Концепция регулирования деятельности по предоставлению юридической помощи и юридических услуг в Республике Казахстан (стр. 5 )

1.1 Representation in court

1.1.1 The need to reform the status of a representative in court

One of the important types of legal services required for the normal functioning of a market economy is the representation of economic entities in court. Recently, the quality of representation in the court began to cause justifiable complaints from both the participants in civil proceedings and judges, including the Supreme Court. The concern of the Supreme Court in the quality of representation in the court is quite understandable and justified. The problem lies both in the need to ensure an adequate level of professional knowledge and literacy of representatives in court, and in the need to ensure compliance by representatives in court with established ethical standards.

This problem was particularly clear in connection with changes in civil procedural law related to the requirement of full provision of evidence at the stage of preparing the case for trial and a corresponding change in the approach to procedural rights and obligations of the parties in the process. The introduction of such norms makes it difficult to adequately protect the rights of the parties in the process without the assistance of professional representatives. As we understand, it was the solution of this problem that was aimed at recent changes in the CPC of the RK that established a requirement for representatives in court on behalf of (in addition to lawyers, representatives of legal entities for these persons, authorized trade unions and others) to have a higher legal education.

This change, of course, is useful, since at least to some extent it affects the quality of representation. However, we believe that this innovation will not help to solve this problem. In itself, the availability of legal education does not provide any guaranteed level of quality of a lawyer as a professional, nor, especially, compliance with ethical rules. There is no mechanism of checks - a lawyer who is not a professional organization, unlike lawyers who are members of the board, does not feel responsibility and risk of losing membership and a license in the event of rendering services in violation of legal and ethical standards. In addition, the requirement to verify the availability of diplomas places an additional burden on the court.

There was an idea to solve this problem by establishing the so-called monopoly of the RCA's lawyers for representation in higher courts. In the recently adopted amendments to the CPC, the provision on the monopoly of the RCA's lawyers was not included. We think that its important discussion in the society played an important role in this decision.

The experience of some countries (for example, Germany) shows that representation in court differentiates depending on the level of the court and the category of cases. With this approach one could agree in the conditions of the former CPC. Under current conditions, such an approach seems ineffective, as the new CPC establishes the requirement for full provision of evidence at the stage of preparing the case for trial in the first instance. The choice by the parties of the bases of their demands and defense, as well as the tactics of the process, is also formed in the first bsequent instances of the CPC virtually do not allow the parties to put forward new arguments and evidence, neither factual nor legal. Thus, if in the first instance the party was represented by a person who is not sufficiently qualified, the requirement of admission to higher levels of professional representatives or lawyers can no longer help the parties improve their position, that is, there will simply not be any sense in using more qualified lawyers in higher instances.

1.3.2  The dual nature of the status of a representative in court

The history of development and the current situation of the institution of representation in court in various countries shows that persons admitted by the court as representatives in court have a dual function. On the one hand, such representatives have obligations to their client - they replace him in the process, act on his behalf, have an obligation to act in his interests and in accordance with his instructions. However, at the same time, these persons have substantial obligations to the court and society to seek justice.

For example, in Russia there were people who provided the so-called "legal intercession", which helped the party to the process with a legal council, pronounced speeches in the interests of the litigant, but did not replace the side of the process. Other lawyers acted as representatives. After the judicial reform of 1864, these two functions were combined, but at the same time, tasks belonging to the right-wing advocates were listed as tasks for a new category of lawyers-advocates. Historically, the Bar has been called upon to serve the interests of the whole society, to fight in courts for the proper understanding and application of law. Hence, the view of this profession as a public service, demanding hard work, self-neglect and selflessness. When the bar must choose between serving the public interests and the private interests of its client, then the bar becomes ambivalent, where either none of these interests is adequately protected, or one of them must be sacrificed (usually first, because the material welfare of the lawyer depends on the second).

Thus, the lawyer / advocate in court has, on the one hand, the so-called "duty before the court" and the company, and, on the other hand, the duty to the client.

The problem of the dual position of a lawyer / advocate in court is inherent in the legal systems of many countries of the world. The most radical problem is solved in England, where the duty before the court in any case prevails over the duty to the client6. In the United States, these duties are regarded as equivalent, and the lawyer is required to conduct business in such a way that both duties are respected 7.

This problem is actively discussed in different countries, and these discussions show that the solution to the problem lies only in the level of awareness by lawyers / advocates, judges and society themselves of the dual role of representatives in the court and the need to strive for observance of both principles.

In Kazakhstan, especially recently, with the development of the principles of openness, the openness of the judicial system, the increasing activity of citizens in the affairs of the country, the availability of information through the media and social networks, the issue of the status and role of the lawyer / advocate in society and in court has become particularly acute. If the principle of the duty of a lawyer / advocate to the client is sufficiently clearly regulated by law and does not cause difficulties in understanding, the principle of duty before the court and the society has been in oblivion.

1.3.3 The principle of duty before the court and society (Duty to the court)

The role of the professional representative in court ("PPC") did not receive due attention in the drafting of the CPC and other related laws.

As a result, the basic principle of the functioning of the judiciary - the principle of the duty of the PPC before the court (Duty to the Court)8, which was recognized in all developed jurisdictions of the world, was not reflected.

This principle contains a number of rules, the essence of which is that PPCs are not ordinary citizens, but part of the justice system in the broad sense of the term. In some jurisdictions, they are even called "officers of the court", that is, "officers (officials) of the court". Compared to ordinary citizens, PPCs have important privileges, but at the same time, responsibilities. This is a special caste of specialists who perform an important role in court. Together with the court they are obliged to apply all their professional abilities for comprehensive and objective consideration of the case in court, furnish the court with all arguments and evidence so that the court can make a legitimate and informed decision.

The main duty of the PPC is to serve not only the client, but also the interests of justice, and therefore the interests of the whole society.

The duty of the PPC before the court and the community should include the following:

• show respect for the court;

• act in good faith, using their procedural rights and duties to fully and fully clarify all the circumstances of the case by the court and issue a lawful decision;

• avoid misleading the court on issues of fact and law;

• avoid unreasonably dragging out the case and bringing unreasonable claims;

• refrain from actions that could damage the reputation of the legal profession and undermine the citizens' trust in the judicial system;

• refrain from publicly criticizing the activities of the court in a case that is under consideration, as well as public criticism of the court decision, which has not yet come into force.

PPCs should also enjoy substantial privileges and rights in court:

• in the performance of their activities, PPCs enjoy guarantees of independence, immunity and professional secrecy;

• PPCs are admitted to the building of ships without inspection when a member of an accredited organization is presented with a certificate and can use smart-phones, tablets and computers to search for normative acts and case materials, photographing court documents in the case. Photo and video shooting in the courtroom through such devices can be made only with the permission of the court;

• in the courtroom, the PPC is provided with a workplace similar to that of the representative of the prosecutor's office;

• Judges are obliged to show respect for the PPC, in particular, schedules of cases in the appellate instance should be drawn up so as to avoid long waiting for the PPC to review its case. In both the first and the appellate instances, cases must be carefully considered so that the PPCs have the full opportunity to speak out, bring to court all their arguments and evidence. Interruption of the speech of the PPC, especially in a crude and disrespectful manner, is not allowed.