Certification and Recertification of Lawyers: New (or Old) Features in the Legislation on Advocacy
Published on July 6, 2022
In the current version, the certification of lawyers is mentioned only in the Law on Advocacy with respect to the mandate of the Qualification Commission for Advocacy under the Ministry of Justice of the Republic of Belarus (Article 14) and the mandate of the Ministry of Justice per se (Article 38), as well as within the context of advocate’s duties, among which the obligation to pass certification is provided (Article 18).
In fact, the conditions and procedure for the certification of lawyers (regular and extraordinary one) are regulated by the Instruction on the Procedure for the Certification of Advocates. In general, the provisions of this instruction were reproduced in the amendments to the Law on Advocacy.
In fact, the conditions and procedure for the certification of lawyers (regular and extraordinary one) are regulated by the Instruction on the Procedure for the Certification of Advocates. In general, the provisions of this instruction were reproduced in the amendments to the Law on Advocacy.
We remind you that amendments to the Law "On Advocacy and Advocate Activity in the Republic of Belarus" No. 334-З, dated 30 December 2011 (hereinafter – the Law on Advocacy) came into force on November 30, 2021. From the same date, new Rules of Professional Ethics for Attorneys come into force. You can follow this link to read the commentary to the amendments.
Comments on other changes in the legislation on the advocacy can be found in the following articles:
Comments on other changes in the legislation on the advocacy can be found in the following articles:
- Expanding the powers of the Ministry of Justice: changes in the legislation on advocacy (in Russian).
- Appointment of advocates’ self-regulatory bodies by the Ministry of Justice: commentary on the amendment of the legislation on advocacy (in Russian)
- Access to the profession: commentary on changes to the legislation on advocacy (in Russian).
Exemption from the certification
Article 14-1, complementing the Law on Advocacy, the new version of which entered into force on November 30, 2021, in fact does not introduce anything new compared to the current procedure, since the conditions and procedure for certification are still regulated by the Instruction on the Procedure for the Certification of Advocates No. 34, approved by the Regulation of Belarusian Ministry of Justice, dated 2 February 2012 (hereinafter – Instruction No. 34), to which paragraph 1 of Article 14-1 refers.
The following norms cannot be considered innovations since they have already been spelled out in paragraphs 5 and 15 of the current version of Instruction No. 34: the rule on exemption of pregnant women from certification (part two of paragraph 1 of Article 14-1), as well as paragraph 2 of Article 14-1, providing that “advocates whose legal activity has been suspended by the time of certification in accordance with the established procedure, shall not undergo certification earlier than six months after the resumption of advocates activity, and advocates who do not practice law due to the valid reasons (temporary disability and others), shall undergo a certification after such reasons ceased to exist, upon notification to the local Bar”.
The following norms cannot be considered innovations since they have already been spelled out in paragraphs 5 and 15 of the current version of Instruction No. 34: the rule on exemption of pregnant women from certification (part two of paragraph 1 of Article 14-1), as well as paragraph 2 of Article 14-1, providing that “advocates whose legal activity has been suspended by the time of certification in accordance with the established procedure, shall not undergo certification earlier than six months after the resumption of advocates activity, and advocates who do not practice law due to the valid reasons (temporary disability and others), shall undergo a certification after such reasons ceased to exist, upon notification to the local Bar”.
Use of the mechanism of certification and certification as a leverage over advocates
The certification of lawyers (regular or extraordinary) in its current legislated form is merely an instrument of repressive influence on advocates – and has nothing to do with improving the quality of legal aid.
The current legislation regulating the certification of advocates establishes a number of mechanisms that allow the Ministry of Justice to arbitrarily intrude into the activities of the bar and weed out "inconvenient" lawyers, which, as the practice shows, the Ministry of Justice has been actively using. You can read more about it in the above-mentioned article.
The effectiveness of the realization of the fundamental right of a citizen to legal assistance and protection is closely interrelated with the need to ensure the protection of the rights of lawyers and lawyers themselves, namely, to ensure the ability to perform their professional duties in an environment free from threats, obstacles, restrictions and inappropriate, unjustified interference.
One of the key international principles and standards is the legal profession’s independence as a guarantee for the protection of human rights and the provision of effective legal assistance, which entails the absence of any pressure on a representative of the legal profession (including a lawyer). The principles of the independence of lawyers in the exercise of their professional activities, the inadmissibility of interference in the professional activities by state bodies (inter alia, those conducting criminal proceedings), other organizations, officials, and self-governing bodies are enshrined in the current Law on Advocacy (Article 4) and in its new edition, however, in fact, this norm is only declaratory in nature.
