June 22, 2024

Saluti Law Medi

Rule it with System

Attorney Monopoly in Azerbaijan: Balancing Access and Integrity or Failing Legal Aid?

The institute of advocacy stands as one of modern society’s most pivotal institutions, evolving and enhancing itself continually. Established to uphold the principles of justice, fairness, and legal representation, the Institute of Advocacy plays a crucial role in safeguarding individuals’ rights and ensuring equitable access to legal recourse. Its tireless dedication to promoting access to justice and upholding the rule of law underscores its main role as a cornerstone of democratic societies.

Advocacy champions the values of accountability, transparency, and ethical conduct, fostering trust between legal practitioners and the communities they serve. In navigating the complexities of legal systems, the institute of advocacy provides invaluable guidance, training, and support to aspiring lawyers, ensuring a robust and competent legal workforce capable of upholding the rule of law.

Within the context of state policy in contemporary Azerbaijan, a legislative reform is underway, aiming to regulate the provision of qualified legal assistance. This reform essentially entails the establishment of what can be termed as “attorney monopolies”.

What exactly does “attorney monopoly” entail, and does Azerbaijan truly necessitate such a monopoly? Addressing this query underscores the imperative for conducting a sociological survey among civil society, the primary recipients of legal services. Undoubtedly, the cornerstone of this discussion lies in the element of trust.

An attorney’s monopoly refers to the amalgamation of professionals tasked with providing qualified legal assistance according to a standardized protocol. Practically, this monopoly restricts court access solely to lawyers bearing the advocate status.

Crucially, the introduction of this system should not aim at constricting the pool of individuals eligible to provide legal assistance. Proponents of this concept align it with the overarching objectives of ensuring equitable access to high-quality legal services, elevating citizens’ legal literacy, and enhancing the efficacy of judicial and law enforcement mechanisms.

In this context, a pertinent question arises: what sets apart representation from the Bar? The distinction lies in the fact that while anyone can represent themselves in court, lawyers are entrusted with upholding the integrity of the justice system and furnishing professional legal aid, contingent upon possessing a higher legal education.

The Civil Procedure Code of Azerbaijan stipulates citizens’ right to litigate either in person or through designated representatives. These representatives may include lawyers lacking the advocate status, individuals devoid of advanced legal education, or even those lacking any formal education.

An attorney’s monopoly bears several adverse ramifications, including:

  • Infringement upon individuals’ rights to legal representation, thereby curtailing the freedom to choose a representative, as enshrined in the Azerbaijani Constitution.
  • Inadequate legal representation due to a shortage of lawyers capable of addressing citizens’ diverse needs.
  • Elevated tax burdens and fees imposed upon lawyers.
  • Escalated costs of legal services, rendering them unattainable for many, akin to the situation witnessed in Russia upon the enforcement of such a monopoly. This has led to the fact that the cost of lawyers’ services (which is still not regulated) has increased to such limits that legal assistance has become practically inaccessible, and its quality has significantly decreased. Therefore, in 2004–2005 Russia decided to abandon the monopoly. Paradoxically, today in Russia they have decided to return to it again in the form of “carrying out advocacy activities” based on the rules and standards established by the legislation of the Russian Federation.
  • Increased pressure on independent lawyers, akin to the situation witnessed in Uzbekistan upon the enforcement of such a monopoly. As an illustrative example, the Chamber of Lawyers of Uzbekistan has developed amendments to the Rules of Professional Ethics, prohibiting lawyers discussing government agencies and officials, or posting materials that “could create a feeling of mistrust in the reforms being implemented.”

Furthermore, the influx of numerous new members into the legal fraternity would not enhance but inevitably diminish service quality. The bar examination, purportedly a gatekeeper, fails to serve as an effective deterrent, particularly given its exorbitant fee. If proponents truly believe in its efficacy, efforts should be directed toward enhancing legal education standards and the rigor of final assessments.

Implementing an attorney’s monopoly fails to resolve contemporary issues and, instead, exacerbates accessibility and affordability concerns while failing to ensure superior legal aid. Such a move risks monopolizing the legal market, driving up service costs, and curbing accessibility, ultimately diminishing quality.

Hence, non-advocate lawyers would be precluded from acting as representatives in legal proceedings, contravening Article 61 of the Constitution of the Azerbaijan Republic, which guarantees the right to competent legal assistance. Thus, lawmakers should explore alternative avenues to bolster citizen protection interests, as neither Azerbaijan nor other post-Soviet nations are presently prepared for such sweeping reforms.

Consequently, advocating for the monopolization of legal practice fails to enhance legal aid quality; instead, it poses a threat to the legal community’s integrity.

Azerbaijan has only one bar association, while in all countries with a developed legal system and culture, advocacy is not monopolized and, as a rule, there are regional bar associations. Azerbaijan did not agree to this, since the demonopolization of advocacy would lead to certain political consequences. Monopoly here, as in economics, reduces quality. Governmental authorities appoint the majority of members of the qualification commission and this indicates the dependent position of the structure that accepts lawyers. Although the independent selection committee should not include representatives of governmental authorities. The monopoly is problematic not only because lawyers are unfairly advantaged in the market for legal services.

The monopoly not only jeopardizes price stability in the legal sector but also compromises the autonomy of the legal profession. Monopoly confers control over so-called “entry” and “exit” from the profession, thereby wielding unchecked authority. Is such a system perilous for post-Soviet countries, whose primary objective in this endeavor is political rather than the genuine professional and legal commitment to safeguarding citizens’ rights and freedoms? This query remains rhetorical, necessitating no explicit response.