The Roots of Legal Aid in Tsarist Russia
Russian legal aid traces its origins to the Judicial Reforms of 1864. These statutes created for the first time in Russian history an organised legal profession (the advokatura) that demanded a university-degree in law and the completion of a five-year apprenticeship period before a candidate could be admitted to the advokatura and become a licensed sworn attorÂney (prisiazhnye poverrenye).
The Judicial Reforms further created regional bar associations (sovet prisiahnykh poverrenykh) to govern the profession, enforce its code of ethics, and otherwise defend and promote the interests of its membership. Finally, amongst its many duties, the Judicial Reforms assigned the bar with oversight responsibilities to appoint attorneys free of charge in civil cases where the client was recognised as indigent (pravo bednosti). The court also appointed lawyers in criminal cases.Russia evidently followed the example of France in requiring sworn attorneys to conduct pro bono representation for people who could not afford legal advice.[73] The number of cases was relatively modest and would no way satisfy the growing demand for legal assistance. The bar also failed to implement the internal tax on individual lawyers’ income that was intended to compensate sworn attorneys for participating in such cases. But in many ways the biggest difficulty with these appointed cases was the problem of perception. Russia possessed no tradition of vigorously defendÂing individual rights, especially in criminal cases. The Judicial Reforms further did not allow for an attorney to turn down such assigned cases. So when the famous lawyer Vladimir Spasovich was appointed to defend an alleged child abuser, his strong defence led to Fyodor Dostoevsky’s famous rebuke not only of Spasovich but also of the entire legal profession. The bar is a “remarkable institution,” noted Dostoevsky, “but somehow a sad one [...] I keep visualizing a certain young school turning out shrewd minds and hearts, a school perverting every healthy feeling whenever occasion calls for such a distortion [...]”[74]
The appointment process never satisfied the growing demand for legal advice among Russia’s urban population, so in the early 1870s, both the St.
Petersburg and the Moscow bar associations opened consultation bureaus to provide advice to the local population. Providing free legal assistance to poor residents was part of the mandate, but in St. Petersburg, the bar decided that such an institution should also serve as a potential source of fee-paying clients, especially for new lawyers just entering the profession. Therefore, the St. Petersburg bureau was both a philanthropic and a fee-generating institution that concentrated on civil disputes, since criminal cases usually required more extensive knowledge of the given facts.[75]Legal consultation bureaus also acquired more corporate oversight responsibilities, particularly in the aftermath of the Russian government’s decision in 1874 temporarily to suspend the establishment of regional bar associations after the creation of only three such organisations (St. Petersburg, Moscow, and Kharkov). This temporary suspension lasted for 30 years, and in Kiev’s case, a bar association was only established in 1916. In the interim, the Kiev consultation bureau (established under the ausÂpices of the Kiev district court) stepped into the breach and assumed addiÂtional oversight responsibilities, including reviewing applications to the bar, appointing lawyers to indigent people in right of poverty cases, and providing initial opinions in disciplinary investigations.[76]
The decision to suspend the establishment of independent regional bar associations in most of Russia represented only one of the major changes to the original Judicial Reforms of 1864. A second major deviation conÂcerned the promised professional monopoly right for members of the bar in the original statutes. The state chose simply not to implement this priviÂlege, meaning that the bar faced competition from a host of unlicensed legal practitioners whose existence predated the 1864 reforms themselves. To address this proliferation of pettifoggers and scriveners, the autocracy introduced a new category of lawyer in 1874: the private attorney.
Unlike sworn attorneys, private attorneys did not have any educational requireÂments, possessed no corporate bodies to manage their internal corporate affairs, and were not bound by a code of ethics. Instead they were under the general supervision of the respective district court in which they regisÂtered. Yet they were able to practise law as an essential equal of a member of the bar. Moreover, the apprentice attorneys (pomoshchniki) were required to obtain a private attorney’s licence from the appropriate court to practise law, undermining the ability of sworn attorneys to supervise their junior associates.The relationship between the sworn and private professions goes beyond the scope of this chapter and has been examined elsewhere.[77] The bottom line, however, was that the combined legal profession—sworn and private—never satisfied the growing demand for professional legal advice within Imperial Russia. Therefore, unlicensed legal practitioners, comÂmonly referred to as underground (podpol'nyi) or street advocates, prolifÂerated in Russia and undoubtedly prepared a substantial number of all petitions before the court. Historians remain divided over the influence of such underground advocates, whether such lawyers were simply (and to some degree, competently) meeting demand or whether they exploited the less educated members of Russian society while overwhelming the court system with unwarranted, and often incoherent, petitions.[78] Both arguments possess the ring of truth, and only a review of individual peti- tions—both adjudicated and dismissed—would provide a definitive answer regarding the scope of problem.
