JURIST Columnist Volha Samasiuk is an LL.M. Candidate from the University of Arkansas School of Law, and she was formerly a legal consultant for the Belarus Food Safety Improvement Project. She discusses professional stratification in the Belarus legal system and the difficulties created by the division between advocates and commercial lawyers...
ecent political, economic and social changes in many post-Soviet countries have resulted in the overall reconstruction of their legal systems, consequently strengthening the rule of law in society. Under this approach, the role of lawyers in the post-Soviet arena has been expanding. Compared with the Soviet era — when legal professionals had a mostly marginalized role and were reduced to solving petty civil matters and dealing with criminal issues — the legal profession now is considered to be one of the most influential, prestigious and well-paid professions.
Nowadays, legal professionals significantly determine the life of society worldwide. Lawyers are no longer considered mere technical bearers of legal knowledge — they are creatively involved in the law-making process and in the development of democratic legal culture.
In Belarus, the legal profession can be divided into two main groups:
- Lawyers in governmental agencies and courts including advisers, prosecutors and judges.
- Lawyers in the private sector, including advocates, commercial lawyers and in-house counselors.
Lawyers from the first group have the status of state servants. It means that they are granted certain privileges such as higher social welfare benefits from the government. As a rule, special provisions of labor laws are applied to them such as detailed and complicated hiring procedures. It is also worth noting that all judges in Belarus are appointed by the president.
More lawyers work in the private sector where their professional activity is subject to mandatory licensing by the Ministry of Justice (MOJ) — except for in-house counselors who can work for a company without a license. The law provides for two types of licenses in the field of legal assistance: a license of advocates' activities and a license for the provision of legal services. The latter is mostly reserved for commercial lawyers.
Nowadays, there are about 1,700 advocates in Belarus who operate through numerous avenues of legal consultations. Following a 1997 decree from President Alexander Lukashenko, all Belarusian advocates are required to be a member of a bar association. Consequently, all advocates in Belarus are members of one of eight bar associations: six oblast-level bar associations, the Minsk City or the Specialized Bar Associations. All of these bar associations are united under the National Bar Association, which is a republican body that operates as the advocates' form of self-regulation.
Bar associations in Belarus are under the broad control of the MOJ, which raises a question regarding the independence of advocates under the Belarusian legal system. For instance, the MOJ:
- - Carries out state registration of the bar associations and makes amendments to charters;
- - Organizes audits of bar associations and verifies individual credentials;
- - Suspends bar association decisions that are not confirmed under Belarusian laws;
- - Initiates disciplinary action against advocates and others.
At the same time, there are 1,300 commercial lawyers in Belarus. The qualification requirements for commercial lawyers are the same as those for advocates but, unlike advocates, commercial lawyers in Belarus are not required to join a professional association. However, in 1992 a group of lawyers registered the Belarusian Association of Commercial Lawyers — a non-profit organization that serves as a forum for commercial lawyers to discuss pertinent problems related to the legal services market in Belarus.
The main distinction between advocates and commercial lawyers is in the scope of rights that each group enjoys. Traditionally, advocates have been entitled to provide any kind of legal assistance to their clients including representation in any court to any person or legal entity on any legal matter. As a result, advocates exercise a professional monopoly in courts of general jurisdiction. This includes litigation related to employment and intellectual property law, which is under the jurisdiction of the Belarus Supreme Court, and also gives advocates the right to represent their clients in commercial courts.
In contrast, commercial lawyers may only appear before commercial courts in commercial disputes and in administrative proceedings against legal entities. This arrangement frequently led to situations when commercial lawyers advised their clients on issues of employment or intellectual property law but were subsequently forced to seek an advocate to represent their client before a court of general jurisdiction. The legal services market in Belarus was accordingly criticized because of the division between these two different systems of legal practice.
Addressing this issue, the country's new "Law On Advocacy" entered legal force in April 2012. This law states that only advocates and employees may represent legal entities in Belarusian courts. The law contains a transitional period of one year for commercial lawyers to adapt to these professional changes. Additionally, commercial lawyers who have at least five years of professional experience can undertake a preferential procedure of transfer to obtain advocate credentials.
It is important to note that, while commercial lawyers and law firms can technically exist under Belarusian law, they are to rely heavily on advocates to represent their clients before both general and commercial courts. Such a division substantially restricts the private legal practice in Belarus and increases the legal profession's dependence on the discretion of the MOJ.
Volha Samasiuk holds a diploma and a Doctor of Philosophy in Law from the Belarusian State University. She was an associate professor of law at the Belarusian State University, a visiting scholar at the University of Washington School of Law and a curriculum research fellow at the Central European University in Budapest, Hungary.
Suggested citation: Volha Samasiuk, The Legal Profession in Belarus, JURIST - Dateline, June 3, 2012, http://jurist.org/dateline/2012/06/volha-samasiuk-belarus-profession.php.
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at email@example.com