To bring Belarusian legislation regulating the activities of the bar in line with international standards means to exclude from it the provisions concerning the powers of the Ministry of Justice in terms of regulating the activities of the bar, transferring the powers of the Ministry of Justice to advocates’ self-regulatory bodies.
The current legislation regulating the certification of advocates establishes a number of mechanisms that allow the Ministry of Justice to arbitrarily intrude into the activities of the bar and weed out "inconvenient" lawyers, which, as the practice shows, the Ministry of Justice has been actively using. You can read more about it in the above-mentioned article.
The effectiveness of the realization of the fundamental right of a citizen to legal assistance and protection is closely interrelated with the need to ensure the protection of the rights of lawyers and lawyers themselves, namely, to ensure the ability to perform their professional duties in an environment free from threats, obstacles, restrictions and inappropriate, unjustified interference.
One of the key international principles and standards is the legal profession’s independence as a guarantee for the protection of human rights and the provision of effective legal assistance, which entails the absence of any pressure on a representative of the legal profession (including a lawyer). The principles of the independence of lawyers in the exercise of their professional activities, the inadmissibility of interference in the professional activities by state bodies (inter alia, those conducting criminal proceedings), other organizations, officials, and self-governing bodies are enshrined in the current Law on Advocacy (Article 4) and in its new edition, however, in fact, this norm is only declaratory in nature.
To bring Belarusian legislation regulating the activities of the bar in line with international standards means to exclude from it the provisions concerning the powers of the Ministry of Justice in terms of regulating the activities of the bar, transferring the powers of the Ministry of Justice to advocates’ self-regulatory bodies.
The Qualification Commission: mandate and composition
The Law on Advocacy grants the Qualification Commission on issues of Advocacy under the Ministry of Justice of the Republic of Belarus (hereinafter – the Qualification Commission) the right to arbitrarily conduct regular or extraordinary certification of advocates and assess the compliance of license seekers with licensing requirements and conditions (paragraphs 5-6, paragraph 1, Article 14 of the Law on Advocacy).
Advocates’ minority
At the same time, the size of the Qualification Commission is unregulated (the Law on Advocacy, as well as the Regulation on the Qualification Commission on Advocacy No. 105, approved by the Resolution of the Ministry of Justice of 30 November 2010, are silent as to this matter). The total number of members of the Qualification Commission can be 19 and more because of the wording "one representative from… and other state bodies". Neither the mentioned Law nor the Regulation address the qualitative and quantitative scope of "other state bodies" whose representatives can be members of the Qualification Commission.
Thus, the composition of the Qualification Commission, approved by Order No. 20 of Belarusian Ministry of Justice of the Republic of Belarus dated 3 February 2020, is periodically changed. For example, until 22 February 2021, the Qualification Commission consisted of 20 persons, among which the representatives of other state bodies included the head of the Legal Support Department of the Investigative Committee’s Central Office Natalia Andreeva and the head of the Main Department for Relations with the Legislative and Judicial Authorities, Matters of Citizenship and Pardon of the President’s Administration Zhanna Tishchenko.
At the same time, the Qualification Commission invariably involves only eight attorneys (the President of the Belarusian Republican Bar Association and one representative from each of the territorial Bars), which certainly represents a smaller proportion of the total number of members of the Commission examining professional issues of advocacy.
Unlimited mandate to initiate the certification
Instruction No. 34 does not clearly define the cases in which the Qualification Commission on Issues of Advocacy has the power to independently carry out another certification of attorneys.
In practice, at present, the Qualification Commission can arbitrarily conduct a regular certification of any attorney, based on the results of which one of the following decisions can be made (par. 13 of Instruction No. 34):
on the attorney’s compliance with the requirements of the legislation;
on incomplete compliance with the requirements of the legislation with a certification suspended for six months subject to implementation of the recommendations of the Qualification Commission, including the attorney’s advanced training;
inability of an attorney to perform his/her professional duties due to poor expertise.
Notably, there are no clear criteria on the basis of which, following an examination of personality characteristics and the interview, a decision is taken that an attorney cannot fulfill his/her professional duties due to lack of qualifications, which, in fact, amounts to the most severe disciplinary sanction as it entails the attorney’s unconditional exclusion from the territorial Bar and the termination of his/her professional activity.
Lack of regulation of the certification process
No list of questions is offered to prepare for the certification. The examination of an attorneys’ knowledge, in fact, requires an immediate and literal reproduction of the rule of law without the possibility of using the legal database. The attorney’s knowledge in various branches of law is tested without taking into account the specialization of an attorney who has been practicing for over 3 years. The meeting of the Qualification Commission does not provide for any minutes or an audio recording of the course of the interview.
