The Diverse Market of Legal Aid in Today’s
Russian Federation
The availability of legal aid quickly emerged as a fundamental civil right pursuant the 1993 Russian constitution. According to Article 48(1), every person was guaranteed the right to qualified legal assistance, and that in cases so specified under law, that assistance should be free.
Article 48(2) stipulated that every arrestee and detainee in a criminal case was entitled to the assistance of an advocate from the moment of arrest, detention, or indictment (whichever came first).The advokatura was in the best position to pick up the mantle of public service and provide legal assistance, especially in criminal cases. In addition to its reference in the constitution, the advokatura possessed an established professional ethos and disciplinary procedures to protect the quality of representation in appointed cases. The advokatura also was the only legal institution assigned the right of attorney-client privilege and therefore best able to protect the secrets of the accused.[113] But with this constitutional responsibility came limitations, most notably in the organisation of legal practice. Advocates possess several options in terms of how they legally structure their professional activities. However, since the bar’s founding law defines the advokatura as an institution of civil society whose primary task is to provide qualified legal assistance, advocates technically are not allowed to offer their services as a for-profit business.[114] Russian tax law has tried to compensate advocates for this restriction; in 1997, the Constitutional Court struck down a sharp increase in state pension payments for advocates. Nevertheless, as described below, this ambiguous designation as public service institution, and not a commercial enterprise, has opened up the legal field to other practitioners.
The 2001 Criminal Procedure Code defines those criminal defendants who are eligible for legal assistance, including people who had not refused an attorney, minors, the disabled, people charged with a serious felony (15 years or more in prison), cases tried before a jury, and people wishing to pursue a plea deal.
A set fee structure was introduced by the Russian government for appointed lawyers, although advocates complained that the assigned rates did not correspond to the services delivered (or provide a living wage).[115] Prime Minister Dmitry Medvedev signed a government order raising fees in October 2018 that anticipated significant raises for advocates over a three-year period. In 2019 the minimum daily fee rose from 550 rubles to 900 rubles, which almost doubled the annual expenditures for legal assistance from 5 billion to 9.5 billion rubles per year.[116]Slightly more than half of all Russian advocates accept criminal cases via appointment. According to a 2017 survey conducted by the Federal Chamber of Advocates, 39,094 out of 73,542 active members of the advokatura participated in the criminal appointment process, providing approximately 4.5 billion rubles in legal aid. Advocates also are appointed in civil and administrative cases pursuant to Article 50 of the Civil Procedural Code and Article 54 of the Code of Administrative Jurisprudence, although in significantly less numbers than in criminal cases. Based on the 2017 survey, 9500 and 2621 advocates took part in appointed civil and administrative cases, respectively, producing 56 million rubles and 7.5 million rubles in compensation.[117]
On-call attorneys are paid by the day but also receive multiple “perday” fees if they participate in several proceedings on a given day.[118] However, if the case is prolonged or appealed, a second advocate—not present at the earlier hearing—has often been assigned to handle the dispute.[119] The Federal Chamber of Advocates has tried to discourage this practice. In October 2019, it issued guidelines stating that advocates who participate in a pre-trial hearing could not reject appearing at the subsequent trial and filing an appeal.[120]
Compounding the problem of uninterrupted representation is the timeliness of compensation.
