CORE VALUES OF THE LEGAL PROFESSION, ENFORCEMENT OF THE ADVOCACY AND

ADVOCATES RIGHTS (Lithuania)

Dr. Audrius BitinasSecretary General of the Lithuanian Bar Association

CONTENT

I. Organisation of the Bar and strategic goals: more independence and advocates’ rights.

II. Latest changes in the legislation: better regulation and more possibilities.

III. Deontology: new Code of ethics.

IV. Representation of advocates in courts: strengthening the role of advocate.

V. Conclusions.

ORGANISATION OF THE BAR

The Lithuanian Bar Association is a public legal entity.

Self-governing bodies:• General Meeting of Advocates• The Bar Council of the Lithuanian Bar Association• The Court of Honor• The Audit Commission

Committees:• Disciplinary Committee• Civil and Civil Procedure Law Committee• Criminal and Criminal Procedure Law Committee• IT Committee• State Legal Aid Committee

STRATEGIC GOALS

• Preparation of the new qualification and training procedures.

• Pro-bono development.

• Implementation of the new code of ethics.

• The digitalization process of state guaranteed legal aid and creation of new data bases.

• New procedure on advocates assistances practice.

• Establishment of centralized and compulsory insurance of advocate’s civil liability.

• More rights for advocates in the representation institute.

II. LATEST CHANGES IN THE LEGISLATION

Mediation and legal state aid

• The Government accepted the new Law on Conciliatory Mediation inCivil Disputes with the provision, that advocates (who practice as anadvocate for period longer than 5 years) have no obligation to pass amediator exam.

• Amendments of the legal state guaranteed aid: no limitation for thepayment up to 80 hours per case left; time for the preparation forproceedings is given (1 hour for each hearing); periodic payments inpending cases; the possibility to terminate the legal services contractbetween the Ministry of Justice and the advocate (continuouslyproviding the state legal aid services).

II. LATEST CHANGES IN THE LEGISLATION

Social security

The Parliament adopted the amendments to the Law on State SocialInsurance. The amendments will come into force on 1 of January 2017.

• The new regulation foresees that advocates and their assistants havethe sickness insurance and from the 1 of January 2017 advocates andtheir assistants will be entitled to the sickness benefits.

• From 2017, advocates and their assistants will be covered by all types ofsocial insurance (including the participation in the mandatory pensionfunds).

II. LATEST CHANGES IN THE LEGISLATION Continuous training

• Law on the Bar: “An advocate must <…> continuously improve hisprofessional qualifications. The improvement of professional qualificationsof advocates shall be organized by the Lithuanian Bar Association”.

• The decision of the Council of the Lithuanian Bar association: “Failure tocomply with the duty to continuously improve professional qualificationmay result in application of disciplinary responsibility in compliance withthe Law on the Bar”.

• New regulations:• Order on Accreditation of outside legal education service providers;• Launching of new internal data base – allowing advocates and

advocates’ assistants to submit evidences of continuous legaleducation directly into the database and receive continuous legaleducation credits;

• Pro bono activities (credits for the professional qualification).

III. DEONTOLOGYNew Code of Ethics

On 15 of April 2016 the General Meeting of Advocatesapproved the new Code of Ethics (entered into force on 1 ofSeptember 2016):

• this Code defines more clearly the principles of advocatespractice, such as loyalty to the client and avoidance of anyconflict of interests, non-disclosure of the client’s secret,lawfulness of the activities of advocates;

• highest ethical standards are enshrined in this Code;

• the validity of Code of Ethics is extended - it will be appliednot only for practicing advocates and assistant advocatesbut also for the foreign lawyers carrying out advocate’sprofessional activities in the Republic of Lithuaniatemporarily or permanently.

III. DEONTOLOGYDisciplinary proceedings

The new Regulation on Disciplinary Proceedings approved on15 of April 2016 by the General Meeting of Advocates:

• The new Regulation provides for more operative,concentrated investigation of complaints.

• This document will eliminate uncertainties concerned withprescription terms, will ensure the preservation of theprinciple of non-disclosure of the client’s secret during theinvestigation and will accelerate the investigation.

• The new Regulation entered into force on 1 September2016.

