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Safeguarding Democracy for the Next Generation: Case Studies in Legal Ethics Training

Professor Philip Genty Columbia Law School

Jennifer Paradise White & Case LLP

Partner and General Counsel

Table of Contents

1. Genty, Philip M.The Challenges of Developing Cross-Cultural Legal Ethics Education,Professional Development, and Guidance for the Legal Professions, 2011J. Prof. Law. 37 2011

2. Legal Ethics Course descriptions:

– Armenia

– Ghana

– Israel

– Romania

– Russia

3. Russian Legal Ethics and Professional Responsibility Training EssayContest Questions (Oct. 1, 2016)

4. Rules 1.6, 1.7, 1.10 of the ABA Model Rules of Professional Conduct

5. Ghana Legal Profession (Professional Conduct and Etiquette) Rules, 1969(LI 613)

6. Code of Professional Ethics of Russian Advocates 2003

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37

The Challenges of Developing

Cross-Cultural Legal Ethics Education,

Professional Development, and

Guidance for the Legal Professions

Philip M. Genty*

Introduction

The broad goal of this paper is to describe the need, and provide a frame

work, for engaging in cross-cultural conversations among lawyers, law teach

ers, and others, who are using legal ethics as a vehicle for improving the legal

professions and the delivery of legal services. All legal cultures struggle with

the question of how to educate students and lawyers to be ethical professionals

and how to regulate the legal profession effectively. The purpose of the cross

cultural conversations discussed in this paper would be to develop principles

of legal ethics education, professional development, and regulation of the legal

professions that can be applied across cultural contexts.

The paper is not primarily concerned with the ethics of transnational prac

tice, an issue that has been analyzed very well by others.1 While the current

U.S. ethical rules have relatively little to say about transnational practice,2 the

Council of Bars and Law Societies of Europe (hereafter "CCBE") has dealt

* Everett B. Birch Innovative Teaching Clinical Professor in Professional Responsibility,

Columbia Law School. I want to thank my research assistant Amanda Hungerford, Columbia

'10, for her wonderful work on this project. A version of this paper was presented at the 4th

International Legal Ethics Conference, "Legal Ethics in Times of Turbulence," Stanford Law

School, July 2010.

l. See, e.g., Maya Goldstein Bolocan, Editor, Professional Legal Ethics: A Comparative

Perspective, ABA Central European and Eurasian Law Initiative, Legislative and Research Pro

gram (2002), at 92-101; Detlev F. Vagts, Professional Responsibility in Transborder Practice:

Conflict and Resolution, 13 GEO. J. LEGAL ETHICS 677 (Summer 2000); Laurel S. Terry, An

Introduction to the European Community's Legal Ethics Code, Part I: An Analysis of the CCBE

Code of Conduct, 7 GEO. J. LEGAL ETHICS 1 (1993); and Laurel S. Terry, An Introduction to

the European Community's Legal Ethics Code, Part II: Applying the CCBE Code of Conduct,

7 GEO. J. LEGAL ETHICS 345 (1993). See also Rachel Barish, Professional Responsibility for

International Human Rights Lawyers: A Proposed Paradigm (2007) (unpublished paper on file

with the author).

2. See MODEL RULES OF PRoF'L CONDUCT R. 8.5-Disciplinary Authority: Choice of

Law, Comment 7: "The choice of law provision applies to lawyers engaged in transnational

practice, unless international law, treaties or other agreements between competent regulatory

authorities in the affected jurisdictions provide otherwise."

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38 JOURNAL OF THE PROFESSIONAL LAWYER

with this in a sustained and comprehensive manner. The CCBE has promulgated

the Code of Conduct for European Lawyers and the Charter of Core Principles

of the European Legal Profession. The Code of Conduct was first promulgated in

1988, while the Charter was adopted much more recently, in 2006.3 As of 2008,

forty-one countries had signed on to the CCBE Charter and Code of Conduct.4

A review of national codes of legal ethics reveals the influence of the CCBE ap

proach. There is a good deal of uniformity among these, and the CCBE Charter

and Code of Conduct are apparently the models for many of the recently enacted

or amended Codes.5

Another source of guidance for transnational practice is the International Bar

Association, International Code of Ethics.6 This is a very short document, framed

in general terms. The International Bar Association is currently at work on a set

of comments to accompany the Code of Ethics. When it has been completed the

commentary will flesh out the Code principles in detail.7

A challenge arising from globalized law practice is that the legal profession

is, in fact, many different professions. For example, in European countries the

legal professions are divided by specialty area (advocate/barrister, notary, prosecu

tor, judge, professor, etc.), and students typically decide upon a professional track

3. Council of Bars and Law Societies of Europe, Charter of Core Principles of the European

Legal Profession and Code of Conduct for European Lawyers, 2008 Edition, at l (available at http://

www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_Code_of_conductpl_ l 249308118.pdf).

4. The countries are: Albania, Armenia, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech

Republic, Denmark, Estonia, Finland, Former Yugoslav Republic of Macedonia (hereafter "Mace

donia"), France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein,

Lithuania, Luxembourg, Malta, Montenegro, Moldova, Netherlands, Norway, Poland, Portugal, Ro

mania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom.

Council of Bars and Law Societies of Europe, Charter of Core Principles of the European Legal

Profession and Code of Conduct for European Lawyers, 2008 Edition, Commentary on Article 1.4-

Field of Application Ratione Personae supra note 3 at 21-22.

5. See, e.g., Maya Goldstein Bolocan, Editor, Professional Legal Ethics: A Comparative Per

spective, ABA Central European and Eurasian Law Initiative, Legislative and Research Program .

(2002), at 9 (noting that the CCBE Code is "meant to contribute to the 'progressive harmonization'

of lawyers' codes of conduct of countries of the European Union and European Economic Area.")

(citing CCBE Code Article 1.3.2). For this paper ethics codes of the following countries (in addition

to the CCBE materials and the U.S. Model Rules of Professional Conduct) were reviewed: Alba

nia, Armenia, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Israel, Italy,

Latvia, Macedonia, Malta, Moldova, Poland, Scotland, Slovenia, Sweden, Ukraine. These will be

analyzed in detail elsewhere in this paper. Among the striking similarities are the ordering of sections

(like the CCBE Code, most European ethics codes begin with "Independence") and the wording of

key sections like Confidentiality and Conflict of Interest.

6. Available at http://www.ibanet.org/Document/Default.aspx?DocumentUid=A9AB05AA-

8B69-4BF2-B52C-97ElCF774A1B.

7. Conversation with Jonathan Goldsmith, Secretary General, CCBE, July 16, 2010, 4th Inter

national Legal Ethics Conference, "Legal Ethics in Times of Turbulence," Stanford Law School.

http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_Code_of_conductpl_

http://www.ibanet.org/Document/Default.aspx?DocumentUid=A9AB05AA-

CROSS-CULTURAL ETHICS EDUCATION 39

during law school and take courses that will prepare them for that speci alty.8 In ad

dition, ethical codes often preclude a lawyer from working simultaneously in "in

compatible activities," e.g. as both an advocate and a notary because of a perceived

conflict between those professional roles.9 In the United States, although there are

no such formal specialty areas, students likewise begin to specialize informally

during law school. Some focus on transactional matters, some on commercial liti

gation involving representation of entities, some on government work, some on

civil public interest (e.g. housing, benefits, family law, civil rights, environmental

law), some on criminal law, etc. The CCBE Code, in listing the signatory coun

tries, indicates that the Code is applicable only to advocates (or the equivalent title

within each country).10 This appears to be true of the national codes as well. For

simplicity, the focus of this paper will therefore be on "advocates" or their equiva

lent, unless otherwise indicated.

This paper seeks to find a language and framework for addressing ethical is

sues of common concern, even if (and maybe especially if) they lead to different

local solutions. The starting point for this is an examination of existing codes of

legal ethics, because these codes are central to any analysis of ethical issues. They

are the common language used by the legal professions of all countries, and they

are concrete and public expressions of the principles that govern and guide the

legal professions.

However, such an examination must go beyond merely describing and com

paring these codes, to an analysis of the purposes the codes are designed to serve

and the extent to which they actually achieve those purposes. As described more

fully below, the international literature on codes of public administration suggests

that professional codes should reflect the most significant and typical problems

that arise within the profession and the core values of the profession.11 In addition,

8. See, e.g., Richard J. Wilson, 18th International Congress on Comparative Law, Washing

ton, D.C., July 2010, General Report: The Role of Practice in Legal Education, at 10-14; Maya

Goldstein Bolocan, Editor, Professional Legal Ethics: A Comparative Perspective, ABA Central Eu

ropean and Eurasian Law Initiative, Legislative and Research Program (2002), at 4; Laurel S. Terry,

An Introduction to the European Community's Legal Ethics Code, Part J: An Analysis of the CCBE

Code of Conduct, 7 GEO. J. LEGAL ETHICS 1, 10-11 n.33 (1993).

9. See, e.g., Maya Goldstein Bolocan, Editor, Professional Legal Ethics: A Comparative Per

spective, ABA Central European and Eurasian Law Initiative, Legislative and Research Program

(2002), at 45-47.

10. Council of Bars and Law Societies of Europe, Charter of Core Principles of the European

Legal Profession and Code of Conduct for European Lawyers, 2008 Edition, Commentary on Article

1.4-Field of Application Ratione Personae, supra note 3 at 21-22.

11. See Alan Lawton (Hull University, UK and VU University, Amsterdam), Michael Macaulay

(Teesside University, UK), Jolanta Palidauskaite (Kaunas University of Technology, Lithuania), "To

wards a comparative methodology for public service ethics," paper presented at EGPA Conference,

Malta 2-5th September 2009, PSG VII:"Ethics and Integrity of Governance, available at http://www.

egpa2009.com/documents/psg7/Lawton-Macaulay.pdf. The paper is discussed in Section II, infra.

http://www/


codes serve three distinct purposes: they inspire, they guide, and they regulate the

profession.12 While codes may do all three of these things, it is important to distin

guish among these purposes in assessing the efficacy of code provisions.

To this end, this paper suggests that practitioners, scholars, teachers, and poli

cymakers should engage in a four-step approach:

1. identify the most common and/or important gaps and problems that need

to be addressed through a system of legal ethics;

2. define the core ethical principles and values within the society and legal

professions;

3. analyze and, if necessary, revise existing ethical codes to ensure that they

address these problems and reflect these core principles and values, through

a combination of inspiration, guidance, and regulation; and

4. using the codes as the centerpiece, design a system of ethical education

and professional development--or improve existing systems-to prepare

the legal professions within each society to recognize and deal effectively

with these ethical issues.

To illustrate these ideas more concretely, the paper will use the particular

focus of public interest advocacy and the related issue of access to legal services.

This context is often overlooked in discussions of legal ethics and regulation of the

Jegal profession; such discussions typically focus on private practice and empha

size issues relating to fees, advertising and solicitation, competition for business,

etc. The literature on ethics in the public interest context is therefore underdevel

oped, and it is hoped that this paper can make a useful contribution.

Section I of the paper reviews some of the work that has been done in com

parative legal ethics. The section also includes observations about the similarities

and differences among national codes of legal ethics. Section II discusses research

from public administration scholars who have examined professional codes ap

plicable to government employees. These scholars have developed approaches to

identifying important ethical problems and core ethical values and principles, and

these approaches could be adapted to the legal professions. Section III uses the

public interest advocacy and access to legal services context to illustrate how the

approach to public administration ethics described in Section II could be adapted

to the field of legal ethics. Two sets of issues that are important to public interest

advocates will be examined in a comparative context: the allocation of decision

making responsibility between lawyers and clients and related issues of client

counseling; and methods of stretching scarce legal resources to provide more peo

ple with access to these services, including «unbundling" of legal services and pro

bono assistance. The paper ends with some brief concluding reflections.

12. See Jolanta Palidauskaite, Codes of Ethics in Transitional Democracies, A Comparative

Perspective, 8 PuBuc INTEGRITY 35 (Winter 2005-2006), discussed in Section II, infra.

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I. Comparative Approaches to

Ethical Regulation of the Legal Professions

An obvious challenge in taking a cross-cultural approach to legal ethics is

that each society operates with its own particular set of ethical principles. Unlike

substantive law, which, at least to some extent, can be examined and compared

in an objective, theoretical manner, an examination of professional legal ethics is

inherently subjective and contextual, because the legal professions and the practice

of law are necessarily defined in large part by the specific culture of which they

are a product.

Commentators have noted this in their analysis of differences between the

U.S. common law and European civil law approaches to legal ethics.13 One gen

eral observation is that the U.S. rules are much more "legalistic," detailed, and

specific than their civil law counterparts, which tend to be framed in terms of gen

eral standards or norms.14 Mary Daly described this distinction between "rules"

and "standards": Rules are "commands that constrict a decisionmaker's discretion.

They reflect a choice among competing values by a policymaker...."15 Standards

are "general principles that allow the decisionmaker greater discretion in applying

designated values."16

A second observed difference is in the duty of professional independence.

Whereas in the U.S., professional independence is seen as enabling an attorney to

represent a client without being unduly influenced by third parties, public opinion,

or other possible sources of interference with the exercise of independent profes

sional judgment,17 in civil law systems this independence is even from one's own

client. For example, one group of commentators has suggested that independence

from the client as well as the court and other advocates is a cornerstone of French

13. See, e.g., JAMES MOLITERNO & GEORGE HARRIS, Global ISSUES IN LEGAL ETHICS (2007)

(discussing the ethical codes of the U.S. and Europe, as well as some Asian countries). I have also

offered some observations about differences in education and practice between the U.S. common

law system and European civil law systems. See Philip M. Genty, Overcoming Cultural Blindness in

International Clinical Collaboration: The Divide Between Civil and Common Law Cultures and Its

Implications for Clinical Education, 15 CLINICAL L. REv. 131 (2008).

14. See, e.g., Felicity Nagorcka, Michael Stanton, Michael Wilson, Stranded Between Pani

sanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial

Systems of Justice, 29 MELB. U.L. REV. 448, 474 (2005); Maya Goldstein Bolocan, Editor, Profes

sional Legal Ethics: A Comparative Perspective, ABA Central European and Eurasian Law Initiative,

Legislative and Research Program (2002), at 9; Detlev F. Vagts, Professional Responsibility in Trans

border Practice: Conflict and Resolution, 13 GEO. J. LEGAL ETHICS 677,689 (Summer 2000); Mary

C. Daly, The Dichotomy Between Standards and Rules: A New Way of Understanding the Differences

in Perceptions of Lawyer Codes of Conduct by U.S. and Foreign Lawyers, 32 VAND. J. 'fRANSNAT'L

L. 1117, 1123 (1999).

15. Daly, supra, note 14, at 1123.

16. Id.

17. See, e.g., MODEL RULES OF PRoF'L CONDUCT, R. 1.7, 1.8.

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legal ethics.18 This independence has several implications. First, French attorneys

are free to decline a case and do not have to follow the client's directions if they

decide to accept the case.19 Second, confidentiality is the right of the lawyer not the client.2° Finally, the determination of whether a conflict of interest exists is

entirely the attorney's, and client consent to waive a conflict is neither solicited nor

honored.21

Another commentator has offered this description of the differences in ap

proach to professional independence between the civil law and U.S. common law

systems:

European civil law countries generally embrace an ideology of profes

sional independence and autonomy from the client that is alien to, and

stands in contrast with, the U.S. lawyer's primary commitment to the

latter. An example of this different approach can be found in the rule,

common to many European civil law systems, requiring confidentiality

to cover communications between lawyers.22

A third difference is that the ABA Model Rules of Professional Conduct are

much more detailed than most of the European codes in their treatment of the

scope and dynamics of the attorney-client relationship and the attorney's counsel

ing role, issues of particular importance to public interest advocates. Most of the

European codes include provisions concerning duties of diligence and communi

cation that are equivalent to ABA Model Rules 1.3 (diligence) and 1.4 (communi

cation). However, as discussed more fully in Section III, infra, with the exceptions

of Estonia, Scotland, and Ukraine,23 European codes lack provisions similar to

ABA Model Rules 1.2 (distinguishing between goals and means of representation,

allocating decision-making responsibility between the attorney and the client, and

determining the scope of representation), 1.14 (regarding representation of clients

with diminished capacity), and 2.1 (describing the lawyer's role as counselor and

advisor to the client). The Model Rules also include detailed comments explaining

and expanding upon the text of the Rules.

A final difference is that the European codes, unlike the ABA Model Rules,

do not provide any guidance to advocates about how to resolve inherent tensions

18. Nagorcka et al, supra note 14, at 465.

19. Id. at 465-466.

20. Id.

21. Id. at 472. See also Maya Goldstein Bolocan, Editor, Professional Legal Ethics: A Com

parative Perspective, ABA Central European and Eurasian Law Initiative, Legislative and Research

Program (2002), at 36-45 (describing approach to conflicts of interest in civil law jurisdictions

generally).

22. Maya Goldstein Bolocan, Editor, Professional Legal Ethics: A Comparative Perspec

tive, Central ABA European and Eurasian Law Initiative, Legislative and Research Program (2002),

at 11.