State payments to advocates in appointed criminal cases are notoriously late, imposing real economic hardship on practicing attorneys. Since multiple state agencies are responsible for these payments (Ministry of Internal Affairs, FSB, the Instigative Committee, the procuracy, and the Judicial Department), there is no one institution to appeal to for these back wages.[121] Advocates occasionally have even resorted to strikes to highlight the problem of non-payment in appointed cases.[122]Yet the livelihood of many Russian advocates is dependent on these state-appointed criminal cases.[123] Thus, the phenomenon of the “pocket” attorney appeared, deferential advocates who appeared via appointment when called upon by investigators or prosecutors at various stages of the criminal process and who were known for not causing problems in the criminal process. Such practices not only damage the reputation of individual lawyers, but they call into question the profession’s very independence.[124] Bar associations in various regions have experimented with automatic computer-generated appointments to address this problem of the pocket lawyer, but in a country with over a 99% conviction rate, there seems precious little that even a conscientious lawyer can do to defend his/her client.[125]
Members of the present-day Russian bar have followed the example of their tsarist and Soviet predecessors and actively participated in the major political trials and other acts of public service. Ivan Pavlov, a leading human rights advocate and political defender, describes the advokatura as the “last outpost” of independent civil society in the country.[126] Legal assistance constitutes a critical component of this civic engagement. The Federal Chamber of Advocates has even designated several days per year when advocates provide free legal aid to the local population.[127]
The bar’s monopoly right in criminal law, however, does not extend to providing legal advice in all human rights cases.
In the immediate aftermath of the Soviet Union’s collapse, numerous Russian non-governmental organisations retained lawyers (“iuristy” or “jurists”) who provided lowcost legal advice to different vulnerable segments of the population whose rights had been violated.[128] These public service jurists were often not members of the bar but possessed a law degree that nevertheless enabled them to provide informed legal advice. Such academic credentials distinguished these post-Soviet jurists from the tsarist underground advocates, although they similarly represent a major source of competition to the advokatura.'-[129] Some jurists have actually used the word “advocate” or “legal consultation” in the name of their law firm. The Federal Chamber of Advocates protested this practice to the Federal Tax Service, which in turn called upon these firms to change their names.[130]The bar tried to assert its professional monopoly over civil and administrative cases based on the 2002 law on the advoktura, but the Constitutional Court rejected the bar’s claim in 2004, thereby opening up this larger and more lucrative market to all jurists.[131] Thus, distinct centres of legal aid have emerged outside the supervision and control of the advokatura. The jurists, for example, became the dominant practitioner in foreign corporate law firms where they were introduced to the western practice of pro bono legal services.[132] Jurists further popularised notions of strategic litigation and filed appeals to the Constitutional Court and the European Court of Human Rights. Jurists provide various reasons for participating in pro bono activities, from a desire to provide public service to raising their public profile to using these cases to train young lawyers.
Other new and innovative sources of legal aid have emerged in Russia. For example, Rossiiskaiagazcta, the newspaper of record for the publication of Russian law, organises a free legal aid website that directs questions from readers to jurists, advocates, and other legal consultants.[133] As in Soviet times, however, the procuracy remains one of the largest alternative providers of legal aid.
It has used its restored powers of supervision—first set forth in the 1995 law on the procuracy and recently incorporated in the 2020 amendments to the Russian constitution—to reinvent itself as a major defender of individual rights, albeit those without major political ramifications. It receives millions of petitions every year, covering labour, salary, housing, environmental, and business disputes.[134] Many of these cases are handled administratively, although in some instances, the procuracy does go to court. The procuracy’s track record in these personal appeals is unclear, making it difficult to evaluate whether petitions to the prosecutor’s office represents a superior legal strategy to hiring a lawyer and going to court. It clearly is less costly for the petitioner, since no fees are required when submitting such a request. The procuracy maintains that this process not only promotes individual rights but also significantly reduces the burden that would otherwise be placed on the judicial system if all these cases went to court.Yet while legal aid contains multiple actors, it is one of the few pursuits that actually unite the disparate branches of the broader Russian legal profession. In 2005 a national Association of Jurists was formed, open to any person with a law degree and thus drawing on the expertise of jurists, advocates, judges, notaries, law students, and law professors. One of its major activities is the provision of free legal aid; over 100,000 citizens appeal every year to the association’s network of legal aid centres, including an office attached to the Russian president.[135] Moreover, in the aftermath of the tragic Kemerovo fire at a shopping mall in 2019, a special public response centre was formed that included both jurists and advocates.[136]
But despite all these efforts, it was broadly recognised that the most vulnerable parts of the Russian population fell between the cracks when seeking qualified legal assistance.
