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Advokatura: In Search of Professionalism and Pluralism in Moscow and Leningrad

Published online by Cambridge University Press:  27 December 2018

Michael Burrage
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Abstract

This investigation sought to discover whether, and in what respects, Soviet advocates in the wake of perestroika are comparable with legal professions in the West. Taped interviews with ten advocates and various other legal specialists in Moscow and Leningrad in the winter of 1988–89 centered on four major professional goals. The responses showed (1) that Soviet advocates felt that their colleges effectively control admission to the bar; (2) that they have little sense of occupational jurisdiction, except in relation to the newly established legal cooperatives; (3) that they behaved like members of a self-governing profession in that bar association chairmen and bureau managers were perceived as colleagues rather than bosses, while party and state intervention control was dismissed as insignificant; (4) although they feel their status has risen dramatically since Gorbachev, it is not clear that this owes much to their collective efforts or that they have developed a corporate ideology to defend their position. Overall, the evidence supports the view that professional aspirations and institutions comparable to those in the West are to be found among Soviet advocates. Whether this might be seen as the reassertion of civil society, and of pluralism, in Soviet society is a much debated but currently unanswerable question. Negative and positive indications on this matter emerged during the research, the latter being rather the more persuasive.

Type
Symposium: Perestroika in Soviet Legal Institutions
Information
Law & Social Inquiry , Volume 15 , Issue 3 , Summer 1990 , pp. 433 - 478
Copyright
Copyright © American Bar Foundation, 1990 

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References

1. This is the most often cited figure; of these, 12,550 were in the RSFSR. “Improve the Work of Bar Association Presidiums,” Sovetskaia iustitsiia, no. 17 (1984), reprinted in Soviet L & Gov't Spring 1985, at 71–78.Google Scholar

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4. None of these introductions came by formal invitation through official channels. All were arranged in diverse ways after arrival in the Soviet Union. In Moscow, three initial introductions came from the university and one from the Institute of Ethnography (after long-standing academic contacts), the Institute of Pedagogical Sciences of the Academy of Science (with the generous assistance of Professor Tom Popkewicz, University of Wisconsin-Madison), and the Institute of State and Law (by telephone request following an advocate's recommendation). In Leningrad, one came from the university and one from Iniurcollegia, the agency that represents Soviet citizens in foreign courts and foreign citizens in Soviet courts. This last was arranged by entering the office as a client and then asking to meet local advocates. My contacts were also my translators, although on one occasion Pro fessor Ernest Gellner of the University of Cambridge kindly performed that chore.Google Scholar

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25. For the operation of a similar system under Stalin, see Hazard, John, “Legal Education in the Soviet Union,” 1938 Wis. L. Rev. 374.Google Scholar

26. These procedures, or something very similar, are, according to one informant, included in the draft of the new law on the advokatura.Google Scholar

27. Such concerns are not new. Huskey reported something similar in 1982 (34 Soviet Stud 213 (cited in note 19)) and Kucherov did so in 1970 (Soviet Administration (cited in note 15)).Google Scholar

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31. Normative acts are written decisions of legally authorized bodies establishing, amending, or repealing legal norms. “They include laws, edicts, or decrees of the Presidium of the Supreme Soviet, government decisions and ordinances, the orders and instructions of ministries, the orders and instructions of state committees, the decisions of local Soviets and other measures of state bodies containing legal norms, and also acts relating to the amendment coming into force, sphere of operation, or repeal of norms previously adopted.” P. P. Gureyev & P. I. Sedugin, eds. Legislation in the USSR 24 (Moscow: Progress, 1977).Google Scholar

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36. Specifically, it reaffirmed the right of “Representatives of public organisations and of work collectives…(to) take part in civil and criminal proceedings”.Google Scholar

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42. And it was, in November 1989; see art. 2 of the decree, On the Procedure for Protesting to the Courts Unlawful Acts of Organs of State Administration and Officials Which Violate the Rights of Citizens, ST-416, Bull. Congress of People's Deputies & the Supreme Soviet, November 2, 1989.Google Scholar

43. A reaction that lends support to Abbott's thesis that professions define each other by their interaction and competition. Andrew Abbott, The System of professions: An Essay on the Division of Expert Labor (Chicago: University of Chicago Press, 1988).Google Scholar

44. For a comprehensive and insightful analysis of the powers of procurators and of the limited rights of advocates see Wrobel, B., “Ghost' and Soviet Criminal Trials,” in Butler, W. E., ed., Yearbook on Socialist Legal Systems 1987 at 176–200 (New York: Transnational, 1987) (“Wrobel, Glastnost'”).Google Scholar

45. Provision for this was also included in the reforms of November 1989. Art. 14 Fundamentals of Court Organization, ST–441, Bull. Congress of People's Deputies & the Supreme Soviet, No. 23, 1989. However, interviews some three months later disclosed that the procedures and fees under which the advocates would work had still to be agreed on.Google Scholar

46. One advocate mentioned: “We have recently introduced the innovation of a family advocate. We have a kind of a contract, and the clients pay and the connections are very close. They can telephone for advice on any event in their life. The relationship is very close. It is better for us because we know the person; it is easier to give help, and I think it will develop further.” This might, I suppose, be an example of the marketing of advocates' services.Google Scholar

47. A one-off All-Union Meeting of “advokatura leaders” was held in 1950 and in 1978 when the Ministry of Justice summoned presidium chairmen in 1978 for a joint meeting. Huskey, 34 Soviet Stud. at 205–6.Google Scholar