23. See discussion of these codes in Section ill, infra.

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among code provisions. The most obvious example of this in the ABA Model

Rules is the treatment of the tension between the duties of confidentiality and can

dor. As Monroe Freedman has noted, it is sometimes not possible for a lawyer to

promise both complete confidentiality to the client and complete honesty to the

tribunal. Professor Freedman has described this as an impossible "trilemma": "to

know everything possible, and to keep it in confidence, but to divulge it to the court

if candor to the court required it."24

ABA Model Rule 3.3 resolves this tension by providing that the lawyer's duty

of candor to the tribunal trumps the duty of confidentiality to the client: an attor

ney might be required to disclose client confidences to the tribunal if the attorney

knows that the client intends to provide or has provided false testimony or evi

dence.25 However, for a public interest lawyer, the clarity of this resolution comes

at a high price by arguably undermining the attorney's ability to gain the often

fragile trust of a vulnerable and legally unsophisticated client. Finding a way to

explain the requirements of Rule 3.3 fully and clearly to a client while maintaining

the client's trust is a difficult balancing act, for which the ABA Model Rules do not

really provide any help.

The European codes do not have any equivalent to this explicit recognition in

ABA Model Rule 3.3 of the tension between the duties of confidentiality and can

dor. However, it may be that the potential tension between the duties of confiden

tiality and candor is simply less of a concern in Europe than in the U.S. As noted

below, European codes generally have only limited exceptions to an otherwise

absolute duty of confidentiality, and attorneys typically do not have an affirmative

duty to vouch for the truthfulness of their clients, so the duty of candor is arguably

less demanding than in the U.S.

24. Monroe H. Freedman, Getting Honest About Client Perjury, 21 GEO. J. LEGAL ETHICS

133, 137 (Winter 2008). For an earlier exposition of these ideas, see Monroe Freedman, The Profes

sional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L.

REV. 1469 (1966).

25. MODEL RULES OF PRoF'L CONDUCT R. 3.3. Rule 3.3 provides in pertinent part:

(a) A lawyer shall not knowingly:

(3) offer or use evidence that the lawyer knows to be false. If a lawyer,

the lawyer's client, or a witness called by the lawyer has offered material evidence

and the lawyer comes to know of its falsity, the lawyer shall take reasonable

remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may

refuse to offer evidence, other than the testimony of a defendant in a criminal

matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client before a tribunal and who knows that a

person intends to engage, is engaging or has engaged in criminal or fraudulent conduct

related to the proceeding shall take reasonable remedial measures, including, if necessary,

disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires

disclosure of information otherwise protected by Rule 1.6.

(emphasis added)

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)


Some additional, more specific differences between many of the European

codes and the ABA Model Rules include the following characteristics of the Eu

ropean codes:

• a greater emphasis on civility, typically including restrictions on criticism

of adversaries and sometimes judges as well

• prohibitions against engaging in "incompatible" legal professions

• the duty to accept appointments to Bar Associations in the absence of a

compelling basis for not doing so

• duties that extend beyond the professional role as an attorney into the pri

vate sphere

• a duty to try to settle cases at the outset and to attempt to avoid litigation if

possible, presumably reflecting a goal of avoiding unnecessary use of legal

resources

• a duty to teach postgraduate trainees about their ethical duties (in addition

to a duty to supervise subordinates, which is also found in the ABA Model

Rules26)

There are also many similarities between the U.S. and civil law approaches to

ethical codes.27 Like the ABA Model Rules, almost all of the civil law codes cover

the following topics:

• competence

• conflicts of interests in concurrent representation and with respect to for

mer clients (although as noted above, there is typically no provision for

client consents to waive conflicts)

• confidentiality (although unlike the U.S. Model Rules, 28 these codes are

typically framed quite generally with few exceptions beyond client con

sent and use in fee and malpractice disputes; some include commission of

crime and/or general "as required by law" language; some include a duty

of confidentiality to an opponent, even as against the client)

• a duty of candor, typically including a knowledge standard and applying

to courts and others (however, one difference is that most codes do not

include a duty to investigate or vouch for the truth/merits of a client's

case29

• a no contact rule, i.e. a prohibition against contacting a represented person

without the presence or permission of that person's attorney

• provisions concerning permissive and mandatory withdrawal

26. See MODEL RULES OF PRoF'L CONDUCT R. 5.1 and 5.3.

27. As noted, the Israel Code of Legal Ethics was also reviewed. Israel is, strictly speaking,

more of a common law than civil law jurisdiction.

28. Compare MODEL RULES OF PRoF'L CONDUCT R. 1.6.

29. Compare MODEL RULES OF PROF'L CONDUCT R. 3.1.

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II. Illustrative Frameworks for

Analyzing Core Values and Principles

While an analysis of the national codes of legal ethics cited in the preceding

sections is useful in outlining the formal ethical requirements for the legal profes

sions of these countries,30 the codes themselves tell us little about whether they

serve the needs of the legal professions and the public. To do this, one must first

step back and reflect upon the reasons these codes have been developed.

Several public administration scholars examining professional codes gov

erning public servants have provided insights that are useful to this analysis of

lawyers' codes of ethics. Jolanta Palidauskaite has provided an example of a meth

odology for analyzing professional codes to get at their underlying values.31 Pro

fessor Palidauskaite examined public service codes from Estonia, Bulgaria, Latvia,

Czech Republic, Macedonia, Poland, Albania, Slovakia, Romania, and Lithuania.

After conducting a close textual analysis of the purpose, content, structure, prin

ciples, and sanctions imbedded in each of the codes, she divided them into four

categories: those designed to guide conduct, those designed both to inspire and to

guide conduct, those designed to guide and regulate conduct, and those that bal

ance among inspiration, guidance and regulation.32 She concluded that the codes

indicated that the countries differ in important ways "in how they react to, solve,

and try to prevent problems in the field of public administration ethics."33

Professor Palidauskaite's breakdown into the goals of inspiration, guidance,

and regulation, or some combination thereof, is an extremely useful insight. It

is too easy to lump these goals together and fail to distinguish among them; it is

important instead to be explicit about what we expect each provision of an ethi

cal code to accomplish. Some provisions are necessarily broad and inspirational,

e.g. a duty to "safeguard the good reputation of courts and authorities ... [and]

to strengthen the public confidence [in] their activity of the profession."34 Some

provide necessary guidance to lawyers who would otherwise be unsure about how

to discharge their ethical duties, e.g. a list of circumstances in which disclosure of

confidential information is permitted. Finally, some serve to regulate and discipline

the profession, e.g. prohibitions against incompetent representation. In designing

an ethical code that will be rational, comprehensible, and practical, and that can be

used effectively to educate lawyers about their ethical duties, it is therefore impor

tant to bear these distinctions in mind.

30. As noted, the CCBE and European codes apply only to "advocates." Different professional

codes apply to other sectors of the legal profession.

31. Jolanta Palidauskaite, Codes of Ethics in Transitional Democracies, A Comparative Per-

spective, 8 PUBLIC INTEGRITY 35 (Winter 2005-2006).

32. Id. at 36-37.

33. Id. at 37.

34. Code of Professional Conduct of the Bar Association of Slovenia, passed at the Lawyer'

Assembly of the Bar Association of Slovenia, 7 December 2001, §18. Available at http://www.ccbe.

eu/fileadmin/user_upload/NTCdocument/code_slovenia_enpdfl_ll88552980.pdf.

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James S. Bowman makes a distinction similar to Professor Palidauskaite's. He

contrasts rules that govern professional regulation and discipline, which he calls

"codes of conduct," with "ethical codes." In describing the differences he is highly

critical of the former:

Rule-based conduct codes are most often found in statutes or executive

orders.... Attempting to convert the realm of ethics into the realm of

law, this coercive, quick-fix strategy usually reduces ethics to legalism

by focusing on both the lowest common denominator and penalties for

deviations. The strategy does little to promote a philosophy of excellence

or to engender a sense of personal responsibility....In contrast, codes of

ethics demand more than simple compliance; they mandate the exercise

of judgment and acceptance of responsibility for decisions rendered

the real work of ethics. Acknowledging the ambiguities and complexities

of public service, ethics codes offer interpretative frameworks to clarify

decision-making dilemmas.35

Thus, according to Bowman, the codes that govern regulation and discipline

of the profession are less valuable than those that guide professionals through the

ethical dilemmas they face in their work.

Professor Palidauskaite also conducted a study of public service ethics jointly

with two colleagues, Alan Lawton and Michael Macaulay.36 The study compared

the U.K. and Lithuania and sought to examine and compare the policies underly

ing the ethical codes for the public service professions within each country. They

broke the analysis into the following ethical policy categories:

1. Policy push refers to the factors or critical incidents that might provide the

reasons for putting in place an ethical framework....

2. Policy issues refers to those that are addressed by the introduction of the

ethical framework and may include conflicts of interest, corruption and

fraud, standards of behaviour and croneyism. In comparative studies, a key

issue is the extent to which countries share similar problems.

3. Policy goals are what the policy is trying to achieve, whether it be the

punishment of individual transgressions or the elimination of systemic cor

ruption....

35. James S. Bowman, Towards a Professional Ethos: From Regulatory to Reflective Codes,

INTERNATIONAL REVIEW OF ADMINISTRATIVE SCIENCES 66, no. 4:673, 680 (2001).

36. Alan Lawton (Hull University, UK and VU University, Amsterdam), Michael Macaulay

(Teesside University, UK) and Jolanta Palidauskaite (Kaunas University of Technology, Lithuania),

"Towards a comparative methodology for public service ethics," paper presented at EGPA Confer

ence, Malta 2-Sth September 2009, PSG VII: "Ethics and Integrity of Governance, available at http://

www.egpa2009.com/documents/psg7/Lawton-Macaulay.pdf.

http://www.egpa2009.com/documents/psg7/Lawton-Macaulay.pdf

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4. Policy objects refers to the individuals or institutions to whom, or what, the

policy is to be applied....

5. Policy instruments refers to the tools that are used to achieve the pol

icy goals and will include laws and regulations, codes of conduct, anti

corruption agencies, training etc.

6. Policy implementation will depend upon leadership and the role of key

individuals such as ethics officers, resources, capacity and capabil

ity....

7. Policy styles will reflect the extent of central direction and local discretion;

unitary or federal systems of government. 37

They then developed a "taxonomy of ethical regulation," which charted these

policy categories as shown in the table on the next page.38

This "taxonomy" approach could easily be adapted for analyzing legal codes

of ethics. The first three categories in the authors' taxonomy relate to the underly

ing ethical problems a code is intended to remedy and the core values underlying

the code; the fourth and fifth categories relate to the professionals to whom the

code is addressed and the specific contents of the codes and accompanying legisla

tive and regulatory materials; and the final two categories relate to the means for

implementing and disseminating the codes.

Drawing upon the work of these public administration scholars, this paper

proposes a cross-cultural "ethical conversation" in which ethical goals and values

are analyzed and strategies for implementation, dissemination, and education are

developed. As discussed in the introduction, the "conversation" envisioned here

would involve the following steps:

Stepping away from the ethical codes,

identify the most common and/or important gaps and problems that need to be addressed

through a system of legal ethics; and

define the core ethical principles and values within the society and legal professions.

Looking back at the existing ethical codes,

analyze and, if necessary, revise the codes to ensure that they address these problems and

reflect these core principles and values, through a combination of inspiration, guidance,

and regulation.

Moving forward,

• using the codes as the centerpiece, design a system of ethical education and professional

development--or improve existing systems-to prepare the legal professions within each

society to recognize and deal effectively with these ethical issues.

37. Id. at 5-7.

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The next section provides an example of how this might be done and concludes with

a summary legal ethics "taxonomy" chart modeled on that of Lawton, Macaulay,

and Palidauskaite, above.

III. Engaging in a Cross-Cultural Ethical Conversation:

An Illustration

How would such a conversation unfold? Imagine a group of like-minded ethi

cal problem solvers from many different countries attending an international con

ference. They have been organized by subject matter to help focus discussion. One

such group consists of advocates, scholars, teachers, and other legal professionals

(possibly including judges) who have a particular concern about public interest ad

vocacy and access to legal services. The steps they would take are described below.

A. Defining Important Ethical Problems and Core Values

For the first and second steps, the participants would engage in collective

brainstorming about ethical challenges and core values. The participants might

first agree that their societies share the following challenges:

• lack of access to legal services for low income populations is a serious

problem within all of the represented societies

• public interest clients are vulnerable and legally unsophisticated, and some

have diminished capacities because of mental disabilities

• power imbalances between lawyers and clients result from these and other

factors

• a lack of available alternative representation for the clients puts a spe

cial moral burden on the public interest advocates to choose between

taking on as many clients as possible-creating caseload pressures and

making competent representation more difficult-or turning away needy

clients

• many clients have needs that go beyond the strictly legal, i.e. a need for

interdisciplinary assistance

Next, the participants would identify shared values and principles. Among

these might be the following:

• clients who have legal needs should have full access to legal services

• maximization of client trust is important to effective provision of legal

services

• clients should have autonomy to define goals and make informed decisions

about their representation

• the quality of legal resources available to economically disadvantaged

clients should be comparable to that of the resources available to clients

with money

• achievement of law reform and social change is an important long-term

goal for public interest advocates

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As part of this second step the participants might note some of the tensions

inherent in these lists. For example, the goal of providing broad access to legal

services likely conflicts with the goal to provide first-class legal representation,

because in order to achieve the former goal, advocates may have to take on too

many clients to make achievement of the second goal possible. Another possible

tension is that achievement of law reform and social change may be a goal of the

advocate but not of the client. Therefore, this goal may be at odds with the goal of

giving clients maximum autonomy.

This initial brainstorming would also reveal important variations among the

societies represented. The countries might have different sets of problems or core

values, or, even if the problems and values were similar, the participants might

prioritize among them differently. For example, representatives of a country whose

legal system is seen as corrupt would set a high priority on ethical principles that

deal with honesty, transparency, avoiding conflicts of interest, etc., and might treat

client autonomy issues as a lower priority.

B. Comparing and Analyzing Ethical Codes to

Determine Whether They Reflect and Address

the Problems and Values Identified by the

Conferenee Participants

The next, and probably more complicated step, would be to discuss and analyze

existing ethical code provisions in light of the problems and values that have been

identified. The goals would be, first, to determine whether code provisions already

exist that address the problems and embody the values, and, if not, to discuss changes

to the ethical codes that would do this. As discussed above, the U.S. ABA Model

Rules of Professional Conduct tend to be much more detailed than their European

counterparts, and this level of detail can be extremely useful. However, the codes of

Belgium, Croatia, Estonia, Scotland, and Ukraine also have provisions that are helpful

in addressing issues relating to public interest advocacy and access to legal services.

In analyzing the codes it is important to keep in mind Professor Palidaus

kaite's distinctions among the goals of inspiration, guidance, and regulation. The

provisions that are probably of most value to issues relating to public interest advo

cacy and access to legal services are those that offer guidance. Some of the provi

sions discussed below also have more of an inspirational character. Provisions that

regulate (and discipline) are probably less important, with the exception of those

that relate to competence of representation.

To illustrate the methodology that might be used to analyze code provisions

relating to public interest advocacy and access to legal services, two specific is

sues will be examined in a comparative context. The lists of common problems

and core values that were generated in the previous section might be broken down

broadly into two categories: 1) those concerning the allocation of decision-making

between attorneys and clients, and the related client counseling issues; and 2) those

concerning the need to develop methods of stretching scarce legal resources to

provide more people with access to these services, including limited scope ("un

bundled") legal services, and pro bono assistance.

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The following items from the list would be in the former category:

Allocation of decision-making and client counseling

Problems

• public interest clients are vulnerable and legally unsophisticated, and some

have diminished capacities because of mental disabilities

• power imbalances between lawyers and clients result from these and other

factors

• many clients have needs that go beyond the strictly legal, i.e. a need for

interdisciplinary assistance

Values

• maximization of client trust is important to effective provision of legal

services

• clients should have autonomy to define goals and make informed decisions

about their representation

The second category would contain the following items:

Distribution of and access to legal resources

Problems

• lack of access to legal services for low income populations is a serious

problem within all of the represented societies

• a lack of available alternative representation for the clients puts a spe

cial moral burden on the public interest advocates to choose between

taking on as many clients as possible-creating caseload pressures

and making competent representation more difficult-or turning away

needy clients

• achievement of law reform and social change is an important long-term

goal for public interest advocates

Values

• clients who have legal needs should have full access to legal services

• the quality of legal resources available to economically disadvantaged cli

ents should be comparable to that of the resources available to clients with

money

With this breakdown in mind, the codes of the countries participating in this

hypothetical ethics conference are examined in sections 1 and 2 below.

1. National code provisions dealing with allocation of

decision-making and client counseling

Among the provisions that are most useful to the allocation of decision

making and related counseling issues are Rules 1.2, 1.14, and 2.1 of the ABA

Model Rules of Professional Conduct. These provide clients, including those

who have diminished capacity, with a significant amount of autonomy in impor

tant decisions about their cases. They also provide guidance to lawyers about

counseling their clients and recognize that such counseling may sometimes go

beyond purely legal matters and require the assistance of professionals in other

disciplines.

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ABA Model Rule 1.239 provides the client with significant control over the

representation by giving the client authority to choose the objectives of the repre

sentation. The Rule tempers this, however, by giving the attorney greater power to

choose the means to achieve those objectives, in consultation with the client.

