Abstract
For the first ten years of independence there were few restrictions on who could act as a lawyer (an interesting parallel to the situation just following the Bolshevik revolution in Russia).1 None of the usual measures limiting the number of “producers”—quotas or formal exclusions, legal education requirements, mandatory apprenticeship, professional examination, mandatory bar membership—were in place.2 At least formally Georgian lawyering was a “free for all”. Two things are striking about this period.The first is that many lawyers actively opposed a state-mandated monopoly over lawyering. This fact seems to defy many of the comparative and theoretical assumptions about the “professional project” of market control and status enhancement. The second is the degree to which lawyers self-regulated, albeit in a splintered way, in the absence of state regulation or roots in civil society. In June 2001, roughly ten years after independence, the Georgian Parliament finally passed a law on the bar establishing a mandatory association and prescribing examinations.3 However, it is likely that the law—which came about as a result of prompting more from the Council of Europe than from lawyers—will be somewhat of a “sideshow” in lawyer governance. At least for the foreseeable future, the main story will continue to be how lawyers self-govern.
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References
Although a 1980 law on the bar formally remained in effect for the first post-independence years, its terms were generally ignored in practice.
These methods of restricting supply are noted by Abel in “Comparative Sociology of Legal Professions”, op. cit. chap. 1, note 10. He adds an additional restriction, starting practice, which is dealt with later in this chapter.
Law on the Bar, op. cit. chap. 4, note 49.
Council of Europe Parliamentary Assembly Opinion 209 (1999) (“Georgia’s Application for Membership to the Council of Europe”), para. 10(ii)(d).
Among the crises which the government faced during the weeks the bill was being considered were an army mutiny and the kidnapping of a Member of Parliament.
Interview with Y on 3 September 1999.
Interview with H, op. cit. chap. 2, note 126.
A popular stereotype—repeated to me numerous times—is of the Collegium member as “an old man who shows up at the office everyday only to spend most of his time playing chess”. On the Collegium’s demographics, see infra chap. 6.
Interview with PP, op. cit. chap. 4, note 58.
Ibid.
Interview with H, op. cit. chap. 2, note 126.
Interview with B, op. cit. chap. 2, note 138.
Discussions with D and other advocates at Vake LCB on 21 May 1999.
Interview with B, op. cit. chap. 2, note 138.
A good account of lawyerly myth-making is Wesley Pue’s “In pursuit of a better myth: lawyers’ histories and the histories of lawyers”, XXXIII Manitoba Law Review 1995 No. 4,730–767.
With respect to criminal law the situation is similar in Russia, where advocates of the Soviet-era Colleges (the “original” or “traditional” colleges) handle 90% of criminal cases. By contrast it was reported that advocates of the newer “parallel” colleges only handle 2.5 % of civil cases in Russia. While there are no available statistics, the number of civil cases handled by Collegium members in Georgia appears to be higher. (“The Russian Advokatura”, op. cit. chap. 1, note 54, 771).
Interview with H, op. cit. chap. 2, note 126.
Interview with Y, op. cit. note 6.
Interview with H, op. cit. chap. 2, note 126.
For example, GYLA has been billed a “Eurasia Foundation Success Story”: A. Williamson, “Building a Professional Legal Corps for Georgia: The Georgian Young Lawyers Association Raises the Bar for Legal Services” (promotional literature of the Tbilisi office of the Eurasia Foundation, January 2001).
And even foreign organizations wishing to influence the policy process.
In 1995 Zurab Zhvania, current Parliamentary speaker, wrote to the organization requesting 57 lawyers to work for various committees and departments. GYLA supplied 54 of those lawyers. (Interview with PP, op. cit. chap. 4, note 58.)
Interview with HH on 21 May 1999.
In fact, there is often a close connection between free legal advice and lawyer marketing. For example, the Lawyer Referral Service of the Ontario Bar offers potential clients one half-hour free legal consultation.
Biographies of MPs from both the 1995 and 1999 elections can be found at the Georgian Parliament’s web site: www.parliament.ge.
Ibid. For some figures on lawyers in politics see “Comparative Sociology of Legal Professions”, op. cit. chap. 1, note 10, 104–105. For a more qualitative assessments of the role of lawyers in public life see T.C. Halliday and L. Karpik, Lawyers and the Rise of Western Liberalism, Oxford 1997.
