[Home Page] [Office Location] [Biography] [Resources] [Legal Notices] [Send a Message]
|
I. INTRODUCTION VII. LEGAL EDUCATION VIII. CONCLUSION When a lawyer in the United States seeks the assistance of another lawyer to advise on a Lawyers in the United States have at least had some conceptual comparisons between the This paper focuses on aspects of the Soviet legal system that continue to affect the legal II. LEGAL PROFESSIONALS IN LITHUANIA When seeking competent counsel in Lithuania, what are the hallmarks of a competent lawyer? In the United States all legal professionals are lawyers, whether they are prosecutors, defense attorneys, civil litigators or judges. In Lithuania, all legal professionals(3) also have similar educational requirements, but, as is common in many European countries, Lithuania does not have a unified legal profession.(4) In addition to judges and prosecutors, there are two forms of legal professionals: advokats (advokatai), and jurists. These classifications date back to Czarist times, when there were "advokats" and "jurisconsults" ("jurist" now being the preferred term). A third form, the teisininkai, existed for only a short time, until recently. Because of this recent change, and possible confusion when Lithuanian legal professionals use the title "Attorney at Law" in English language versions of their publications, U.S. lawyers seeking to contact competent counsel in Lithuania, will most likely want to consult with a duly licensed advokat. A. Advokats Advokats are both university educated and licensed to practice law.(5) They may appear in all courts, but cannot be employees of private corporations or businesses. They can be, however, employees of other advokats. While requirements for a license have always included an oral bar exam, in 1999 the subjects covered were expanded to ten. While the advokats do have a Bar, the Advokatu Taryba, it is not active. As a result, the advokats have no organized independent Bar to promote their interests, supervise their conduct or sanction unethical conduct.(6) B. Jurists As with the "jurisconsults" before the 1917 Revolution, jurists are still prohibited from working for independent corporations or have clients, and are not controlled by any licensing board. Jurists in Lithuania are usually employees of companies, and function as in-house counsel. They may appear in court with powers of attorney. This practice is based upon a theory of agency, in which a principal may be represented by an agent, and therefore can give anyone the power of "agency" that will then allow the agent to appear in court for the principal.(7) In practice, however, outside parties often contract the services of a jurist by making arrangements with the jurist's employer-corporation to handle specific legal matters in which the jurist is given a power of attorney to handle any court proceedings. In these arrangements, the corporation collects the fee for the jurist's advice. This practice is unregulated and formally improper.(8) The law states that those persons who are not listed in the Practicing Advokats list cannot work as advokats (give legal advice), unless they are employees subject to employment agreements. These employees may perform legal services only for that business, office, organization in which they are employed, and persons listed in the Civil Procedure Code. Violation is punishable according to the laws of the Republic of Lithuania.(9) C. Teisininkai A third classification of legal professional, the Licenzijuoti Teisininkai (or Teisininkai), existed for about three years, from 1996 until 1999.(10) After passing an oral exam given by the Teisingumo ministerija (justice ministry), individuals were issued a license allowing them to practice before the courts in all civil matters. Similar to jurists, they did not have a Bar or ethical board or review committee. The teisininkai were similar to U.S. lawyers in the sense that they could work on their own or be employed by a corporation. Teisininkai could practice law as sole proprietors, create corporations, or work for corporations that would have clients who would be represented by the teisininkai. They were also permitted to work for the government, but in which case they could have no other employment. At the beginning of 1999, there were approximately 800 teisininkai in Lithuania. When the classification of teisininkai was abolished, all those who were teisininkai lost their licenses and were required to become advokats in order to continue to practice law.