ABA Model Rule 1.14 addresses a challenge common to public interest law

yers-how to represent clients whose capacity is diminished due to mental impair

ment, minority, or another factor. Rule 1.14 provides that an attorney with such a

client should nonetheless represent that client as the lawyer would any other client,

"as far as reasonably possible." Only when that is not possible is the attorney per

mitted to substitute judgment for the client or take protective action.40 The com

ments to Rule 1.14 provide additional guid ance.41

Finally, ABA Model Rule 2.1 is also helpful, because it gives the attorney

significant guidance and leeway in counseling and advising a client by providing

that an attorney may refer not only to law but also to other considerations such as

moral, economic, social and political factors that may be relevant to the client's

situation.42 This Rule and its accompanying comments are especially helpful to

39. MODEL RULES OF PROF'L CONDUCT R. 1.2:

Scope of Representation and Allocation of Authority between Client and Lawyer

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions

concerning the objectives of representation and, as required by Rule 1.4, shall consult

with the client as to the means by which they are to be pursued. A lawyer may take such

action on behalf of the client as is impliedly authorized to carry out the representation.

A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case,

the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a

plea to be entered, whether to waive jury trial and whether the client will testify.

. . . [subsections b, c, and d omitted]


Client with Diminished Capacity

a) When a client's capacity to make adequately considered decisions in connection

with a representation is diminished, whether because of minority, mental impairment or

for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal

client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is

at risk of substantial physical, financial or other harm unless action is taken and cannot

adequately act in the client's own interest, the lawyer may take reasonably necessary

protective action, including consulting with individuals or entities that have the ability to

take action to protect the client and, in appropriate cases, seeking the appointment of a

guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity

is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the

lawyer is impliedly authorized under Rule l.6(a) to reveal information about the client,

but only to the extent reasonably necessary to protect the client's interests.

41. MODEL RULES OF PRoF'L CONDUCT R. 1.14, Comments.


Advisor

In representing a client, a lawyer shall exercise independent professional judgment

and render candid advice. In rendering advice, a lawyer may refer not only to law but to

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public interest lawyers whose clients may have a number of nonlegal problems

requiring the lawyer to seek assistance and advice from colleagues in other disci

plines. Comment 4 to Rule 2.1 provides the following guidance:

Matters that go beyond strictly legal questions may also be in the do

main of another profession. Family matters can involve problems within

the professional competence of psychiatry, clinical psychology or social

work; business matters can involve problems within the competence of

the accounting profession or of financial specialists. Where consultation

with a professional in another field is itself something a competent law

yer would recommend, the lawyer should make such a recommendation.

At the same time, a lawyer's advice at its best often consists of recom

mending a course of action in the face of conflicting recommendations

of experts.43

Among the European codes, those of Estonia, Scotland, and Ukraine are also

instructive on issues relating to attorney-client relationships. Article 8 of the Code

of Conduct of the Estonian Bar Association44 describes the allocation of decision

making responsibility between the attorney and the client and other aspects of

the attorney-client relationship in terms similar to those in ABA Model Rule 1.2.

Article 8 gives the client significant autonomy in the lawyer-client relationship

by requiring that an advocate must generally respect a client's wishes when the

advocate chooses the "means and methods" of the representation. Article 8 states:

Article 8. The Client's Interests

1) The advocate must always act in the best interest of his clients and must

put those interests before his own interests or those of third parties, includ

ing the interests of fellow members of the legal profession. Subject to due

observance of all rules of law and professional conduct, the advocate shall

use all means and methods for the benefit of his client such that the per

sonal honour, honesty and integrity of the advocate are beyond doubt.

2) In carrying out the instructions of his client, the advocate shall use only

those means and methods consistent with law which enable him to better

protect his client's interests and act pursuant to the provision of law, his

expertise and experience as well as his conscience. Unless it is contrary

to law, the rules of professional conduct or to the interests of his client,

the advocate shall take into consideration the wishes of his client when

choosing the means and methods of representation or protection. If in the

contract for legal assistance the client has limited the advocate's right to

other considerations such as moral, economic, social and political factors, that may be relevant

to the client's situation.

43. MODEL RULES OF PRoF'L CONDUCT R. 2.1, Comment, Scope of Advice, 4.

44. Code of Conduct of the Estonian Bar Association, Adopted on 8 April 1999 by the General

Meeting of the Estonian Bar Association, available at http://www.ccbe.eu/fileadmin/user_upload/

NTCdocument/EN_Estonia_CODE_OF_Cl_I251980836.pdf.

http://www.ccbe.eu/fileadmin/user_upload/

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use certain means or methods of protection or representation, such limita

tion shall be binding upon the advocate. (05.05.2005)

3) The advocate may carry out only such instructions of the client which do

not contravene the law or harm the advocate's personal honour, honesty and

dignity. If a client's wishes are contrary to the actual interests of the client,

law or to the personal honesty, honour or integrity of the advocate, the ad

vocate shall explain to the client his position and all possible consequences

of the client's demands which are unreasonable or inconsistent with law. If

the client refuses to desist from making demands, the advocate shall have

the right to terminate the contract for legal assistance with the client.

In addition, Article 14-Rendering Legal Services, provides: "An attorney

shall explain to the client the opportunities and prerequisites for reaching a so

lution expected by the client. The client will decide on the commencement of

proceedings."45 Article 14 also contains provisions to guide the attorney in advis

ing and counseling the client.46

The Code of Conduct for Scottish Solicitors 47 also distinguishes between ob

jectives and means of the representation, but it appears to give primary decision

making authority to the solicitor rather than the client. The Scottish Code requires

that solicitors discuss with their clients the objectives of the representation and the

means by which the objectives will be pursued. The Scottish Code also explicitly

requires that solicitors counsel their clients clearly and effectively. The Scottish

Code states in pertinent part:

5. Provision of a professional service

( a) Solicitors must act on the basis of their clients' proper instruc

tions. . .

Solicitors [are required] to discuss with and advise their clients on

the objectives of the work carried out on behalf of the clients and the

means by which the objectives are to be pursued. . . . With the agree

ment of the client a solicitor may restrict the objectives and the steps

to be taken consistent with the provisions of an adequate professional

service....

(e) Solicitors shall communicate effectively with their clients and others

45. Id., Art. 14(2)

46. Id., Art. 14.

47. Codes of Conduct, Code of Conduct for Scottish Solicitors and Code of Conduct for

Criminal Work, The Law Society of Scotland, June 2002. Available at http://www.ccbe.eu/fileadmin/

user_upload/NTCdocument/code_scotland_advoc1_1l88552824.pdf.

http://www.ccbe.eu/fileadmin/

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Solicitors are required to try to ensure that their communications

with their clients and others on behalf of their clients are effective. This

includes providing clients with relevant information regarding the matter

in hand and the actions taken on their behalf.

Solicitors shall advise their clients of any significant development in relation

to their case or transaction and explain matters to the extent reasonably necessary

to permit informed decisions by clients....Information should be clear and com

prehensive and where necessary or appropriate confirmed in writing ........... 48

Finally, the Rules of Advocate's Ethics of Ukraine49 have useful provisions

concerning the advocate's counseling role and the representation of clients with

diminished capacity. With respect to the advocate's counseling role, Article 21

requires an advocate to counsel a client thoroughly and accurately about the work

that will be required to achieve the client's goals and the likelihood of being

able to achieve them, and to update this information for the client if the situation

changes:

Article 21 Informing the Client about the Legal Grounds for the Case

1) If upon complying with the requirements set forth in Article 20 of these

Rules, an advocate develops the opinion that there are actual and legal

grounds for the performance of the given assignment, he must state it im

partially and objectively to the client, informing him at least in general

outline what time and what amount of work will be needed for the perfor

mance of the given assignment and what will be the legal consequences of

achieving the legal results desired by the client for the essential interests

of the client.

2) If legal grounds for performing the assignment do exist, but so does an

unfavorable practice of applying respective provisions of the law (from

the viewpoint of the hypothetical result desired by the client), an advocate

shall be bound to inform the client.

3) If an advocate becomes convinced that there are no actual and legal grounds

for performing an assignment, he shall be bound to inform the client about

it and agree with him on a change in the substance of the assignment and

adjust it to that hypothetical result which might be achieved in conformity

with legislation in force, or else refuse to accept the assignment.

4) An advocate must inform the client about the possible result of perfor

mance of the assignment, based on the law and practice of its application.

48. Id. §§5(a) and 5(e).

49. Ukraine, Rules of Advocate's Ethics, Approved by the Supreme Qualifying Commission of

the Bar, October 1-2, 1999. Available at http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/

Ukraine_CoC_ENpdfl_l215155864.pdf.

http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/

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56 JoURNAL OF THE PROFESSIONAL LAWYER

Furthermore, he must not give assurances and guarantees to the client as to

the actual outcome of performance of the assignment, directly or indirectly

facilitate shaping his groundless hopes, as well as directly or indirectly

create in the client the impression that the advocate can have an influence

on such an outcome by other means apart from the diligent performance

by him of his professional duties. 50

With respect to representation of clients with diminished capacity, the phi

losophy behind Article 46 of the Ukrainian Rules is similar to that of Rule 1.14 of

the ABA Model Rules in requiring that attorneys, to the extent possible, handle the

representation of such clients as they would any other client:

Article 46 Ethical Aspects of Advocate's Relations with Incapable

(Partially Capable) Clients

1) Client's incapability (limited or partial capability) or his actually limited

capability to evaluate adequately the reality shall not be the reason justify

ing the non-performance (improper performance) of advocate's responsi

bilities with regard to this client.

2) If owing to age, psychological illness and other objective reasons the cli

ent has a reduced ability to make well-considered decisions related to the

substance of the assignment, an advocate must nonetheless use his best

efforts to maintain with him normal relations which meet the requirements

of these Rules.

3) If a client by legally established procedure has been recognized as inca

pable (partially capable) and a guardian (custodian) has been appointed to

him or the client is a minor and his interests accordingly are represented

by a legal representative (guardian, custodian) who knowingly to the ad

vocate acts to the detriment of the legitimate interests of the minor (ward),

an advocate must:

1. refuse to accept (or, accordingly, continue performing) the assignment

which might entail infringement upon the interests of the minor (ward);

2. take all measures accessible to him for the protection of the legitimate

interests of the client;

3. inform the authorities for guardianship of the said actions of the guard

ian (custodian) of the incapable (partially incapable) client or legal rep

resentatives (guardians) of the minor.51

Collectively, these provisions are useful to public interest advocates in im

portant respects. They provide examples of ways in which ethical codes may give

vulnerable clients, including clients with diminished capacity, an important degree

50. Id. Art. 21.

51. Id. Art. 46.

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of autonomy in decisions about their cases. They also provide guidance to lawyers

about client counseling, including going beyond purely legal considerations and

drawing upon the expertise of colleagues from other disciplines.

2. National code provisions dealing with increased access

to legal resources

The ethics codes from the countries participating in this ethics conference

also have helpful provisions concerning increased access to scarce legal resources.

These include limited scope "unbundled" legal services and pro bono assistance.

ABA Model Rule 1.2 addresses the former issue. The rule permits an attorney to

limit the scope of representation.52 The Scottish Solicitor's Code has a similar pro

vision.53 The ability to limit the scope of representation allows for the possibility of

less than full representation as a way of stretching scarce legal resources to reach

more people. Examples of this might be limiting assistance to providing advice

only, or drafting legal papers for the client without taking on full representation.

Although the ABA Model Rules also explicitly address the issue of pro bono

legal assistance, the relevant code provision is merely inspirational. Rule 6.1 of the

ABA Model Rules states, "Every lawyer has a professional responsibility to provide

legal services to those unable to pay. A lawyer should aspire to render at least (50)

hours of pro bono publico legal services per year."54 Lest there be any doubt about

the purely inspirational quality ofthis rule, Comment 12 states, "The responsibility

set forth in this Rule is not intended to be enforced through disciplinary proces s."55

In contrast, several of the European codes have much more robust provisions

about pro bono legal work. Croatia makes this a compulsory duty of the legal pro

fessions56:

III. Free Legal Assistance to Deprived Persons and

Victims of the War for the Homeland

35. Free legal assistance to deprived persons and victims of the war for the

homeland is the honourable duty of every attorney and it must be carried

out as conscientiously and diligently as for any other clients.

52. MODEL RULES OF PRoF'L CONDUCT R. 1.2:

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under

the circumstances and the client gives informed consent.

53. Codes of Conduct, Code of Conduct for Scottish Solicitors and Code of Conduct for

Criminal Work, The Law Society of Scotland, June 2002. Available at http://www.ccbe.eu/fileadmin/

user_upload/NTCdocument/code_scotland_advocl_l 188552824.pdf.

Section 5(a) states: "With the agreement of the client a solicitor may restrict the objectives and

the steps to be taken consistent with the provisions of an adequate professional service."

54. MODEL RULES OF PRoF'L CONDUCT R. 6.1.

55. Id., Comment 12.

56. The Attorneys' Code of Ethics, passed at the Assembly of the Croatian Bar Association,

18 February 1995, amended 12 June 1999. Available at http://www.ccbe.eu/fileadmin/user_upload/

NTCdocument/The_Attomeysdocl_l21_!251980891.pdf.



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36. An attorney shall accept representation of deprived persons and victims

of the war for the homeland in civil and criminal cases when assigned by

an authorized body of the Association.

37. An attorney shall have the obligation to render free legal assistance to

deprived persons and victims of the war for the homeland in legal matters

in which these persons are enforcing their rights related to their positions

when the Association entrusts such legal assistance to him or her in ac

cordance with its enactments.

The Ukrainian code also contains mandatory pro bono provisions:57

Article 51 Ethical Aspects of Legal Aid to Poor Citizens

(1) An advocate must always take into consideration in his professional ac

tivities that the advocate's profession is not only a source of his profits but

also is of significant social importance and is one of the major guarantees

of the proper protection of rights and freedoms of citizens, and requires

dedication to the objectives of this profession, generosity and humanity

from its representatives. Therefore, an advocate should provide partially

paid or free legal aid in cases prescribed by law.

(2) An advocate's unjustified refusal or evasion of rendering free legal aid in

cases directly provided for by the law is inadmissible. Such refusal shall

be considered as justified only in cases [of serious physical condition,

lack of competence to handle the case, or concerns about conflict of inter

est or confidentiality]. ...

The Slovenian code, like the ABA Model Rules, is of a more inspirational

character. That code states: "Representation and pleading for socially weak clients

shall be [a] usual and honourable task oflawyers....The lawyer shall perform this

task with special understanding." 58

Belgium provides for an interesting combination of unbundled legal services

and pro bono assistance. The Belgian Judicial Code defines two levels of ser

vices. The first ("first-line legal aid") is a limited, "unbundled" array of services:

"practical information, legal information, a first line legal opinion, or a referral to

a specialized authority or organization." The second ("second line legal aid") is

a more full-service model, which includes "a detailed legal opinion, aid whether

or not in the context of legal proceedings, or aid in a lawsuit, including represen-

57. Ukraine, Rules of Advocate's Ethics, Approved by the Supreme Qualifying Commission

of the Bar, October 1-2, 1999, Article 51. Available at http://www.ccbe.eu/fileadmin/user_upload/

NTCdocument/Ukraine_CoC_ENpdfl_1215155864.pdf.

58. Code of Professional Conduct of the Bar Association of Slovenia, passed at the Lawyer'

Assembly of the Bar Association of Slovenia, 7 December 200I, §42. Available at http://www.ccbe.

eu/fileadmin/user_upload/NTCdocument/code_slovenia_enpdfl_l l88552980.pdf.


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tation...."59The Bar Association compiles "first-line" and "second-line" lists of

volunteer attorneys. Attorneys specify their preferred field of law and must

already be competent in that field or must agree to undergo training provided by

the relevant bar associations. 60

Participants in a cross-cultural discussion would therefore compare and draw

upon each other's code provisions. They would evaluate the existing codes to de

termine whether they adequately address the important ethical problems and re

flect the core ethical values. To the extent that the codes are found lacking, the

participants would develop recommendations for changes to the codes to improve

their ability to inspire, guide, and regulate the legal professions. The participants

might also use some of the code provisions as models for possible adoption in their

own countries, or they might collaborate on a draft of uniform code provisions that

reflect the group's shared concerns and goals.61

C. Using Ethical Codes to Develop Programs of Ethical

Education and Professional Development

After analyzing and comparing ethical codes-and possibly making recom

mendations for changes to the codes-the codes would be used as the centerpiece

of enhanced systems of legal education and professional development to help the

legal professions of the participant countries deal effectively with ethical issues.

This is an ambitious undertaking that needs to be implemented on many different

levels.

It needs to begin in the law schools, of course, ideally by requiring that all

students take a class in legal ethics.62 Designing an effective and engaging model

of ethics education can be difficult. Deborah Rhode, among others, has discussed

the troubled history of professional responsibility education in the United State s.63

59. Belgium, Judicial Code, VOLUME IIIBIS, FIRST- AND SECOND-LINE LEGAL AID,

Section I GENERAL PROVISION, Article 508/1, subd. 1 and 2. Available at http://www.ccbe.eu/

fileadmin/user_upload/NTCdocument/en_belgiquepdfl_l 190362409.pdf.

60. Id. SECTION III FIRST-LINE LEGAL AID, Article 508/5 §1, and SECTION IV PARTLY

OR TOTALLY FREE SECOND-LINE LEGAL AID, Article 508/7.

