THE LEGAL STATUS OF A LAWYER IN THE RUSSIAN FEDERATION AND THE REPUBLIC OF KOREA: COMPARATIVE-LEGAL ANALYSIS

Full Text

Introduction The judicial representation existed all around the World in various shapes after the judicial institutions emerged and society realized need for qualified legal advisers. Obviously, the vision of the appropriate level of “qualification” and functions of judicial representatives has changed over time, because it is hard to imagine that something more than ability to read and write was initially required from them. Gradually, the bar developed from judicial representation and became a corporation of professional and independent advisers that provide legal assistance to their clients (principals) and protect their interests both in legal proceedings and in other circumstances. The bar can rightly be considered one of the oldest and most significant human rights institutions, which is “based on the human mind and the pursuit of justice”. Moreover, the right of a person for a defender (a lawyer, not only an adviser and representative, but also an advocate) has been considered inalienable and natural since olden times (Stoyanov, 1869:1-2). Over time, the bar has become a respected community, whose members have reputation of competent lawyers, carrying out their activities in strict accordance with the law and corporate ethical principles. Such communities formed both in Russia and Korea. However, the historical path of the bar associations in these states was quite thorny. The bar in Russia emerged from nowhere in 1864 as a result of the judicial reform of tsar Alexander II - at least, the barristers of imperial-era Russia insisted on such approach to the history of their corporation. “We didn’t come from them, we didn’t even come from their ashes, we are completely new people, we don’t have any historical relationship or consistent connection with them, and we are proud of that fact”, claimed Pavel Potekhin in 1900, denying any connection between post-reform barristers (primarily attorneys-at-law) and pre-reform scriveners and lawyers (Gessen, 1914:1-2). In 1860, Alexander Lokhvitsky (Lokhvitsky, 1860:43-44) noted that the prereform attorneys who were professionally involved in legal services may be conditionally divided into two types. The first one evolved from previously existed scribes and provided not only “normal” legal assistance to their clients, but also made fake passports for them and took 1.23 litres of vodka (an old Russian measure “shtof”) or a few rubles as payment. In the same time the others called themselves “lawyers” without any real reason and right for it; generally, they had higher education and demanded several hundred rubles for drawing up a document. By the way, even in 1820 in governmental papers scriveners were identified as the main culprits of lawsuits and unfair decisions. Therefore, it was not recommended to entrust them with participation in proceedings (Solomatin, 2011:185). In 1864, with the adoption of the Decree on Judicial Statutes, an institute of attorneys-at-law was established. They were lawyers with clearly regulated activities and reputation completely different from that of pre-reform scriveners and other so called “lawyers”. Only persons with a higher education in the field of law were entrusted to become an attorney-at-law. In addition, candidates were required to have employment experience not less than five years in the judicial system on positions where they had an opportunity to obtain practical knowledge about court proceedings, or at least five years be candidates for such positions, or be engaged in judicial practice as assistants of attorneys-at-law. There were some basic restrictions for candidates. Persons younger than twenty-five years, foreigners, state officials (even on elected positions), bankrupts as well as suspects under investigation or those convicted by court sentence and/or those who had lost status of attorney-at-law had no access to the Bar. To join the bar association a candidate had to submit an application to the Council of attorneys-at-law and add all documents characterizing his/her personality, skills and compliance with law requirements. Acting legislation did not contain any regulation of qualification exam procedure and personal interview with candidate, so the Council of attorneys-at-law made decision on every candidate after analyzing the submitted documents and information they contained[115]. Although until 1864 in the Russian Empire there were no lawyers corporation as an institution close to modern sense (Chabaeva, 2006:175), it should be noted that judicial representation arose in Russia much earlier and this fact is confirmed in written documents from the 15th century (Osadchuk, 2013:82). In 1917, the bar association and all other forms of representation and rights advocacy based on the criteria of professionalism were liquidated by the very first legislative act of the Soviet government ( On the Court Decree) as a bourgeois remnant and a full-fledged “counter-revolutionary class” (Solomatin, 2009:252-253). However, the judicial representation itself has survived; any Soviet citizen with an impeccable reputation could enjoy the right to carry out the functions of representatives and defenders in courts (Gavrilov, 2018:65). Since 1918, the Soviet advocacy has undergone many changes, affecting, inter alia, the legal status of lawyers. At first, lawyers and representatives found themselves in the public service as officials with a fixed salary from the state treasury (Mishina, 2013:76-77). Then, the requirement for two-year