The creation of a Rechtsstaat – a state ruled by law – is impossible without a strong and independent legal community. The effectiveness of the state apparatus is to the large extent defined by the creation of opportunities for professional legal protection of the rights and interests of citizens and enterprises. The level of entrepreneurial and investment activity in the country also depends on the mentioned factor, highlighting the significant role of lawyers in the economic and social development of the state.
In the Address to the nation titled “Unity of the People and Systemic Reforms are a Solid Foundation for the Country’s Prosperity” on September 1, 2021, the President Tokayev emphasized the following: “While protecting the rights of citizens, we shall not forget about the rights of human rights advocates, including the lawyers. The safety of their activities shall be ensured, and illegal actions that impede their work must be stopped as well.”
On April 18, 2022, the Presidium of the Republican Bar Association adopted the Concept of Advocacy Development in Kazakhstan for 2022-2025 and the Rules for the activities of working groups, as well as lawyers-members of public councils, working groups/committees, commissions, and other structures under government authorities (hereinafter, the “Concept”).
The Concept consists of an introduction, conclusion, and 16 sections, and covers almost all aspects of the legal profession that require improvement at the moment. The document includes policy guidelines related to ensuring the independence of lawyers, increasing their procedural status, and achieving social and tax justice for lawyers. It also proposes reforms for the judicial system.
A review of the Concept reveals that the authors chose a broader approach to the issue. Many proposed changes concern the justice system as a whole, including the judicial system and law enforcement authorities, which do not fall under sole competence of the legal profession. The authors have made strong mistakes even in simple things, which demonstrates the lack of knowledge of theory of law and legal practice. As a result, these gaps and conflicts led to the insufficiency of the Concept.
The introduction highlights several problems expected to be addressed by implementing the Concept:
1. Ensuring real competition and equality of rights between lawyers and prosecutors in judicial processes.
2. Strengthening the procedural and institutional status of lawyers, including real rights to collect evidences and access to the information related to various legally protected secrets.
3. Establishing proper remuneration for lawyers participating in the program for providing state-guaranteed legal aid.
4. Improving regulation and introducing new forms of advocacy.
5. Providing real guarantees of legal practice, including issues of security and safety of lawyers, and the inviolability of attorney-client privilege.
6. Solving social and tax problems faced by lawyers.
7. Increasing the prestige of the profession, professional ethics, and the effectiveness of organizations and self-government bodies within the legal profession.
Although the Concept declares that it is based on the best international practices and is aimed to address existing problems faced by Kazakhstani lawyers, a detailed analysis reveals severe contradictions, conflicts and gaps. These issues have prevented the document from gaining support among government authorities and the legal community on a larger scale.
Several provisions require revision to create a strong institution of the legal profession being capable of protecting lawyers’ rights in the legislative, executive, and judicial authorities. Notably, the document was compiled in the best traditions of normativism, even though the Concept itself declares a shift in the approach from normativism towards justice-oriented perspective.
The Concept demands the real rights to collect evidences and access to the information related to various legally protected secrets, but do not provide any tools of the personal data protection. The inconsistent and illegal requests of lawyers can lead to personal data “trading” in the country, which contradicts to the norms of the Law “On personal data and its protection”.
According to the Concept, the path to a strong legal profession lies in creating a single self-regulatory organization based on existing bar associations. However, post-Soviet Kazakhstan’s legal aid market is divided between attorneys and legal advisors. While attorneys’ activities are state-licensed and require bar association membership, legal advisors’ activities for a long time were not regulated by a state. This provided more freedom to legal advisors, allowing anyone to offer services. This especially affected the institute of legal court representation. According to the authors of the Concept, “as a result, many provided substandard services, undermining the legal profession’s authority” which actually is not correct and demonstrates negative and limited approach of the Presidium of the Republican Bar Association to such well-developed and independent institute of chambers of legal advisors.
The adoption of a relevant law on July 5, 2018, began regulating legal advisors’ activities, introducing self-regulation within chambers of legal advisors. This control of de-facto “entry” into and “exit” from the profession represents unlimited power. The risks include creating a lawyer’s monopoly, leading to loss of independence, uncontrollable risks of professional decline, and limited access to justice due to the lack of lawyers.
Foreign experience shows that a monopoly does not improve legal service quality but increases costs and inaccessibility, leading to a caste-like, so-called “closed profession”. Admitting many new members to a Bar would reduce service quality. Furthermore, a monopoly could result in a shortage of lawyers, causing a collapse in justice and human rights protection systems, particularly in remote areas.
The Concept references the European Commission for Democracy through Law (Venice Commission), which in October 2021 considered Slovakia’s request regarding multiple chambers versus a single organization. However, detailed text analysis of the Commission`s proposals reveals no unequivocal conclusion supporting a single centralized organization as the most effective model in Europe.
In conclusion, it should be emphasized that reforms to unite lawyers under a single regulation should be public and based on the open dialogue with all bar associations and chambers of legal advisors. The proposed Concept creates risks of significant influence or control from government authorities over the Bar and its officials, which may probably lead to a complete loss of the legal profession’s independence and increase potential corruption and non-transparency risks.
This Concept demonstrates the intention of minority represented by part of the Presidium of the Republican Bar Association to establish a monopoly without any grounds and preconditions in the legal services market. It means that the Presidium of the Republican Bar Association would like to create a compulsory monopoly using administrative resource and informal channels of lobbing. As a result, this process can entail social tension and conflict and involve a large number of lawyers and legal advisors, whose views and opinions may differ from this Concept provisions based on the position of insignificant minority. Their destructive activities run counter to state policy and lead to negative outcomes.
Fortunately, the broader legal community as well as major state authorities did not support this Concept during the relevant parliamentary working group meetings. Undoubtedly, the lack of success of the Concept can lead to a serious rotation in the Presidium of the Republican Bar Association in the near future.