The government experimented with creating state legal assistance bureaus in 2005, but comprehensive legislation was only introduced in 2011. The law on free legal assistance created both a state and a non-state system of free legal services. The state system was overseen by the Ministry of Justice but implemented on a regional level through the passage of regional legislation. It was also funded from regional budgets and recognised two primary aid providers: state legal aid bureaus and members of the advokatura who agree to participate in the state system. In addition, the procuracy, notary, and local state government also form part of the state system based on the relevant legislation that regulates these institutions.Article 20 of the law on free legal assistance only listed a limited number of people eligible for legal aid under the state system, including citizens whose family income falls below the minimum income set by the region; invalids (group I and II); veterans of the great Patriotic War, Heroes of the Russian Federation, Heroes of the Soviet Union, and other honoured categories; disadvantaged children (i.e. orphans, physically disabled children, children undergoing adoption, etc.); minors; people subject to the law on psychiatric help; and citizens recognised as mentally incompetent. Yet individual regional legislation adopting the law on free legal assistance have significantly expanded the eligible list of people to include pregnant women, recently released prisoners, citizens having three or more minor children, the unemployed, and rehabilitated persons. By 2015, 66 of Russia’s 85 regions had supplemented the list of people eligible for free legal assistance.[137]
Unlike the state system of legal aid, the non-state system runs on a voluntary basis, although regional state institutions and local self-government can support these private efforts if they so choose.[138] The main participants in the non-state sector are student legal clinics and NGOs that specialise in providing legal aid.[139] Individual members of the advokatura and regional branches of the Federal Chamber of Advocates can also participate in the non-state system of legal aid. According to the 2017 survey of advocates, 2619 advocates participated in the non-state system of legal aid, providing assistance to 15,764 citizens.[140]
The implementation of the law on legal aid clearly increased the availability of legal assistance to a narrow but highly vulnerable part of the Russian population, with different regions reporting a modest but still significant number of consultations. In 2017, for example, advocates provided free legal assistance via the state system of legal aid to 38,570 citizens.[141] Moreover, the advokatura plays a significant role in this state system; as of 2016, 18.8% of Russian advocates participated in this scheme.[142] The non-state legal aid sector also has expanded and answers questions via legal aid centres, law school clinics, and NGOs.[143]
The Ministry of Justice remains committed to improving access to legal aid. But with this goal come some of the standard challenges that confront any system of legal aid, ranging from determining who actually qualifies for help to unequal access to assistance in different locations to developing a proper method to evaluate the quality of the aid. Russia’s mishmash of regulations and legal practitioners, however, have also created some unique problems. It was only in June 2019, for example, that the Constitutional Court called into question the frequent practice of allowing appointed advocates to continue to participate at trial even after the defendant had dismissed them and hired his/her own advocate. The Court strongly discouraged this practice, although it held that in certain limited circumstances an appointed lawyer potentially could still participate if so determined by the judge.[144]
The provision of legal aid remains in flux and has been caught up in other reform projects. Most notably, since 2014, the Ministry of Justice has been exploring the possibility of recognising the monopoly right so long desired by the Russian advokatura at various stages of its history.[145] In 2017, the Ministry issued its Kontseptsiia (the “Concept Paper”) that called in part to unite jurists and advocates into one profession over a six- year transition period.[146] The bar (or at least its leadership) has been outspoken in support of this development, primarily because the concept paper places the advokatura and its traditional activities (including the provision of legal assistance) at the centre of the reform process.[147] Jurists remain much more sceptical, since they do not want to take an entrance exam nor do they necessarily want to be subject to the ethical and disciplinary rules that govern the advokatura, which they see as a more rigid and conservative institution. Financial considerations also play a part in this calculation; many jurists do not want to sacrifice the favourable tax breaks that they presently enjoy as individual entrepreneurs.[148]