III. DEONTOLOGYPrinciples

• Freedom and independence of activities;

• Honesty and impeccable behaviour;

• Lawfulness of activities;

• Non-disclosure of the client’s secret;

• Competence and dutifulness;

• Loyalty to the client;

• Avoidance of a conflict of interest;

• Democracy, colleagueship and fair competition in mutual relationship of advocates;

• Good will relationship between advocates and bodies of the Lithuanian Bar Association;

• Respect to the state and the society.

III. DEONTOLOGYAvoidance of a conflict of interest (I)

• Prohibited from advising, representing, defending or acting on behalf of or in the interests of another person.

• Possibility of exception when:

• it is possible to reconcile all contrary interests and properly provide legal services to each such client;

• all such clients expressly consent to such provision of legal services;

• confidentiality of information is not violated.

or

• advocate defends his rights in a dispute with a client;

• in respect of a client that is a legal entity when confidentiality of information of any of such clients is not violated;

• in respect of a client that is a natural person, when it is practically possible to reconcile all contrary interests and properly provide legal services to each such client and when confidentiality of information of any of such clients is not violated.

III. DEONTOLOGYAvoidance of a conflict of interest (II)

• Possibility for advocates to advise, represent, defend or act on behalf of and/or in the interests of different clients on the same issue or in the same case or legal relationship (when those clients’ interests are contrary or there is a real probability that a conflict of interest will arise in the future if such provision of legal services does not violate confidentiality of information of such clients) and both of the following conditions are met:

• all such clients, being properly informed, expressly consent to such provision of legal services (including consent obtained in advance);

• the procedures for protection of clients’ interests established by the Council of the Lithuanian Bar Association are followed.

III. DEONTOLOGY Freedom and independence of activities

• In performance of his professional duties, an advocate:• must be independent;

• must avoid any unlawful outside influence;

• is prohibited from undertaking any activities, which will hinder proper performance of advocate’s professional duties or will restrict the freedom and independence of professional activities.

III. DEONTOLOGY Non-disclosure of the client’s secret

• Confidentiality - the main and most important advocate’s right and duty.

• Advocate’s professional secret - not subject to the period of limitation.

• Advocate’s professional secret could not be used against the client, could not be made public or disclosed otherwise without the client’s consent.

• Responsibility for colleagues/subordinates.

III. DEONTOLOGY Competence and dutifulness

• Improve professional qualification and seek to ensure appropriate quality of services.

• Act professionally, dutifully and constructively.

• Necessary conditions for becoming an advocate must always be fulfilled.

III. DEONTOLOGY Loyalty to the client

• Obligation to ensure that the relationship would be fair, lawful and ethical.

• Refusal to accept the assignment.

• Obligation to disclose all the terms and conditions of the agreement to the client.

• Acceptation of an assignment for provision of legal services to the client at the request of the client himself or other persons.

• Assessment of success probability, coordination with the client.

• Client‘s admittance of guilt.

• Management of funds temporarily kept by advocate but owned by others.

• Advocate can advise, represent or act against his former client if:• all such clients expressly consent to such provision of legal services;• confidentiality of information of any of such clients is not violated.

III. DEONTOLOGY Good will relationship between advocates and bodies of the Lithuanian Bar Association

• Mutual respect and cooperation.

• Active participation.

• Advocate must fulfil decisions and resolutions of the Lithuanian Bar Association.

• Supervision of an associate advocate’s practice.

• Obligation to inform the Lithuanian Bar Associationwhen an advocate accepts an assignment to representa client against a colleague regarding his professionalactivities.

• Prohibition to criticize a colleague’s work, scornanother advocate or degrade his competence oractivities.

III. DEONTOLOGYDisciplinary procedure

• Complaint ->Disciplinary committee-> The Council‘s of the Lithuanian Bar -> The Court of Honor of Advocate

Lithuanian Bar Association

28%

Colleagues2%

Client43%

Court6%

the other party to the proceedings

5%

Others16%

WHO INITIATE DISCIPLINARY PROCEDURES?

III. DEONTOLOGYMajor violations/complaints

Conflicts of interest (especially against a former client);

Unfairness in client assignments;

Quality of legal services;

Lack of dissociation from clients' interests;

Material breach of advocate‘s independence of activities ;

Improper management of an associate advocate’s practice or an associate advocate’s practice lawlessness;

An advocate tried in a civil case to represent the two opposite sides of the process;

Advocates providing legal services to haven‘t even met up with clients and clarified their true faith.