61. The CCBE is currently discussing the development of such a uniform code for use in

its signatory countries. Panel presentation, Jonathan Goldsmith, Secretary General, CCBE, July 16,

2010, 4th International Legal Ethics Conference, "Legal Ethics in Times of Turbulence," Stanford

Law School.

62. Such a required course is rarely part of the curriculum in civil law countries. See Richard

J. Wilson, 18th International Congress on Comparative Law, Washington, D.C., July 2010, General

Report: The Role of Practice in Legal Education, at 25.

63. Deborah L. Rhode, Ethics by the Pervasive Method, 42 J. LEGAL Eouc. 31 (1992). Rhode

quotes one 1991 description of professional responsibility education: "The 'dog of the law school

[curriculum]-hard to teach, disappointing to take, and often presented to vacant seats or vacant

minds.'" This still appears to be a widely held perception among both faculty and students. See Sara

L. Bagg & Alice Woolley, Ethics Teaching in Law School, LEGAL EDUCATION ABSTRACTS, Vol. 6,

No. 40: September 28, 2009.

http://www.ccbe.eu/

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However, the task becomes harder still when the various categories of professional

specialties into which students will be entering are taken into account.64 For ex

ample, European law students who intend to become judges may find materials

involving ethical issues facing advocates to be of limited relevance and utility.

Similarly, in the U.S. a student who intends to become a transactional lawyer may

find litigation examples unhelpful, and students who intend to enter public interest

practice may feel that the cases in the course text that focus on the corporate con

text have no bearing on the types of situations they will face in practice.

How, then, should we educate our students? If we want to reach students, must

we adopt a balkanized-and expensive--curriculum consisting entirely of highly

specialized contextual courses in which students who are pursuing different tracks

never meet or engage with one another in serious ethical discussions? Or are there

core principles that can be taught across professional contexts? These are ques

tions that need to be addressed directly in thinking about law school curricula.

Postgraduate professional development and continuing legal education is a

second phase of a program of ethical education. In the U.S. there is an extensive

system of mandated continuing legal education, although anecdotal evidence sug

gests that its effectiveness varies widely. Within European civil law countries, it

has been suggested that "issues of practice ... are best designed and taught by the

bar or bench during the separate period of apprenticeship, as it is the bar or bench

that is best equipped to teach these skills."65 To this end, one potentially attractive

source of focused and effective postgraduate ethics education is the academies

that exist within many countries to train incoming members of the profession, e.g.

judges. Another approach is to require law offices to provide their own training.

As noted above, many European codes do this explicitly by mandating that lawyers

provide ethical training to the junior lawyers whom they supervise.66

64. See Richard J. Wilson, 18th International Congress on Comparative Law, Washington,

D.C., July 2010, General Report: The Role of Practice in Legal Education, at 10-14.

65. See Richard J. Wilson, 18th International Congress on Comparative Law, Washington,

D.C., July 2010, General Report: The Role of Practice in Legal Education, at 14 (citing responses

from national reports received in response to a survey Professor Wilson conducted as part of his role

as national reporter for the Congress). See also id. at 43 (citing comment from England making simi

lar point about post-academic stages of training).

66. See, e.g, The Attorneys' Code of Ethics, passed at the Assembly of the Croatian Bar Asso

ciation, 18 February 1995, amended 12 June 1999, §126, available at http://www.ccbe.eu/fileadmin/

user_upload/NTCdocument!The_Attomeysdoc1_121_125198089l.pdf; Former Yugoslav Republic

of Macedonia, Code on Professional Ethics of Lawyers, Associates and Lawyer's Apprentices of

the Macedonian Bar Association, Article VI LAWYERS' RELATION TO THE LAWYER'S AP

PRENTICES AND VICE VERSA, §28, available at http://www.ccbe.eu/fileadmin/user_upload/

NTCdocument/Code_of_ethics_20061_1237990282.pdf; Code of Professional Conduct of the Bar

Association of Slovenia, passed at the Lawyer' Assembly of the Bar Association of Slovenia, 7

December 2001, §33, available at http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/code_

slovenia_enpdfl_1188552980.pdf.



http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/code_

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Macedonia provides an intriguing example of codified continuing legal edu

cation requirements. The Macedonian code takes an interdisciplinary approach by

requiring ongoing education that goes beyond the purely legal:67

The lawyer is obliged to improve his expert and general knowledge per

manently. For that purpose: he should follow and research regulations and

expert literature (particularly in the area of his specialty); follow cultural,

scientific and political achievements and occurrences, and according to his

possibilities should actively participate and collaborate with professional

and expert organizations, newsletters and with other social activities.

The lawyer is obliged to convey his knowledge unselfishly to other

lawyers, and especially to the associates and lawyer apprentices.

The Macedonian code adds the following inspirational language: "Through

continuous expert edification and raising the personal and moral reputation, the

lawyer fulfils his professional duties and qualifies him[self] for successful perfor

mance of the traditional function for defense of the freedom, independence, civil

rights, humanity, human dignity and the legal rights."68

Finally, the bar associations can provide invaluable support to the profes

sion through "ethics hotlines" and published, easily accessible, formal opinions

that examine code provisions in the context of actual cases and provide a much

more nuanced level of ethical guidance than is possible through the study of

the code provisions in isolation. Within the U.S., bar associations provide help

ful answers to some of the important ethical challenges that arise in the public

interest context.69 This is a role that bar associations in all countries should

embrace.

D. Summarizing the Conversation: Developing a

"Taxonomy" for Legal Ethics

Having identified problems and core values, analyzed existing ethical codes,

and developed recommendations for ethics education and professional develop-

67. Former Yugoslav Republic of Macedonia, Code on Professional Ethics of Lawyers,

Associates and Lawyer's Apprentices of the Macedonian Bar Association, Article V, EXPERT

EDIFICATION, PROTECTION AND RAISING OF THE PERSONAL AND MORAL REPU

TATION, §22, available at http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/Code_of_eth

ics_20061_1237990282.pdf.

68. Id. at §24.

69. See, e.g., New York County Lawyers' Association Committee on Professional Ethics,

Opinion 742 (April 16, 2010) (interpreting ABA Model Rule 1.2, which allows lawyers to limit the

scope of representation, and discussing whether public interest lawyers may "ghost-write" pleadings

for pro se clients as a form of "unbundled" legal services to increase the number of clients they are

able to assist); ABA Standing Comm. on Ethics and Professional Responsibility: Formal Opinion 06-

441 (May 13, 2006), Ethical Obligations of Lawyers Who Represent Indigent Criminal Defendants

When Excessive Caseloads Interfere With Competent and Diligent Representation.

http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/Code_of_eth

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ment, participants in a cross-cultural discussion might use the approach employed

by Alan Lawton, Michael Macaulay, and Jolanta Palidauskaite in the context of

public service ethics.70 As discussed in Section II, supra, they compiled a chart of

policy needs, goals, and responses. A similar chart might be compiled for com

parative legal ethics. An example of a chart that attempts to summarize the conver

sation described above is on the next page.

Conclusion

This paper describes a framework for undertaking a project of international

collaboration to improve legal ethics education, professional development, and

guidance for the legal professions. While ethics codes have been widely promul

gated, the discussion of the problems, goals, and values that underlie these codes

and the extent to which the codes reflect these-have been largely neglected. The

international legal community is teeming with scholars, teachers, practitioners, and

other professionals who are well-equipped to take on this task and eager to do so.

A first step in this effort would be to organize, at least on a virtual level, the

kind of "cross-cultural conversation" described in this paper. It should be orga

nized by subject matter/specialty area and profession so that materials could be

easily compiled and discussions focused on the issues of greatest mutual impor

tance and relevance to the participants. The example provided here is a conversa

tion among legal professionals who have an interest and expertise in public interest

advocacy and a desire to expand the availability of legal resources for individuals

who would not otherwise have access to these services. However, this framework

could readily be adapted to any group of legal professionals with common experi

ences and concerns.

It is not necessary to the success of this "cross-cultural conversation" that the

participants reach consensus. As discussed earlier, issues relating to the ethics of

lawyering and the legal professions are inherently contextual and tied to specific na

tional legal cultures. Despite this, there is inherent value in bringing together legal

professionals who have a common practice area and a shared goal of improving the

ethical standards within their respective countries. Those of us who have engaged

in such international collaborations have always found them to be profound learn

ing experiences and important opportunities for collegial community-building. In

short, the act of convening, and engaging in, a serious, reflective, international

conversation about ethical issues has the potential to be immensely beneficial to

the participants and, ultimately, to their legal professions and civil societies.

70. Alan Lawton (Hull University, UK and VU University, Amsterdam), Michael Macaulay

(Teesside University, UK), Jolanta Palidauskaite (Kaunas University of Technology, Lithuania), "To

wards a comparative methodology for public service ethics," paper presented at EGPA Conference,

Malta 2-5th September 2009, PSG VII: "Ethics and Integrity of Governance, available at http://

www.egpa2009.com/documents/psg7/Lawton-Macaulay.pdf. See discussion in Section II, supra.

http://www.egpa2009.com/documents/psg7/Lawton-Macaulay.pdf

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"Taxonomy"-Ethical Issues Involved in Public Interest Advocacy and

Increasing Access to Legal Services

Recommendations

for disseminating

Key code code and principles

provisions through ethical

and profession(s) education and

Problems/challenges covered by relevant professional

to be addressed Core values code(s) development

lack of access to legal clients who have (All except Scotland Required law

services for low income legal needs should apply to "advocates" school courses in

populations is a serious have full access to or the equivalent; legal ethics (U.S.)

problem within all of the legal services Scotland applies to Post-graduate

represented societies maximization

solicitors) education,

public interest clients are of client trust U.S. ABA Model possibly through

vulnerable and legally is important to Rules 1.2, 1.14, professional

unsophisticated, and some effective provision 2.1, 6.1 associations, e.g.

have diminished capacities of legal services Belgium, Judicial

judicial training

because of mental clients should Code, Volume academies

disabilities have autonomy to IlIBIS Mandatory

power imbalances define goals and Croatia, Attorneys'

continuing legal

between lawyers and make informed

clients result from these decisions about their

and other factors representation

Code of Ethics,

§§35-37, 126

education (U.S.,

Macedonia)

Ethical training

a lack of available the quality of legal Estonia Code of

of junior lawyers

alternative representation resources available Conduct, Arts. 8,14

by supervising

for the clients puts a special to economically Macedonia, Code lawyers (Croatia,

moral burden on the public disadvantaged on Professional Macedonia,

interest advocates to choose clients should be Ethics of Lawyers, Slovenia)

between taking on as comparable to that etc. §§22, 28 Guidance and

many clients as possible- of the resources Scotland, Code of leadership from bar

creating caseload pressures available to clients

and making competent with money Conduct for Scottish associations (ethics

Solicitors, §5 hotlines, written

representation more

difficult-or turning away

achievement of ethics advisory

law reform and Slovenia, Code opinions, etc.)

needy clients social change is of Prof. Conduct, (U.S.)

many clients have needs an important long- §§18,33,42

that go beyond the strictly term goal for public Ukraine, Rules of

legal, i.e. a need for

interdisciplinary assistance interest advocates

Advocate's Ethics,

Art. 21, 46, 51

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Project: Promoting Sustainable Reforms in Legal Education

Call for Regional Project Partner Event

Yerevan State University, Faculty of Law

Armen Harutyunyan

Problem Statement:

The concept of legal ethics, as one, uniform idea guiding the profession is missing. There are

references to some of its principles contained in different legal acts, but as a whole, there is no

common idea about what it involves and no academic discourse about its need. This has an

effect on legal education.

Legal ethics as a separate subject is not taught in the Law Faculty of YSU. Some issues of

legal ethics are discussed during the course on Legal Professional Skills - a subject taught at

the clinic by teachers involved in clinical program. The course is, therefore, limited to the

students participating in the clinic, who undertake this course as part of the overall clinical

curriculum. However, the course does not cover all aspects of ethics/ Taking into account the

peculiarities of the continental system on the one hand, and, orientation of clinical education

on the other hand, it becomes clear that issues with ethics discussed in the clinical course

mostly concern ethical standards for attorneys (advocates in our case) and do not include

issues relating to ethics for other legal professions. Developing a new course integrated into a

comprehensive course on legal ethics in the main curriculum will help address the problem.

Having said that, it is important to suggest that exchange about teaching methods on the

example of the “Ethics“course is equally important to having the course in place.

Request for the Visit:

Professor Philip Genty’s visit and two-day meeting with professors and administration

of the faculty will provide a real opportunity for the Law Faculty of YSU and faculty

members from project countries to understand the essence and significance of the course on

legal ethics, as well as its teaching peculiarities. More specifically, it will be important to

get familiar with the current experience in the field of methodology to monitor the

teaching process of such courses of practical importance and assess the knowledge

gained during this course.

The participants will be two lecturers from each chair of the faculty, as well as

lecturers from legal clinic in its full capacity. The total number of participants will be 15-18

persons.

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First day – meetings will be dedicated to the concept and significance of the course

and introduction of international experience in this field.

Second day - a workshop may be conducted, during which the professor will conduct

a presentation, which will be attended by lecturers from different chairs of the faculty. The

class will be followed by answers and questions session, summary of overall results of

meetings, as well as identification of initial measures already developed for the course.

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The Judicial Service of Ghana

in partnership with

Faculty of Law, GIMPA

White & Case

&

Fordham University School of Law

PRESENTS

LEGAL ETHICS TRAINING PROGRAMME

1 June to 4 June, 2016

Judicial Training Institute

New Court Complex

Accra

***

ABOUT THE PROGRAMME

The Legal Ethics Training Programme is an intense course aimed to acquaint students with main

principles and rules governing professional legal practice.

The four-day training program, embraces such areas as regulation of the legal profession, lawyer-

client relations, proper screening and engagement of clients, conflicts of interests, confidentiality and

disclosure to anti-corruption, corporate social responsibility and pro bono legal assistance.

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This course is practical rather than academic. It does not examine philosophical or moral grounds of

professional ethics, but illustrates how the ethical rules are implemented in commercial law practice

in Ghana and globally.

The practical character of the course is by the trainers, majority of whom are prominent lawyers

practicing in Ghana and abroad. Speakers include partners of international law firms, government

lawyers, Ghanaian judges and advocates, as well as Ghanaian and western law school professors.

Training is highly interactive, so students have plenty of opportunities to talk to trainers, to analyze

cases derived from legal practice.

Message from Her Ladyship Georgina Theodora Wood,

Chief Justice of the Republic of Ghana

I am delighted to welcome you to the Legal Ethics Training Programme, organized by White & Case

with the Law Faculty of GIMPA and Fordham Law School.

As a profession, lawyers have been entrusted with the honour of protecting the rule of law and safe

guarding democracy. Further, through a vibrant and robust legal system, lawyers directly contribute

to the economic development of the nation. The unique skills and training that lawyers enjoy,

however, do not come without responsibility. Now more than ever, lawyers have a duty to

promote good professional conduct and uphold the highest ethical standards.

The Legal Ethics Training Programme will offer law students a unique opportunity to discuss legal

ethics and standards of professional practice with practitioners and legal experts from Ghana and

around the world. As the future lawyers of our great nation, I encourage you to participate in this

programme so that together we continue to advance a strong and reliable legal system and ensure

the delivery of justice.

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DAY 1

Wednesday, 1 June 2016

9:00 – 10:00 REGISTRATION & BREAKFAST

10:00 – 11:00 OPENING CEREMONY

His Lordship, Justice William Atuguba, Supreme Court of Ghana

Hon. Marietta Brew Appiah-Oppong, Attorney General and Minister of Justice, Republic of Ghana

Dean E. Kofi Abotsi, Faculty of Law, GIMPA & Managing Partner, Axis Legal, Accra

Jason Yardley, Partner, White & Case, London

11:00 – 11:15 CULTURAL INTERLUDE

11:15 – 11:45 An Introduction to Professional Responsibility & Ethics:

Programme Overview

Tom Mc Donald, Partner, White & Case, Paris

Jennifer Paradise, General Counsel, White & Case, New York

11:45 – 1:00 Practical Exercises


1:00 pm – 2:00 Lunch

2:00 pm – 4:00 Approaches to Regulating the Profession: A Comparative Perspective

His Lordship, Justice Sir Dennis Adjei, Court of Appeals and Director, Judicial Training Institute

Professor Gayane Davidyan, Associate Professor, Faculty of Law, Moscow State University


8:30 – 9:30 Breakfast

***

DAY 2

Thursday, June 2 2016

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9:30 – 9:45 Introduction to Day 2

Tom McDonald, White & Case, Paris

9:45 – 11:00 Confidentiality, Privilege, Limits and Exceptions

Tom McDonald, Partner, White & Case, Paris


Professor Gayane Davidyan, Associate Professor, Faculty of Law, Moscow State University

Sandra Thompson, Lecturer in Law, Faculty of Law, GIMPA and Director of Reform at the

Ministry of Justice

11:00 – 11:15 Coffee Break



12:30 – 1:30 Lunch

1:30 – 2:30 Knowing and Engaging Clients

Eudora Koranteng, Member, Ghana Bar Association

Josh Siaw, Partner, White & Case, London & Johannesburg


Jennifer Paradise, General Counsel, White & Case, New York 2:30 – 3:30 Practical Exercises

Jennifer Paradise, General Counsel, White & Case


3:45 – 5:00 In-House Perspectives on Legal and Business Ethics


Josh Siaw, Partner, White & Case, London & Johannesburg

***

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DAY 3

Friday, 3 June 2016


9:45 – 11:00 Conflicts of Interest

Her Ladyship, Justice Gertrude Torkornoo, Court of Appeals

Justice Patience Mills-Tetteh, High Court



Jason Yardley, Partner, White & Case, New York

Professor Gayane Davidyan, Associate Professor, Faculty of Law, Moscow

State University




1:00 – 2:00 Lunch

2:00 – 3:30 Independence Issues: Relationship Between Lawyers and Judges

His Lordship, Justice Joseph Akamba, Supreme Court of Ghana




Professor Gayane Davidyan, Associate Professor, Faculty of Law, Moscow

State University


3:45 – 4:45 Practical Exercise


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Saturday, 4 June 4, 2016



Tom McDonald, White & Case, Paris

9:45 – 11:00 Legal Ethics: Challenges and Opportunities

Presentation followed by discussion

His Lordship, Justice Jones Dotse Supreme Court of Ghana


11:15 – 12:00 Pro Bono and Corporate Social Responsibility

Dean Kofi E. Abotsi, Dean, Faculty of Law, GIMPA & Managing Partner, Axis Legal

Elizabeth Black, Global Manager of Social Responsibility, White & Case, Washington DC

Professor Paolo Galizzi, Clinical Professor of Law, Fordham University School of Law, New York

12:30 – 1:30 Lunch

1:30 – 3:30 Private Screening: ALL RISE, Jessup Moot Documentary

3:30 – 4:00 Closing Ceremony & Certificate Distribution

4:00 – 4:30 Reception

***

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Lawyering and Legal Ethics [adapted for use in session on 10/28/16]

Prof. Philip M. Genty

Columbia Law School

This three week course will focus on issues of legal ethics and lawyering theory, procedure, and skills.

