New Rules of Professional Ethics: Considerable Changes in a Small Volume

Published on June, 2, 2022
The Ministry of Justice by its Decision of 30.09.2021 has adopted new Rules of Professional Ethics for Attorneys. The new version will come into force on 30.11.2021, along with the new edition of the Law "On Advocacy and the legal profession". A cursory glance at the content of the new Rules may demonstrate that they do not differ fundamentally from the old version. In general, one can indeed say that the structure and the vast majority of the rules remain the same. At the same time, the new Rules contain very important indicative innovations.
A comparison chart of the mentioned changes can be found in Russian here. We have sought not to overload the text of the given article with norm quotations, that’s why we recommend opening the above link in the separate tab to make it easier to navigate through the text of the changes.
Adoption of the Rules
At the very beginning of the document, the next thing strikes the eye immediately. Unlike Rules on Professional Ethics for Attorneys (2012 Edition), the new version lacks approval by the Belarusian National Bar Association (BNBA). In paragraph 1, which may be considered a preamble, there is no reference to the adoption of the Rules ''based on proposals from attorneys and bar associations''. Therefore, it may be concluded that the act is entirely the initiative of the Ministry of Justice, and should there be any consultation as to the text with the BNBA (if there was any), it was conducted in some informal manner.
Scope of the Rules
A significant modification can be encountered already in paragraph 2, which states that the Rules apply not only to currently acting attorneys, trainees and assistants but also to attorneys whose practice is suspended. As is known, there is a rather limited list of grounds for suspension of the attorney’s activity, presented in part one of Article 12 of the Law (election of an attorney to a government body or other organization for the period of permanent activities; attorney’s conscription; taking care of a child under the age of three; attorney’s performance of non-military service; suspension of the license in cases provided for by legislation). At the same time, being in this status, an attorney, for obvious reasons, does not practice law. However, all the restrictions under the new Rules still apply to him/her.

A very important change is contained in paragraph 3 of the new Rules. Paragraph 3 of the old Rules provided for a rather declarative provision:

"An attorney must promote respect for the legal profession, its essence and public purpose in the exercise of the legal profession, as well as contribute to the maintenance and enhancement of its credibility".

As is known, numerous attorneys who have been disbarred over the last year have been accused of various "misbehaviours" that had nothing to do with their direct professional activities (primarily, public expression of an opinion, as well as administrative liability). Probably for this reason, the aforementioned norm was formulated in the new Rules as follows:

"An attorney must promote respect for the legal profession, its essence and public purpose, and contribute to the maintenance and enhancement of its credibility".

And further, in order to dispel any doubts as to the meaning of the modifications, paragraph 3 was supplemented by another sentence:

"In any situation, including outside the scope of professional activities, an attorney must maintain his/her honor and dignity and avoid anything that might damage the integrity of the Bar or undermine its credibility".

Therefore, it is fair to say that any action which is considered by the attorney’s self-governing bodies or the Qualification Commission to be prejudicial to the integrity of the Bar and to undermine its credibility, will be regarded as a violation of this paragraph of the Rules – irrespective of any connection with the attorney’s professional activities.
Attorney-media interaction
The next important change also concerns the already tried-and-tested practice of disbarment for statements and comments in the media and on the Internet. So, a short remark in paragraph 9 noting that an attorney should only use credible data when providing information to the media that was available was substituted by a separate voluminous paragraph 65 which states as follows:

"Attorneys shall have the right to provide and disseminate (including by means of comments and assessments) accurate and reliable information for the media and on the Internet.

The information shall be presented by an attorney from a legal perspective.

Any utterances made by an attorney, including when discussing and clarifying legal norms, shall be responsible, reliable and non-misleading.
When reporting on specific lawsuits involving organizations and individuals, as well as investigative and other procedural actions, an attorney shall not make unsubstantiated judgments and conclusions not supported by the precise facts and materials of the case.

When communicating with representatives of the mass media and Internet resources, an attorney shall take measures to ensure that his words are not presented to a mass audience in a distorted form."

Despite an unequivocal attempt to provide for the strictest possible censorship of any public statements made by attorneys, the norm contains rather odd formulations. Firstly, it effectively prohibits practicing attorneys from disseminating any information on the Internet and in the media in any way other than "from the legal perspective". Given that no reservations are made in this subparagraph, it may be concluded that attorneys are prohibited from posting, inter alia, purely personal information on their social networks. For example, it is quite difficult to share one's impressions of a holiday, outdoor activities, or a show purely "from the legal perspective". Thus, there is a clear violation of the freedom of expression of an attorney, as a citizen of the Republic of Belarus. In a similar way, the question arises as to how the attorney’s statements in court are to be assessed if the trial is covered by the mass media, and the court has come to a decision, opposite to the opinions and conclusions expressed by the attorney, and the decision has come into force. In such a case, the attorney is effectively prohibited from speaking in the media about his client's position if the court disagrees with his arguments. It is even more absurd to impose an obligation "to take steps to ensure that his words are presented to a mass audience in a distorted form". That is, in fact, the obligation for an attorney to enter into disputes with the media if his/her words were distorted even slightly during the editorial process, and if he fails to enter into such disputes, the attorney could be held to be in breach of the Rules of Professional Ethics. In terms of subsequent application of this new norm, it will also be very interesting to monitor how it is going to be applied by the current BNBA President and part-time member of the Council of the Republic (the upper house of Belarusian parliament) Viktar Chaichyts, who has repeatedly – both in social media and in public statements – expressed himself on political topics not "from the legal perspective", which will clearly violate the given norm after the new Rules come into force.
The possibility for an attorney to express his/her opinion
The next extremely illustrative block of changes is the significant editing of the rules relating to the right of an attorney to speak on the guilt and innocence of the accused, as well as the right to criticize the position of other participants in the criminal proceedings.

