Head Of Legal Advice Office - From A Colleague To A Boss
Published August 19, 2022
On July 27, 2022, two acts were adopted at once that significantly impact the work of attorneys in Belarus: the Ministry of Justice adopted Resolution No. 106, which amended the current Regulations on the head of a legal advice office, and the BRBA Council, by its Resolution No. 05/08, approved new methodological recommendations on the amount of payment for legal assistance provided by attorneys to citizens.

The "Right to Defense" project studied both of these acts, tried to assess the strengthening of the role of managers from the point of view of the interests of the legal profession as an important component of the justice system, and to predict the possible consequences of such changes.
The previously existing Regulations on the head of legal advice, approved by a resolution of the Ministry of Justice back in 2012, have been amended to strengthen the powers of the head. In particular, the new powers of heads include:

within the limits of their competence, giving instructions that are binding on attorneys, legal assistants, legal trainees and legal aid workers;

determining the procedure for attorneys to notify the head of their location within the working hours of the legal consultation and the duty schedule of attorneys;

exercising control over attorneys' compliance with the Attorneys' Rules of Professional Ethics when disseminating information (including through comments, evaluations) in the media, the global computer network Internet, maintaining personal accounts on social networks and performing other actions (inaction);

bringing to the attention of attorneys information about identified shortcomings in their work, ensuring the elimination of these shortcomings and developing unified approaches to organizing legal activities.

Speaking about the new "methodological recommendations" on the amount of payment for legal assistance provided by attorneys to citizens, first of all it should be noted that, unlike their previous version, approved by the BRBA council in 2014, the new one in essence is not a set of recommendations, but a full-fledged normative document. So, in particular, in addition to establishing updated recommended amounts of fees, the new act contains the following mandatory rules:

the payment, determined at an hourly rate, for an assignment performed during the day cannot exceed the recommended attorney income for a day of work;

when concluding an agreement on the provision of legal assistance with a citizen, the amount of payment for legal assistance may be determined above the maximum amount of payment, but in this case the attorney must justify the determination of the increased amount of the payment;

the head of the legal consultation office constantly monitors the attorneys' compliance with the Attorneys' Rules of Professional Ethics when determining the amount of the fee;

If circumstances are identified that indicate that the payment for legal assistance does not correspond to its volume, complexity and quality, the head of the legal consultation does not approve the report on the legal assistance provided in this part and transfers the necessary documents to the council of the territorial bar association, which decides whether there are violations of the Attorneys' Rules of Professional Ethics in the actions of the attorney.

Thus, the "methodological recommendations" do not only establish, in fact, a new composition of disciplinary violations (from the Rules of Professional Ethics themselves in their current edition, it is almost impossible to deduce some version of their violation in terms of fee practice, due to the maximum discretionary norms on this), but also empowers the head of a legal advice office with two new responsibilities and competencies: monitoring compliance with fee recommendations and taking response measures if recommendations are not followed.
Meaning of changes
The newly emerged powers and responsibilities of the head of legal advice significantly strengthen his role and powers. Previously, the powers of the head were rather narrowly formulated and concerned primarily the organizational function in terms of ensuring the provision of legal assistance at the expense of the budget. The new powers are of a fundamentally different nature and cover both the direct work of an attorney on specific cases (indicating shortcomings in the work of an attorney and their elimination, control over the whereabouts of attorneys, control over the amount of fees, the right to give binding instructions), and aspects of attorneys' personal life (their comments to the media and activity on the Internet). At the same time, the abstract formulation of certain powers, for example, in terms of identifying shortcomings, makes it possible to give binding instructions on almost any aspect of the activity of a particular attorney.

The new role of the head makes them a full-fledged leader of the entire process of providing legal assistance in a single advice office, capable of influencing each attorney and each client with their authority.
Relation between changes and Basic Principles on the Role of Lawyers
The abovementioned changes largely concern the implementation in practice of a number of Basic principles on the role of lawyers.