Topics covered will be conceptions of the lawyer’s role; confidentiality; conflict of interest; tensions

between duties to clients and duties to others (courts, third parties, society); the allocation of decision-

making responsibility between lawyers and clients; development of a case theory; interviewing and

counseling; and advocacy.

Classes will be conducted through a combination of lectures, discussions, and simulations. The course will

use a variety of materials including ethical codes, articles, case studies, and video presentations.

COURSE READINGS

Israel Bar Association Rules (Professional Ethics)

American Bar Association, Model Rules of Professional Conduct 1.2 and 1.14

[selected articles]

Materials on Interviewing

Ethics problems (to be distributed in class)

Grading:

60% final take-home examination. The examination will be available after the course ends, and

students will have 48 hours to complete and submit it. 20% class participation, including attendance, discussions, and writing assignment

20% group presentation (see below)

Group Presentations in last class on June 13:

Students will divide themselves into small groups of 5-6 students. Each group will make a presentation of

approximately 20-30 minutes, in which all group members participate. Each group will prepare as if the

presentation were being made to the faculty and to fellow students. The group will be recommending a

course or series of courses that should be added to the curriculum to teach students about one or more

themes of our course:

Attorney role

Lawyering skills

Legal ethics

The group members will explain why they feel the course(s) would be an important addition to the

curriculum and will present a demonstration lesson that is taught using interactive methods. The group

members should explain their goals for this demonstration, and the demonstration should involve the entire

class in the learning. After the presentations, we will discuss and critique the demonstrations.

Groups will be given time in Class III (June 1) to meet and brainstorm about possible ideas. The groups

will also be given time in Class VII (June 12) to finish preparing their presentations.

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Schedule of Classes

NOTE: Prior to our first class, please read the excerpts from the Pepper, Postema, Simon, and

Levine articles in the online course reading packet.

Class I

Monday, May 26, 13:00 – 16:00

Introduction to Course, Discussion of different conceptions of role of lawyer

Writing Assignment for Class II:

E-mail brief essay about career choice to Philip Genty at [email protected].

Due May 27 at 18:00. The essay should be approximately one page in length and should

answer the following questions:

1. What specific legal career do you hope to have?

2. Why do you think this would be a good choice for you, and why would it be better than other

possible choices you might make?

3. What do you see as the most significant rewards and challenges of this work?

Class II

Thursday, May 29, 14:00 – 17:00 Career Choice – discussion of essays Discussion of group presentations

Assignment for Class III:

Read Interviewing material

Class III Sunday, June 1, 9:00-13:00

1st

portion of class:

(Guest Lecturer: Roni Rothler)

Introduction to interviewing and counseling

2nd

portion of class:

Groups meet to discuss presentations for final class

Assignment for Class IV:

- Read Israel Bar Association Rules, Chapter E, Section 12 and 13.

- [Read assigned articles]

Class IV

Monday, June 2, 16:00 – 19:00

Choice of client/cause; choice of case theory; ethical and practical implications of those choices

Introduction to advocacy

Assignment for Class V:

Read Israel Bar Association Rules, Chapter F, Sections 19-21, Chapter E, Sections 14-17

Read Confidentiality and Conflict of Interest problems

mailto:[email protected]

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Class V

Sunday, June 8, 14:00-17:00

Overview of difficult ethical issues facing lawyers in their relationships with clients: confidentiality and

conflicts of interest

Assignment for Class VI:

Read Israel Bar Association Rules, Chapter J, Sections 32, 33, 34

Read Duty of Honesty problem

Class VI

Tuesday, June 10, 9:00-12:00

Balancing ethical duties to courts, third parties, and society with duties to clients

Assignment for Class VII:

Read American Bar Association Model Rules 1.2 and 1.14

Class VII Thursday, June 12, 9:00 – 13:00

1st

portion of class:

(Guest Lecturer: Judith Waksberg)

Who is the Client, and Who Controls the Case?

2nd

portion of class:

Groups meet to conclude preparations for presentations in final class

Class VIII

Friday, June 13, 9:00-12:00

Group Presentations and Conclusions

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Romanian American University [adapted for use in session on 10/28/16]

Intensive Course on Legal Ethics

Prof. Philip M. Genty

Columbia Law School

This course will focus on the role of the lawyer and legal ethics. Topics covered

will be conceptions of the lawyer’s role, confidentiality, conflict of interest, tensions

between duties to clients and duties to others (courts, third parties, society), allocation of

decisionmaking between lawyers and clients, and ethical issues implicated by career

choices.

Classes will be conducted through a combination of lectures, discussions, and

simulations. The course will use a variety of materials including ethical codes, articles,

case studies, simulation exercises, and video presentations.

COURSE READINGS

Romanian Law for the Organization and Practice of the Lawyer’s Profession, Chapters I,

II, and III (“Romanian Law for Lawyer’s Profession”)

Council of Bars and Law Societies of Europe, Charter of Core Principles of the European

Legal Profession and Code of Conduct for European Lawyers (“European Charter and

Code”)

[selected articles]

Confidentiality problem

Conflict of Interest problems

Duty of Honesty problem

Schedule of Classes (all classes will meet from 9:00 to 11:50)

[*Prior to our first class, please read the assigned articles on attorney role.]

Class I

Monday, 12 March

Introduction to Course; Competing Conceptions of Role of Lawyer

Assignments for Class II:

- Read Romanian Law for Lawyer’s Profession Articles 1, 2, 10, 33, 34, and 47;

European Charter and Code, Principles (a), (b), (d), (e), and (g), §§1.1, 1.2, 1.3,

2.1, 2.3

- Read Confidentiality Problem

Writing assignment: E-mail brief essay on career choice to Philip Genty at

[email protected]. Due 12 March at 21:00. The essay should be

approximately one page in length and should answer the following questions:

1. What specific legal career do you hope to have? 2. Why do you think this would be a good choice for you, and why would it be

better than other possible choices you might make?

3. What do you see as the most significant rewards and challenges of this work?

mailto:[email protected]

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Class II

Tuesday, 13 March

Regulation of the Legal Profession; discussion of goals and content of ethical codes

Ethical Challenges in the Attorney-Client Relationship: Confidentiality

Assignment for Class III

- Read Romanian Law for Lawyer’s Profession Article 44; European Charter and

Code, Principles (c) and (e), §3.1, 3.2

- Read Conflict of Interest problems

- [Read assigned article]

Class III

Wednesday, 14 March

Ethical Challenges in the Attorney-Client Relationship: Conflict of Interest

Allocation of Decisionmaking Between Lawyer and Client

Assignment for Class IV:

- Read Romanian Law for Lawyer’s Profession Articles 37, 38; European Charter

and Code, Principles (d), (e), and (i), §2.2, 4.2, 4.4

- Read Duty of Honesty Problem

Class IV

Thursday, 15 March

The Duty of Honesty: tensions between duties to clients and duties to courts and others;

counseling the client about these tensions

Assignment for Class V:

- Review Essays about Career Choice

Class V

Friday, 16 March 2012

Career Choice and Ethical Implications of that Choice

Concluding discussion

TRAINING

PROGRAM SCHEDULE

09 Return to TOC

DAY 1 Wednesday, 28 September 2016 MSU Law School

Time Session Presenter(s)/Facilitator(s) Room

09:00 – 10:00 Registration Building A

Breakfast Students’

canteen

(1st floor)

10:00 – 10:20 Opening

Ceremony

Natalia Kozlova, Professor,

Vice Dean for Scientifi c Work,

MSU Law School

Gayane Davidyan, Associate

Professor, History of the State

and Law Chair, MSU Law School

Dmitry Shabelnikov, PILnet

room to be

confirmed

10.20 – 10.40 Introductory

address

Tatiana Andreeva, Former

Deputy Chair of the Higher

Arbitration Court, Judge in

Retirement

Lecturer of the Civil Procedure

Law Department, MSU Law

School

room to be

confirmed

10:40 – 11:10 Introductory

address

Anatoly Kovler, Former Judge

of the European Court for

Human Rights in Respect of the

Russian Federation

Professor of the Constitutional

and Municipal Law Department,

MSU Law School

room to be

confirmed


address

Henry Reznik, First

Vice-President of the

Moscow Chamber of Advocates

room to be

confirmed

10 Return to TOC

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address

Jennifer Paradise, White &

Case

room to be

confirmed


address

[Joris Willems, DLA Piper] or

[Constantine Lusignan-

Rizhinashvili, DLA Piper]

room to be

confirmed

12:10 – 13:00 “An Introduction

to Professional

Responsibility and

Ethics”

Delphine Nougayrède,

DLA Piper

Thomas McDonald, White &

Case

Prof. Susan Carle,

American University

room to be

confirmed

13:00 – 14:00 Lunch Students’

canteen

14:00 – 16:00 Practical

Exercise 1

group discussions

and preparation


Adam Hartley,

Yulia Koroleva,

Andrei Sheetkin, DLA Piper

Thomas McDonald,

Jennifer Paradise, White & Case

room to be

confirmed

16:00 – 16:30 Break 2nd Floor

Coffee Break

area

16:30 – 18:00 Practical

Exercise 1

group presentations,

feedback and hand

out of points to

note


Adam Hartley,

Yulia Koroleva,

Andrei Sheetkin, DLA Piper

Thomas McDonald,

Jennifer Paradise, White & Case

room to be

confirmed

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DAY 2 Thursday, 29 September 2016 White & Case Office

Time Session Presenter(s)/Facilitator(s)

09:00 – 09:30 Breakfast (optional)

09:30 – 10:00 Summary of Day 1

and Introduction to

Day 2

Prof. Susan Carle, American University

10:00 – 11:00 “Avoidance of

Conflicts of

Interest”

Thomas McDonald, Jennifer Paradise,

White & Case

11:00 – 13:00 Practical

Exercise 2

Thomas McDonald, Jennifer Paradise,

White & Case

13:00 – 13:45 Lunch

13:45 – 15:45 “Lawyer Thomas McDonald, Jennifer Paradise,

Independence” White & Case

Practical [Gaëlle Le Quillec, Avocat, betto serraglini,

Exercise 3 Paris]

[And/or:

“Overview and Main Features of the French Ethical Rules”]

15:45 – 16:00 Break

16:00 – 18:00 “Practical Gayane Davidyan, [colleague], MSU

Introduction to the Law School

Russian Code of Ethics”

Practical

Exercise 4

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DAY 3 Friday, 30 September 2016 DLA Piper Office

Time Session Presenter(s)/Facilitator(s)

09:00 – 09:30 Breakfast (optional)


remarks

Constantine Lusignan-Rizhinashvili,

DLA Piper

09:35 – 10:05 Summary of Day 2

and Introduction to

Day 3


10:05 – 11:00 “Knowing and

Engaging Clients”

Delphine Nougayrède, DLA Piper

Julien Hansen, DLA Piper

11:00 – 12:00 Practical

Exercise 5

Delphine Nougayrède, Julien, Hansen,

Angelika Yakhneva, Evgenia Kudryashova,

Andrei Sheetkin, Yulia Koroleva, DLA Piper

12:00 – 12:45 Lunch

12:45 – 14:45 “Confidentiality,

Attorney Client

Privilege and the

Work Product

Doctrine”

Practical

Exercise 6

Delphine Nougayrède, DLA Piper

Moderators:

Thomas McDonald, White & Case


Michael Malloy, DLA Piper

14:45 – 15:00 Break

15:00 – 18:00 “In-House

Perspectives of

Legal and Business

Ethics”

Practical

Exercise 7

Daria Brashkina, Maria Kulakhmetova,

Olga Prokopovych, Microsoft Corporation

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DAY 4 Saturday, 1 October 2016 MSU Law School


09:30 – 09:30 Breakfast Students’

canteen

(1st floor)

9:30 – 10:10

10:10 – 10:50

Pro Bono and

Corporate Social

Responsibility at

Global Law Firms

Dmitry Shabelnikov,

PILnet

Özgür Kahale,

DLA Piper

room to be

confirmed

10:50 – 11:30 Elizabeth Black,

[Natalia Nikitina,] White & Case

Q&A and group discussion

12:30 – 13:15 Lunch Students’

canteen

13:15 – 13:20 Presentation of Sessions rooms to be

confirmed

13:20 – 14:20 Presentation of Gayane Davidyan, MSU Law rooms to be

Current Reform

Plans regarding

the Regulation

School

With participation of:

confirmed

of the Legal Delphine Nougayrède, Profession in DLA Piper Russia Thomas McDonald, White&Case

Jennifer Paradise, White&Case

Prof. Susan Carle, American

University

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14:20 – 15:20 Debate on

Regulation of the

Legal Profession

in Russia

Moderator: Gayane

Davidyan, MSU Law School

[Alexandra Nesterenko/Alevtina

Kamelkova]

and

[Andrey Sushkov/Konstantin

Dobrynin] [to be confirmed]

rooms to be

confirmed

15:20 – 16:30 Discussion on

Regulation of the

Gayane Davidyan, MSU Law

School rooms to be

confirmed

Legal Profession

in Russia Q&A

Group discussion

16:30 – 17:30 Closing Dmitry Shabelnikov, PILnet room to be

Ceremony

Course summary

and presentations

followed by drinks

and reception

Gayane Davidyan, MSU

Law School


DLA Piper

confirmed

Thomas McDonald,

White & Case

Prof. Susan Carle,

American University

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6th Annual Russian Legal Ethics and Professional Responsibility Training Program September 28 – October 1, 2016

Essay questions (students should address one):

1. What does it mean, in your opinion, to be a responsible and ethical legal

professional?

2. Do you think that all lawyers in Russia should be governed by special

professional responsibility rules? Why or why not?

3. What are one or more examples of situations that represent a professional ethics

issue/dilemma? Please describe and elaborate on each example rather than just

list them.

4. What are the responsibilities of the legal professionals vis-à-vis society? Why do

legal professionals have these responsibilities?

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Model Rules of Professional Conduct

Client-Lawyer Relationship

Rule 1.6 Confidentiality Of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed

consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted

by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably

believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the

financial interests or property of another and in furtherance of which the client has used or is using the lawyer's

services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably

certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has

used the lawyer's services;

(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to

establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was

involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the

composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client

privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized

access to, information relating to the representation of a client.

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Rule 1.7 Conflict Of Interest: Current Clients

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a

concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's

responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a

client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to

each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the

lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Rule 1.10 Imputation Of Conflicts Of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them

practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless

(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of

materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior

firm, and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee

therefrom;

(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance

with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement

of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available

before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the

former client about the screening procedures; and

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(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client

by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request

and upon termination of the screening procedures.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a

person with interests materially adverse to those of a client represented by the formerly associated lawyer and not

currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the

client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule

1.7.

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule

1.11.

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LEGAL PROFESSION (PROFESSIONAL CONDUCT AND ETIQUETTE)

RULES, 1969 (LI 613).

IN exercise of the powers conferred on the General Legal Council by section 23 and 53

of the Legal Profession Act, 1960 (Act 32) these rules are made by the General Legal

Council this 26th day of October, 1968.

Rule 1-Legal Practice.

(1) A lawyer in practice is-

(a) a lawyer who is entitled to practise and who holds himself out as ready to do so, or is employed in a whole-time occupation where he performs legal duties; or

(b) a lawyer whose regular occupation is that of editor or reporter of any series of Law Reports entirely written and edited by lawyers for use by the legal profession.

(2) A practising lawyer shall not-

(a) be a managing director or executive chairman in any company or an active partner in any business,

(b) carry on any other profession or business which conflicts or involves a serious risk

of conflict with his duties as a practising lawyer;

Provided that the General Legal Council may for the avoidance of doubt give a ruling on

an application made to it in writing in any particular case as whether a profession or business conflicts or involves a serious risk of conflict with the duties of a person as a practising lawyer.