“The Russian Advokatura”, op. cit. chap. 1, note 54, 777.
S. Kinzer, “The ‘Man of the Year’, Just 29 and Via Manhattan”, New York Times 4 June 1998, A4.
Saakashvili was former head of Parliament’s Justice Committee. Another key young reformer, Lado Chanturia, also held the post of Justice Minister and was later named Chief Justice of the Supreme Court.
L. Fuller, “Georgia’s Robin Hood Stakes His Political Future”, RFE/RL, Vol. 4(33), 8 October 2001.
“Analysis of the Draft Law on the Bar and the Draft Law on Barristers’ Activity”, 19 August 1996 (the report is available from ABA-CEELI’s Legal Assessments Department in Washington, DC). It should be noted that ABA assessment reports are written based on comments by panels of experts, not in-country liaison officers.
See “Kartlos Garibashvili Urges to Discuss the Draft of the Bill on Legal Profession”, Caucasus Press 10 May 2001 and Z. Tarkashvili, “Lawyers Will Have to Learn”, Resonance
January 2000 (cited in South Caucasian Human Rights Monitor, January 2000).
“The Bar Wants Not to Be Examined”, Caucasus Press 10 May 2001.
Draft put forward in 1998 entitled “Law of Georgia on the Bar” (authored by an unnamed Parliamentary lawyer), Art. 22 (unofficial translation on file with author).
Ibid., Art. 4.
Ibid., Art. 47.
Draft put forward in 1996 entitled “Law of Georgia on the Bar” by the State Committee for Reform of Juridical and Legal Organization of the Ministry of Justice, article 2(1) (unofficial translation on file with author). The non-profit disclaimer is likely intended to exclude lawyers from certain tax obligations.
Ibid., Art. 17(1).
See R.L. Abel, American Lawyers, New York 1989.
The Weberian approach also recognizes that independence from the state—much vaunted by structural-functionalists and by professions themselves—is somewhat of a fiction in that the state is used to construct and maintain the profession’s regulatory power. See D. Rueschemeyer, “Comparing Legal Professions: A State Centred Approach” in Abel and Lewis (vol. 3), op. cit. chap. 1, note 10, and see R.L. Ab el, “Lawyers in the Civil Law World” in Lawyers in Society (vol. 2), op. cit. chap. 4, note 47.
“The Russian Advokatura”, op. cit. chap. 1, note 54, 777.
As Jordan has put it, the Russian advokatura was “compromising some of its autonomy in order to gain material resources, protection and validation from state agencies.” Ibid., 774.
“Draft Law of Georgia on Barrister’s Activity”, 9 June 1996 (unofficial translation on file with author).
Attendance at GYLA meetings on the Bar, 15 and 22 September 1998, Tbilisi.
D. Pataria, “Personal Thesis regarding the draft law on legal practice” (undated, distributed at a GYLA meeing on 22 September 1998).
Interview with NN on 16 September 1998.
Attendance at GYLA meeting on 15 September 1998, Tbilisi.
Attendance at GYLA meeting on 22 September 1998, Tbilsi.
Human rights observers have suggested that a general shortage of lawyers exacerbates the difficulty victims of human rights abuses face in finding counsel. (Interview with II on
September 1999.)
“The time for applications expired”, Svobodnaia Gruziia 20 August 1999,7 (cited in CIPDD Press Digest, 20 August 1999).
A poll conducted in 2000 asked respondents if they agreed that there was “adequate legal counsel available”. Only 17% agreed. The question is ambiguous, but presumably “adequate” includes the availability as well as quality of counsel (GORBI, op. cit. chap. 3, note 40, 21).
Op. cit. chap. 2, note 99.
On the effects of the “numbers explosion” in other jurisdictions, see R.L. Abel, “Lawyers in the Civil Law World” in Lawyers in Society (vol. 2), op. cit. chap. 4, note 47, 31–35.
“Revised Draft Law on the Bar”, 1 March 2000 (the “Gudauri Draft”, unofficial translation on file with author).
Ibid. (unnumbered article in chapter entitled “Rights of Advocate”).
Ibid.
Ibid. (unnumbered article in chapter entitled “National Bar Examination”).