Yet the persistence of underground lawyers and their dubious practices did not go unnoticed. The major law journals and legal periodicals consisÂtently highlighted the problem of these street advocates in their appeals for a more developed system of legal aid.[79] They called for increased legal assistance both in cities and in the countryside, seeking to limit the influÂence of these non-licensed practitioners as well as more broadly to raise the legal consciousness of all Russian citizens.
Commentators further anaÂlysed the provision of legal assistance in other countries (most notably, Germany) and emphasised the growing association of legal aid with social justice.[80] According to the lawyer Mikhail Berenshtam, the German legal aid centres (“secretariats”) were founded by the workers themselves, with the exclusive aim of addressing the growing legal needs and problems of the working class.[81]The most logical organisation to lead the expansion of legal aid in Russia was the zemstvo, the institution of local self-government, since they covered most of Russia and reached down to the local level. As early as 1871, however, Russia’s Ruling Senate determined that legal aid fell outÂside the scope of the zemstvo's assigned duties. Further appeals in the 1880s and 1890s met with a similar negative result.[82] Thus, it fell to the legal profession to address the expansion of legal aid and the broader proÂfessional and social issues associated with its development.
St. Petersburg took the lead in establishing local legal aid consultation bureaus, but with a slight professional twist. The push for legal aid came from the junior members of the advokatura—the pomoshchniki—but their trainee status was partially misleading. Jewish lawyers were barred from government service, but because of the increasing number of Jewish law graduates in the 1880s, the advokatura represented the only viable career path for Jewish lawyers to practise their chosen profession. Not surprisÂingly, the number of Jews entering the advokatura skyrocketed; by the end of the 1880s, the number of Jewish sworn attorneys and lawyers-in- training in St. Petersburg was 22% and 42.5%, respectively.[83] The autocÂracy felt compelled to stop this influx and prevent the creation of a predominately Jewish bar in the empire’s capital city, so in 1889, legislaÂtion was introduced that temporarily stopped the admission of Jewish attorneys-in-training to the bar (although they could retain their status as attorneys-in-training).
Thus, a large contingent of junior advocates were destined to spend significantly longer than five years as an apprentice attorney. As result, the pomoshnιkι possessed a more experienced cadre of lawyers than their title otherwise indicated, and they ultimately formed their own corporate organisation: the Kommissia pomoshchnikov. The established bar was not initially enthusiastic about the independence displayed by its junior memÂbers, but it nevertheless allowed the Kommissia to pursue various profesÂsional activities, most notably the area of legal aid.[84]
The advancement of legal aid began at the turn of the twentieth cenÂtury when the lawyer Vladimir Berenshtam founded a consultation bureau on the outskirts of St. Petersburg to advise workers on their legal probÂlems. In his memoirs, Berenshtam described how he was initially struck by the absence of lawyers among St. Petersburg’s working-class population. When he first went to the factory, he found several hundred members of the intelligentsia, including 20 doctors, but “not a single member of the legal profession.”[85]
By 1905, ten legal aid bureaus existed in and around St. Petersburg dealing with a variety of labour and administrative issues. Free consultaÂtions were provided to indigent clients, but other visitors were encouraged to pay what they could afford, in part because workers valued a paid serÂvice more than assistance provided for free. Berenshtam’s practice revolved around factory injuries and passport (i.e. registration) issues. He also proÂvides a revealing exchange with an underground advocate, a former semiÂnary student who pestered him with legal questions (but paid nothing for the advice). Berenshtam had been in the forefront of providing informed, professional legal advice to the working-class population of St. Petersburg, yet in his 1905 memoirs, he recognised the persistent need for such advoÂcates. Underground advocates, he stated, “are needed by the working class, not only needed but difficult to replace, due to their accessibility to the poor working people [and because] at the present time, genuine, scruÂpulous jurists do not go and help these people.”[86]
Yet while individual lawyers may have resigned themselves to the practiÂcal reality of the day, the consultation bureaus still fought the pernicious influence, and the persistence, of the underground advokatura.