(3) A lawyer who is not in practice under sub-rules (1) and (2) above shall, if employed,

file with the General Legal Council a copy of the terms of his employment; and where by

the terms of his employment such lawyer is obliged to offer his employers legal advice

or to perform such services as are normally performed by a lawyer in practice, he

should be deemed to be a practising lawyer.

Rule 2-Advertising Touting and Publicity.

(1) A lawyer shall not directly or indirectly apply for or seek instructions for professional business, or do or permit in the carrying on of his practice any act or thing which can reasonably be regarded as touting or advertising or as calculated to attract business unfairly.

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(2) It is the duty of every lawyer at all times to uphold the dignity and high standing of his profession and his own dignity and high standing as a member of it.

(3) It is contrary to professional etiquette for a lawyer to do or cause or allow to be done anything for the purpose of touting directly or indirectly, or which is calculated to suggest that it is done for that purpose.

(4) While a lawyer is entitled to such personal advertisement as is a necessary

consequence of the proper exercise of his profession, or of any act otherwise properly

done by him, it is contrary to professional etiquette for a lawyer to do or cause or allow

to be done anything with the primary motive of personal advertisement or anything

calculated to suggest that it is so motivated.

(5) A lawyer shall not volunteer advice to bring a lawsuit except in the exceptional cases where ties of blood relationship or trust make it his duty to do so. Accordingly, a practising lawyer shall not employ agents or runners for the purposes of instigating litigation or pay or reward directly or indirectly those who bring or influence the bringing

of such case to his chambers or remunerate Policemen, Court or Prison officials, hospital attaches or others who may succeed under the guise of giving disinterested friendly advice in influencing the criminal, the sick and the injured, the ignorant or others to seek a lawyer's professional services. Every lawyer having knowledge of any such practices on the part of another lawyer owes a duty to the public and to the profession immediately to inform thereof to the end that the offender may be disbarred or otherwise

dealt with by the appropriate authority.

Rule 3-Name Plates, Etc.

A lawyer shall not permit to appear on his name plate or to be printed on his professional stationery the name of any person other than a lawyer who holds a valid licence or other authorisation for the time being prescribed by law to be obtained before the carrying on of the practice of a lawyer or of any part of such practice or who has duly complied with any law requiring registration by a lawyer before carrying on any such practice:

Provided that this rule shall not preclude:

(a) the appearance in the style or name of a lawyer's practice of the name of a predecessor or former partner in that practice; or

(b) the use of a style or firm-name in use at the date of the coming into operation of these rules or approved in writing by the Council.

Rule 4-Chambers and Pupillage.

(1) A lawyer shall not practise unless he is a member of professional chambers or the pupil of such a member.

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(2) Membership of professional chambers under these rule means:-

(a) having the lawyer's name exhibited at the chamber (unless he is a pupil) and that

lawyer having the rights to use the chambers for the conduct of his practice, and

(b) that lawyer having the services of the clerk who is the clerk of the chambers.

(3) Membership of chambers includes being sole occupier of chambers.

(4) All professional chambers shall be registered with the General Legal Council.

(5) A lawyer who is a member of professional chambers may use his private residence

for professional work. But a part of a private residence shall not be eligible to be

regarded as professional chambers for the purposes of these rules unless that part is

clearly separated from the purely residential part or parts of the premises.

(6) A lawyer shall not receive a pupil into his chambers unless that lawyer has been in

practice for a period of not less than seven years and has notified the Council in writing of the proposed pupillage.

Rule 5-Briefs and Pleadings. (1) A lawyer in practice is bound to accept any briefs in the Court in which he professes

to practise at a proper professional fee depending on the length and difficulty of the case. Special circumstances may justify his refusal at his discretion to accept a particular brief.

(2) A lawyer should be separately instructed and separately remunerated by fees for

each piece of work done, and he shall not undertake to represent any person, authority

or corporation in all their court work for a fixed annual salary. But a lawyer may accept a

retainer for advice.

(3) Where a lawyer withdraws from a case and returns the client's brief, it is his duty to

hand it back to the client from whom he received it. A lawyer who accepts a brief is in a

confidential position, and he shall not communicate to any other person the information

which has been confided to him as such lawyer; and he shall not use either such

information or his position as a lawyer to his client's detriment. The duties here stated

continue after the relation of lawyer and client has ceased.

(4) The papers in a brief delivered to a lawyer are the property of the client, and the lawyer has no right to lend them to any person without the consent of the client.

(5) A lawyer shall not accept a brief limiting his ordinary authority, or take a subordinate

position in the conduct of a case or share such conduct with the client even if the litigant is himself a lawyer ; and he shall not accept a brief on the condition that his discretion as to offering no evidence is fettered.

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(6) A lawyer who finds on receiving a brief that another lawyer has previously been

retained shall not accept the brief without-

(a) communicating in the first instancewith the lawyer who first handled it; and

(b) enquiring whether he has any objection to his accepting the brief.

Such communication shall be by the latter lawyer to the former one direct, and not

through his clerk.

(7) If the first lawyer does indicate any objection to the brief being taken away from him,

the second one ought, where practicable, to ascertain from the client what are the exact

reasons why the brief has been taken away from the first lawyer; and unless a

satisfactory explanation is given shall refuse or return the brief.

(8) A lawyer is, in all his practice, but especially with regard to settling and signing of

pleadings, under responsibilities to the Court as well as to his client. He shall not put

into a pleading any allegation which is not supported by the facts which are laid before

him by his client. If on the material before him there is no cause of action or no defence

in law, he may ask for further instructions to find if more material can be obtained ; and if

it cannot, he may advise his client accordingly. In particular, where a lawyer is instructed

to allege fraud, he shall not subscribe to such an allegation without having before him

clear instructions that the client does wish to allege fraud and will support the allegation

in the witness-box. In addition the lawyer must have before him material which, as it

stands, establishes a prima facie case of fraud. If the material before him is not

sufficient in his view to warrant the allegation, he shall advise his client that this is his

view and that he cannot put his signature to the pleadings if it is to contain that charge.

(9) A lawyer shall not offer evidence which he knows the Court should not admit. He

should not, either in argument to the Court or in address to the jury, assert his personal belief in his client's innocence, or in the justice of his cause, or as to any of the facts involved in the matter under investigation.

(10) A lawyer shall at the time of retainer disclose to the client all the circumstances of his relationship to the parties and his interest in or connection with the controversy, if

any, which might influence the client in selection of counsel. He shall avoid representing conflicting interests.

Rule 6-Lawyers' Accounts.

(1) Every lawyer shall give a receipt for each and every payment made to him, and shall specify therein the purpose for which such payment was made.

(2) Every lawyer shall at all times keep properly written up such books and accounts as may be necessary-

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(a) to show all his dealings with

(i) clients' moneys held, received or paid by them; and

(ii) any other moneys dealt with by him through a client account; and

(b) to distinguish such moneys held, received or paid by him on account of each

separate client and to distinguish such moneys from other moneys held, received or

paid by him on any other account.

(3) (a) All dealings referred to in sub-rule (2) (a) of this rule shall be recorded in-

(i) a clients' cash book, or a clients' column on the credit side or debit side (as may be

appropriate) of a cash book; and

(ii) a clients' ledger, or a clients' column on the credit side or the debit side (as may be

appropriate) of a ledger;

and no other dealings shall be recorded in such clients' cash book and ledger, or, as

the case may be, in such clients' columns; and

(b) all dealings of the lawyer relating to his practice as such lawyer other than those

referred to in sub-rule (2) (a) of this rule shall be recorded (as may be appropriate) in

such other cash book and ledger (if any) or such other columns of a cash book and

ledger (if any) as the lawyer may choose to maintain.

(4) Every lawyer shall preserve for at least six years from the date of the last entry

therein all books, accounts and records kept by him under this rule.

(5) Nothing in these rules shall deprive a lawyer of any recourse or right, whether by

way of lien, set-off, counter-claim, charge or otherwise, against moneys standing to the credit of a client account.

(6) In this rule each of the expressions "book", "ledger", and "record" shall be deemed to

include a loose-leaf book and such cards or other permanent documents as are necessary for the operation of a mechanical system of book-keeping.

Rule 7-Conduct of Proceedings in Court and at Other Tribunals.

(1) It is the duty of a lawyer, whilst acting with all due courtesy to the Court or Tribunal

before which he is practising, fearlessly to uphold the interests of his client without

regard to any unpleasant consequences either to himself or to any other person. In

particular, no lawyer is bound to withdraw any charge which is the necessary outcome

of material facts sworn to by or on behalf of his client unless expressly instructed so to

do by his client. A lawyer shall not however deceive the Court or Tribunal before which

he is appearing in any circumstances whatsoever.

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(2) A lawyer shall not appear as witness for his own client except as to merely formal

matters such as the attestation or custody of an instrument, or the like, or when it is essential to the ends of justice. If he is a necessary witness with respect to other matters, the conducting of the case should be entrusted to another lawyer.

(3) Once a lawyer has accepted a brief he shall not relinquish it to the detriment of his client without good and sufficient cause.

Rule 8-Certain Improper Relationships and Contacts.

(1) A lawyer shall not join or act in association with any organisation or person (not

being a practising lawyer) whose business or any part of whose business is to make,

support or prosecute (whether by action or otherwise and whether by another lawyer or

agent or otherwise) claims arising as a result of death or personal injury, including

claims under the Workmen's Compensation Act, 1963 (Act 174), or any statutory

modification or re-enactment thereof, in such circumstances that such person or

organisation solicits or receives any payment, gift or benefit in respect of such claims;

nor shall a lawyer act in respect of any such claim for any client introduced to him by

such person or organisation.

(2) A lawyer shall not, with regard to any such claim, knowingly act for any client introduced or referred to him by any person or organisation whose connection with such client arises from solicitation in respect of the cause of any such claim.

(3) It shall be the duty of a lawyer to make reasonable enquiry before accepting

instructions in respect of any such claim for the purpose of ascertaining whether the

acceptance of such instructions will involve a contravention of the provisions of sub-rule (1) or (2) of this rule.

Rule 9-0thers Professional Misconduct.

(1) The conviction of a lawyer for a criminal offence involving dishonesty or moral turpitude makes him prima facie unfit to continue on the Roll of Lawyers.

(2) The Disciplinary Committee may, however, take into consideration the nature of the

offence of which the lawyer was convicted. In particular, if the offence is not of such a

character as to make the person guilty of it unfit to remain an officer of the court and a

member of an honourable profession, then the Disciplinary Committee may make such

order as it thinks fit instead of striking the name of such person off the Roll of Lawyers.

(3) The failure on the part of any lawyer to comply with an order of the court is a

professional misconduct except where such non-compliance was in connection with a

court order made against a lawyer in a purely personal capacity completely

unconnected with his practice.

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(4) Any deliberate deception of the court on the part of a lawyer is a professional

misconduct. Equally a lawyer is guilty of such misconduct if he knowingly permits a

client to attempt to deceive the court.

(5) It is professional misconduct to attempt deliberately to deceive or make a false representation to the Disciplinary Committee of the General Legal Council which shall

for the purposes of this rule be deemed to be in the same position as the court. Similarly the duty of a lawyer as an officer of the court to honour undertakings given to the court applies equally to undertakings given to the Disciplinary Committee.

(6) A lawyer who neither attends in court himself nor makes arrangements for a

responsible member of his firm or staff or agent or some other lawyer to be present

throughout in court proceedings in which he or his firm is acting is guilty of a breach of

duty to the court, his client and his profession.

(7) A lawyer in his dealings with the client must behave with the utmost honesty and with frankness; and any breach of this rule constitutes professional misconduct.

(8) Any conduct towards a member of the public which is fraudulent or contains an element of fraud is a professional offence. It is immaterial for purposes of this rule that the lawyer concerned may not have been convicted of that fraud by a court of criminal jurisdiction.

(9) A lawyer is entitled to reasonable compensation for his services, but he shall avoid

charges which either overestimate or undervalue the service rendered. When possible

he shall adhere to established tariffs. The client's ability to pay cannot justify a charge in

excess of the value of the service, though his poverty may require a less charge or even

none at all.

(10) A lawyer shall give no undertaking he cannot fulfil, and he shall fulfil every

undertaking he gives. He should never in any way communicate upon the subject in controversy, or attempt to negotiate or compromise the matter directly with any party represented by a lawyer except through such lawyer.

(11) It is the duty of a lawyer to maintain the honour and integrity of his profession, and

to expose without fear or favour before the proper Tribunal unprofessional or dishonest

conduct by any member of the profession, and to accept without hesitation a retainer

against any member of the profession who is alleged to have wronged his client.

(12) No client is entitled to receive-and no lawyer shall render any service or advice

involving disloyalty to the State or disrespect for the judicial office or the corruption of

any persons exercising a public or private trust or deception or betrayal of the public.

E. AKUFO-ADDO

Chairman

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E. S. AIDOO

Secretary

Date of Gazette Notification: 17th January, 1969.

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CODE OF PROFESSIONAL ETHICS OF RUSSIAN ADVOCATES 2003

Adopted by the First National Congress of Russian Advocates on 31 January 2003

(with amendments and additions approved by:

Second National Congress of Russian Advocates on 8 April 2005,

Third National Congress of Russian Advocates on 5 April 2007;

Sixth National Congress of Russian Advocates on 22 April 2013; and

Seventh National Congress of Russian Advocates on 22 April 2015)

Pursuant to the requirements set forth in the Federal Law “On the Practice of Advocacy and Advocates in the

Russian Federation,” for the purpose of upholding the professional honor, promoting the traditions of Russian

advocacy, and recognizing moral responsibility to the society, Advocates of the Russian Federation have adopted the

present Code of Professional Ethics of Advocates.

The community of advocates cannot exist or function unless its members observe corporate discipline and

professional ethical rules, uphold their honor and dignity, and maintain the reputation of their profession.

SECTION I: Principles and standards of professional conduct of lawyers

Article 1

The Code of Professional Ethics of Advocates establishes mandatory rules of conduct for every practicing advocate

based on the moral criteria, traditions of the profession, international standards and professional rules.

In their practice advocates may be guided by the standards and rules set forth in the General Code of Conduct for

Lawyers of the European Union insofar as such rules do not contradict the Law on the Practice of Advocacy and

Advocates or the provisions of the present Code.

Article 2

1. The present Code supplements the rules established by the Law on the Practice of Advocacy and Advocates.

2. None of the provisions of the present Code may be interpreted as prescribing or permitting activities that

contradict the requirements of the Law on the Practice of Advocacy and Advocates.

Article 3

1. The present Code applies to advocates.

2. Advocates in charge of professional associations (colleges) of advocates must acquaint advocates’ assistants,

interns, and other employees with the present Code and ensure their compliance with its requirements pertaining to

their official duties.

Article 4

1. Under all circumstances advocates must maintain the honor and dignity embedded in the profession.

2. The necessity of complying with the rules of the advocate’s profession arises from the fact of acquiring the status

of an advocate.

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Candidate, who successfully completes the qualification exams, must take the oath in a ceremonial environment not

later than 3 months after receiving the decision of the Qualifications Committee. The document containing the script

of the oath and signature of the candidate, is stored by the Board of the Chamber of Advocates in the appropriate

constituent territory of the Russian Federation ("hereinafter, the Board").

2.1. Taking the advocate's oath implies the acceptance of responsibility of complying with advocate's duties and

with the rules of conduct set by the present Code and the laws governing the profession.

3. In those instances when matters of advocate’s professional ethics are not regulated by the Law on the Practice of

Advocacy and Advocates or by the present Code, advocates must observe the established customs and traditions of

the profession that reflect general principles of social morality.

4. If an advocate is uncertain about how to behave in a complicated ethical situation, he or she may apply to the

Board for clarification. Such application cannot be denied by the Board.

Article 5

1. The professional independence of advocates is a prerequisite of their trustworthiness.

2. Advocates must avoid actions (or omissions) that may have the effect of undermining mutual trust.

3. A breach of trust is incompatible with the title of the advocate.

Article 6

1. Advocates cannot earn trust if he or she cannot preserve non-disclosure of confidential information. The

advocate’s professional confidentiality is fundamental for the client’s immunity as guaranteed by the Constitution of

the Russian Federation.

2. Maintaining professional confidentiality is an unconditional priority of the advocate’s practice. There is no time

limit for preserving confidentiality.

3. No one can release the advocate from the duty to preserve professional confidence except for the client.

4. Without the client’s consent the advocate may use only such confidential information as the advocate considers

reasonably necessary to support his or her position whilst representing the client in a civil suit or to defend himself

or herself during disciplinary or criminal proceedings initiated against him or her.

5. The rules on preserving professional confidentiality apply to:

the act of consulting the advocate, including clients’ names;

all the evidence and documents collected by the advocate while handling the case;

information acquired by the advocate from his or her clients;

information about the client that the advocate learns in the course of providing legal services;

the content of legal advice provided directly to or intended for the client;

the advocate’s entire case file;

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the terms of the retainer agreement, including the financial arrangements between the advocate and the

client; and

any other information related to the legal services provided by the advocate.

6. The advocate may not testify about the facts he or she learned in the course of performing his or her professional

duties.