experience in the field of jurisprudence was introduced for the candidates for the respective positions (Kamalova, 2015:13). Finally, with adoption of the USSR law On the Advocacy of the USSR in November 30, 1979 the higher education also became mandatory and the formation of the Soviet advocacy was generally completed (Zakharenkov, 2017:12-13). With some amendments and additions Soviet legislative regulation of the advocacy as legal profession persisted until July 1, 2002, when the acting Federal Law No. 63 of May 31, 2002, “On Lawyer Activities and the Bar in the Russian Federation came into force (another semi-official translation is On the Practice of Law and the Legal Profession in the Russian Federation)”. The historical path of the bar association in the Republic of Korea was different and it is important to underline, that legislation of Korean kingdoms was based on Chinese law until the end of XIX century. For example, from 1395 to 1905, “The Great Code of the Ming Empire; with explanations” was in force there - it was a Chinese criminal code with comments by Korean officials, supplementing some articles of the law to better applicability in local conditions (Bourgon, Roux, 2016:21). Such situation was typical for Korean legislation and fully related to judicial representation and rights advocacy. There is a stereotype in the Korean law science, that residents of Korean states in the past preferred to avoid participation in court proceeding by any ways. Similar situation was observed also in Russia before 1864. At the same time, survived documents show a relatively large number of lawsuits in which the parties defended their civil rights and property interests. This fact, as noted by South Korean researches, allows to conclude that there was a wide participation of the citizens in legal proceedings, in which they were assisted by representatives, some of whom served as scribes (Sim, 2016:136-137). However, judicial representatives were often family members or other relatives of their client even at the end of the 19th and beginning of the 20th centuries in Korea and most of them participated in the proceedings only once and did not participate in such function in other cases (Sim, 2018:84-85). In 1894-1895, large-scale Gabo Reform took place in Korea. This reform significantly changed many aspects of social relationships and modified judicial system according to the Western standards of court proceedings organization. Although such standards were adopted by Korean legislation indirectly, not Western states, but Japan was the main source of “inspiration” for Korean reformers. By this time, Japan opened itself for external influence and at the same time began to spread its own influence on neighboring countries, including Korea (Son, 2016:300). However, in Korea the bar association did not emerge to modern form until 1905, when the Korean state lost its sovereignty and became a protectorate of the Japanese Empire (Sin, 2008:121). The loss of sovereignty transformed political and legal life of the state more than national reforms, because Japanese legislation and legal institutions were intruded. The new Korean association of lawyers was not fully “Korean” not only in legal regulation but also in practice, because since 1909, Japanese lawyers have gained the right to practice law in Joseon (the Korean kingdom, and later the puppet “empire” under the complete control by Japan) according rules which were adopted at the insistence of Japanese administration. It is worth mentioning that from 1906 to 1908, only twenty Korean lawyers were registered and practiced law in Korea, half of them studied in Japan, and about a third were retired state officials (Son, 2016:299) Only in 1949, when the Korean state was independent for several years but already divided into antagonistic northern and southern parts, the South Korean Attorney-at-law act was adopted. The first edition of this law was very different from the acting one and reflected many of the “specific” features of the young Republic. For example, until 1973, attorneys-at-law did not have any purposes of their activities set in legislation because the Attorney-at-law act simply established an appropriate legal institution. The attorneys-at-law were obliged to participate in court proceedings and to deal with other legal issues at the request of a person, or by order of governmental offices - neither the protection of human rights, nor the independence of lawyers were mentioned in the law. In 1973, Article 1 of the Attorney-at-Law Act was amended by including provisions on purposes of the attorneys’ activities; these provisions have not practically changed their essence until now. So, from 1973 to the present, the South Korean bar association has two purposes. The are to protect fundamental human rights and to ensure social justice, though in fact attorneys-at-law begun actively participate in the human rights advocacy and public life of the state only in 1988. In the same year “The Assembly of lawyers for a democratic society” was established and the mission of the organization was identified; it aimed to provide legal assistance in cases related to human rights (Tikhonov, Kan, 2011:292). It is noted in the acting edition of the Attorney-at-Law Act that to achieve these purposes each lawyer must responsibly fulfill his/her duties and contribute to maintaining public order and improving the legal system as a whole (article 1). Fundamentals of a lawyer legal status in the Russian Federation Russian purposes of the lawyer (hereinafter term “lawyer” will be used to Russian