At the same time, in accordance with paragraph 35 of Instruction No. 34, the decisions of the Qualification Commission on the inability of an attorney to perform their professional duties due to poor expertise shall be substantiated. However, in fact, this requirement of the legislation is not fulfilled, and the conclusion of the Qualification Commission does not provide a diligently comprised motivational part; there is only a list of questions asked, after which one of the following options is indicated: "the answer is correct", "the answer is incomplete", "the answer is not received". The licensee does not have the opportunity to comment on the reliability of the answers to questions reflected in the conclusion of the Qualification Commission for the above-mentioned reasons.
The procedure for judicial appeal against the decision of the Qualification Commission on Issues of Advocacy has not been established by law. The Regulation on Licensing envisages only the right to appeal against a final decision of the Ministry of Justice on termination of the special permit (license) to practise as an attorney, based on the conclusion of the Qualification Commission that the attorney is unable to perform professional duties due to poor expertise, within 1 month of the adoption of the relevant decision. In fact, there is no opportunity for an attorney to challenge the objectivity of the assessment of their knowledge and the court does not have an objective opportunity to verify the reliability of the conclusions set out in the opinion of the Qualification Commission, as well as the validity of the decision made due to the circumstances outlined above.
Thus, the current superficial regulation of the grounds, conditions and procedure for certification of attorneys gives rise to arbitrariness and abuse of rights on the part of the Ministry of Justice.
Advocates’ minority
At the same time, the size of the Qualification Commission is unregulated (the Law on Advocacy, as well as the Regulation on the Qualification Commission on Advocacy No. 105, approved by the Resolution of the Ministry of Justice of 30 November 2010, are silent as to this matter). The total number of members of the Qualification Commission can be 19 and more because of the wording "one representative from… and other state bodies". Neither the mentioned Law nor the Regulation address the qualitative and quantitative scope of "other state bodies" whose representatives can be members of the Qualification Commission.
Thus, the composition of the Qualification Commission, approved by Order No. 20 of Belarusian Ministry of Justice of the Republic of Belarus dated 3 February 2020, is periodically changed. For example, until 22 February 2021, the Qualification Commission consisted of 20 persons, among which the representatives of other state bodies included the head of the Legal Support Department of the Investigative Committee’s Central Office Natalia Andreeva and the head of the Main Department for Relations with the Legislative and Judicial Authorities, Matters of Citizenship and Pardon of the President’s Administration Zhanna Tishchenko.
At the same time, the Qualification Commission invariably involves only eight attorneys (the President of the Belarusian Republican Bar Association and one representative from each of the territorial Bars), which certainly represents a smaller proportion of the total number of members of the Commission examining professional issues of advocacy.
Unlimited mandate to initiate the certification
Instruction No. 34 does not clearly define the cases in which the Qualification Commission on Issues of Advocacy has the power to independently carry out another certification of attorneys.
In practice, at present, the Qualification Commission can arbitrarily conduct a regular certification of any attorney, based on the results of which one of the following decisions can be made (par. 13 of Instruction No. 34):
on the attorney’s compliance with the requirements of the legislation;
on incomplete compliance with the requirements of the legislation with a certification suspended for six months subject to implementation of the recommendations of the Qualification Commission, including the attorney’s advanced training;
inability of an attorney to perform his/her professional duties due to poor expertise.
Notably, there are no clear criteria on the basis of which, following an examination of personality characteristics and the interview, a decision is taken that an attorney cannot fulfill his/her professional duties due to lack of qualifications, which, in fact, amounts to the most severe disciplinary sanction as it entails the attorney’s unconditional exclusion from the territorial Bar and the termination of his/her professional activity.
Lack of regulation of the certification process
No list of questions is offered to prepare for the certification. The examination of an attorneys’ knowledge, in fact, requires an immediate and literal reproduction of the rule of law without the possibility of using the legal database. The attorney’s knowledge in various branches of law is tested without taking into account the specialization of an attorney who has been practicing for over 3 years. The meeting of the Qualification Commission does not provide for any minutes or an audio recording of the course of the interview.
At the same time, in accordance with paragraph 35 of Instruction No. 34, the decisions of the Qualification Commission on the inability of an attorney to perform their professional duties due to poor expertise shall be substantiated. However, in fact, this requirement of the legislation is not fulfilled, and the conclusion of the Qualification Commission does not provide a diligently comprised motivational part; there is only a list of questions asked, after which one of the following options is indicated: "the answer is correct", "the answer is incomplete", "the answer is not received". The licensee does not have the opportunity to comment on the reliability of the answers to questions reflected in the conclusion of the Qualification Commission for the above-mentioned reasons.