7. The advocate may not assign to anyone the right to monetary payment from the client based on the retainer

agreement, unless he or she acquires the client's prior consent.

8. When providing legal services, advocates that practice law jointly under a partnership agreement must impose the

non-disclosure requirements on all the partners.

9. To preserve professional confidentiality, the advocate must keep the case file separate from the records and

documents belonging to the client. Any records that are part of the advocate’s case file and also any correspondence

between the advocate and the client must be clearly and unequivocally marked as belonging to or originating with

the advocate.

10. The rules on preserving professional confidentiality apply to the advocates’ assistants, interns, and other

employees of advocates’ firms.

The advocates' assistants, interns and other employees of advocates’ firms must be informed about their duty to

preserve confidentiality and must sign the corresponding confidentiality agreement.

Article 6.1

1. For the purposes of the present Code, the term "Client" includes:

a person who concludes a retainer agreement for legal services with the advocate;

a person to whom the advocate provides legal services under a retainer agreement concluded between the

advocate and a third party; and

a person to whom the advocate provides legal services for free, or a person to whom the advocate was

assigned by an inquiry agency, or an investigation agency, or by a public prosecutor or by the court.

2. When dealing with any confidential matter, the trusting person is a person who entrusts the advocate with

personal information for the purpose of provision of legal services.

Article 7

1. The advocate shall accept the appointment to handle a case even if he or she has doubts of a legal nature unless

such doubts preclude the possibility of defending and advocating client’s interests reasonably and in good faith.

2. Preventing litigation is an integral part of the advocate’s legal services. Therefore, advocates shall eliminate any

obstacles preventing the conclusion of an amicable settlement.

Article 8

While engaged in professional practice the advocate shall:

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1) perform his or her duties honestly, reasonably, faithfully, competently, and in a principled and timely

manner; and actively defend the clients’ rights, liberties, and interests by all means not prohibited by law,

subject to the Constitution of the Russian Federation, and the present Code;

2) respect the rights, honor, and dignity of the individuals seeking legal advice ,clients, colleagues, and of any

other individuals; behave and dress in a manner, which fosters the work collaboration;

3) duly enhance his or her professional qualifications, as required by self-regulating authorities governing the

advocates profession; and

4) maintain the case files.

Article 9

1. Advocates may not:

1) act contrary to the client’s lawful interests or provide legal services whilst being guided by considerations

of personal benefit, immoral interests or acting under the influence of outside pressure;

2) adopt a position in the case, which is incompatible with the client’s position, and act contrary to the client’s

wishes unless the advocate acting as a defense council is convinced that the defendant has made a false

confession;

3) make public announcements that the client’s guilt has been proven when in fact the client denies his or her

guilt;

4) disclose without the client’s prior consent any information that such client communicates to the advocate in

the course of provision of legal services;

5) accept commitments to provide legal services in the amount exceeding the advocate's capacity;

6) impose his or her legal services on individuals and solicit them as clients by exploiting personal ties with

those working in the judiciary and the law enforcement, by making promises of a favorable outcome in the

case, or by any other disreputable means;

7) allow remarks during the proceedings that denigrate the honor and dignity of other participants in the

proceedings, even if such participants behave tactlessly;

8) use any means to acquire for personal gain such property or property rights as may be the subject-matter of

a dispute wherein the lawyer participates as a legal counsel;

9) provide legal services in accordance with the assignment of an inquiry agency, or an investigation agency,

or by a public prosecutor or by the court, if this breaches the rules of provision of legal services as supplied

by the decision of the Board;

10) provide legal assistance in the case of conflict of interest, as regulated by the article 11 of the present Code.

The advocate may continue his or her legal practice whilst fulfilling the duties related to his or her association

(college) of advocates or with the duties of an elected official in the Chamber of Advocates of a constituent territory

of the Russian Federation or in the Federal Chamber of Advocates.

Both, the authority of an elected official in the Chamber of Advocates of a constituent territory of the Russian

Federation or in the Federal Chamber of Advocates and the authority of a manager of an association (college) of

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advocates, should be considered as professional obligations, which are not subject to the norms of employment

relationship.

Remuneration for the work performed by an advocate under the aforementioned authority is compensatory in nature.

3. The advocate may not:

engage in other paid employment requiring direct (personal) involvement in the sale of goods, performance

of work, or provision of services. This should not include activities related to academia, teaching, provision

of expert opinions, consulting (including consultations in the Chamber of Advocates of a constituent

territory of the Russian Federation or in the Federal Chamber of Advocates) and any other creative activity;

or

provide legal services or participate in organizations that provide legal services beyond the limits of the

advocate’s practice, except where the advocate is involved in a dispute as a mediator, as a judge in the

mediation court or as an adviser in pro bono projects run by public organizations.

3.1. Whilst providing legal services, the advocate is prohibited from cooperating with government officials in the

course of their investigative work.

4. Performance of professional duties arising from accepted commissions must prevail over other activities of the

advocate.

Other activities that the advocate engages in cannot disparage his or her honor and dignity or damage the reputation

of the profession.

Article 10

1. In the advocate’s profession, law and morality must prevail over the client’s wishes. The advocate cannot follow

any wishes, requests, or instructions from the client, which violate the law or breach the rules established by the

present Code.

2. The advocate may not promise his or her client a favorable outcome of the case.

3. The advocate must not accept a matter if dealing with it interferes with handling another prior matter.

4. The advocate must not place himself in the dependent position of being indebted to a client.

5. The advocate must not allow informal relations with a client.

6. After being discharged, the advocate must promptly return to the client all of his or her original documents related

to the case, along with the power of attorney. Upon discharge or completion of the work, the client may also request

a report outlining the results of the advocate's work.

7. While handling a matter, the advocate acts on the assumption that the documents and information provided by the

client are authentic and does not verify them.

8. When advocates provide free legal aid in the instances specified by the Law on Advocacy and Advocates or pro

bono legal assistance by the appointment of an inquiry agency, or an investigation agency, or by a public prosecutor

or by the court, the advocates’ duties, as provided for by the aforementioned Law, do not differ from their duties

when providing legal assistance for a fee.

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9. The advocate must terminate the retainer agreement if, following the advocate’s acceptance to act as a defense

counsel in a criminal case during the pre-trial investigation and in a trial court, it is discovered that under the

existing circumstances the advocate had no right conclude such retainer agreement. In making the decision to

terminate an agreement due to impossibility of performance of the client’s commission, the advocate must, where

possible, notify the client to that effect, so that the latter could find another advocate.

Article 11

1. The advocate may not be an adviser, defense counsel, or representative of several parties with conflicting interests

in the same case, but may only facilitate the reconciliation of the parties.

2. If, due to specific circumstances, it becomes necessary to provide legal services to parties with conflicting

interests, or in the event of a possible conflict of interests, advocates who jointly provide legal assistance under a

partnership agreement must obtain the consent of all the parties to the dispute to continue handling the matter and

must ensure equal opportunities for the legal representation of their interests.

Article 12

Whilst participating in judicial and administrative proceedings, the advocate must comply with the relevant rules of

procedure, respect the court and other participants in the proceedings, monitor the observance of law in respect of

the client, and, in the event of violations of the latter’s rights, file motions to correct such violations.

When objecting to the actions (or omissions) of judges or other participants in the trial, the advocate must do so in

an acceptable way and in accordance with the law.

Article 13

1. Except for the instances specified in the Law on Advocacy and Advocates, the advocate may not represent two or

more persons as their defense counsel in the same criminal case, if:

1) such persons have conflicting interests;

2) such persons, without having a conflict of interests, take different stands regarding the same facts of the

case; or

3) at least one of the defendants is a minor.

2. Having accepted, by assignment or by agreement, the appointment to serve as a defense counsel in a criminal

case, the advocate may not withdraw the obligations of the defense counsel, unless the contrary is provided by the

law, and must perform all the duties associated with the defense counsel, including preparation and filing of a

cassation against the judgment of the court.

Having accepted, by assignment or by agreement, an appointment to serve as defense counsel at the stage of the

preliminary investigation, the advocate may not refuse to serve as defense counsel during the trial without a good

reason.

3. Defense counsel must not unnecessarily deteriorate the situation of other defendants. Any actions of the defense

counsel against other defendants whose interests contradict those of the advocate’s client are only justified if

otherwise the advocate cannot fully conduct the client’s defense.

4. Defense counsel must appeal the judgment:

1) at the defendant’s request;

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2) if the court disagreed with the position of the defense and imposed a heavier sentence or a sentence for a

more serious crime than requested by the advocate; or

3) if there are grounds for reversing or changing the decision in favor of the defendant.

The defendant's refusal to appeal the court's decision must be made in a written form and later submitted to the

advocate.

Article 14

1. If the advocate cannot, for a good reason, appear in the court or participate in investigative activities at the

appointed time, or if the advocate intends to file a motion for changing the time of the hearings or investigative

activities, he or she should notify accordingly the judge or the case investigator in advance, if possible. He or she

must also inform other advocates dealing with the case, and agree with them on the new venue of the specified

procedures.

2. Advocates may directly communicate the client of the opposing advocate only upon the consent of such client and

upon physical presence of his or her advocate during the communication.

3. When using his or her right for an annual leave, the advocate must ensure that the rights of his client are

effectively protected during his or her absence.

Article 15

1. Advocates establish relations with other advocates on the basis of mutual respect and observance of their

professional rights.

2. Advocates must refrain from:

1) using, while practicing as an advocate, language that may denigrate the honor, dignity, or professional

reputation of another advocate;

2) whilst communicating with persons seeking legal services or with clients, making derogatory remarks

about other advocates, or criticizing the actions and legal advice of the advocate who has been previously

providing legal services to the client;

3) discussing fees charged by other advocates with persons seeking legal services or with clients.

3. Advocates may not persuade persons wishing to retain another specific advocate to conclude a retainer agreement

for legal services between him/herself and that person.

4. Advocates must inform the Board about his or her agreement to handle a case against another advocate with

respect to the latter’s professional activities.

If the advocate undertakes to represent the client in a dispute with another advocate, he or she must inform the

colleague to that effect and, observing the client’s interests, propose an amicable settlement.

5. Relationships between the advocates must not affect the effectiveness of the client's defense. Advocates may not

forgo the interests of the client for the sake of maintaining a friendly or any other type of relationship.

6. Advocates must comply with the decisions of the governing bodies of the Chamber of Advocates and of the

Federal Chamber of Advocates adopted within their jurisdictions.

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7. Advocates must personally or financially participate in providing free legal services in the instances specified by

the Law on Advocacy and Advocates or by assignment of an inquiry agency, or an investigation agency, or by a

public prosecutor or by the court in accordance with the procedure established by the Chamber of Advocates of a

constituent territory of the Russian Federation.

8. Advocates who manage an association (college) of advocates must take measures to ensure that all the advocates

duly perform the professional duty of providing free legal services and as assigned counsel, make financial

contributions for the common needs of the Chamber of Advocates, and abide by other decisions of the governing

body of the Chamber of Advocates and of the Federal Chamber of Advocates adopted within their jurisdictions.

Article 16

1. Advocates are entitled to receive remuneration (fees) for the work performed as well as compensation for the

costs and expenses incurred.

2. Advocate's fees are determined by the agreement between the parties and may reflect the scope and complexity of

the work, the time required to perform it, the advocate’s expertise and competence, deadlines, the urgency of the

work, and other circumstances. The agreement may also include provisions that require a certain amount of advance

remuneration to be paid on the advocate's account.

3. Advocates may include in the retainer agreement terms whereby the payment of the fee depends on the outcome

of the case.

3.1. Advocates may accept the payment from the third parties, upon the agreement between such party and the client

to that effect. The advocate is not obliged to check the relationship between such parties.

4. Upon the consent of the client, advocates are allowed to share fees with the third parties who assisted in the

course of provision of the legal advice.

5. Advocates are forbidden from accepting any property as a consideration for the provision of legal services.

6. If, while providing legal services, the advocate undertakes, at the client’s request, to manage the client’s monetary

funds (hereinafter, client’s funds), he or she must observe the following rules:

the client’s funds must always be deposited on account with a bank or with another organization (including

professional brokers in the securities market) which will ensure that all of the transaction involving that

account are controlled by the government authorities , unless the client leaves explicit or implicit

instructions about other uses of the funds;

the transaction documents must include a certificate, which gives a client's instruction to the advocate to

complete a transaction

payments to any person from the client’s funds on behalf of or in the interests of the client may only be

made in view of the client’s corresponding explicit or implicit instructions executed in writing; and

in maintaining the case file, the advocate must keep track of all financial documents related to the client’s

instructions to conduct transactions with the client’s funds. The client is allowed to demand such

documents if he or she so wishes.

Article 17

1. Information about the advocate or a college of advocates is allowed unless it contains:

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1) value judgments of the advocate;

2) reviews by others of the advocate’s performance;

3) comparisons with other advocates and criticism of other advocates; or

4) statements, suggestions, or ambiguities that might mislead potential clients or create unfounded

expectations.

2. If advocates or a college of advocates learn about the unauthorized distribution of advertising of their activities

that does not comply with these requirements, he must notify the Board.

Article 18

1. Violation of the provisions of the Law on Advocacy and Advocates and/or provisions of the present Code,

committed by advocates intentionally or by gross negligence, entails the imposition of disciplinary actions as

provided by the Law on Advocacy and Advocates and the present Code.

2. Disciplinary actions cannot be imposed if the advocate’s actions (or omissions), although reflecting all the formal

elements of a violation of the provisions of the Law on Advocacy and Advocates and of the present Code as

described in paragraph 1 of this Article, do not, due to their insignificance, damage the advocate’s honor and

dignity, impair the authority of the advocate’s profession, or cause significant harm to the client or the Chamber of

Advocates.

3. An advocate acting in accordance with the interpretations of the Board regarding the application of the provisions

of the present Code cannot be held liable for disciplinary violations.

4. Disciplinary sanctions may only be imposed within disciplinary proceedings in accordance with the procedures

provided in Section 2 of the present Code. The decision to impose any disciplinary action, including disbarment, is

subject to the exclusive competency of the Board.

In determining disciplinary actions, the Board must take into account the gravity of the violation, the circumstances

under which it was committed, the form of guilt, and other factors that the Board Council may deem material for the

purposes of making the judgment.

5. Disciplinary actions may be imposed on an advocate no later than six months from the date of the discovery of the

violation, excluding the time the advocate was sick or on vacation.

Disciplinary actions may be imposed on an advocate if no more than one year has passed since the date of the

violation or since the date when the violations stops if such violation was continuous.

6. Disciplinary sanctions may include:

1) a reprimand;

2) a warning; or

3) disbarment.

7. Individuals who were disbarred in accordance with the present Code or any other legal provision may re-sit the

qualification exams only after 3 years from the date of disbarment.

Article 18.1.

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Diligent and conscientious performance of the duties prescribed by the present Code should be seen as a ground for

granting a premium.

The procedure for granting premiums as well as the description of their types and forms is regulated by the

appropriate acts of the association of advocates, Chambers of Advocates and the Federal Chamber of Advocates.

Grants of premiums are made in accordance with the principles of legality, transparency and publicity.

Article 18.2

1. Ethics Commission is one of the bodies of the Federal Chamber of Advocates, which develops the standards for

the provision of legal services and other standards in the legal profession. The Ethics Commission consults on the

application of the present Code and fulfills other duties derived from the provisions of the present Code and the

Ethics Commission's Code of Practice (Code of Practice).

The Code of Practice is authorized by the Federal Chamber of Advocates.

2. The Ethics Commission is comprised of 16 members who preside for the period of 2 years. The Ethics

Commission is formed in the following order:

The candidacies of 15 members of the Ethics Commissions are initially proposed by the Federal Chamber

of Advocates who are then elected at the National Congress of Russian Advocates; and

The President of the Ethics Commission, who is also its Chairperson, is elected at the National Congress of

Russian Advocates.

There may not be more than 5 members in the Ethics Commission, who do not hold the advocate title.

3. The members of the Ethics Committee must also elect 2 or more Deputies to the Chairperson.

4. The quorum for the meeting of the Ethics Commission is two thirds of its members.

5. The Ethics Commission:

1) develops practice standards for the advocates and various other standards related to their profession, to be

approved by the National Congress of Russian Advocates. The Ethics Commission also summarizes the

key trends in the application of the aforementioned standards;

2) produces binding explanatory notes on the application of the present Code upon the request of the President

and subject to the approval by the National Congress of Russian Advocates, to be followed by the Federal

Chamber of Advocates, by the Chambers of Advocates of a constituent territory of the Russian Federation

and all the other Chambers of Advocates;

3) summarizes the disciplinary practice prevalent in the Chambers of Advocates and produces relevant

recommendations subject to further approval of the Federal Chamber of Advocates; and

4) exercises other powers permitted by the Ethic Commission's Code of Practice.

6. The Ethics Commission makes decision by a majority vote of the members present at its session. In the deadlock

situation, the President gains the right to cast a deciding vote.

SECTION II: Procedural grounds of disciplinary proceedings

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Article 19

1. The procedure for considering and resolving complaints, presentments, and statements in relation to the advocates

(including managers of associations of advocates or their subdivisions) is regulated by this Section of the Code.

2. The advocate’s action that damages his or her honor and dignity or impairs the authority of the advocate’s

profession, the failure to perform or the improper performance of professional duties to the client, and the failure

comply with the decisions of the governing body of a Chamber of Advocates must be considered by the appropriate

Qualifications Commission and the Board at meetings conducted in accordance with the procedures prescribed by

the present Code.