attorneys-at-law, because as it was mentioned in the abstract these terms are synonymous in the Russian language) activities significantly differ from Korean ones. Article 1 of the Federal law on lawyer activities and the bar determines that lawyers provide qualified legal assistance to protect rights, freedoms and interests (only lawful of course) of their principals as well as to ensure their access to justice. So, despite the bar is sometimes called the main human rights institution in Russia (Evseenko, Kopylov, 2017:125), its defending function extends primarily to clients of lawyers but not to all society. However, it is necessary to note that representatives of the Russian bar often take an active part in the state's public life, provide legal assistance free of charge and within the activities of human rights organizations. Consequently the bar itself is rightfully one of the most important civil society institutions which supports the rule of law in the state (Belozerova, 2017:49-50). A lawyer in the Russian Federation is an independent professional legal adviser (Paragraph 1 of Article 2 of the Federal Law on Lawyer Activities and the Bar), an equal and rightful member of the professional association of lawyers. Every lawyer in Russia must be a member of the chamber of lawyers in the region of her residence (federation constituent) which are parts of the Federal Bar As-sociation; national chamber of lawyers is isolated from the system of state offices civil society institution (paragraphs 1-2 of article 3, the Federal law on lawyer activities and the bar). A lawyer has the right to give consultations, draw up documents and represent the interests of the principal in court proceedings and in state offices. These competences do not exhaust the list of the lawyer’s rights - Paragraph 2 of Article 2 of the abovementioned federal law contains 10 subparagraphs. Moreover, in accordance with Paragraph 3 this article a lawyer al-so has the right to provide other types of legal assistance, which are not directly prohibited by law. Thus, the list is open and the legal provisions under study may be summarized as “a lawyer is entitled to provide any legal assistance, which is not prohibited by law”. The legal status of a lawyer in the Russian Federation compares favorably with the ones of other legal professionals regarding the possibility of combining lawyer activities with other types of activity and employment. A lawyer cannot combine his/her legal practice with employment in governmental offices of federal and regional levels of the state authority in Russia, and in municipal administrations as well (Paragraph 1 of Article 2 of the above-mentioned federal law). In addition, a lawyer has no right to have labor relations as an employee apart from employment for scientific, educational and other creative activities. The Code of Professional Ethics of Lawyers (adopted by the First National Congress of Russian Lawyers on January 31, 2003) clarifies this provision, indicating that lawyers are not entitled to provide legal services outside lawyer activities. There are exceptions for dispute resolution (as a mediator or arbitrator, etc.) and participation in charity projects initiated by other civil society institutions to provide legal assistance without payment. At the same time, a lawyer has the right to invest funds and dispose of his/her property and real estate, as well as to derive income from other sources, which are not related to his/her status (Paragraph 3 of Article 9 of the Code of Professional Ethics of Lawyers). Thus, a lawyer can engage in entrepreneurial activity if such activity does not involve the provision of legal assistance, while, for example, a public notary in Russia has no right to engage in any activity other than scientific, pedagogical and creative (Article 6 of the Fundamentals of Legislation of the Russian Federation on Notaries, which was approved by the Supreme Council of the Russian Federation No. 4462-1 of February 11, 1993). It may be interesting to note, that notaries in Russia have no right to dispose of their own property for the purpose of systematic profit-making (ex., to lease real estate (rent)) and violation of such prohibition entails deprivation of the right to engage in notarial activities[116]. It is appropriate here to consider in more detail the term “other creative activity”. In accordance with the “List of positions and professions of creative workers of the media and cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibiting) of arts, features of whose labor activities are regulated by the Labor Code of the Russian Federation” (approved by Decree of the Government of the Russian Federation No. 252 of April 28, 2007) such activities can be carried out in the respective fields of art by persons working as employees (ballet dancers, conductors, cameramen, television editors, etc.) and workers (costume designers, pyrotechnics, photographers, etc.). Consequently, since the law contains an indication of creative activity and specific types of such activity can be determined in accordance with the mentioned list, a lawyer has the right to combine his/her main (i.e., lawyer’s) activity with employment under a contract as a photographer in a theater or a producer on television or in other positions (the list includes almost two hundred positions). The status of a lawyer may be obtained by Russian and foreign citizens (as well as stateless persons) who have a higher education in the field of law, received under a state-accredited educational program, or an academic degree in a legal specialty (paragraphs 1 and 6 of article 9, the Federal law on lawyer activities and the bar). However, the legislation does not specify which level of higher legal education is required to apply for the status of a lawyer. The term “higher education” in the Russian Federation refers to under-graduate programs (bachelor degree), specialties (specialist degree), master's programs and training of scientific and pedagogical personnel (postgraduate studies; Paragraph 1 of article 69 of the Federal Law No. 273 of December 29, 2012, “On Education in the Russian Federation”). Any of these educational levels should be considered consistent with the requirements of the Federal Law on Lawyer Activities and the Bar because there are no clarifications in this law. Such clarifications can be found in another law, for example, in Paragraph 3 of Article 12 of the Federal Law No. 79 of July 27, 2004 On the State Civil Service of the Russian Federation, which sets the requirement of compulsory higher education not lower than the level of specialist or master’s degree for applicants for civil service positions (employment in governmental offices) in the categories of managers, assistants (advisers), specialists of the highest and main groups of civil service posts. It should be noted that lawyer activities in the Russian Federation can be carried out not only by Russian lawyers, but also by lawyers who have received the status of a lawyer abroad. To provide legal assistance in Russia, lawyers of a foreign state must be registered in a special register maintained by the Ministry of Justice of the Russian Federation (the rules of such assistance are approved by the Ministry of Justice order No. 151 of July 31, 2012). The registration gives them right to provide legal assistance in cases involving the legislation of their home state if the state secrets of the Russian Federation are not affected (Paragraphs 5 and 6 of Article 2 of the Federal Law on Lawyer Activities and the Bar). Current normative regulation of the practice of foreign lawyer activities in Russia allows, as some authors note, a double interpretation (Vorontsova, 2013: 28). On the one hand, a foreign lawyer, as a result of his/her registration in Russia, receives the right to provide legal assistance to his/her clients both on foreign law issues and in other cases; their status as a lawyer in Russia is confirmed, so their rights must be identical to those of Russian lawyers. On the other hand, a foreign lawyer can provide legal assistance only on issues of foreign law thus enjoying the status different from the status of Russian lawyers. That second interpretation seems to be correct, but while it does not give rise to contradictions, it can infringe on the rights of persons seeking legal assistance. The client cannot ask for legal assistance only a foreign lawyer (even if such lawyer speaks the language of legal proceedings and demonstrates sufficient knowledge of the Russian law), he/she must also find a Russian lawyer if the case involves legal relations regulated by Russian legislation. At the same time, a foreign lawyer in Russia can participate in civil and arbitration proceedings as a representative, for this he/she needs to have appropriate powers and confirm his/her higher education in the field of law (it must be recognized by the Russian Federation). These requirements are not necessary if the case is in jurisdiction of justices of the peace or district courts (article 49 of the Civil Procedure Code of the Russian Federation and Article 61 of the Arbitration Procedure Code of the Russian Federation). The applicant for the status of a lawyer must have at least two years of experience in the legal profession or a traineeship in any law firm from one to two years (Paragraph 1 of Article 9, Paragraph 1 of Article 28 of the Federal Law on Lawyer Activities and the Bar). In contrast to the level of higher education, the legislation specifies types of employment experience in the legal specialty necessary for acquiring the status of a lawyer. These types include rendering services as a judge, lawyer, assistant of a lawyer, public notary, a lecturer of legal disciplines in professional educational organizations, educational organizations of higher education and scientific organizations, as well as positions in state and municipal services, in legal services of private organizations and in scientific research institutions, if such positions require a higher legal education (Paragraph 4, Article 9 of the above law). A person who is recognized as incapable or whose legal capacity was limited (as the result of mental or other decease) and a person who has a criminal record for intentional crime cannot be a lawyer in the Russian Federation (Sub-paragraph 2 of Paragraph 2 of Article 9 of the above law); however, having a criminal record for unintentional crime is not an obstacle to obtaining the status of a lawyer. Regardless of employment experience, academic degree, previous positions and any other circumstances, any person applying for the status of a lawyer must pass a qualification exam, which consists of two parts (computer testing and interview). However, an academic degree gives the applicant certain advantages - he/she is exempted from the questions during interview in the scientific specialty of his/her dissertation research (Paragraph 7 of Article 2.3 of the Regulation on the Qualification Exam for Assignment Status of a Lawyer Procedure, approved by the Federal Bar Association council on April 25, 2003, protocol No. 2). If the exam was passed successfully, the qualification commission decides