Paragraph 16 (a) of the Basic Principles states that "Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference." The new powers of the heads cannot be called anything other than unjustified interference, because in fact, regardless of who carries out the intervention (by the state itself or by managers appointed in agreement with it), it will take place.

Paragraph 16 (c) of the Basic Principles states that governments will also ensure that lawyers "shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics." The increased level of control over fees, which is introduced by methodological recommendations, seems to be an intervention not provided for not only by international acts, but even by the Attorneys' Rules of Professional Ethics in Belarus, by which issues relating to fees, as mentioned above, are formulated quite freely and streamlined.

The creation of an additional basis for initiating a disciplinary procedure also affects the principle of a "fair disciplinary procedure". Pursuant to this principle, as set out in paragraph 27 of the Fundamental Principles, allegations or complaints against lawyers acting in their professional capacity are subject to prompt and objective consideration in accordance with due process. Lawyers have the right to a fair hearing, including the right to assistance of a lawyer of their choice. In accordance with paragraph 28 of the Basic Principles, disciplinary action against lawyers is considered by an impartial disciplinary committee constituted by lawyers, an independent body established by law or a court and is subject to independent judicial review. However, as is known, after amendments to the legislation on the legal profession, the functions of disciplinary commissions were transferred to the councils of territorial bars and BRBA (Article 22 of the Law "On the Bar and Legal Activities"), which raises questions about the competence and fairness of consideration of disciplinary cases.

It should also be remembered that paragraph 22 of the Basic Principles states that "Governments shall recognize and ensure the confidential nature of all communications and consultations between attorneys and their clients within the framework of their professional relationships", but the new powers will allow the head to intervene much more deeply than previously between a attorney and a client, because in fact, many aspects of setting a fee may concern confidential information, which in this case would be completely unreasonably provided to the head (previously, such violations of confidentiality could be discussed if the case concerned, for example, disciplinary proceedings based on a complaint of this citizen, however in this case, the information would be provided to the disciplinary body of the board and, most likely, with the consent of the client, who, with a high degree of probability, would himself initiate the disciplinary proceedings). Constant monitoring of the attorney's whereabouts may also infringe on the confidentiality of the attorney-client relationship.

Paragraph 23 of the Basic Principles provides that "Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession." Giving the head the right to control the attorney's statements in the media and on the Internet, as well as in fact the right to act as a censor (to identify shortcomings, bring information about them to the attorney's attention, ensure their elimination, give mandatory instructions for the attorney), significantly limits the attorney's freedom of expression, violating this principle.
Potential danger of changes to the independence of individual attorneys
The new provisions seem logical in connection with the general weakening of the independence of individual attorneys and the legal profession as a whole. The practice existing since 2017 of the Ministry of Justice agreeing on candidates for heads of legal advice offices previously guaranteed the presence of heads who are clearly loyal to the Ministry of Justice. The new powers will contribute to even greater centralization of the structure of the entire legal profession. In this strictly vertical system, additional actors will now include heads, who previously were only managers organizing the working conditions of the remaining attorneys. Now heads can (and are even obliged) to act as a separate link in the repressive system, although previously they had no direct relationship with it. For example, if previously attorney's statements in the media or on the Internet could be used against him by the council of the territorial bar, the disciplinary commission (before its liquidation) or the Ministry of Justice, now the initial identification of these statements with the subsequent initiation of a disciplinary procedure is the responsibility of the head. At the same time, with a high degree of probability, the identification of such statements by the Ministry of Justice or the TBA council will be considered as a shortcoming in the work of the head who has not properly fulfilled his duties. It can be assumed that soon, due to this change in role, the often previously existing good and even friendly relations between the attorneys of the legal consultation and its head will become a rarity, giving way to the traditional "superior-subordinate" relationship. For ordinary attorneys, such changes mean that constant monitoring of their activities will not be carried out somewhere far away, but directly at their workplace.

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