Lawyer antimonopoly – Newspaper Kommersant No. 211 (7412) dated 11/15/2022

The Constitutional Court (CC) lifted the indefinite ban on representation in court for lawyers deprived of their status, but allowed such restrictions to be imposed retroactively. The appearance of such a ban has become one of the most discussed innovations in the professional community, but the Constitutional Court recognized that it does not contradict the Constitution. Despite the duality of this court decision, it deals a significant blow to the plans to introduce a “lawyer monopoly”, the expert believes.

KS acknowledged contrary to the Constitution of the Russian Federation, the norm of the law “On the Bar”, which introduces an indefinite ban on representation in court for former lawyers whose status was terminated due to a court verdict or for disciplinary violations. Such a ban came into force in March last year: the corresponding amendment was adopted at the suggestion of the chairman of the State Duma Committee on Legislation Pavel Krasheninnikov and immediately aroused sharp criticism from the legal community, which regarded this innovation as a de facto ban on the profession for the wronged defenders.

The Constitutional Court began checking the controversial norm on the complaint of lawyer Sergei Shalavin, who lost his lawyer status in 2005 after a verdict in a criminal case: he was found guilty of extorting a stake in a large enterprise. Later, Mr. Shalavin took up legal activities already as an individual entrepreneur. In 2021, the Razdolnensky Court of Crimea refused to accept the lawsuit filed by him in the interests of the client with reference to the new rule – as from a person who does not have the right to file a private complaint. The former lawyer did not agree with this decision and eventually reached the Constitutional Court.

According to Sergei Shalavin, in practice, the controversial norm leads to a ban on the profession, and its effect also applies to persons who have lost the status of a lawyer even before the amendment enters into force.

That is, the law enforcer is trying to give the law retroactive effect, and this violates the general principles of legal regulation, the applicant insisted.

Having considered the complaint, the Constitutional Court noted that it does not question the very ban on representation in court for former lawyers, which protects both their potential clients and the rule of law in general. “Obviously, the situation is not fully compatible with the legal order in a state of law, when a person whose status as a lawyer has been terminated on defamatory grounds actually retains the opportunity to carry out the same professional activity to the same extent,” the court’s decision says. But such a ban cannot be indefinite, the Constitutional Court emphasized. He recalled that he had previously introduced time frames for such restrictions – for example, for teaching and other professional activities for those convicted under certain criminal articles.

In this regard, the legislator should establish differentiated (depending on the severity of the violation) ban periods for former lawyers, during which they cannot represent the interests of citizens in court, the decision of the Constitutional Court says.

And not only for those convicted, as in the case of the applicant, but also for those deprived of their status for various disciplinary offenses. Until this is done, the term of the ban should be equated with the term of a criminal record – if it is a sentence (but not less than five years) – or with the term of restriction on admission to the qualifying examination.

The Constitutional Court made a very important decision for the entire institution of the bar, says Andrey Suchkov, former executive vice president of the Federal Chamber of Lawyers (FBA). According to him, the so-called Krasheninnikov amendment – although such an innovation was lobbied primarily by the FPA – was another step towards a “lawyer monopoly” (the exclusive right of lawyers to be represented in court). It is no coincidence, the expert recalls, that the controversial amendments were called “a ban on the profession” for persons who have lost their lawyer status.

The decision of the Constitutional Court shook such a ban, and this is clearly not in favor of the “lawyer monopoly”, continues Mr. Suchkov. And although the applicant focused primarily on the application of the retroactive force of the law to him, the Constitutional Court gave an answer to many other, albeit not directly posed, questions.

In particular, the court recognized that the introduction of the “ban on the profession” itself does not contradict the Constitution, and noted that such a ban is not a sanction, but a measure to ensure a certain legal order.

Therefore, in this case, the rule “the law establishing liability does not have retroactive effect” does not work, the expert emphasizes. That is, persons whose legal status was terminated prior to the introduction of the challenged norm also fall under the ban. But at the same time, the Constitutional Court limited the duration of such a ban, and now a lawyer deprived of his status, after the cancellation or removal of a criminal record or after the expiration of the restriction on admission to the qualification exam, can resume his legal practice in almost the same volume as during the practice of law, while not acquiring the status of a lawyer again, Andrey Suchkov explains. And this, in his opinion, is a very sensitive blow to attempts to gradually introduce a “lawyer monopoly.”

Anastasia Kornya