on granting the status of a lawyer, which comes into force on the day the applicant takes the oath of a lawyer (Article 12 of the Federal Law on Lawyer Activities and the Bar). Members of the commission are representatives of both the lawyer community and the state (employees of a regional directorate of the Ministry of Justice, the legislative (representative) authority of the federation constituency and the judges (Article 33 of the above law). A lawyer carrying out his professional activities has some universal powers which are applicable to all cases of providing legal assistance (individual “special” powers of a lawyer as a participant in a particular type of court procedure are regulated by the relevant procedural legislation). Article 6 of the Federal Law on Lawyer Activities and the Bar set the rights to collect information necessary for the provision of legal assistance, to interview persons allegedly owning information relevant to the case in which the lawyer provides legal assistance (but only with the consent of the respondents), to collect and submit objects and documents that may be recognized as material and other evidence. In general, a lawyer has the right to take any action that is necessary to provide legal assistance and which does not violate the legislation; the list of powers of a lawyer ends with Subparagraph “7”, setting the right to “perform other actions that are not contrary to law”, so the list is open. At the same time, a lawyer does not have the right to accept and execute deliberately unlawful instructions of the client, accept instructions of the client in case of a conflict of interest, or act in any way against the interests of the client (an exception is when a lawyer is aware that his/her client has slandered him-self/herself (Paragraph 4 of Article 6 of the above law). A lawyer bears responsibility for violation of these and other prohibitions in accordance with the Code of Professional Ethics of Lawyers (up to the disbarment) and other regulations, including legislative ones. For example, a lawyer may be liable under article 310 of the Criminal Code of the Russian Federation for violating investigation confidentiality and this is just one of many situations when a lawyer may be punished. In addition, with adoption of the Federal Law No. 400 of December 2, 2019, there is a new ambiguous rule (which will be enacted on March 1, 2021) on the prohibition of judicial representation by disbarred persons due to the entry into force of a court sentence on an intentional crime (Subparagraph 4 of Paragraph 1 of Article 17 of the Federal Law on Lawyer Activities and the Bar), ignoring or improper provision of professional duties by a lawyer, violation of the rules of the Code of Professional Ethics of Lawyers, illegal use and (or) disclosure of information falling within the concept of professional secrecy of lawyer activities or systematic non-compliance with requirements for a lawyer's request (Subparagraphs 1-2.1 of Paragraph 2 of Article 17 of the above law). This new rule not only strengthens the severity of the disciplinary liability of lawyers, but also forms the extrajudicial measure of disciplinary liability (disbarment) almost the same as the criminal punishment of “deprivation of the right to occupy certain positions or engage in certain activities” (article 47, the Criminal Code of the Russian Federation) that violates the logic of delineation of these types of legal liability. A lawyer in the Russian Federation can carry out his/her activities both individually (by opening a lawyer’s office for private legal practice) and by joining an association (collegium) or firm (bureau), which he/she may establish together with other lawyers. To set up a lawyer’s office and establish a collegium or bureau a lawyer must have experience of lawyer activities for three years and more (from March 1, 2020; previously, experience for five years was required; Articles 21-23, the Federal Law on Lawyer Activities and the Bar). There is the fourth form of organization of lawyer activities, named legal consultation, which may be established only by a regional chamber of lawyers on the proposal of a regional directorate of the Ministry of Justice if there is a shortage of lawyers in the corresponding judicial district. The number of lawyers in such district should be less than two per one federal judge (Article 24, the Federal law on Lawyer Activities and the Bar). The Russian bar is a self-governing professional community. The state participation in lawyer activities is minimal and includes, first of all, maintaining the register of lawyers (Article 14 of the above law), issuing legal practicing certificates to lawyers (Article 15, ibid) and ensuring accessibility of lawyers’ legal assistance for the people (by supporting the independence of the legal profession and financing the activities of lawyers providing legal assistance to citizens of the Russian Federation free of charge in special cases (for example, provision of free legal assistance to military personnel on issues related to military service; Paragraph 3 of Article 22 of the Federal Law No. 76 of May 27, 1998 “On the Status of Military Personnel”; Article 3, the Federal Law on Lawyer Activities and the Bar). The autonomy of the bar is also emphasized by the fact that state offices (including the Ministry of Justice and its regional directorates) have no right to disbar a lawyer by their own decision; they need to send a corresponding submission to the regional chamber of lawyers and only if the chamber does not consider the request within three