48. Those granted by the 1980 RSFSR statute are documented and analyzed in Berman & Luryi, 14 Soviet Union at 266–74 (cited in note 20).Google Scholar

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51. Berman, & Luryi, , 14 Soviet Union at 274. While observing that there are “quite narrow limits on the decision-making power of the profession,” Huskey's analysis was rather more optimistic than that of the Pipkos. He notes, for instance, that the advokatura's autonomy had been enhanced by legislation of 1979 and that Moscow advocates were willing to circumvent and resist some of these limits. Huskey. 34 Soviet Stud. at 219–20.Google Scholar

52. One informant brought up a form of control not mentioned by the Pipkos or other observers: namely, that “advocates depend on the Moscow City Soviet, since it is responsible for distributing goods which are difficult to obtain, such as cars, furniture, and other things, among various organizations, including the advokatura.”.Google Scholar

53. In the 1984 report of the Ministry of Justice the chairmen of the presidiums of the colleges are continually held personally responsible for the failings identified in the selection, training, and deployment of advocates as well as for unsatisfactory behavior, and they are called on to exercise more discipline and control, just as though they were managers of a service industry. Sovetskaia iustitiia 1984, at 17 (cited in note 1).Google Scholar

54. See, for instance, the listing of their responsibilities in art. 25 of the 1962 RSFSR statute (Friedrnan & Zile, 1964 Wis. L. Rev. at 59 (cited in note 37), and art. 18 of the 1980 RSFSR statute (Berman & Luryi, 14 Soviet Union at 283–85 (cited in note 20)). The latter conclude: “The head of the legal consultation office has very great power over the work of the advocates in it, which he exercises in complete subordination to the presidium of the college of advocates.” Id.Google Scholar

55. Kaminskaya, Find Judgement 24–26 (cited in note 21).Google Scholar

56. Some, however, still object to the delegate system imposed by law on large colleges and to the indirect election of the chairman by the presidum. According to one informant, in April 1990 the entire membership would, for the first time, elect the presidium in the Moscow City College.Google Scholar

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58. This suggests that the chairman was cooperating with the Ministry of Justice's unsuccessful campaign to forestall the advocates' efforts by creating a rival association of Soviet jurists. According to his visiting card, and that of one of the university informants, an association of Soviet jurists had, in fact, already been formed.Google Scholar

59. New York Times, 26 Feb. and 5 March 1989. The advocates defined the profession in a narrow French or English sense (although members of the profession are both barristers and solicitors), while the ministry officials and their allies favored a broad Amercian definition that would leave the ministry with more power. For further details of this struggle, see Berman & Luryi, 14 Soviet Union at 260–62 (cited in note 20): Huskey, 28 Columb. J. Transnt'l L. at 97–104 (cited in note 20).Google Scholar

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61. Grouped under 25 headings such as “accepting assignments,”“transferring clients,”“receiving money other than through the bureau,”“behavior in court,”“everyday behavior”-all of which might be seen as the case materials for a code of ethics but which were obviously not so perceived by the advocates. None referred to the pamphlet, and 1 was only able to obtain it after concluding these interviews. P. A. Ognev, The Disciplinary Practice of the Moscow City and Regional Colleges of Advocates (Moscow, 1971).Google Scholar

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70. If Party membership provides any guide to status position, advocates would appear to have staged a modest recovery. During the NEP it has been estimated that only about 10% of advocates were Party members. In the late Stalinist period the proportion had risen to about 30%, while in the 1960s and more recently, the proportion has been approximately 50%—still, however, below the rate for engineers and fellow jurists on the bench and in the procuracy. Huskey, 34 Soviet Stud at 202 (cited in note 19).Google Scholar

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73. He was referring to the once-standard method of basing reports of the success, for example, of the judiciary on the low proportion of cases reversed on appeal and of the procuracy on the high rate of convictions. In 1983, for example, the present minister of justice, after reporting that the number of sentences altered or rescinded on appeal was down to 3.3 percent, put the case for a legal system in which no cases were overturned on appeal and wrote: “instances in which courts impose unjust sentences, judging citizens illegally or without foundation, must be eliminated. Every such case must be the object of immediate and exacting examination in boards and operations meetings, and those who are guilty must be made responsible in the strictest terms possible.” By 1988, however, what had been the object of censure had become a source of pride. In response to an interviewer who complained that sentences are often a carbon copy of the indictment drawn up by the investigators and approved by the procurator, he observed: “The courts of the union republics now order reinvestigation of more than 80,000 cases a year, while up to 3000 defendents are acquitted and many cases are dismissed. We regard this as a real sign that the courts have begun to view the results of the preliminary investigation much more critically.” See Terebilov, V., “Immediate Tasks Before the Organs of Justice and the Courts in Light of the Decisions of the November 1982 Plenum of the CPSU Central Committee,”Sotsialistichestkaia zakaonnost 1983, no, 4, reprinted in Soviet L. & Gov't, Summer 1983, and Terebilov, V., “May Justice Be Done!”New Times, Oct. 1988, at 187; see also Wrobel, Glasnost 187 (cited in note 44).Google Scholar

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75. Whether they were right to do so is not certain, since their own college prepared a report of some two dozen successful appeals in the years 1981–83. See “Documents: Criminal Appeal Practice and the Soviet Advocate.” introduced, annotated, and translated by W. E. Butler, in W. E. Butler, Socialist Legal Systems 357–85 (New York: Transnational, 1987).Google Scholar

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77. On hearing this, another informant added: “sometimes … very seldom”.Google Scholar

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