Jordan, for example, has documented how the Russian experience in reforming advocacy has been coloured by the Ministry of Justice’s desire to prevent the advokatura from becoming an effective, unified interest group (“The Russian Advokatura”, op. cit. chap. 1, note 54, 773). On the opposition of the bar to state authority in different geographical and historical contexts, see the essays in Halliday and Karpik, op. cit. note 26.
See “Lawyers in the Civil Law World”, op. cit. note 53, 25–26.
Ibid. at 25.
Communication with A on 14 August 2000.
Interview with CC on 3 August 2000.
“Georgia Judicial Assessment”, op. cit. chap. 1, note 53, 25.
“MPs have different opinions of Bill on Advocacy”, Sarke News Agency 22 May 2001.
“Consent on Bill on Advocacy Reached”, Sarke News Agency 24 May 2001.
“Todays Session of the Parliament Has Actually Been Interrupted”, Sarke News Agency 6 June 2001.
Law on the Bar, op. cit. chap. 4, note 49. See C. Waters, “Georgian Lawyers Get in Line”, Eurasia Insight 23 August 2001. On the opposition protest see “Law on Advocacy Passed Without Considering Alternative Version”, Sarke News Agency 22 June 2001.
Even in the face of state attack; see M. Burrage, “Mrs. Thatcher Against the ‘Little Republics’: Ideology, Precedents and Reactions” in Halliday and Karpik, op. cit. note 26.
Abel, “Comparative Sociology of Legal Professions”, op. cit. chap. 1, note 10, 94.
Ibid.
D.B. Wilkins, “Who Should Regulate Lawyers?”, 105 Harvard Law Review 1992 No. 4, 799–887. In his article, Wilkins separates disciplinary and legislative controls.
Interview with T on 3 November 1998.
Observation of GYLA meeting, op. cit. note 47.
Interview with AA on 19 September 1998.
Interview with KK on 15 September 1998. Another lawyer described the situation as follows: “[I]f you make a mistake you are done for.Your reputation is at stake and there is an. unwritten code of morals here. . .more powerful than written laws.” (Interview with X on 14 May 1999.) On the failures of “word-of-mouth” referrals in the US, see S.K. Berenson, “Is It Time for Lawyer Profiles?”, 70 Fordham Law Review 2001 No. 3, 645–690.
Interviews with OO and GG on 14 May 1999.
According to the Collegium head there are 3–4 disciplinary cases a year: interview with Y, op. cit. note 6.
Ibid.
Interview with PP op. cit. chap. 4, note 58.
Interview with GG, op. cit. note 76.
Interview with PP, op. cit. chap. 4, note 58. Not all judges believe, however, that being a member of GYLA guarantees competency or integrity: interview with ND on 21 May 1999.
Interview with AA on 9 June 2000.
Interview with PP, op. cit. chap. 4, note 58.
Interview with H, op. cit. chap. 2, note 126.
Interview with PP op. cit. chap. 4, note 58.
Ibid.
“Comparative Sociology of Legal Professions”, op. cit. chap. 1, note 10, 133–135. For a somewhat more sympathetic treatment of ethics codes and enforcement in the American context, see Q. Johnstone, “Bar Associations: Policies and Performances”, 15 Yale Law & Policy Review 1996 No. 1, 193–243, 217–218.
M.J. Powell, From Patrician to Professional Elite, New York 1988, 14, citing in part J. A. Matzko,“‘The Best Men of the Bar’: The Founding of the American Bar Association” in G.W. Gawalt, ed., The New High Priests: Lawyers in Post-Civil War America, Westport, CN 1984, 78.
Powell, op. cit., 15.
Ibid., 19. Although the ABCNY also extended its disciplinary purview to non-members, something which—to my knowledge—the GYLA executive has never proposed.
Ibid., 41.
A recent British text on legal ethics was inspired by the authors belief that “first degrees in law had much to offer in relation to ethics but had hitherto failed to make a real contribution” (R. O’Dair, Legal Ethics: Text and Materials, London 2001, 7).
I base this conclusion on the ethics activities carried out by lawyers’ associations (discussed above) and my discussions with lawyers at a CLE seminar on legal ethics which I presented in Tbilisi in October 2000.
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Waters, C.P.M. (2004). The Politics of Regulation and Self-Regulation. In: Counsel in the Caucasus: Professionalization and Law in Georgia. Law in Eastern Europe. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5620-4_6
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