months, regional directorate of the Ministry of Justice will gain the right to initiate disbarment proceedings in court (Paragraph 6 of Article 17 of the Federal Law on Lawyer Activities and the Bar). Fundamentals of a lawyer (an attorney-at-law) legal status in the Republic of Korea The legal status of an attorney-at-law in the modern Republic of Korea has three main features: an attorney-at-law is independent in the performance of his/her duties due to their status; an attorney-at-law is a priori positioned as a professional in the field of law; an attorney-at-law acts as a public person (Article 2 of the Attorneyat-Law Act). The duties of a lawyer, in a broad sense, include the actions in the framework of preparation and conduct of court proceedings, participation in administrative (and any other) proceedings as a representative of the parties, other interested persons or on behalf of national and local authorities and other state offices (article 3, the Attorney-at-law act). Persons applying for the status of an attorney-at-law must meet at least one of the three requirements set in Article 4 of the Attorney-at-Law Act. So, an applicant needs to undergo specialized studying program at the Judicial Research and Training Institute after obtaining a higher education degree in the field of law, have experience of serving as judge or prosecutor, or pass attorney’s exam without obtaining a higher education degree. It is important to note that any of these requirements is enough for the candidate to become an attorney-at-law (candidate must also register in the Korean Bar Association). Persons falling under at least one of ten conditions set in Article 5 of the Attorney-at-Law Act have no right to become attorneys-at-law. The following are the most characteristic conditions: (1) sentencing to imprisonment without corrective labor (this measure is considered as a less severe punishment than imprisonment with corrective labor, and, of course, the death penalty) or a more severe punishment for committing a crime when a five-year term after the completion of the assigned punishment has not yet expired (Paragraph 1 of Article 5); (2) dismissal by impeachment or as a result of a disciplinary procedure, or disbarment according the Attorney-at-Law Act and a five-year period thereafter (Paragraph 4 of Article 5); dismissal here refers to the previous place of work, including public service; (3) suspension of a state official from office as a disciplinary measure during the entire term of such suspension (retirement from service before end of term will not remove this restriction (Paragraph 7 of Article 5); (4) deprivation or limitation of legal capacity (Paragraph 8 of Article 5); (5) bankruptcy (Paragraph 9 of Article 5); (6) perpetual disbarment according to the Attorney-at-law act (Paragraph 10 of Article 5). Last condition needs additional comment. According to Article 91 of the Attorney-at-Law Act an attorney-at-law may be disbarred without the right to restore his/her status in case of at least two convictions for an intentional crime related to his/her professional activities with imprisonment without correctional labor or a more severe punishment or recognition of an attorney-at-law as not appropriate for his professional status after at least two disciplinary offenses with suspension of powers or more severe penalties. In the Attorney-at-Law Act, the South Korean legislator does not concern the citizenship of attorneys-at-law and candidates for their status. Until 2009, the general rule was that only a Korean citizen had the right to be an attorney-at-law in the state. However, on March 3, 2009, the Ministry of Justice announced opening the legal services market (Choi, 2009:101) and a few weeks later (on March 25) the Foreign Legal Consultant Act was adopted (Act No. 9524 of March 25, 2009). As in the Russian Federation, attorneys-at-law from other states must be registered by the Ministry of Justice, which confirms their qualifications and issues certificates giving the right to have legal practice, but only on the issues of the legislation of the state where they received status of attorney-at-law. Any foreign attorney-at-law (in other words “foreign legal consultant”) registered in the Republic of Korea for professional activities has the right to provide legal services (consultations) on issues of his/her national law and international agreements of which his home state is a party to, as well as act as a representative in cases considered in international arbitration courts (Article 24 of the Foreign Legal Consultant Act). At the same time, it is important to note that only a foreign attorney-at-law whose home state has concluded a Free Trade Agreement with the Republic of Korea or any other agreement aimed at trade liberalization and its legal sup-port can practice in Korea (Articles 2 and 6 of the Foreign Legal Consultant Act). The South Korean legislation sets certain rights and obligations that determine the procedure of professional activities for attorneys-at-law. They have the right to establish law offices (firms), but if an attorney-at-law who obtained his/her status as a result of passing the exam wants to exercise this right, he/she must have experience in the legal specialty (in courts, prosecutor’s offices, public and private law offices and organizations providing legal services, and some other organizations, including international ones) for at least six months (Article 21.2 of the Attorney-at-Law Act). Attorneys-at-law also have the right to hire personnel for their offices whose training and “other necessary matters” are