Perestroika or Just Perfunctory?: The Scope and Significance of Russia's New Legal Ethics Laws

Democratic political spheres and evolving capitalist markets require the security of both individual personal and property rights. This is accomplished through laws, enforcement mechanisms, and lawyers who advise their clients how to navigate within new laws to ensure sustainability of enterprises and protection of civil rights. However, following and using the law for such security is not automatic; it requires a proper legal culture and trust in the legal profession. Professional ethics provide a foundation for such trust and are molded to regulate and guide the legal field, ensuring client and societal trust in the legal profession. In order to trace, understand and explain the development of legal ethics in a given country, it is critical to analyze the issue not by just looking purely at the newly-enacted attorney regulations, but rather by approaching it from the historic, socio-economic and moral perspective since professional ethics very much reflect the current values, state of development and moral principles of a given society. Specifically, today’s status of ethical guidelines for the legal profession in Russia is greatly a reflection of the country’s rich and fascinating history with its changing political regimes, economic structure and societal values. The legal profession has “not traditionally been accorded much power or status in Russia” and has undergone many changes in the past. This article outlines three major periods in the profession’s development: first, from 1864-1917; second, from 1917-1991; and third, from 1991 to the present time. The first period is marked by the abolishment of serfdom and accompanying legal reforms; the second one begins with the Great October Socialist Revolution of 1917 and the enactment of the Soviet state; finally, the last period was started by Perestroika and the fall of the Soviet Union in 1991, and it is still in progress today as the legal profession in Russia is currently growing closer to its western counterparts. This article will introduce into legal scholarship for the first time the discussion and analysis of rules that were laid down in Spring 2002 in a federal law – "On Work as an Attorney and the Legal Profession in the Russian Federation" (hereinafter “On Work”) – and in the Code of Professional Ethics for the Attorney ("Code"), that was adopted in 2003 and later amended in 2007. Since then, that law and the Code together constitute the basis for the ethical practice of law in Russia. In late 2009, these laws were translated for the first time and became available in English.This article further examines the current structure, status and regulation of the legal profession in Russia by providing a comparative analysis of selected rules and applicable provisions of the Model Rules of Professional Conduct enacted by the American Bar Association and the Code of Conduct of European Lawyers (“CCBE”) adopted at the CCBE Plenary Session. The gist of this analysis attempts to compare the purpose and affect of enforcing attorney ethics rules in Russia, Europe and the United States with a focus on looking at lawyering through the prism of either a standard business venture or an independent profession. An added challenge to any analysis of Russian law or resulting legal system discussed in this article is the country’s historic distrust and disrespect for the law that was “typical during Soviet times and continues into the current legal framework.” In fact, one scholar believes that an old Russian saying, “[t]he law is like the shaft of a wagon, it goes wherever you turn it [and]…remains fully embedded in the public consciousness.” Accordingly, the existing enforcement mechanisms for any Russian law are sometimes unworkable, and the laws of attorney ethics similarly present predictable challenges in terms of enforcement. In fact, the Fourth All-Russian Congress of Attorneys that took place in 2009 openly stated that “year after year, contrary to the law, attorneys are asked to testify as witnesses in criminal cases against their clients; attorneys’ offices are searched; attorneys are not permitted to meet detained clients; and attorneys are not provided with the documents necessary for the provision of legal assistance.” To conclude, this article attempts to predict upcoming steps in the development of the ethical framework for the legal profession in Russia and offers anticipated benefits and downsides to these new developments.