Interview with Yevgeny Semenyako

‘In common-law countries lawyers can’t read,’ an old adage goes, ‘and in civil-law ones they can’t talk’. This is certainly not true of Yevgeny Semenyako, head of the Russian Bar, an association of Russian advocates. Yevgeny is a genial, eloquent man with a Van Dyke beard who looks, moves and speaks like an attorney from the 1900s, the golden days of the Russian legal profession.

He would have been at home in pre-revolutionary Russian court but today his job is to unite the disparate community of legal professionals into a solid corpus. Laissez faire, he believes, is not a good idea for the legal market and all who call themselves lawyers, including foreigners working in Russia, must prove their right to use the name.

RussianLawOnline: What is the difference between a Russian lawyer and a Russian advocate?

Yevgeny Semenyako: I’d like to think there is one. Unlike ‘just a lawyer’ an advocate is a lawyer who has completed special tests and examinations and can, therefore, claim to have the higher professional standards needed for providing qualified legal help. And this is exactly what Russian Constitution says – all citizens have the right of qualified legal help which, apart from the purely professional side, also involves a certain ethical element in the lawyer-client relationship.

Advocates are a special corporation of professional lawyers. Having said this, I don’t mean that there are no bad advocates. There are. Yet, by and large, advocates are moving closer and closer to the high standards of the profession. We can, and often do, get rid of those who don’t comply with our standards.

There is a widespread opinion that Soviet law was, in fact, the law of the Russian Empire. Nikolai Berdyaev, a Russian philosopher, once said, ‘In 1917 we believed that Communism had swallowed up Russia. Today we see that Russia has swallowed up Communism’. In a similar way we, perhaps, can say that Russian law, at least partially, is Soviet law. Does this present a problem for the community of advocates, or is it an asset?

I doubt that many of my colleagues are proud of Soviet law. I think Berdyaev is both right and wrong. The Russian Empire, which existed until 1917, was not perfect in many ways. Yet, few would call it a totalitarian state. However, the Soviet Empire had all the characteristics of a totalitarian system and the law was seen as an instrument to build the system where many human rights were not recognised. An individual was under the full control of the state and his or her interests were subordinate to the interests of the state. Today Russia declares itself to be a country of law and democracy. This may appear a somewhat declaratory statement, yet it is enshrined in our Constitution, the supreme legal act.

So we have a succession of tradition together with what I call inertia: those prejudices, customs and presumptions in society as a whole which were developed under the totalitarian system. All legal institutions, not only advocates, carry an imprint of the past.

I should say, however, that we are trying to lean on the experience of those advocates who were trained in the Russian Empire and worked before the October Revolution.

All legal institutions carry an imprint of the past

I think that Berdyaev, like many Russian intellectuals squeezed out of Russia, was hypnotised by the fact that the country they thought had perished, torn apart by mutiny and civil war had then suddenly became a powerful state feared by many. And that hypnotic element of seeing Russia as a very special country also has a part to play.

Today, I think, there is a general agreement – not only among intellectuals but in wider circles including state leaders - that Russia should not build walls and separate itself from Europe. Russia is also Europe. European values are as important for us as they are to the ‘traditional’, ‘classical’ Europe. We insist on being different, though. I doubt that any nation would give up its national identity, yet we consider ourselves, along with other people living in Europe, as part of a common European home.

As the chairman of the Russian Bar, do you consider it right that a considerable number of Russian lawyers - or people who call themselves lawyers - are not members of any professional organization?

Of course, it’s not right. We began raising the matter about five years ago. Unfortunately, no one listened. Some members of the establishment, including some members of the Ministry of Justice, used to believe that there was a kind of healthy competition going on between advocates and other lawyers. According to these unfortunate zealots of free competition clients should choose whom to hire.

Now, according to public statements, the position of the Ministry of Justice has changed. Today the common position of the ministry is that this dualism must be overcome. It is unacceptable when people who don’t follow any moral or professional standards - and even those who have no connection to the legal profession - can claim to be able to resolve legal issues. Of course, this situation is totally intolerable and I hope that we shall be able to take some concrete steps to change this situation soon.

I think advocates should have the monopoly on representation in court. I must say that the vast majority of the judiciary supports this view, especially judges in commercial courts.

The monopoly does not need to be absolute. On an exceptional basis non-advocates can be allowed to take part in certain categories of disputes, but they should be qualified lawyers, not just any person. But if so, this must the exception that only proves the general rule.

The next step should be that no one without legal education should be admitted even to legal advising. People who have the right to do so must be licensed. Obtaining this license should not be like buying indulgences, but must be accompanied by a test – and this should be only for a transitional period, since the aim of the reform is to create a single corporation of lawyers, all of whom must be advocates.