(11) III. HISTORICAL BASIS OF THE LEGAL PROFESSION IN LITHUANIA The functioning of the contemporary Lithuanian legal profession is best understood in the context of the Soviet system it inherited in 1991 and the Russian legal systems before it. A. Before 1917 In Czarist times (prior to the Revolution in 1917), Russian private lawyers, or advokats, were divided into two branches. Sworn advokats were an elite group of university-educated lawyers who were permitted to practice before any court in the Empire. The private advokats were more traditional providers of legal services. They were not required to meet any educational or apprenticeship requirements, and could only practice in courts in which they were certified.(12) B. After 1917 After the 1917 Russian Revolution, the Bar was transformed, reflecting the Marxist belief that law and jurists would be unnecessary when the dictatorship of the proletariat was achieved. The practice of law was opened to all and previous educational requirements were abolished. Law schools were closed and replaced by "faculties of public sciences," and many legal subjects were replaced by Marxist theory. As a result, many advokats emigrated or left the profession.(13) The Russian Bar experienced some reestablishment and independence after Lenin's 1922 New Economic Policy took effect. Law faculties began to reappear at various universities, and "law institutes" were created to train staff for ministry and administrative positions. Legislation established "colleges of defenders" in each region of the country, and practitioners were permitted to practice privately on their own, receiving clients at home. Some began consulting on a part-time basis for enterprises and organizations, until about 1928, when the defenders were pressured to collectivize into cooperative structures in which labor and resources were shared by the members. Until 1939 and World War II, the legal profession throughout the region of the United Soviet Socialist Republic (U.S.S.R.) tended to side with conservative or even fascist regimes.(14) C. 1939 Statute on the Bar The Soviet legal professions that Lithuania inherited when it became independent in 1991 were created in their essential form in 1939 by the U.S.S.R. Statute on the Bar (1939 Statute). The 1939 Statute changed the legal profession and set the pattern of legal development in the U.S.S.R. for the next forty (40) years. The former colleges of defenders were renamed colleges of advokats. Collective cooperatives were abolished and replaced with "legal consultation bureaus" that were subordinate to the regional colleges of advokats. Private legal practice was essentially eliminated and all advokats were required to join the legal consultation bureaus. Supervision of the Bar was removed from the republics and centralized in the government, primarily the U.S.S.R. Justice Commissariat. The Commissariat issued directives that were binding on all colleges and gave government officials substantial control over admission to and expulsion from the Bar.(15) The 1939 Statute also restricted the practice of jurisconsults and the staff legal advisors for state enterprises. Since 1992 with the beginning of the New Economic Policy, many advokats had held dual positions as members of the Bar and as jurisconsults. The 1939 Statute, however, prohibited dual positions, thus requiring lawyers to choose between the Bar and their state positions.(16) When pre-Revolutionary advokats found their profession under attack in 1918, many took up positions as jurisconsults to various state and private enterprises. As employees, jurisconsults could work on non-controversial issues away from party politics. But in doing so, jurisconsults lost their professionalism and autonomy. They were often given minimal or non-legal tasks, were not officially recognized in the legal profession, and were not permitted to represent parties in court or arbitration, even on behalf of their own enterprises. As a result, the jurisconsults suffered a substantial loss of prestige. The 1939 Statute banned advokats from becoming permanent staff of any enterprise, thereby ensuring that jurisconsults would remain a separate, less respected occupation, viewed more as employees than true legal professionals.(17) This pattern of the Soviet legal system expanded to Lithuania when it was occupied by the Soviet Union after World War II. Legal professionals in the region absorbed into the Soviet Union after World War II who then became Soviet citizens, were subject to the 1939 Statute on the Bar. Existing Bars in Latvia, Lithuania, Estonia, and portions of Western Ukraine taken by Poland were replaced by Soviet structures, with local variations. As in the early days of the Revolution, advokats from those regions fled, were purged, became jurisconsults, or took up other occupations. Common to each country was the degree to which the Soviet Communists gained control over the private Bars.(18) IV. THE INFLUENCE OF THE SOVIET SYSTEM It is therefore not surprising that in Lithuania today, the most pervasive problem still affecting the advokats is their lack of ethical behavior, and lack of knowledge about what constitutes unethical behavior. Many, particularly the older advokats who did well by playing by the rules of the old regime, see little value in changing to a more ethical pattern of practice.