When (and if) this Concept Paper ultimately becomes law is still subject to speculation; the anticipated implementation date apparently has been pushed back from 2023 to 2025.[149] In addition, the Constitutional Court appears to be on a different page than the Concept Paper and the proposed overhaul of the advokatura. Most notably, on July 16, 2020, the Court yet again refused to recognise the bar’s monopoly right, this time in cases appearing before the commercial courts. Instead, it ruled that a company’s founder (or other designated representative) could speak for the enterprise in court even if he/she lacked a legal degree.[150]
A consensus on the responsibilities and independence of this newly unified profession still appears elusive. The Ministry of Labour introduced a proposal in 2020 articulating recommended professional standards for both advocates and jurists. That these standards should emanate from the bureaucracy—and not the profession itself—suggests that the Russian state still envisions some sort of official supervisory role over this unified corporation of lawyers. For its part, the legal community accused the Ministry of Labour of it exceeding its area of competency and assigned rule-making authority. Members of the bar also largely dismissed the recommendations as overly broad, impractical, and ultimately unenforceable.[151]
At the present time, the Ministry of Labour’s standards and the Concept Paper raise more questions than answers about the bar’s future professional standing and, more specifically, about the prospects of legal aid going forward. To begin with, how can the advokatura retain its unique status as providers of legal assistance if it assimilates all jurists and henceforth engages in both public service and commercial activities? Discussions are already underway to allow advocates in the future to structure their practices as limited liability companies and joint stock companies, a radical departure to what currently exists.[152] Concern has also been expressed in terms of the criminal appointment process. It is estimated that there are 1.5-2 million jurists who potentially would be required to join the advo- katura if they wanted to continue to practise law.[153] Would all these commercial lawyers want (and be allowed) to take criminal cases via appointment? Would they even possess the necessary qualifications and training to do so?[154] And what would become of the bar’s current membership and the substantial number of advocates who rely on these appointed cases for their livelihood? The bar—and its focus on criminal defence— would undoubtedly change if it absorbed all these practicing jurists. Finally, what are the motives of the Russian state in this process—a more professional bar association embracing all practitioners, or a unified, topdown advokatura that can be more easily regulated and controlled?[155]
Conclusion
It turns out that all the issues that have surrounded the delivery of Russian legal aid since tsarist times—the promotion of public service, the assertion of professional monopoly rights, the pursuit of corporate autonomy, the persistence of state oversight—still bedevil the profession today. Legal aid undoubtedly speaks to the potential of Russian law, and its ability to educate and engage citizens in the advancement of their civil, social, and economic rights. It also represents a critical window on everyday law and how ordinary Russians turn to the courts for redress. The current system is by no means perfect. Indeed, it shares many of the same structural problems (not enough lawyers, low wages) that confront other established practices in other countries.
What Russia has never definitively resolved, however, is the inherent tension between state and society that invariably comes with increased access to legal assistance. In tsarist Russia, the advokatura emerged as the driving force behind legal aid, providing professional (and often free) assistance in both everyday matters and high profile political cases. The autocracy, however, always remained suspicious of legal aid; it prevented local institutions from pursuing such activities and further refused to grant the consultation bureaus formal legal recognition. Legal aid eventually became the dominant mode of practice in the Soviet Union, but always under firm state and Communist Party control.
The post-Soviet era has seen a resurgence of the advokatura as an outspoken defender of civil society and a major source of legal aid and other pro bono services. And yet despite this development, the Russian state still remains a major force in the delivery of legal assistance. It requires and pays for legal aid in state-appointed criminal cases (in the process underwriting the livelihood of a significant portion of the advokatura and leading to the phenomenon of the “pocket” attorney). The Russian state further mandates, but does not actually fund, a regional state system of legal aid that covers the most vulnerable segments of the Russian population. It has continued the Soviet practice of relying on the procuracy—a state institution—as a major source of legal aid. Finally, the post-Soviet Russian state has only recently taken concrete steps to recognise the professional monopoly rights of the advokatura, in the process allowing an unregulated and multifaceted market of legal assistance to flourish over the past 30 years. Thus, while the Russian experience provides insight and nuance into any comparative study of legal aid, its rulers—under three distinct regimes—have never fully reconciled themselves to the legal and political challenges that accompany a fully independent system of legal assistance.