If disciplinary proceedings are initiated against the advocate, his notice of withdrawal from the advocate’s

profession or notice of the change of membership in a Chamber of Advocates will be considered at the conclusion of

the disciplinary proceedings.

3. Disciplinary proceedings must ensure the timely, objective, and fair consideration of complaints, presentments,

and statements regarding the advocates as well as the final decision. Such complaints, presentments, and statements

should be resolved and the respective decision must be made in accordance with the Law on Advocacy and

Advocates and the present Code,

4. During the disciplinary proceedings, measures must be taken to protect confidential information about the private

lives of complainants, commercial and advocate’s secrets. Additional measures must be taken to achieve

reconciliation between the advocate and the complainant.

The Qualifications Committee and the Board may decide to make the disciplinary proceedings public upon the

request from the complainant and consent from other participants of the proceedings.

Persons who attend the public hearing are allowed to take notes and record the proceedings. Video recording,

photographs as well as online or radio broadcasting is only allowed upon prior consent of the Chairperson of the

Qualifications Committee or the Board.

5. Disciplinary proceedings may only be conducted by the Qualifications Commission and the Board of the

Chamber of Advocate where the advocate is a member at the time of initiation of disciplinary proceedings.

6. After disciplinary proceedings have been initiated, the participants in the disciplinary proceedings are:

the individuals, agencies, and organizations who filed the complaints, presentments, or statements;

representatives of these individuals, agencies, and organizations; and

the advocate against whom the disciplinary proceedings have been initiated.

7. Withdrawal of complaints, presentments, and statements or reconciliation between the advocate and complainant

has the effect of dismissing the disciplinary proceedings so long as it is expressed in writing and concluded before

the Board reaches a decision. No disciplinary proceedings can be initiated on the same subject and grounds.

Article 20

1. The grounds for initiating disciplinary proceedings are:

1) a complaint submitted to the Chamber of Advocates by another advocate, by the advocate’s client, by the

client’s legal representative, or by the person seeking legal services under Article 26 of the Federal Law on

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Advocacy and Advocates in the Russian Federation, whose matter the advocate refused to accept without a

good cause;

2) presentments submitted to the Chamber of Advocates by the Chamber’s Vice-President or by a person

acting in such capacity;

3) presentments submitted to the Chamber of Advocates by a government agency with the sufficient authority

to bring claims against advocates; and/or

4) court (judges') statements addressed to the Chamber of Advocates.

2. Complaints, presentments, and statements are admissible grounds for initiating disciplinary proceedings if

submitted in writing. They must indicate:

1) the name of the Chamber of Advocates wherein the complaint, presentment, or statement is submitted;

2) the full name of the advocate submitting the complaint against another advocate, membership in a Chamber

of Advocates and in a college of advocates;

3) the full name and place of residence of the advocate’s client or the name and location of the agency or

organization if the claimant is a legal entity, and the full name and address of the client’s representative if

the complaint is filed by a representative;

4) the name and location of the agency of government, and the full name of the person responsible for

submitting the presentment or statement;

5) the full name of the advocate against whom disciplinary proceedings are being considered

6) the advocate’s specific actions (or omissions) that constituted violation of his/her professional duties;

7) the facts on which the person submitting the complaint, presentment, or statement bases his claims, and the

evidence in support of these facts; and

8) a list of the documents attached to the complaint, presentment, or statement.

2.1. If there are several outstanding presentments, and statements made against a single advocate, the president of

the Chamber of Advocates of a constituent territory of the Russian Federation (or his or her deputy) is allowed to

conjoin the aforementioned claims. The Qualifications Commission and the Board are allowed to conjoin several

disciplinary proceedings issued against a single advocate.

3. Every participant in the disciplinary proceedings may propose, orally or in writing, means of resolving the

disciplinary case. The party seeking disciplinary sanctions against the advocate must indicate the advocate's specific

actions (or omissions) that violate his or her professional duties.

4. Complaints, presentments, and statements not specified in paragraph 1 of this Article, or complaints,

presentments, and statements made by the persons mentioned in this Article in relation to the actions (or omissions)

of an advocate (including the manager of an association of advocates or subdivision) that are not related to carrying

out his professional duties cannot constitute acceptable grounds for initiating disciplinary proceedings.

5. Complaints or statements filed by other advocates or colleges of advocates cannot be deemed as an acceptable

ground for initiating disciplinary proceedings, if such complaints or statements ensue from relations pertaining to the

establishment or operation of respective colleges of advocates.

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6. Anonymous complaints and statements about an advocate’s actions (or omissions) will not be considered.

Article 21

1. The President of the Chamber of Advocates of a constituent territory of the Russian Federation will initiate

disciplinary proceedings no later than ten days after receiving the documents specified in paragraph 1 of Article 20

of the present Code. Participants in disciplinary proceedings will be notified in advance of the venue and time when

the disciplinary case will be heard by the Qualifications Commission, and they will be given the opportunity to

become familiar with all the materials in the disciplinary case file.

All the correspondence communicated to the advocate in accordance with the present Code is delivered to the

address of such advocate.

Upon the receipt of the documents listed in paragraph 1 Article 20 of the present Code, the advocate is obliged to

submit the relevant case files, retainer agreement and financial documentation on transactions between the advocate

and his or her client to the Chamber of Advocates of a constituent territory of the Russian Federation.

2. When receiving complaints or statements that cannot constitute acceptable grounds for initiating disciplinary

proceedings, or that were submitted by persons not entitled to initiate disciplinary proceedings, or if facts are

uncovered that exclude the possibility of initiating disciplinary proceedings, the President of the Chamber will

decline to initiate proceedings and will return the documents to the petitioner, indicating the reasons for such

decision.

3. The following circumstances exclude the possibility of disciplinary proceedings:

1) an earlier decision has already been made by the Board in disciplinary proceedings with the same

participants on the same subject and grounds;

2) an earlier decision has already been made by the Board to dismiss the disciplinary proceedings on the

grounds specified in paragraph 1 of Article 25 of the present Code; or

3) the limitation period for the disciplinary measures has expired.

4. The decision to refuse or allow the initiation of disciplinary proceedings must describe the grounds for such a

decision.

Article 22

Disciplinary proceedings include the following stages:

1) initiation of the disciplinary procedure;

2) review of the case by the Qualifications Commission of the Chamber of Advocates of a constituent territory

of the Russian Federation; and

3) review of the case by the Board.

Article 23

1. The disciplinary case received by the Qualifications Commission of the Chamber of Advocates of a constituent

territory of the Russian Federation must be reviewed within two months, exclusive of the time when the disciplinary

proceedings were adjourned for reasons deemed by the Qualifications Commission to be valid.

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The Qualifications Commission of the Chamber of Advocates of a constituent territory of the Russian Federation

reviews the case orally in line with the principle of adversarial process and the principle of equality of participants in

disciplinary proceedings.

Before the start of the hearing, all members of the Qualifications Commission are warned about the requirements of

non-disclosure and protection of information, which was revealed in the course of the hearings and which may

contain private information, commercial secrets, privileged information and other types of confidential information.

2. The Qualifications Commission must give its preliminary opinion regarding the disciplinary case on the day of its

merit review. The commission should take into account the results of direct examination of evidence presented by

the parties before the hearings and their respective testimonies.

Copies of written evidence and documents that the participants intend to present to the Commission, must be

submitted to the Secretary of the Commission no later than two days before the start of the hearing. The

Qualifications Commission may admit additional evidence from the participants during the hearing only if such

evidence could not have been submitted beforehand. In this event, the Commission may adjourn the hearing to

examine the newly submitted materials.

3. The failure of any of the participants to appear at the disciplinary proceedings does not constitute a valid ground

to adjourn the hearing. In this event, the Qualifications Commission will hear the case on the merit based on the

available materials and will hear the participants who appear at the session of the Commission.

4. The Qualifications Commission will review the case only in relation to the claims and grounds as set out in the

relevant complaint, presentment or statement. Amending the subject and (or) the grounds for the complaint,

presentment or statement is not permitted.

5. Upon the initiation of disciplinary proceedings, the participants therein have the right to:

1) become familiar with all the materials of the disciplinary case, take notes and make copies of the materials

using technological devices;

2) attend the hearing of the Commission personally and (or) appoint a representative;

3) provide oral and written testimony on the merit of the case and submit the relevant evidence;

4) become familiar with the record of the hearing and the judgment of the Commission; and

5) present counter-arguments to the Board in case the relevant party disagrees with the judgment of the

Commission.

6. Upon the request from the parties to the hearing or relying on its discretion, the Commission is entitled to demand

the aforementioned parties to submit additional information and documents necessary for the objective evaluation of

the disciplinary case.

7. The advocate against whom the disciplinary proceedings have been initiated has the right to take measures to

reconcile with the complainant before the Board passes its judgment. The advocate and his representative are the last

to present arguments to the Commission.

8. The Qualifications Commission must issue a merit based decision, unless in accordance the Article 28 of the

present Code, the limitation period for the claim had already expired at the time the disciplinary proceedings were

initiated.

9. On the basis of its findings, the Qualifications Commission is entitled to conclude that:

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1) the advocate’s conduct represents a violation of the provisions of the Law on Advocacy and Advocates and

(or) of the present Code, or the advocate failed to perform or improperly performed his professional duties

to the client, or the advocate failed to comply with the decisions of the governing bodies of the Chamber of

Advocates;

2) disciplinary proceedings must be terminated insofar as the advocate’s conduct involved no violation of the

provisions of the Law on Advocacy and the Advocates and/or the present Code, or insofar as it is

established that the advocate properly executed his or her professional duties to the client or to the Chamber

of Advocates;

3) the disciplinary proceedings must be terminated because of an earlier judgment of the Qualifications

Commission and a previous decision of the Board on the proceedings featuring the same participants,

subject-matter and grounds;

4) the disciplinary proceedings must be terminated because the complaint, presentment, or statement has been

withdrawn, or because the complainant and the advocate have reached a settlement;

5) the disciplinary proceedings must be terminated because the expiration of the limitation period; or

6) the disciplinary proceedings must be terminated since the Qualifications Commission, while reviewing the

case, failed to find a legitimate reason for the initiation of disciplinary proceedings.

10. The Qualifications Commission will always review disciplinary cases in a closed session unless there is an

exception in accordance with paragraph 4 Article 19 of the present Code. The Qualifications Commission sets the

procedure for the hearing and communicates it to the participants in the disciplinary proceedings. The hearings are

conducted by its Chairperson (or by his or her deputy), whose primary responsibility is to maintain the order during

the hearing. Those who disrupt the order may be removed from the hearing by the decision of the Commission.

Participants in the disciplinary proceedings are entitled to attend the announcement of the judgment of the

Commission.

11. Hearings before the Qualifications Commission are recorded in the minutes, which reflect all the relevant

aspects of the hearing, and the announcement of the judgment. The minutes are signed by the Chairperson and the

Secretary of the Commission. If the Commission considers it necessary, an audio recording may be made, which

will be attached to the minutes.

12. The Commission adopts a merit based judgment of the case by voting with personal ballots, the form of which is

approved by the Board. The wording of questions put to a vote is proposed by the Chairperson of the Commission or

by a deputy appointed by him. The personal voting ballots of the Commission’s members are attached to the minutes

and constitute an integral part thereof.

13. Certified copies of the judgment of the Commission are handed to the participants in the disciplinary proceeding

at their request.

14. The judgment of the Commission must be reasoned and substantiated and must contain an introduction, a

narrative, a statement of reasons, and a conclusion.

The introduction to the judgment will indicate the time and place of issuance of the judgment, the name of the

Commission issuing it, the members presiding in the Commission, the participants in the disciplinary proceedings,

and the basis for initiating disciplinary proceedings.

The narrative part of the judgment will describe the subject-matter of the complaint and the advocate’s arguments.

The statement of reasons must indicate the factual circumstances established by the Commission, the evidence used

to reach its decision, the arguments used to refute the evidence, and the rules of professional conduct of advocates

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provided by the Law on Advocacy and Advocates and by the present Code that the Commission followed in issuing

the judgment.

The conclusion must include one of the provisions as set out in paragraph 9 of this article.

Article 24

1. A disciplinary case submitted to the Board of the Chamber with the judgment of the Qualifications Commission

must be reviewed no later than two months from the time the Commission’s judgment is issued, excluding the time

when disciplinary proceedings were adjourned for reasons deemed by the Board to be valid. Participants in

disciplinary proceedings will be notified of the place and time of the Board’s hearing.

2. The Board will review complaints, presentments, and statements in accordance with the procedure established by

its rules and with due regard to the features established by this Section of the Code.

3. No later than ten days from the time the Qualifications Commission issues a judgment, the participants in the

disciplinary proceedings are entitled to submit to the Board, through its Secretary, a written statement objecting to or

supporting the Commission’s judgment.

4. The Board may not review the Commission’s conclusions regarding the factual matrix of the case, treat certain

factual circumstances as proven despite not being in fact proven, or go beyond the limits of the complaint,

presentment, and statement and the Commission’s judgment.

5. The Board reviews disciplinary cases in a closed session. The failure of any participant in the disciplinary

proceedings to appear at the hearing will not hinder the proceedings or the issuance of a decision. Participants in

disciplinary proceedings are granted equal rights to set out their arguments supporting or opposing the judgment of

the Qualifications Commission and to discuss the merits of the proposed disciplinary measures against the advocate.

6. The Board’s judgment must be reasoned and contain specific references to the rules of professional conduct of

advocates provided by the Law on Advocacy and Advocates and by the present Code, according to which the

advocate’s conduct (or omission) was adjudicated upon.

7. The Board, taking into account the specific circumstances of the case, must take measures to reconcile the

advocate and the complainants.

8. The decision of the Board on complaints, presentments, or statements is adopted by vote. The concluding part of

the decision is communicated to the participants of disciplinary proceedings immediately at the conclusion of the

hearing, in the same session. At the request of participants, certified copies of the decision may be delivered (sent) to

them within ten days. Within 10 days, the certified copy is sent to the college of advocate where the advocate is a

member.

Whether requested or not, if the decision involves disbarment, a copy of the decision is handed (sent) to the person

concerning whom the decision to disbar has been made or to his representative.

Article 25

1. The Board may make the following decisions in disciplinary proceedings:

1) the advocate’s conduct represents a violation of the provisions of the Law on Advocacy and Advocates and

(or) of the present Code, or the advocate failed to perform or improperly performed his professional duties

to the client or the Chamber of Advocates, and that disciplinary measures provided in Article 18 of the

present Code will be imposed on the advocate;

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2) disciplinary proceedings must be terminated insofar as the advocate’s conduct involved no violation of the

provisions of the Law on Advocacy and the Advocates and/or the present Code, or insofar as it is

established that the advocate had properly executed his or her professional duties to the client or to the

Chamber of Advocates, in line with or contrary to the opinion of the Qualifications Commission, if the

Commission, having correctly established the facts of the case, has given an incorrect legal qualification of

the advocate’s conduct or has incorrectly interpreted the provisions of law and the present Code;

3) the disciplinary proceedings must be terminated because of an earlier judgment of the Qualifications

Commission and a previous decision of the Board on the proceedings featuring the same participants,

subject-matter and grounds;

4) the disciplinary proceedings must be terminated because the complaint, presentment, or statement has been

withdrawn or the complainants and the advocate have reconciled;

5) the disciplinary proceedings are remitted to the Qualifications Commission for reconsideration because of

material procedural violations at the hearing;

6) the disciplinary proceedings are terminated because the limitation period for imposing disciplinary

measures has expired, as discovered during the hearing by the Board or by the Qualifications Commission;

7) the disciplinary proceedings are terminated because of the insignificance of the advocate’s misconduct,

advising the advocate of his violation; or

8) the disciplinary proceedings are terminated because the Board or the Qualifications Commission, in the

course of hearing the case, failed to find an acceptable reason for initiating disciplinary proceedings.

Termination of the disciplinary hearing on the ground mentioned in sub-paragraph 6 of paragraph 6 of the present

Article is not allowed if the advocate, against whom the action was initiated, disagrees with it. In such situation the

hearing continues following ordinary procedures.

2. The advocate held liable for disciplinary sanctions may appeal the decision of the Board of the Chamber of

Advocates in the disciplinary proceedings within one month from the day he learned or should have learned about

the decision.

3. The Board is allowed to change its decision in the light of new evidence or newly discovered circumstances.

Article 26

1. If an advocate is not subject to a new disciplinary sanction within one year of a prior disciplinary sanction, then

the advocate is considered as not having any disciplinary sanction. The Board may remove a disciplinary sanction

before the expiration of one year on its own initiative, or at the advocate’s request, or upon the motion of the law

firm that where the advocate is a member.

2. The materials of a disciplinary case are preserved in the case files of the Board for three years from the time the

decision is issued. The materials of a disciplinary case, in reliance of which the decision was made by the Board are

preserved for five years from the time the decision is issued.

3. After the expiration of the specified period, case files may be destroyed by a decision of the Board.

4. Disclosure of the materials in a disciplinary case is prohibited.

5. The decisions of the Board may be published without explicitly mentioning the names of the parties.

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Article 27

The present Code and the amendments and additions thereto are effective from the time of adoption by the National

Congress of Russian Advocates.

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