determined by the Korean Bar Association (Paragraph 3 of Article 22, ibid). However, hired staff must comply with a number of requirements, including a certain period after serving a sentence of imprisonment with corrective labor or a more severe punishment (three years in case of conviction to the actual serving of the sentence and two years to the suspended sentence; Subparagraph 1 of Paragraph 2 of Article 22, ibid) and full legal capacity (Subparagraph 3 of Paragraph 2 of Article 22, ibid). The right of attorneys-at-law to advertise their professional activities in newspapers, magazines, television and radio programs, as well as using computer communication tools is enshrined in the Attorney-at-Law Act separately. The advertisements may contain only truthful, correctly formulated (without exaggeration and ambiguous data) information on the level of education, career, main types of legal assistance provided by an attorney-at-law and generalized results of such assistance. It is important, that information from advertisements must not discredit the reputation of other attorneys-at-law (Article 23). Additional requirements for advertising and the procedure of their publication are established by the Korean Bar Association, which, like the local bar associations, creates a special commission (committee) that checks the content of all advertisements placed by attorneys-at-law (Paragraphs 3 and 4 of Article 23). The obligations of attorneys-at-law defined in the legislation are more numerous and concern both the general principles of the organization of lawyer activities (for example, the obligation to preserve dignity; an attorney-at-law must not hide truthful information or make false statements, as well as perform any actions that could damage their reputation; Article 24). Very specific rules concern obligation to annually provide legal assistance in the public interest (pro bono assistance; each attorney-at-law is required to provide legal assistance in the public interest for at least a certain number of hours per year. Duration, content and procedure of the assistance are regulated by the Korean Bar Association, local bar association or a governmental office, and an attorney-at-law has no right to avoid this obligation (Article 27 of the Attorney-at-Law Act). Also, an attorney-at-law must maintain a register of their current (and past) cases, indicating all the basic data, such as the date of the case, the amount of the fee, personal information of the client and other details (Article 28, ibid). The Attorney-at-Law Act also provides an extensive list of prohibitions (Articles 29.2-38), violation of which is the basis for liability up to criminal punishments. For example, it is forbidden to conduct independent practice in any cases for lawyers who have received legal status by passing the appropriate exam, if they have less than six months of experience in the legal profession (Article 31.2). It is also forbidden to visit courts, investigative offices, correctional and medical institutions to find clients and impose paid legal assistance (the prohibition applies both to attorneys-at-law and to their employees and any other third parties acting in the interests of an attorney-atlaw or the firm (Article 35). It is noteworthy that there is also prohibition to create commercial enterprises or participate in their activities, as well as hold the positions of a managing partner, director of a commercial organization or employ any staff in such an organization. This prohibition applies to attorneys-at-law with a valid status (to ones whose status is suspended, even if it is disciplinary measure, the prohibition does not apply), but it can be lifted by the decision of the local bar association (Paragraph 2 of Article 38, ibid). It should be emphasized that after receiving permission from the local bar association, an attorney-at-law can participate in the activities of only non-legal commercial organizations (which not provide legal assistance), since the Attorney-at-Law Act sets a separate prohibition on hiring an attorney-at-law by a person who does not have the same status to open or secure activities of the organization providing legal assistance. Supervision of compliance with requirements established by law is carried out by the local bar associations (there are 14 such organizations in Korea) in whose territory they have practice, the Korean Bar Association and the Ministry of Justice jointly (Article 39, ibid). Finally, it is important to underline, that the rights and obligations that characterize the legal status of an attorney-at-law are set not only in the Attorney-at-Law Act. As in Russian legislation, certain provisions are also enshrined in other regulatory legal acts. For example, the Criminal Procedure Code of the Republic of Korea (Act No. 16850 of December 31, 2019) defines, inter alia, the procedure for defense counsel participation (which can only be an attorney-at-law, although in exceptional circumstances, by decision of a court, other persons also may act as a defense counsel (Article 31) in interrogating the suspect and protecting his/her rights during investigative actions (to make statements and protests, check the interrogation protocol and so on (Article 243.2). Conclusion The modern Russian bar faces difficulties of both external and internal nature (which are related, inter alia, to the interaction of lawyers chambers and conflicts between them[117]), the internal challenges directly concern the legal status of a lawyer and guarantees in providing professional activities. For example, in criminal