Dichotomy no longer? The role of the private business sector in educating the future Russian legal professions.

• Author: Genty, Philip M.

Introduction I. Julius Henry Cohen's Observations About the Russian Legal Professions II. Regulation of the Russian Legal Professions III. The Moscow Ethics Conference IV. The Role of Private Law Firms in Russian Legal Education. V. Reflections Conclusion INTRODUCTION

In his 1916 work The Law: Business or Profession?, (1) Julius Henry Cohen describes an American legal system in which uniform standards for regulating, disciplining, and educating the profession are just beginning to be developed, albeit unevenly, (2) In discussing the differences between a business and a profession, he argues that a profession requires a uniform set of standards to guide it in matters of ethics, (3) as well as a system of rigorous legal education that includes a firm grounding in these ethical principles:

Perhaps most surprising for a book written in the early twentieth century--long before the study of comparative law and "globalization" became a central focus of legal education and practice in the United States--Cohen devotes three full chapters to a historical discussion of and comparison among the legal systems of China, Japan, ancient Greece and Rome, France, Spain, Italy, Russia, Germany, Austria-Hungary, and England. (5) Cohen focuses in particular on Russia, writing for twelve pages about the long history of that country's legal professions. (6) He expresses optimism about the developments he sees unfolding at the time of his book, (7) but he also notes some important reservations.

In this essay, I use Cohen's work as a starting point for an examination of some of the professional responsibility issues facing the Russian legal professions today. The essay draws upon my experience at a legal ethics conference in Moscow in November 2011. I participated in the four-day "Professional Responsibility and Legal Ethics School" as a Rule of Law Fellow for the Paul Klebnikov Fund. The class involved thirty students from several Russian universities and covered a variety of professional responsibility topics, including formation of the attorney-client relationship, confidentiality, conflict of interest, issues facing in-house counsel, and the tensions between the roles of officer of the court and advocate. Participating students were selected through a competitive essay contest. (8)

The conference was a collaboration among Moscow State University, a human rights non-governmental organization (NGO) (PILnet), two law firms (DLA Piper and White & Case), and two corporations (Verizon and Microsoft). In addition to its involvement in this conference, White & Case teaches several classes at Russian universities, including a legal skills class which involves an ethics component. (9) The role of the private sector in ethics education in Russia challenges the conventional notion of a business-profession dichotomy. In effect, the private sector is actively engaged in helping to develop higher professional standards for lawyers.

I will begin with a brief discussion of Julius Henry Cohen's observations about the Russian legal professions in The Law." Business or Profession ? I will then briefly describe the current state of regulation of the Russian legal professions, drawing upon the fascinating parallels with the early twentieth century Russian professions that Cohen describes in his book. I next discuss the Moscow ethics conference and legal skills class in more detail. Finally, I offer some reflections about the promise of this approach to legal education, as well as some concerns.

1. JULIUS HENRY COHEN'S OBSERVATIONS ABOUT THE RUSSIAN LEGAL PROFESSIONS

   In The Law: Business or Profession?, Cohen explains that the major reforms affecting the Russian legal professions occurred in 1864, when a largely self-regulating Bar was established. (10) The core of this regulatory structure was membership in a "General Assembly" within each judicial district. (11) Despite the promise of this membership system, it had one important limitation--it did not apply to all lawyers. (12) Instead, there was a kind of "caste" system made up of three tiers of lawyers, in descending order: "Counsellors-at-Law," "Attorneys-at-Law," and "Solicitors." (13) Counsellors-at-Law and Attorneys-at-Law were members of the relevant General Assemblies, while Solicitors were not. (14) In addition, Attorneys-at-Law could rise to the status of Counsellors-at-Law, while Solicitors could not. (15)

   Cohen suggests that this three-tiered structure undermined the otherwise promising qualities of the developing Russian legal professions, quoting a New York Bar colleague's conclusions about the Russian system:

   After an acquaintance of 22 years with the courts and lawyers of this country (America), I am led to believe that on the whole the professional standing of the lawyers in Russia is higher than it is here. Of course, one must always bear in mind that this applies only to Counsellors-at-Law, and the Attorneys-at-Law, who form a sort of aristocracy of the bar in Russia. The "Solicitors" are, on the contrary, looked down upon as a lower estate. (16) As described below, these words could easily be adapted to describe today's Russian legal professions.

2. REGULATION OF THE RUSSIAN LEGAL PROFESSIONS

   There is a robust set of ethical regulations in Russia. The federal law, "On Work as an Attorney and the Legal Profession in the Russian Federation," was enacted in 2002, and the Code of Professional Ethics for the Attorney was adopted in 2003 and amended in 2007. (17) Interestingly, the very first article of the statute addresses the idea of a business-profession dichotomy. It states:

   1. Work as an attorney is qualified legal aid, rendered on a professional basis by persons who have obtained the status of attorney ... for the purpose of protecting their rights, freedoms, and interests, and also of ensuring access to justice.

   2. Work as an attorney is not entrepreneurial. (18)

   The Code of Professional Ethics, which was promulgated pursuant to the statute, (19) contains the types of provisions that are relevant and helpful to lawyers. It sets out professional ideals to which all lawyers should aspire, (20) provides practical guidance, (21) and establishes a system of regulation and discipline. (22) In other words, it offers a rich combination of inspiration, guidance, and regulation. (23)

   The system of ethical regulation in Russia is more complicated than it first appears, however, because the ethical statute and the Code do not apply to all lawyers. When discussing the ethical regulation of lawyers, it is important to note that in Russia, as in other European countries, there is no single legal profession. (24) There are several specialized areas, each of which is considered a separate profession (e.g., advocate/barrister, notary, prosecutor, judge, professor, etc.). (25) In Russia there are at least five different legal professions--advocates, other jurists, the procuracy, notaries, and judges. (26) The complication is that the ethical statute and Code apply only to "advocates"; the other professions are unregulated. (27)

   The significance of this disparity becomes apparent when one examines the number of "advocates" in Russia relative to other legal professionals. As of January 1, 2008, there were 61,422 "advocates" in...