(20) Concepts such as "conflict of interest" have neither linguistic nor theoretical equivalents in many languages in the region. Codes of ethics or other standards governing the Bar seldom exist and, like many laws of the region, are seldom available.(21) Advokats are frequently criticized as viewing democratic changes as an opportunity to make money for themselves rather than as an opportunity to promote social reform. Discussions about Western ethical standards with advokats raise concern when they realize what conduct is prohibited. They do not understand why lawyers would voluntarily follow a code of conduct that would reduce their ability to make money.(22) A recent example from Lithuania illustrates how at least one Lithuanian lawyer continues operate in a manner that ensures his ability to profit at every
turn: In 1998, a practicing Illinois attorney who is Lithuanian-American purchased a flat in Vilnius, Lithuania, and used the services of a Lithuanian advokat. In setting the offering price, the client advised the advokat of both the preferred price for the flat and a higher price -- that was not to be disclosed -- that was the highest price that would be paid. In the course of the negotiation, the U.S. attorney learned that the advokat had approached the seller and initially offered the highest price (that was not to be disclosed), and returned to the buyer with a selling price yet above that, intending to keep the difference, thus collecting from both sides of the transaction.(23)
V. DEVELOPMENTS IN PROFESSIONAL ETHICS AND LEGAL EDUCATION VI. RULES OF PROFESSIONAL CONDUCT IN LITHUANIA The current version of the Rules of Professional Conduct for Lithuanian lawyers (Lithuanian Rules) was adopted on January 23, 1996, by the Bar of the Republic of Lithuania. The Lithuanian Rules cover five categories: General Provisions, Counsel-Counsel Relations, Counsel-Client Relations, Counsel's Relations with Justice and Power Bodies, and Counsel's Relations with Bar Bodies. This version of the rules was recently evaluated by the American Bar Association Central and East European Law Initiative (CEELI), referred to here as the ABA Analysis.(26) The ABA Analysis found the Lithuanian Rules to be excellent in their overall scope,(27) although lacking in some aspects of drafting (organization, some definitions, internal consistency, and lack of specificity),(28) and lacking specific rules in several substantive areas. The ABA's Analysis compares the Lithuanian Rules against the ABA Model Rules of Professional Conduct (ABA Model Rules) and, in doing so, evidences the U.S. perspective on the level of detail in the recommendations as to what the Lithuanian Rules should include.(29) The ABA Analysis does not take into account that, as a country seeking integration with Western Europe, Lithuanian rules of legal ethics should also consider the European perspective on the level of detail necessary in legal ethics rules. There is a traditional difference between the rules-based ethics of U.S. law and the code-based ethics of civil law countries. These differences relate to the significant difference in perception of codes of lawyer conduct between those jurisdictions such as the U.S. that follow "rules" that constrict discretion and those that follow "standards," general principles that allow greater discretion. In a civil law jurisdiction codes of conduct are considered general norms of professional behavior, rather than carrying the force of law, as in the U.S.(30) These differences are at the center of the international the debate on the adoption of a code of conduct for lawyers in cross-border transactions.(31) In Europe, the differences between civil and common law jurisdictions in how ethics are treated were addressed, to a large extent, in the Code of Conduct for Lawyers in the European Community (CCBE Code) promulgated by the European Economic Community in 1992(32) to be applied in all cross-border activities between lawyers within the European Community. As a country poised to become a member of the European Union, Lithuanian lawyers, who practice in a civil law jurisdiction, will soon become subject to the CCBE Code in cross-border transactions with other EU countries. For this reason, the ABA Analysis has less value to the Lithuanian Bar as a tool for improvement than it would if it also took into account the CCBE Code or a code of professional responsibility from a civil law country in Western Europe. While the ABA Analysis limits its analysis to a comparison of how the Lithuanian Rules compare to the ABA Model Rules, this format provides a U.S. lawyer with a helpful comparison in the ABA framework that most U.S. lawyers are familiar with. As a result, the ABA Analysis can be an important tool in finding and managing contacts with Lithuanian legal professionals. There are two areas of the Lithuanian Rules that are of immediate concern to a U.S. lawyer seeking to associate with a Lithuanian lawyer -- understanding to whom the Lithuanian Rules apply, and how the concept of competency is addressed. A. Applicability of the Rules As noted earlier, there is no unified Bar in Lithuania, and the wording of several rules has led the ABA to conclude that "it is not clear to exactly which persons the Rules of Profession Conduct apply."