On the protection of professional rights of advocates in cyberspace

At the Conference “The Bar. The State. The Society” organized by the Federal Chamber of Lawyers of the Russian Federation Denis Puchkov spoke on the topic “The Protection of Professional Rights of Advocates in Cyberspace”.

Major statements made by Denis Puchkov:

“It is common knowledge nowadays that digitalization has reached us so unexpectedly that we were forcibly involved into it. We can hardly imagine our life without the Internet, e-mail, messages, and without social networks. In their work advocates use different software to register their working time, to store their documents and maintain electronic documentation. Advocates’ files are becoming thinner because advocates prefer using computer technologies, bringing to court not huge volumes of papers but a laptop with scanned documents. All this makes up our common cyberspace, even including our geolocation in this hall. It is questionable whether we still preserve independence in such a situation. In the electronic world many questions (How can advocates protect other files if their computer is seized just for one document? Can the data on the time spent by the lawyer be seized? Is it protected by the privilege between the lawyer and the client? etc.) and other matters concerning the confidentiality of information remain at present unsolved. The question of protecting the electronic space of advocates from outside attacks also remains without an answer. Our advocates’ files as well as other data are not protected at all; in case someone decides to interfere with our work, they can easily destroy our server and paralyze the activities of advocates; however, such actions are prohibited by Article 18 of the Law on the Bar. We are also not protected from our opponents’ and well-wishers’ attacks in social networks. Anyone can ruin an advocate’s reputation on the Internet and informational electronic space just by making two clicks and they will not be liable for that.

Dear colleagues, as early as on December 1, Pravo.ru published an article Lawyers at Risk, stating that 45 advocates have been killed since 2001, i.e. three people a year on average. The latest case concerned Natalya Vasilina, a member of the Moscow Bar; the crime has not been solved yet. The Federal Chamber of Lawyers has called for investigating this crime as thoroughly as if the crime has been committed against law enforcement officers. This article contains information on how advocates experience pressure both physical as well as mental. But in fact, despite the gravity of a situation requiring legislative solutions, the state guarantees no protection. There are numerous examples how foreign legislation regulates such issues: e.g. Article 365 of the Criminal Code of Kazakhstan or Article 397 of the Criminal Code of Ukraine provide for a liability for interference in the activity of an advocate or of a representative of a person when rendering legal assistance or for violation of guarantees of their activity and privilege established by the law. The Russian legislation does not provide for such protection; in particular, Article 294 of the Criminal Code of the Russian Federation grants such protection only for judges, investigators and inquiry officers. Besides, Articles 295 and 296 of the RF Criminal Code do not extend to other representatives, for example, in civil and arbitration matters, as well as representatives of the aggrieved party in criminal cases. It proves that the legislator has been very preferential in matters of protecting advocates from infringement on life and health, including protection from violence. Besides, as it is confirmed by Article 298 of the RF Criminal Code, the legislator considers that if a participant is a professional, no slander or libel will affect him. It concerns a prosecutor, a judge, an investigator, even a juror, but not an advocate.

In my view, professional protection of advocates’ rights is extremely important; in this connection I would like to support Tatyana Morshchyakova who insists on clarifying the regulatory rules of the Law on the Bar to include protective mechanisms of criminal and administrative legislation by amending Article 294 of the RF Criminal Code changing its name into “obstruction to justice, preliminary inquiry and advocates’ activity”.

Making this small step, we will make the status of an advocate higher. It is of paramount importance because it can save lives of our colleagues and increase the status of an advocate in particular and generally of the Bar. This is an objective laid down by the Ministry of Justice in its Concept on uniting lawyers”.