminate for the following reasons:
1) expiration of the term of the partnership agreement;
2) disbarment or suspension of an advocate’s status of a partner unless the partnership agreement provides for the agreement to remain in effect for the other partners;
3) termination of the partnership agreement upon request of a partner, unless the partnership agreement provides for the agreement to remain in effect for the other partners.
7.Upon termination of the partnership agreement, its participants shall be jointly and severally liable for the partnership’s outstanding liabilities to clients and third parties.
8.Upon a partner’s withdrawal from the partnership agreement, he is required to surrender all of his cases to the managing partner.
9.An advocate who has withdrawn from a partnership agreement shall be liable to clients and third parties for the partnership’s liabilities incurred during the period of his participation in the partnership agreement.
10.Nothing in this article may be construed as limiting the advocate’s independence in providing representation for a client or his/her professional personal liability towards the latter.
11.An advocates bureau may not be transformed into a business or any other non-profit organization, save where an advocates bureau transforms into a collegium of advocates.
12.Following termination of the partnership agreement, the advocates will have the right to make a new partnership agreement. If no new partnership agreement is made within a month of the termination of the prior partnership agreement, the advocates bureau shall be transformed into a collegium of advocates or shall be wound up.
After termination of the partnership agreement and till transformation of the advocates bureau into a collegium of advocates or conclusion of a new partnership agreement, the advocates may not enter into any legal aid agreement.
Article 24.Legal clinic
1.Where a total number of advocates in all legal practices in a judicial district is fewer than two per one federal judge, the bar chamber shall establish a legal clinic as requested by a government agency of a constituent entity of the Russian Federation.
2.A legal clinic is a non-profit organization. The issues of incorporation, reorganization, transformation, liquidation and operation of a legal clinic shall be governed by the Civil Code of the Russian Federation, by the Federal Law “Non-Profit Organizations” and by the present federal law.
3.A request by a government agency of a constituent entity of the Russian Federation to set up a legal clinic must specify:
1) the judicial district where a legal clinic is to be set up;
2) the number of judges in the judicial district;
3) the requisite number of advocates in the judicial district;
4) the logistic and financial support of the operation of a legal clinic, including the premises and office equipment and supplies to be made available to the legal clinic, as well as the funding sources and the amount of funds allocated for the payment for the services of advocates to be assigned to the legal clinic.
4.Having agreed with the government agency of a constituent entity of the Russian Federation upon the terms and conditions provided for by subparagraph 4, paragraph 3 of this article, the council of the bar chamber makes a decision to set up a legal clinic, approves the candidacies of the advocates to be assigned to the legal clinic, and sends by registered letter a notice of setting up a legal clinic to the government agency of a constituent entity of the Russian Federation.
5.The council of the bar chamber approves a procedure for seconding advocates to the legal clinic. In this context, the council of the bar chamber can arrange for the advocates practising law at legal clinics to receive extra payment from the bar chamber’s budget.
Article 25.Legal aid agreement
1. Advocacy is carried out on the basis of an agreement between an advocate and a client.
2.The agreement is a civil law contract made in writing between a client and an advocate(s) for the provision of legal aid to the client himself or the person designated by him.
The issues of termination of a legal aid agreement shall be governed by the Civil Code of the Russian Federation, with the exemptions provided hereby.
3.Irrespective of a regional register in which his/her details are entered into, an advocate shall be entitled to make an agreement with a client wherever the latter resides or stays.
4.The agreement has the following requisite elements:
1) a reference to the advocate (advocates) who has (have) agreed to serve as proxy holder (proxy holders), as well as to his/her (their) affiliation with a legal practice and a bar chamber;
2) subject-matter of the mandate;
3) the terms and amount of the fee payable by a client for the legal aid rendered or the indication that the legal aid be provided to the client free of charge pursuant to the Federal Law“On Free Legal Aid in the Russian Federation”;
4) the procedure for and the extent of reimbursement of the advocate’s (advocates’) expenses related to execution of the mandate, except where legal aid is provided to the client free of charge pursuant to the Federal Law “On Free Legal Aid in the Russian Federation”;
5) the extent and nature of liability of the advocate(s) who has (have) accepted the execution of the mandate.
5.The advocate’s right to a fee and reimbursement of expenses related to the execution of the mandate may not be assigned to a third party without the client’s express consent thereto.
6.The fee payable to an advocate by a client and/or the legal service expenses reimbursable to the advocate shall be paid to the cashier of a legal practice or shall be transferred to the settlement account of a legal practice in the manner and within the time limits specified in the agreement.
Article 45.Entry into effect of this Federal Law
1.This Federal Law shall enter into effect from July 1, 2002.