(33) There are several rules that clearly apply to defense attorneys, such as Rule 5: 5. A counsel, when representing the accused or the authorised personhas to remember, that his main goal in defending a client's
interest is to use legal defense and representation means and methods that would help the court to objectively investigate and define the offence.(34) (emphasis added.) None, however, clearly apply to a prosecutor. It may be, as the ABA Analysis notes, that prosecutors are covered by the wording of
Rule 2: 2. When performing his/her professional duty in justice and other government, public and commercial institutions, he/she shall protect the
interests of the client and the community and ensure enforcement of legal norms. (emphasis added.) Because the wording of Rule 8 suggests that "counsel" means something other than a prosecutor, and there are separate
rules of ethics for prosecutors, it is not clear if public prosecutors are covered by these rules. Rule 8 provides: 8. A counsel, being present at a preliminary investigation or court hearing shall act in the way that his/her speech, address, representations
or questions should not defer the court or a prosecutor's authority, discredit his/her colleagues or hurt the parties of the case, their counsels, authorized persons or experts.(35) (Emphasis added.) B. Competence 29. ... A counsel shall not plead a case in the following circumstances: * * * g) when the case is very complicated and the counsel himself feels that [he/she] will have difficulty in performing his/her duty.(36) As the ABA Analysis notes, it is not clear at what stage in the legal proceeding this rule applies, so in order to avoid problems with allegations of client abandonment, this decision would have to made at the beginning of the attorney-client relationship, where possible. Because there is no clear competency standard, U.S. lawyers who consult with Lithuanian lawyers should be aware that under Rule 29(g) a Lithuanian lawyer could ethically reach the conclusion that a matter is too complicated and difficult to handle at any time during representation. Further, Rule 29(g) of the Lithuanian Rules does not specifically allow such complicated and difficult representation to compensated for by undertaking the association of competent counsel, as allowed by the ABA Model Rules.(37) U.S. lawyers should also be aware that the ethics rules for Lithuanian lawyers have no requirement to obtain and maintain professional competence as do most codes of professional conduct regardless of their experience or speciality. VII. LEGAL EDUCATION In addition to the current Lithuanian Rules of ethics, there are signs of progress in the area of Lithuanian legal education. Consistent with European practice, a legal degree in Lithuania is essentially the same as a bachelor's degree in the United States. In the U.S., a law degree is a post-graduate degree. There are three schools of law in Lithuania, the Police Academy and the law school at the University of Vilnius, and the Vytautas Magnus University Law School in Kaunas. The Vytautas Magnus University Law School (VMU Law School) is the only law school in Lithuania that follows the American model, requiring a four-year undergraduate degree before enrollment. The VMU law degree is a three-year post-graduate program, requiring proficiency in English. Many of the instructors teach in English and are from the United States, including law professors and practicing lawyers. As of December, 1999 VMU Law School had 190 students enrolled. The current Dean at the Vytautas Magnus Law School is a U.S. lawyer who was educated and practiced in the United States.(38) VIII. CONCLUSION As illustrated by the ABA Analysis of the Lithuanian Code of ethics, there are significant gaps in legal ethics requirements. The Soviet history of the Lithuanian legal profession and anecdotal information suggest the practice of law in Lithuania has a long way to go to compare favorably with Western standards. For these reasons, any lawyer in the United States who seeks to associate with competent counsel in Lithuania must exercise extreme caution. At the present time, whether issued a license to practice law as an advokat or practicing as a jurist, the legal profession in Lithuania is largely unregulated and unsupervised, with no oversight for unethical behavior.