proceedings, the bar is traditionally considered as an opponent of state law enforcement agencies[118], however, there is no equality between these opposing parties, although it should be by virtue of the constitutional norm on the adversarial system of proceedings with equal rights of the parties (paragraph 3 of article 123, the Constitution of the Russian Federation). The Constitutional Court of the Russian Federation indicates that mentioned adversarial system and equal rights involve separation of the function of resolving a criminal case from the functions of the prosecution and defense, separation of procedural powers and positioning of the court as an objective and impartial arbitrator 5. Although the procedural powers of the prosecution and defense parties are really divided, the “adversarial” process is almost completely under control by the prosecution, so the defense faces more or less active, and sometimes even illegal, opposition of prosecution. The legal powers of a defense lawyers (attorneys-at-law) in providing legal assistance are very diverse and include collection and presentation of evidence, invitation of specialists, participation in investigative actions, suggestion to pro-vide investigative actions and so on (Article 53 of the Criminal Procedure Code of the Russian Federation). At the same time, investigators as representatives of the prosecution often ignore lawyers, unreasonably refusing their suggestions and requests (usually, to interrogate a witness or conduct other investigative actions) and even violating pro- fessional secrecy of lawyer activities, providing searches and other actions against the lawyers, which directly contradicts both the law on advocacy and the Criminal Procedure Code[119]. In January 2019, the State Assembly of the Republic of Bashkortostan proposed to add phrase “as well as in the activities of a defender in order to obstruct the implementation of lawyer activities in criminal proceedings” to the article 294 of the Criminal Code of the Russian Federation[120]. The authors of the initiative noted that the current edition of article 294 of the Criminal Code sets the criminal legislative guarantee of non-interference in the activities of court, prosecutor, investigator or person conducting an inquiry, while lawyers are deprived of such security. This fact leads to an accusatory inclination (in other words - presumption of guilt) in court proceedings and impunity of encroachments on the lawful activities of lawyers[121]. Legislative commission of the State Duma considered this initiative and then advised its authors to refrain it from introducing for voting, since the representatives of the prosecution and lawyers have different statuses, and “the defender’s powers are not imperious, they are a set of means to protect rights and lawful interests of clients and provide them legal assistance in criminal proceedings as it is the procedural function of a lawyer”[122]. In fact, both the procedural and personal rights of lawyers are regularly violated sometimes even physical force may be used against lawyers by representatives of state offices [123]. Moreover, although a lawyer is the so-called “special subject” (it means that a lawyer refers to the number of persons in respect of whom the special order of criminal proceedings is defined in chapter 52 of the Criminal Procedure Code of the Russian Federation), the immunities and procedural privileges of judges, prosecutors and other persons are not applicable to lawyers. This circumstance leads to the fact that lawyers are often prosecuted both for the crimes committed by them, and in cases where the criminality of their actions is dubious[124]. For example, a lawyer may be prosecuted for an unreasonably high, from the point of view of law enforcement officers, fee for providing legal assistance[125]. In its turn, the Bar of the Republic of Korea also faces some practical “difficulties” and ambiguous legislative decisions. For example, the right of former judges and prosecutors to obtain the status of an attorney-at-law without confirmation of their qualifications seems controversial. This legislative rule exempts such candidates from additional exam which may be considered by someone redundant due to their previous position and experience; at the same time some scholars criticize presumption of their competence which may hardly be guaranteed in all cases. In this regard, the procedure allowing lawyer activities set in Russian legislation seems more preferable. The obligation of an attorney-at-law to receive permission to engage in other paid activities while preserving the practice of law is also ambiguous. Due to the absence of the unconditional and legislatively set right of attorneys-at-law to combine certain types of activities, it is impossible to exclude the occurrence of corruption risks and abuse during approval of such permits. In addition, the scientific community of the Republic of Korea draws attention to the problem of the effectiveness and “quality” of legal assistance provided by attorneys-at-law, which is often quite low (Cho, 2016:351-352). However, efforts to overcome the shortcomings of regulation and practice of lawyer activities are carried out both at the scientific (doctrinal) and legislative levels as shows the analysis of the bar evolution in the Republic of Korea.

About the authors

Denis A. Dobryakov

Author for correspondence.
Email: den-dobryakov@yandex.ru

Candidate of Legal Sciences (PhD), senior lecturer of Department of Judicial Power, Law-Enforcement and Human Rights Activities, Law Institute

References