Eliminate the violation in full and restore the violated rights, freedoms and legitimate interests and cancel the disciplinary measures applied to her and restore her membership
T. appealed to the court with a statement in which she asked to recognize the actions of the members of the Presidium of the Almaty City Bar Association (hereinafter – AGCA) and the decision of the AGCA Presidium dated November 3, 2016 as illegal and to cancel this decision, as well as oblige the AGCA Presidium to eliminate the violation in full and restore the violated rights, freedoms and legitimate interests of T., to cancel the disciplinary measures applied to her and restore her membership in the AGCA Board. By the decision of the District court No. 2 of Almaly district of Almaty dated January 12, 2017, T.'s application was denied. By the decision of the Judicial Board for Civil Cases of the Almaty City Court dated April 10, 2017, the court's decision remained unchanged, with the exception of the reasoning part of the decision. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance. The petition of the Presidium of the Almaty City Bar Association was partially satisfied on the following grounds. The court of first instance, refusing to satisfy the applicant's claims, proceeded from the fact that the fact of T.'s commission of misconduct, expressed in violation of the Law "On Advocacy", the provisions of the Charter, decisions of the Presidium of the AGCA and the Code of Professional Ethics of Lawyers, had been established in court. The Judicial Board for Civil Cases of the Almaty City Court agreed with the conclusions that T. had committed unlawful acts in his practice of law that violated the Code of Professional Ethics of Lawyers, but considered that there was no evidence that T. and she had previously committed gross violations for which she was disciplined, there is no evidence.
Therefore, in the opinion of the court of Appeal, when imposing a disciplinary penalty by the Presidium of the AGCA, all the factual circumstances and the severity of the disciplinary offense committed by T.'s lawyer were not properly taken into account, and the disciplinary punishment imposed on her is excessively severe. While leaving the court's decision unchanged, the court of appeal concluded that the decision of the Presidium of the AGCA of November 3, 2016 had become invalid. The conclusions of the court of appeal cannot be recognized as based on the law, since they contradict the factual circumstances relevant to the consideration of the case. It follows from the case file that, according to the results of the audit of the initiated disciplinary proceedings, in accordance with the decision of the AGCA Presidium dated November 3, 2016, lawyer T. was excluded from the AGCA membership and filed a petition to the licensor to prepare a statement of claim for the termination of T.'s license. to practice law for gross and repeated violations of the requirements and norms of the Law on Advocacy, the principles of organization and activity of the bar, enshrined in the Charter of the AGCA, the Code of Professional Ethics. The reason for bringing lawyer T. to disciplinary responsibility was a written appeal from the senior investigator for the Department of Internal Affairs of the Department of Internal Affairs of the city of Almaty K. dated August 19, 2016, with a request to investigate the situation regarding the provision of legal assistance by AGKA's lawyer, T., in the interests of the remandedly arrested R. according to the criminal case currently under investigation at the stage of pre-trial investigation.
Eliminate the violation in full and restore the violated rights, freedoms and legitimate interests and cancel the disciplinary measures applied to her and restore her membership
An audit was conducted on this appeal, during which it was established that lawyer T., in the absence of a legally concluded agreement on the provision of legal assistance in the interests of R., arrived at the LA-155/18 Facility of the Department of the Committee of the Criminal Executive System for the City of Almaty and the Almaty region, where, without legal authority, having presented a warrant to the special unit, Corresponding in its parameters to the form of the warrants issued by the AGCA, R., who was in custody, was summoned for a meeting. Then, having misled the remandedly arrested R. about the situation in the case, T. She persuaded her to refuse the services of the defenders V. and S. who assisted her, imposing their services on the suspect. At the same time, T., in the absence of the named lawyers, without informing them, took away from the suspect a written statement on the refusal of the services of the named defenders, a copy of which was subsequently submitted by T. on her own initiative to a meeting of the Presidium of the AGCA. In addition, T. spoke negatively about her colleagues who had already joined the case, and also promised the suspect R. and her son A. a positive outcome of the criminal case. According to article 13 of the Law of the Republic of Kazakhstan "On Advocacy" (hereinafter referred to as the Law), the powers of a lawyer to conduct a specific case are certified by a warrant issued by a legal consultation or law firm, and when they carry out their activities individually without registering a legal entity, by the presidium of the bar association. The form of the warrant is approved by the Ministry of Justice of the Republic of Kazakhstan. Control and accounting of the issuance of warrants are carried out by the Presidium of the Bar Association. By virtue of the requirements of article 15 of the Law, a lawyer is obliged to comply with the norms of the legislation of the Republic of Kazakhstan and the Code of Professional Ethics of Lawyers (hereinafter referred to as the Code) in the performance of his professional duties. According to Article 10 of the AGCA Statute, lawyers may be disciplined for misconduct in violation of the Law on Advocacy, the provisions of the Statute, decisions of the Presidium, and the Code of Professional Ethics of Lawyers. Disciplinary proceedings may be initiated by the Presidium and the Chairman of the Presidium. The subject of disciplinary proceedings is the actions (inaction) of a lawyer that discredit the honor and dignity of a lawyer in public opinion, detract from the prestige of the profession and the authority of the bar, facts of misconduct in the practice of law, non-fulfillment or improper fulfillment by a lawyer of professional duties or decisions of the Collegium.
In accordance with Article 10.9 of the AGCA Charter, one of the disciplinary measures imposed by the Presidium is the expulsion of members of the Board by submitting a petition to the licensor to prepare a statement of claim for termination of the license to practice law. In addition, according to Article 6.2.3 of the AGCA Charter, an attorney is excluded from the Board by the Presidium in the event of a gross or repeated violation by an attorney of the requirements and norms of the legislation of the Republic of Kazakhstan, the principles of organization and activity of the bar, enshrined in the Charter, the rules of professional ethics of lawyers in the performance of their duties. According to articles 2 and 6 of the Code, a lawyer in his professional activity must be aware of his mission to serve the law and the law, to promote the establishment and practical implementation of the principles of the rule of law and strict observance of legality. Caring for the prestige of the profession, preserving the honor and dignity, and the authority of the legal profession is the moral duty of every lawyer. The behavior of a lawyer must comply with the requirements of the law and the principles of morality both in providing them with legal assistance, as well as in their everyday and personal lives. Behavior that discredits the title of a lawyer undermines public confidence in the institution of the bar and is incompatible with legal status. In cases where the issues of professional ethics of a lawyer are not regulated by the law on advocacy or the Code, the lawyer should adhere to the customs and traditions established in the legal profession, the content of which corresponds to the general ideals and principles of morality in society. A lawyer in his professional activity must show honesty and decency, not resort to deception, threats, blackmail, bribery, the use of severe material or personal circumstances of others, as well as other illegal means to achieve his professional or personal goals. According to the requirements of article 12 of the Code, a lawyer cannot participate in a case if the obligation to provide legal assistance is not formalized in accordance with the requirements of the Code and the legislation on advocacy. The lawyer has no right to make promises to the client regarding the positive result of the execution of the assignment or any guarantees and assurances about the successful resolution of the case and generate hopes for the client by referring to his experience or special relations with officials.
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