1. ABA Model Rule 1.1 Competence, Comment [2] "..A lawyer can provide adequate representation in a wholly novel filed through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question." 2. Ronald A. Brand, Professional Responsibility in a Transnational Practice, 17 J.L. & Com. 301, 322-335 (1998) (professional liability for advising on foreign law and responsibilities for the conduct of foreign lawyers). 3. In addition, as with other European countries, Lithuania has public notaries (notarai) who perform services that are often considered to constitute the practice of law in the United States. See, Notary Law & Practice: Cases and Materials, National Notary Association (Chatsworth, CA 1997), p. 1. The notarai are not discussed further in this paper. 4. For example, Austria has six different legal professions that require a legal education. Laurel S. Terry, An Introduction to the European Community's Legal Ethics Code part I: An Analysis of the CCBE Code of Conduct, 7 Geo.J.Legal Ethics 1, 9 (1993). 5. Tadas Klimas, Dean of the Vytautas Magnus University Law School, in comments at the Joint Forum of the Lithuanian bar Association and The John Marshall Law School on Legal Education and Professional Development in Lithuania, at The John Marshall Law School, Chicago, Illinois, April 24, 1999. 6. Id.; Tadas Klimas, in e-mail correspondence with the author between Dec. 6-10, 1999. 9. Id., Section 18.4 of the Advokaturos istatymas (1998 m. birzelio 25 d. Nr. VIII-811). The original text is as follows: 10. Teisininkai were abolished effective October 1, 1999. Id.; Tadas Klimas, comments, supra, note 5. 12. William D. Meyer, Facing the Post-Communist Reality: Lawyers in Private Practice In Central and Eastern Europe and the Republics of the Former Soviet Union, 26 Law & Pol'y Int'l Bus. 1019, 1021 (1995). 13. Id. at 1023. For example, in the four years between 1917 and 1921, advokats in the Soviet Union declined from 13,000 to 650. Id. 23. This incident was related to the author on November 11, 1999, by the attorney-buyer, who requests not to be named. 24. William D. Meyer, supra, note 11 at 1059. 25. For example, the professional background of the lawyers of Lideika, Petrauskas, Valiunas and Partners, a law firm in Vilnius that is one of the better known outside of Lithuania, includes the biographical information of its partners on their website at <http://www.tm.lt/ Catalogs/Ppvp/Partners.htm>. Several partners show scholarships to law schools in the United States, and two list LL.M. degrees, one from The John Marshall Law School in Chicago, and one from the Law Center of the University of Houston. 26. The ABA analysis is dated February 24, 1999, and includes the text of the analysis (pp. 1-15), and Appendices E (Rules of Professional Conduct for Public Prosecutor's Office staff in the Republic of Lithuania) and F (Rules of Professional Conduct). Copies of this Analysis are available at the Washington, D.C. offices of the ABA for US$ 20. Write to: ABA/CEELI, Legal Assessments, 740 15th Street NW, Washington, DC 20005-1022. Request the "Analysis of the Rules of Professional Conduct" dated February 24, 1999. 29. For example, in suggesting specific rules regarding fees when reviewing "Counsel-Client" relations, id. at 4. 30. Mary C. Daly, The Dichotomy Between Standards and Rules: A New Way of Understanding the Difference In Perceptions of Lawyer Codes of Conduct by U.S. and Foreign Lawyers, 32 Vand. J. Transnat'l L. 1117 (1999). 32. It was signed in Strasbourg on October 28, 1988, by twelve Member States of the European Community. It was implemented in all Member States and observer States to the CCBE: Austria, Cyprus, Finland, Norway, Sweden, Switzerland, and then Czechoslovakia. Mara M. Burr, Will the General Agreement on Trade in Services Result in International Standards for Layers and Access to the World Market?, 20 Hamline L.Rev. 667, 680 (1997). 35. Id., p.3 and Appendix F, p. 1. 38. Tadas Klimas became Dean of the Law School at VMU in March of 1998. He received his Juris Doctor degree from DePaul University in Chicago, Illinois in 1980, and Bachelor of Arts degree in political science from the University of Rochester, New York, in 1977. |
|
|
|
[Home Page] [Office Location] [Biography] [Resources] [Legal Notices] [Send a Message] |