CHANGES TO THE LAW ON LAWYERS AND ADVOCACY
Published August 30, 2021
The law "On Amendments to Laws on Advocacy Issues" was adopted and included in the National Register on May 27, 2021. The law itself attracted a lot of attention both from lawyers’ community as well as from public; experts believe that the changes are aimed at reducing the independence of the legal profession.
In this article, you will find a guide on significant changes in the activities of Belarusian lawyers, lawyers' self-government bodies and the role of the Ministry of Justice in the life of the legal profession, introduced by the recent legal amendments. New additions to the Articles of the Law on Lawyers and Advocacy (hereafter – the Law) are underlined.
In this article, you will find a guide on significant changes in the activities of Belarusian lawyers, lawyers' self-government bodies and the role of the Ministry of Justice in the life of the legal profession, introduced by the recent legal amendments. New additions to the Articles of the Law on Lawyers and Advocacy (hereafter – the Law) are underlined.
Simplified procedure for obtaining the status of a lawyer for students without experience, representatives of courts, prosecutors, investigators
A lawyer in the Republic of Belarus may be an individual who is a citizen of the Republic of Belarus, has a higher legal education, completed an internship in the cases established by this Law and passed a qualifying exam, received a special permit (license) to practice advocacy (hereinafter, unless otherwise provided, - license) and is a member of the territorial bar.
Context: previously the Article contained the following condition for future lawyers: “and work experience in the field of at least three years, the calculation procedure for which is established by the Council of Ministers of the Republic of Belarus or a body authorized by it”.
Context: previously the Article contained the following condition for future lawyers: “and work experience in the field of at least three years, the calculation procedure for which is established by the Council of Ministers of the Republic of Belarus or a body authorized by it”.
Applicants who have worked (served) in the courts, prosecution bodies, the system of the Ministry of Justice, law enforcement agencies, as well as in structural divisions (secretariats) of such bodies, whose candidacies are presented by the heads of the relevant republican bodies, undergo an internship for up to three months and pass a qualification exam only in oral form.
Changes to the Law concerning the forms of law activity
Context: Until now, it was possible to practice law in 3 forms in Belarus: in legal consultations, law offices and individually. With amendments to the legislation on the legal profession entering into force, only one form from this list remains - legal consultations.
The concepts of “a law office” and “a lawyer, practicing law individual” are excluded from Part 2 of Art. 7; paragraph 11, Part 1 of Art. 38; Part 2 of Art. 39 of the Law, etc.
Article 31 (Law offices) and article 33 (Law activities, implemented individually) are excluded from the Law. The only form of practicing the law remains, in accordance with Article 29 of the Law, - legal consultations.
The concepts of “a law office” and “a lawyer, practicing law individual” are excluded from Part 2 of Art. 7; paragraph 11, Part 1 of Art. 38; Part 2 of Art. 39 of the Law, etc.
Article 31 (Law offices) and article 33 (Law activities, implemented individually) are excluded from the Law. The only form of practicing the law remains, in accordance with Article 29 of the Law, - legal consultations.
Legal consultations are formed by territorial Bars in agreement with the Ministry of Justice in districts, cities, districts in cities to provide legal assistance to individuals and legal entities and ensure its accessibility. Legal consultations are not legal entities.
The management of the legal consultation is carried out by a supervisor appointed from among the lawyers of the legal consultation for a period of four years.
Changes in the procedure for the election of governing bodies
Рowers of the Ministry of Justice
The powers of the Ministry of Justice of the Republic of Belarus in the field of advocacy are (below are just some of the powers):
development, in cooperation with the Belarusian Republican Bar, of the Rules of professional ethics of a lawyer and their approval;
Context: earlier - “development, based on proposals of lawyers and lawyers' associations, of the Rules of professional ethics of a lawyer and their approval in agreement with the Belarusian Republican Collegium of Lawyers”.
determination of the procedure for conducting regular and extraordinary re-certifications of lawyers;
approval of candidacies for the positions of chairmen of the Bars, heads of legal consultations, candidates for members of councils of the Bars;
Context: previously - “approval of candidacies for the positions of chairmen of the Bars and heads of legal consultations”.
agreeing on the candidacies of applicants for admission as trainees of a lawyer;
referral of applicants for admission as trainees of a lawyer;
coordination of the formation and termination of the activities of legal consultations;
Officials of the Ministry of Justice, within the limits of their powers, have the right to participate in the activities of lawyers' self-governing bodies, to request and receive from the Bars, legal consultations, lawyers information and documents necessary for the exercise of their powers by this Law, provided that lawyers’ confidentiality is preserved.
Territorial Bar Council
The council of the territorial Bar is a collegial executive governing body, elected at a general meeting (conference) of members of the territorial Bar for a period of four years from candidates approved by the Ministry of Justice.
