Концепция регулирования деятельности по предоставлению юридической помощи и юридических услуг в Республике Казахстан (стр. 6 )

Unfortunately, the principle of duty before the court and society has practically not been reflected in the laws or the Code of Ethics of the RCA's lawyers. So, in the Code of Ethics of the RCA there are practically no rules on the duty of lawyers before a court. As for the duty to ensure public confidence in the judicial system, there is practically nothing, except for the statement that "The independence of the lawyer helps ensure public confidence in justice, strengthens the rule of law and order, respects the profession of cadavat." Thus, although the idea that a lawyer should support public trust in justice sounds, but as such, the duties of a lawyer contribute to ensuring public confidence in justice, strengthening the rule of law and order.

It is necessary to pay attention to these aspects of the problem and carry out substantial reforms of the PPC activities based on the principle that the duties of the PPC in court and in society should correspond to the special rights and privileges of the PPC in the court and the corresponding attitude of the court to the PPC as to "its" as an integral part Justice systems, and to eliminate the sometimes antagonistic antagonism between the PPC and the judiciary.

Existing regulatory structures for lawyers and commercial lawyers

1.4.1 The Advocate of the RCA

One of the key areas of the advocacy of the RCA is the protection of criminal and administrative cases. Most of the RCA's lawyers specialize precisely in these areas, and the number of RCA lawyers with sufficient experience in the field of economic issues, especially in the international sphere, is relatively small.

The RCA's lawyers underwent minimal changes with the acquisition of independence, and they proved to be insufficient for the effective functioning of lawyers as representatives of the parties in economic disputes. Statutory conditions for the activities of RCA lawyers in some cases are unacceptable for commercial lawyers - non-lawyers, for their clients and even for the state. Therefore, it seems impossible to resolve the issue of regulating the legal profession at this stage by introducing a requirement for the entry of commercial lawyers into the legal profession of the RCA.

Since the Advocacy of the RCA has its own tasks and role in accordance with the Law on Advocacy, as well as the forms and procedures established by law, we consider it advisable to preserve the structure of the organization as a whole and the main principles of the activity, while introducing changes for its modernization and alignment to accepted international standards. The need for a certain modernization of the bar is recognized by the organization itself, as reflected in the recently published RCA Program on Improving the Quality of Legal Aid (published on the RCA website).

1.4.2 The Collegium of Commercial Lawyers "Kazakhstan Bar Association" (KazBar)

As the activity of professional lawyers requires forms of organization and the order of activities other than the RCA Bar Association, it is necessary to decide the appropriate regulation of the activities of professional lawyers.

Analysis of such regulation in different countries of the world with an established legal system shows the following.

The legal profession is extremely important for the normal functioning of society. Lawyers at all times had significant privileges in society, but also carried an increased amount of duties to society. In view of the special scope of the rights and obligations of lawyers to society, a legal profession cannot be abandoned by the state without any regulation.

At the same time, since the independence of a lawyer is a fundamental condition for his activities, the regulation of the profession by the state is reduced to establishing only the most important principles of the activity of lawyers and giving the professional organizations of lawyers the rights to self-regulation in other matters.

Self-regulation of the legal profession on the basis of certain principles established by the state should provide for mechanisms that would guarantee to the society the compliance of lawyers with their destination as a link between the state machine, including the courts, and citizens, as well as legal entities. Citizens should be assured of the high professionalism of lawyers, so an organization is needed to ensure that all lawyers follow the established and expected standards of the profession.

The legislator has already envisaged the possibility of the functioning of certain professions in the form of self-regulating organizations in the Law on Self-Regulating Organizations (SRO). The functioning of such organizations, as with voluntary membership, and with mandatory membership is possible. In the latter case, it is necessary to adopt a special branch law.

Four years ago, in response to the challenges of the time after serious negotiations, the country's leading law firms and representatives of the legal services of large investors decided to create a professional association - the Bar of Commercial Lawyers "Kazakhstan Bar Association" (KazBar).