Let’s talk about the relationship of advocates and the notary public. Perhaps you know that in the U.K. the institute of notaries is less developed than in Russia. The reason is that solicitors have the right to make, if not all notarial acts, but a significant part of them, whereas in Russia if you need to witness a signature or make a will, you go to a notary. An advocate can’t help you here. Is that a sign of a general distrust of advocates by the Russian state?

I think that is an example of adherence to a tradition that has evolved over many years. Also, advocates in Russia do not make any claims on any else’s work, some part of the cake from the notary. Now we have so many problems in building up the legal profession that taking powers from notaries isn’t relevant.

Historically, we know, the Soviet government viewed advocates with suspicion. Kerensky, Lenin were advocates - Lenin was not very good, Kerensky was a good one. Today, the heads of state are also lawyers, but they are not advocates: Gorbachev, Putin, Medvedev were all lawyers, but none of them is an advocate. How would you characterize the relationship of advocates and the Russian state?

It’s impossible to give a one-sentence answer because it wouldn’t be accurate. The fact is that the Russian government, like every other country’s, has hundreds of heads and thousands of hands. It has many institutions and many people to run them.

If we are to analyze the relationship between advocates and legislators, I would say that this is a level of relations that has never happened in Russia before, neither before the Revolution nor during the Soviet period. We have the right to give formal opinions on bills related to legal aid, human rights and freedoms of citizens. Though it is not without nuances but we certainly see understanding here.

On the other hand we still have difficult relationships with prosecutors and with all law enforcement agencies.

In our country, the prevailing view was that an advocate was not a suitable candidate for a judicial office. So to call a spade a spade, the very fact of being an advocate is considered as compromising. Unfortunately, our country is not unique in this. I hope that this discriminatory provision will soon be the thing of the past.

If we open the Russian market to the unrestricted entrance of foreign law firms, we would deliberately put Russian lawyers into an unfavourable position

We have a very constructive relationship with the Ministry of Justice. By law, the ministry has the right to perform certain supervisory functions, but the list of these functions is very limited. I disagree with the opinion, which is often heard in the press, especially in the West, that the legal profession is under the total control of the state. It is not true.

There are attempts by certain representatives of investigation, the police and members of the prosecutor’s office to ignore the status of an advocate and the role he or she is to play in criminal proceedings. Still, by common effort we usually can find a redress to this.

On the other hand, it cannot be ignored that in Russia there are many cases of attacks on advocates which often take violent and cruel forms, beating and sometimes more extreme measures. However this happens to other people besides lawyers. I am convinced that as the overall situation with law and order in our country improves such cases will disappear.

What is the relationship of the bar and the large, very influential body of foreign lawyers practising in Russia?

Basically we don’t pay much attention to one another. Both sides know what they are, they are acting within their territory. In my opinion, this is a totally abnormal situation. The activities of foreign lawyers must be seen on the basis of the law on advocacy, yet some time ago they went beyond the scope of this regulation and now they operate, as it were, de facto, ad hoc: if you have done so once, and no one said it was wrong, then you can carry on doing the same thing.

This seems to me to be a very serious problem which will inevitably arise while we are trying to reform the legal profession and the market for legal services.

Russia can consider European experience here when foreign legal corporations were granted the right to work in a country without restrictions. In Europe there are examples of different approaches, including those when the interests of the national legal community are taken into account.

It seems to me that many years of the absence of such a regulation has led to the fact that one group - the advocates - work within the framework of state regulation, while their competitors are not constrained. Foreign law firms may be well regulated by their internal rules and, hopefully, comply with the standards of the legal profession but even so they are not regulated by the state.

Russian authorities look at this situation with their eyes half-closed at the moment. I think if we open the Russian market of legal services to the unrestricted entrance of foreign law firms, we would deliberately put members of the Russian legal profession into an unfavourable position because that would be unfair competition.

Do you think that a member of the bar should be able to become head of Russia as the situation was about 90 years ago?

(Laughs) I consider myself an historical optimist, but even I can hardly imagine this happening in future decades. Furthermore, we have bitter experience of the time even before the Revolution when advocates were in charge of Russia. Unfortunately, nothing good happened. It is, of course, a joke but in every joke there is an element of truth.

I don’t think it is necessary. My view is that adherence to the rule of law and the principles of democratic society should be the fundamental to any representative of the legal profession and not the profession per se. If respect for human rights, the principles of a multi-party system, maintenance of judicial independence, political competition are to become a personal belief for each lawyer everything will be fine.

Photo courtesy of the Russian Chamber of Advocates