The procedure for judicial appeal against the decision of the Qualification Commission on Issues of Advocacy has not been established by law. The Regulation on Licensing envisages only the right to appeal against a final decision of the Ministry of Justice on termination of the special permit (license) to practise as an attorney, based on the conclusion of the Qualification Commission that the attorney is unable to perform professional duties due to poor expertise, within 1 month of the adoption of the relevant decision. In fact, there is no opportunity for an attorney to challenge the objectivity of the assessment of their knowledge and the court does not have an objective opportunity to verify the reliability of the conclusions set out in the opinion of the Qualification Commission, as well as the validity of the decision made due to the circumstances outlined above.
Thus, the current superficial regulation of the grounds, conditions and procedure for certification of attorneys gives rise to arbitrariness and abuse of rights on the part of the Ministry of Justice.
Suggestions for improving the efficiency of the procedure
In the current situation, the Ministry of Justice has no interest in ensuring the transparency of decisions made with respect to attorneys. Accordingly, there are no reasons why there would be a will to amend legislation on the formation and functioning of the Qualification Commission on Advocacy, increasing the number of attorneys in it and reducing the influence of state bodies and the Ministry of Justice on the decisions taken. The same concerns the introduction of a mechanism for appointing attorneys to the Qualification Commission by analogy with the mechanism for appointing attorneys by the Ministry of Justice to advocates’ “self-regulatory” bodies.
The best solution to the problems would be a complete transfer of the Bar to functioning on the principle of a self-regulatory organization.
The best solution to the problems would be a complete transfer of the Bar to functioning on the principle of a self-regulatory organization.
The best solution to the problems would be a complete transfer of the Bar to functioning on the principle of a self-regulatory organization with a logical change in the status of certification from an instrument of reprisal against attorneys to an instrument for assessing knowledge and helping to improve the quality of legal assistance provided.
The current mechanism of influence on attorneys through arbitrary inclusion in the lists of lawyers subject to certification is well developed, functions as a deterrent, including the widespread "self-censorship" of attorneys, and is quite satisfactory for the actual leadership of the Bar – the Ministry of Justice. Obviously, certification of lawyers should not be arbitrary.
If it is impossible at this stage to talk about the complete exclusion of the Ministry of Justice from the process of managing the Bar, then, in order to prevent the unjustified and hasty deprivation of the right to carry out advocates’ professional activities, it is necessary to regulate in detail the grounds, conditions and procedure for the certification of attorneys. In particular, the following matters necessitate regulation:1) Specific circumstances in which an attorney's qualification and their compliance with licensing requirements and conditions requires additional verification by the certification commission of the territorial bar; for which of these circumstances (which shall be exceptional) the certification of an attorney can be carried out by the Qualification Commission on Issues of Advocacy.
2) A strictly defined quantitative and qualitative composition of the Qualification Commission on Issues of Advocacy, in which representatives of the bar should possess a quantitative advantage.
3) The examination of the attorney’s knowledge in the certification process should be focused on determining their ability to freely navigate the current legislation, which allows an attorney to find an answer to the question asked quickly with the use of technical means providing easy access to the legislative database, as well as check their fluency as to the basic concepts and legal terminology, logical thinking, the ability to formulate their conclusions intelligently. At the same time, for attorneys with more than 3 years of experience, it is necessary to take into account the legal specialization in which this lawyer mainly provides legal assistance to individuals and business entities.
4) Unacceptability of establishing the attorney’s inability of performing their professional duties due to the poor expertise based on results of the first certification, without providing the attorney with the opportunity to improve their qualification with subsequent recertification in 6 months.
5) Precise regulation of the requirements for drafting of the motivational part of the decision with a detailed description of the circumstances and a clear justification of the conclusions of the certification or the Qualification commission.
6) Mandatory keeping of short minutes and audio recording of the meeting of the certification commission of the territorial bar, as well as the Qualification Commission. The attorney has to possess the right to familiarize themselves with the records, receive a copy of the audio recording and leave their comments.
Conclusions
Amendments to the Law on Advocacy, introduced by Law No. 113-З, dated 27 may 2021, which will come into force on 30 November 2021, do not only fail to contribute to the development of the Bar, but also, apparently, set it back decades. The level of dependence of attorneys on the opinion of state bodies is undoubtedly increasing. Already now, after a number of disbarment cases based on the results of arbitrary certifications, currently practicing lawyers have become much more cautious and discreet in implementing integrity while protecting the interests of clients.
The certification procedure is an acceptable measure of professional control over compliance with corporate and professional requirements, but it should relate exclusively to the professional competencies of attorneys and should be carried out under exceptional circumstances stipulated by law in accordance with a thoroughly regulated procedure and only by professional bodies without any interference from the state ones.
The certification procedure is an acceptable measure of professional control over compliance with corporate and professional requirements, but it should relate exclusively to the professional competencies of attorneys and should be carried out under exceptional circumstances stipulated by law in accordance with a thoroughly regulated procedure and only by professional bodies without any interference from the state ones.