In 1909, the report of the Kommissia pomoshchnikov described just how brazen these unlicensed practitioners could be. According to the report, these unlicensed attorneys had penetrated the justice of the peace building and decamped just outside the room of the consultation bureau and interÂcepted clients heading to the office. The bureau protested to the court and ultimately administrative measures were taken to remove these underÂground lawyers from the courthouse and to stop their “harmful activities.”[87]Legal aid continued to expand in Russia’s capital city, and in 1914 the Kommissia pomoshnikov conducted a comprehensive survey of its 12 regional bureaus in (newly renamed) Petrograd.[88] The 1906 Stolypin land reforms, which saw the establishment of individual land rights for peasÂants, spurred a dramatic increase in the number of inquiries from Petrograd workers asking about their property rights back in the village. By 1914, questions regarding land disputes produced the largest number of inquiÂries brought to the consultation bureaus, followed by salary disputes, facÂtory injuries, indebtedness, rent disputes, and inheritance. And while civil disputes dominated the work of the bureaus, they did address criminal and administrative cases as well. The consultation bureaus possessed their own array of common problems. Visitors complained about their dry and forÂmal atmospheres, as well as their inconvenient hours of operation. Other bureaus struggled with their finances; they relied on member dues and small voluntary contributions from visitors, but when these sources proved insufficient, they turned to the bar organisations for loans and support. Nevertheless, despite these financial challenges and complaints, the rising and diverse number of citizens utilising the services of these bureaus testify to their ability to provide informed, competent legal advice to the local population.[89]
The turn of the century also saw the bar expand the realm of legal aid from basic legal assistance to political defence. Sworn attorneys had parÂticipated in the great political cases of the 1860s-1870s, but after the controversial acquittal of Vera Zasulich, the autocracy moved all political cases to the military courts, and it was only at the turn of the century that such cases returned to the regular criminal courts. Sworn attorneys threw themselves into these cases and organised groups of advocates who reguÂlarly took on such controversial cases on a pro bono basis. In Moscow, the Itinerant Club was formed by several prominent advocates, including N.K. Murav’ev, P.N. Maliantovich, and V.A. Maklakov.[90] A second group ofpolitical defenders emerged in Moscow as well, headed by A.R. Lednitskii and I.N. Sakharov (the grandfather of the famous physicist and dissident). Evidently, a rivalry existed between these two groups that made joint membership impossible, so when the liberal lawyer M.L. Mandel’shtam received invitations to join both groups, he ultimately chose the Itinerant Club over the Lednitskii-Sakharov group.[91] Jewish lawyers also organised and created their own bureau of defence to address anti-Semitic legislation and other acts of discrimination and violence against Jews.[92] Philanthropic groups, such as the Ligovskii People’s House in St. Petersburg, also housed a regional legal aid bureau on its premises and made legal aid an integral part of the social services that it provided.[93]
Yet even as legal aid expanded, its legal foundation—and the basic right for consultation bureaus to exist—came under attack. In 1909, the Ruling Senate determined that the bar technically did not have the right under Russian law to approve the operating charter for the bureaus. The future of legal aid as an independent, professional responsibility would be debated up until the end of tsarist Russia. In 1916, the Ministry of Justice proÂposed regulations placing legal aid under the broad supervisory control of the first cassation department of the Ruling Senate. According to these proposed guidelines, in those instances when the actions of the consultaÂtion bureaus threatened public safety or harmony, the Minister of Justice could step in and close the bureau. Thus, even at the end of the imperial period, the autocracy was still considering how to bring legal aid under tighter state control.[94] The Soviet Union eventually would succeed where the autocracy failed.