During these years KazBar has turned into a strong organization of professional lawyers, numbering about 150 members. The structure of KazBar includes lawyers of almost all the most famous law firms in Kazakhstan: Dentons, Aequitas, Grata, OlympexAdvisers, Sayat Zholshy and Partners, Norton Rose Fulbright, Dechert, White & Case, Signum, Curtis Mallet, SynergyPartners, Baker & McKenzie, Unicase (total of about 20 law firms), as well as corporate lawyers of such companies as Kazakhmys, Chevron, Procter & Gamble, Schlumberger, Philip Morris, UraniumOne, Samsung, Nazarbayev University and others. In addition, the members are lawyers of leading international and Kazakhstani audit firms and academic lawyers.

KazBar united the main and leading part of players in the legal market of the country. Members of the organization in most cases are competitors among themselves. This composition of members ensures a clear functioning of the adopted system of checks and balances, a democratic leadership style, a balance of interests, and the avoidance of domination by some individual members or groups. The Governing Board is elected by open vote at the general meeting for a period of 3 years, and the Chairman of the Governing Council is elected from among the members of the Governing Council, thus providing for a permanent rotation of the management.

We believe that it is KazBar that can serve as an organization that can help achieve the required result, that is, quality self-regulation of commercial lawyers. KazBar carefully selects its members, checks the availability of Kazakhstani legal education, professional reputation of candidates and other necessary information. KazBar plays a fundamental role in enhancing the reputation of the legal profession, ensuring that practicing lawyers adhere to the highest professional standards.

One of the most important achievements of KazBar was the adoption of a professional Code of Ethics. This Code is based on the best international experience of authoritative legal unions and associations of the world's leading countries. The Code regulates in detail all ethical aspects of the activities of lawyers providing legal services in the economic sphere, including issues of conflict of interest, confidentiality, client-lawyer relations and others. KazBar members have a professional advantage, as they can guarantee that their services comply with the Code of Ethics. There is a mechanism that brings these standards into effect. The Ethics Committee examines complaints against members of the organization and applies measures of influence up to expulsion from the organization with the inclusion of this information on the KazBar website.

KazBar is a structure that is able to provide the highest quality of providing legal services at the level of world standards. At the same time, the state will not be burdened with the need to introduce regulation of the legal profession, since the profession regulates itself. Self-regulation is the path by which professional organizations of lawyers of the world's leading countries have been successfully conducting for centuries.

Section II.

Proposals for reforming the regulation of legal aid and legal services

2.1 The new organization

The RCA in its Program proposes to introduce a monopoly of the RCA's legal profession to provide legal assistance / services, that is, to solve the problem of the unsettled legal services market on the basis of the institute of the RCA's advocacy. In this regard, the question arises whether the existing RCA advocacy will be able to become such an organization that would meet all the requirements?

Pointed, individual changes to the Law on advocacy or the adoption of the Law on Legal Assistance will not help solve all problems. We believe that it is necessary to create a new professional organization of lawyers, based on new principles. The main reason for creating the new organization will be the need for all existing lawyers and KazBar members to understand that they need to significantly change their awareness of themselves as a professional working on new principles.

We propose to create a single self-regulating organization of all practicing lawyers - the conventional name "Association of Professional Lawyers and Lawyers of Kazakhstan".

Legal assistance is the professional activity of lawyers in providing free legal aid guaranteed by the state in accordance with the legislation of the Republic of Kazakhstan Advocacy is the professional activity of lawyers in providing legal assistance and legal services. Professional protection in criminal cases is carried out only by lawyers.	The activity of professional lawyers is the professional activity of lawyers, carried out on the basis of contracts with legal entities, organizations, individual entrepreneurs and citizens on the provision of legal services.
The activity of lawyers in providing legal assistance is not entrepreneurial. Other advocacy is entrepreneurial and is organized through the registration of lawyers as individual entrepreneurs	The activities of professional lawyers in the provision of legal services are carried out by obtaining the status of an individual entrepreneur or by entering into an employment contract with a law firm registered in one of the forms of a legal entity provided for by the legislation of the Republic of Kazakhstan.

2.2 The new law