III. DEONTOLOGY The need to regulate unfair contractual terms

• Directive 93/13/EEC on unfair contract terms in consumer contracts.

• After the Šiba v. Devėnas Case C-537/13(Lithuanian Supreme Court):• Amendments to the Law on the Bar:

• Concept of “consumer“;

• Prejudicial procedure within the Bar;

• Enforceable decisions;

• Model Contract proposal by the Bar Council and approved byMinistry of Justice of the Republic of Lithuania.

• Article 6 of the European Convention on HumanRights:• „everyone charged with a criminal offence has the right to

defend himself in person or through legal assistance of hisown choosing or, if he has not sufficient means to pay forlegal assistance, to be given it free when the interests ofjustice so require”.

IV. REPRESENTATION OF ADVOCATES European Conventions

• Directive 98/5/EC of the European Parliament and ofthe Council of 16 February 1998 to facilitate practiceof the profession of lawyer on a permanent basis in amember State other than that in which thequalification was obtained:• in order to ensure the smooth operation of the justice

system, member States may lay down specific rules foraccess to supreme courts, such as the use of specialistlawyers.

IV. REPRESENTATION OF ADVOCATESEuropean Union law on the exceptional

representation of advocates

The suspect or the accused:• mandatory representation by an advocate;

• basis for the compulsory participation of a defense lawyer:• the suspect or the accused is a minor;

• crimes are committed by the blind, the deaf, or other persons whocannot avail themselves of their right to defense due to theirphysical or mental disability;

• the suspect or the accused doesn‘t know the language used in theproceedings;

• contradictions between the legal interests of the suspects or theaccused, if at least one of them has a defender;

• imprisonment for life may be imposed, etc.

IV. REPRESENTATION OF ADVOCATESCriminal procedure (1)

The victim:• representation by an advocate (or his assistant);

• other representative having a higher legal education if he isauthorized by the pre-trial investigator, prosecutor or judge.

• legal entity - by the manager or an authorized employee.

IV. REPRESENTATION OF ADVOCATES Criminal procedure (2)

• Exceptional representation of advocates - before the SupremeCourt.

• In the first and second instance - representation by:

• persons having a degree in law if they represent theirrelatives or spouses;

• trade unions if they represent their members in the labourcases;

• bailiffs’ assistants who have a degree in law and theauthority to represent the bailiff;

• associations or other public legal entities that representtheir participants.

IV. REPRESENTATION OF ADVOCATESCivil procedure (1)

• Litigation costs reimbursement - only if litigants wererepresented by an advocate or his assistant.

IV. REPRESENTATION OF ADVOCATES Civil procedure (2)

• The Parliament is considering now the amendments of the norms of the Code of Civil Procedure.

• It is intended to amend the Code by enforcing that only advocates and their assistants can be representatives in the appeal court.

• Also it is considered to provide that an employee working in one legal entity of group of legal persons can be representative of all entities belonging to that group.

IV. REPRESENTATION OF ADVOCATES Civil procedure (3)

The Parliament adopted amendments to the Law on the Administrative Proceedings and to the Law on the Commissions of Administrative Disputes, which will come into force on 1 of January 2017:

• the new regulation foresees that only advocates and advocates assistants can represent their clients in appeal process and in process where the case is recommenced (the exception is made for legal entities who can be represented by an employee having university degree in law);

• the litigation costs incurred by the parties can be reimbursed only if litigants were represented by an advocate or his assistant, thus encouraging individuals to choose advocates (their assistants) as their representatives.

IV. REPRESENTATION OF ADVOCATES Administrative procedure

• Strengthening of continuous training, deontology, probono activities – strengthening of the role of advocateand the way to the quality and effective protection ofhuman rights.

• Representation by the professional lawyer - a higherdegree of legal protection.

• Encouragement to choose an advocate as a representativeeven if there is no legal requirement to do so (i.e. throughthe system of litigation costs reimbursement).

• The effective activity of the national bar association -substantial contribution to the effective implementationof the right to a fair trial.

CONCLUSIONS

THANK YOU!