Defending Rights in Russia: Lawyers, the State and Legal Reform in the Post-Soviet Era

Vol. 16 No. 3 (March, 2006) pp.215-217

DEFENDING RIGHTS IN RUSSIA: LAWYERS, THE STATE, AND LEGAL REFORM IN THE POST-SOVIET ERA, by Pamela A. Jordan. Vancouver: UBC Press, 2005. 304pp. Hardcover C$85.00. ISBN: 0774811625. Paper C$29.95. ISBN: 0774811633.

Reviewed by William E. Pomeranz, J.D., Ph.D, Attorney, Reed Smith, Washington, DC. Email: wpomeranz [at] reedsmith.com

The case of imprisoned oil magnate Mikhail Khodorkovsky has refocused attention on Russia’s development as a rule of law state. Not only has the newly-updated Russian criminal code come under assault as a result of this prosecution, so too has the legal profession (the advokatura). In several instances, the Russian state has demanded that individual lawyers associated with Khodorkovsky’s defense be sanctioned for what it perceives as violations of professional ethics. Such attempts, however, have been summarily rejected by the profession’s disciplinary bodies in a display of independence inconceivable during Soviet times.

The Russian advokatura’s attempt to carve out – and defend – its professional autonomy in post-Soviet Russia is one of the important themes explored by Pamela Jordan’s DEFENDING RIGHTS IN RUSSIA: LAWYERS, THE STATE, AND LEGAL REFORM IN THE POST-SOVIET ERA. The advokatura represents a relatively small number of legal practitioners in Russia, namely those assigned to provide legal representation in court. It does not include judges, prosecutors, law professors, and in-house counsel, nor does it incorporate many jurists who simply handle commercial matters at law firms. Nevertheless, as Jordan’s research demonstrates, the advokatura’s professional evolution – both on an institutional level and through its daily legal activities – serves as an important barometer of political change and Russia’s development of civil society.

In her introductory chapter, Jordan provides a comprehensive historical overview of the Russian advokatura from the time of its creation in 1864 through the Brezhnev period. Succeeding autocratic and authoritarian regimes attempted, with varying degrees of success, to limit the profession’s corporate autonomy and independence. Jordan then focuses on the advokatura’s delicate relationship with the Russian state from 1985 to the present. She discovers that there was no grand plan to reform the legal profession under Gorbachev. Although the Soviet state was willing to grant greater corporate autonomy to the regional college of advocates – the governing body of the Soviet advokatura – it nevertheless wanted to retain overall control over admissions, discipline, and professional standards. In the early 1990s, however, advocates began to open new colleges and other forms of association that directly challenged the more established colleges of advocates. The Ministry of Justice permitted these alternative colleges for several reasons: to increase the number of advocates in the regions, raise additional tax revenue, and prevent [*216] the advokatura from becoming a powerful, unified interest group.

Jordan is particularly strong at describing the differences between these competing parallel colleges and the tension that they produced within the advokatura. The new colleges were more entrepreneurial than their established Soviet counterparts and took advantage of the business opportunities presented by perestroika. A college affiliation was still necessary, however, primarily to retain certain tax benefits. In contrast, the old colleges relied on criminal defense and continued to practice law through more traditional methods, such as working at consultation bureaus. Jordan skillfully recreates the “Soviet” atmosphere of these bureaus. They were, as she recounts, more akin to barbershops, where people would just drop in for routine legal services, rather than a western law office.

No sooner had the Russian state granted the advokatura greater autonomy than it reversed itself and attempted to reassert state supervision. Jordan provides a penetrating analysis of the critical negotiations in the late 1990s between the Russian state and the advokatura – and between the competing internal structures within the profession itself – to reform the advokatura. What ultimately emerged was a 2002 law that created a Federal Chamber of Advocates to represent the advokatura’s national interests. The 2002 law also abolished the multiple colleges of advocates and instead established a regional chamber of advocates for each of Russia’s 89 regions.

Jordan describes the interesting compromises that went into drafting this legislation and its ultimate impact on the advokatura’s professional status. For example, Jordan points out that advocates agreed to limit their work to legal assistance, as opposed to for-profit legal services, in return for assurances from the Russian state that their workplaces would not be taxed at higher rates and other perks. Alternatively, while the Russian state gained increased control over the group’s internal structures, this control was not absolute. For example, while the new law allows for the appointment of state representatives to the advokatura’s qualification commission – the body that oversees professional discipline – the advokatura retain a majority on that commission. Jordan views the 2002 law as evidence that, while retaining its overall independence, the advokatura remains internally weak and plays only a limited public role in Russia today.

Jordan’s book also focuses on the criminal and civil practices of advocates and how their daily activities influence Russia’s legal development. She finds that while some advocates embraced Yeltsin’s economic reforms, there was no mass exodus into commercial practice. This reflected the political orientation of advocates (many, after all, had been Communist Party members) as well as their conservative professional instincts. Advocates often preferred the traditional practice of working at a legal consultation bureau and conducting appointed criminal defenses rather than the uncertainty (and potential greater rewards) of independent practice. That said, some of those lawyers were [*217] prepared to take risks and acquire new tax, finance, corporate, and other legal expertise demanded by a market economy. These new opportunities, however, have not been as extensive as the advokatura might have anticipated. Jordan specifically points to failure to extend its professional monopoly to civil representation, with important consequences for the long-term economic status of its members.

Jordan also provides a thorough discussion of the advokatura’s role in criminal defense, especially in light of the procedural reforms brought by the 2001 Criminal Procedure Code. She pays particular attention to the participation of advocates in jury trials and their willingness to take an adversarial position vis-à-vis the state. Jordan further describes how the Russian advokatura has followed its pre-revolutionary ancestor and actively participated in the major political trials of the post-Soviet period (Mirzaianov, Nikitin, Khodorkovsky, and so on). In this sense, she captures the unique political role that the advocate group currently plays in Russia. Through their professional activities, individual Russian advocates serve as some of the most prominent defenders of individual and human rights in Russia today. Yet, despite this important public forum, Jordan remains pessimistic about the advokatura’s overall ability to change legal attitudes in Russia.

Jordan’s book represents a major contribution to the study of Russian legal institutions, as well as post-Soviet Russian politics. As such, the book should be of interest to Russian specialists as well as a broader audience interested in comparative law and the development of civil society. Her exemplary scholarship includes thorough consideration of available literature as well as numerous interviews with leading Russian advocates and jurists. She squarely places Russia in the civil law tradition, which should be particularly helpful to readers who are more familiar with the common law system. Her study also gets beyond Moscow and St. Petersburg and looks at how advocates outside the major legal centers have adapted to their new conditions and practice law. As Jordan herself implies, however, in light of the advokatura’s failure to establish a professional monopoly over civil representation, any future study of Russian lawyers will need to move beyond the advokatura and examine how other private jurists influence Russia’s legal practices. Nevertheless, Jordan’s comprehensive discussion of legal history and current practices will serve as mandatory reading for scholars interested in Russian politics and understanding Russia’s uneven attempts – both past and present – at legal reform.

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