First of all, it is striking that the new Rules do not contain the following rule, which was previously prescribed in paragraph 11 of the Rules:

"Attorney’s statements affecting the honor and dignity of a party to a case, his/her representative, a prosecutor or a defense counsel, a witness, a victim, an expert, an interpreter, which do not violate these Rules, shall not be prosecuted".

In fact, the absence of this norm in the new Rules may suggest that attorneys will no longer have any immunity in this regard, even hypothetically. At the same time, paragraph 21 of the new Rules contains a provision stipulating that "an attorney may not express an opinion on the guilt or innocence of the accused that is not his/her client". It is obvious that this prohibition is a direct reference to the expulsion of Dzmitry Laevsky from the Minsk City Bar Association a few months ago. The absurdity of this rule is absolutely obvious. If there are several defendants in a criminal case that acted in a group, and some of them plead guilty, while some of them do not, it is very problematic (and sometimes impossible) for the attorneys of non-convicted defendants to build their argumentation, let alone to plead before the court, if such a categorical ban exists since the actions of the accused are obviously intertwined. That means that the innocence of one defendant may often presuppose the innocence of others. If the matter is considered in more depth in terms of the possible consequences, it is clear that this prohibition may, in some cases, make it impossible for the defense to build a case, which is a clear violation of one of the fundamental principles of criminal procedure – the principle of the equality of arms.

In addition, there is another little-understood change relating to the possibility for an attorney to choose a legal position in a case. Thus, the new Rules contain paragraph 44 which reads as follows:

"An attorney shall coordinate his/her legal position with the client and shall not possess the right to change it without the client's consent, with the exception of the right to challenge the client's admission of guilt and ask for an acquittal or termination of the criminal proceedings. An attorney shall inform the client of any changes in the means, ways, and methods of defending his/her interests when new circumstances arising in the course of the proceedings so require."

Meanwhile, the Rules have previously had paragraph 47 (that is absent in the new version) according to which:

"If the evidence in the case file demonstrates that the actions of the defendant constitute a less serious offense than the one with which he is charged, the attorney shall be obliged to inform him/her and agree with him/her on a less serious offense. In this case, if the defendant does not agree with the attorney’s opinion, the attorney shall defend the client on the basis of his/her own position."

\Thus, given the categorical wording obliging the attorney to negotiate the argumentation with the client at all times, with the exception of only one situation in which the attorney asks for acquittal or termination of criminal proceedings against a dissenting client, under the new Rules, the attorney cannot do the same if it’s not about full acquittal, but only a change in the qualification of the accused's actions. For what reasons such a change was integrated into the Rules, one can only speculate.
Other changes
In addition, there are a number of seemingly minor changes to the new Rules, which may in fact be of considerable importance in the future.
Paragraph 29 of the Rules previously stated that "the attorney is recommended to bring to the attention of a colleague the breach of professional ethics committed by him or her". Paragraph 28 of the new Rules changes the wording to a rather categorical one: "the attorney shall tactfully draw the attention of a colleague to his/her violation of the rules of professional ethics". Taking into account such an accentuated change of the wording, it cannot be ruled out that in the future it will be used as a basis for disciplinary proceedings against attorneys if they ignore the violations of professional ethics committed by their colleagues.
There is also some concern as to the change in the wording of paragraph 54 of the new Rules, which distinctly states that an extensive list of factors "shall be taken into account" in determining fees. Whereas previously paragraph 57 of the Rules used only the phrase "It is recommended that the fees be determined taking into account the following factors". It is possible that in the future the fee recommendations could be replaced by specific fee rates, as has been rumored on a number of occasions in the past.
Summarizing all of the above-mentioned changes, it cannot be overlooked that by including in the updated Rules of Professional Ethics for Attorneys new prohibitions and restrictions apparently arising from the years-long practice of depriving lawyers of their status in one way or another, the Ministry of Justice itself confirms that previously these actions were not covered by the Rules of Professional Ethics and therefore were not prohibited – accordingly, there were no grounds for making all the decisions that were made either by the attorney self-governing bodies or by the Qualification Commission.
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