The territorial Bar, no later than one month before the date of the elections of the council of the territorial Bar, shall submit at least two candidates for the position of each member of the council of the territorial Bar to the Ministry of Justice for approval.
If the Ministry of Justice rejects all the candidates submitted for approval by the territorial Bar twice, the Ministry of Justice itself submits proposals for candidates to the council of the territorial Bar. If the candidates proposed by the Ministry of Justice are rejected by the general meeting (conference) of members of the territorial Bar twice, these candidates shall be considered elected to the council of the territorial Bar.
Context: Previously, there was no legal enforcement of the approval of candidacies by the Ministry of Justice. Until now, the disciplinary commission of the territorial Bar carried out the functions of imposing disciplinary sanctions on lawyers. With the amendments to the legislation entering into force, their functions are transferred to the councils of the territorial Bars. Part 2 of Art. 25 of the former ersion of the Law: “The quantitative composition of the disciplinary commission of the territorial Bar is approved by the general meeting (conference) of the members of the territorial Bar. The disciplinary commission of the territorial Bar may not include members of the Bar councils, as well as the disciplinary commission of the Belarusian Republican Bar. The composition of the disciplinary commission of the territorial Bar is elected for a term of four years. "
Now the disciplinary commission’s function of considering complaints against decisions to bring a lawyer to disciplinary responsibility or deciding to terminate disciplinary proceedings against a lawyer will belong to the Chairman of the Bar.
The territorial Bar, no later than one month before the date of the elections of the council of the territorial Bar, shall submit at least two candidates for the position of each member of the council of the territorial Bar to the Ministry of Justice for approval.
If the Ministry of Justice rejects all the candidates submitted for approval by the territorial Bar twice, the Ministry of Justice itself submits proposals for candidates to the council of the territorial Bar. If the candidates proposed by the Ministry of Justice are rejected by the general meeting (conference) of members of the territorial Bar twice, these candidates shall be considered elected to the council of the territorial Bar.
Context: Previously, there was no legal enforcement of the approval of candidacies by the Ministry of Justice. Until now, the disciplinary commission of the territorial Bar carried out the functions of imposing disciplinary sanctions on lawyers. With the amendments to the legislation entering into force, their functions are transferred to the councils of the territorial Bars. Part 2 of Art. 25 of the former ersion of the Law: “The quantitative composition of the disciplinary commission of the territorial Bar is approved by the general meeting (conference) of the members of the territorial Bar. The disciplinary commission of the territorial Bar may not include members of the Bar councils, as well as the disciplinary commission of the Belarusian Republican Bar. The composition of the disciplinary commission of the territorial Bar is elected for a term of four years. "
Now the disciplinary commission’s function of considering complaints against decisions to bring a lawyer to disciplinary responsibility or deciding to terminate disciplinary proceedings against a lawyer will belong to the Chairman of the Bar.
Decisions of the Bar council on the results of consideration of cases on disciplinary measures are taken by a simple majority of votes of the council members participating in the meeting. In case of equality of votes of the members of the council when making a decision, the chairperson of the council has a casting vote.
Decisions of the Bar council on the results of consideration of cases on disciplinary measures, adopted within its competence, are binding on all members of the corresponding territorial Bar.
Decisions of the Bar council on the results of consideration of cases on disciplinary measures, adopted within its competence, are binding on all members of the corresponding territorial Bar.
Chairman of the Bar
The chairman of the territorial Bar is elected for a term of four years from candidates approved by the Ministry of Justice and members of the Bar council.
The territorial Bar, no later than one month before the date of the election, shall submit at least two candidates for the specified position to the Ministry of Justice for approval. The issue of approving the submitted candidates is considered by the Ministry of Justice within ten days.
If the Ministry of Justice rejects all candidates submitted for approval by the territorial Bar twice, the Ministry of Justice itself makes a proposal on the candidacy for the position of chairman of the territorial Bar. If the candidacy proposed by the Ministry of Justice is rejected by the general meeting (conference) of members of the territorial Bar twice, this candidacy shall be considered elected to the position of chairman of the territorial Bar.
The territorial Bar, no later than one month before the date of the election, shall submit at least two candidates for the specified position to the Ministry of Justice for approval. The issue of approving the submitted candidates is considered by the Ministry of Justice within ten days.
If the Ministry of Justice rejects all candidates submitted for approval by the territorial Bar twice, the Ministry of Justice itself makes a proposal on the candidacy for the position of chairman of the territorial Bar. If the candidacy proposed by the Ministry of Justice is rejected by the general meeting (conference) of members of the territorial Bar twice, this candidacy shall be considered elected to the position of chairman of the territorial Bar.
Article 7 of the Law of the Republic of Belarus, May 27, 2021, No 113-З “On Amendments to the Laws on the Issues of Advocacy”
"Meetings of partners of law offices must decide to terminate of the activities of law offices within five months, including through liquidation procedure."
