28 April 2022
‘Judges complain about disrespectful attorneys. Conflicts between defence lawyers and the domestic judicial system has suddenly became a mass phenomenon’
by Ekaterina Trifonova
The heads of bar associations increasingly receive complaints from judges about lawyers who have allegedly shown disrespect to judges. Courts are demanding that bar associations investigate and instigate disciplinary action against guilty lawyers. However, according to experts, in such proceedings the cause of the conflict is not always considered, nor, and most importantly, are its instigators. Often, it is the judges who are the instigators; it is they who make the most rude and discrediting remarks about lawyers. And, in general, the flood of such complaints gives the impression that a campaign is going on.
As Nver Gasparyan, adviser to the Federal Bar Association, told Nezavisimaya gazeta, disciplinary proceedings against lawyers have one important feature.
In practice, any preceding conflict with the judge, in the lead up to the complaint, that arose in connection with the resolution of certain procedural issues in court, is rarely taken into account. In the course of the procedural dispute, the lawyer may begin to bicker, and the judge at some point, ‘aware of his high status and repressive powers,’ simply cannot bear it any longer.’ In Gasparyan’s opinion, highly qualified judges, of course, will try to prevent conflict from arising and even more so seek not to provoke it. By the way, a 2017 Supreme Court plenum ruling prescribes that judges ‘not show arrogance,’ and ‘choose a polite and calm tone, to be restrained and tactful,’ and says that participants in court proceedings should be treated with respect and patience.
But it often happens that a defence attorney attempts to clarify certain important details by questioning a defendant or witness in a case, and the judge unreasonably stops the questions, and even makes derogatory comments into the bargain. Or, say, the presiding judge violates the rules of the court, but in response to the remarks, the defence counsel makes remarks derogatory of the judge. And the judge can groundlessly and without having to justify his actions reject numerous motions of the defence, prompt the witnesses and, Gasparyan explains, ‘allow himself to make statements indicating a conviction has already been decided upon and discrediting the defence.’ And all this must necessarily be evaluated by the disciplinary bodies of the bar association which has received the complaint against a colleague.
According to retired federal judge Sergei Pashin, the lawyer is only the ‘stepchild of justice,’ and almost all judges strive to conduct their cases quickly and get the judgment written and done with. If a lawyer interferes, for example, by filing motions, then this in every way obstructs the movement of the machinery of justice and the person sitting at the podium often begins to treat the lawyer for the defence somewhat roughly. Pashin confirmed situations when the judge rejects dozens of motions brought by the lawyer – and the latter heartily declares that ‘the verdict is a foregone conclusion’ and ‘it is impossible to get justice.’ And for such words written complaints against the lawyers are sent to the qualification commissions of the bar associations demanding the alleged offender be disciplined. And although such cases usually end with nothing more than a reprimand, ‘the very process of the proceedings can be very nerve-wracking.’
However, the bar associations consider all judicial appeals, ‘none of them will end up chucked in the bin.’ And so, according to Pashin, this is a serious problem associated mainly with the endeavours of ‘those conscientious lawyers who do not want to work on behalf of the investigation.’ And there already exist means by which conflicts are instigated simply to disqualify such undesirables. Complaints are heard by bar associations, he points out, on the basis of court records that belong, as is well known, to the judge. Therefore, if the judge ‘wants to remove something, or has something to hide, including his own bad behaviour,’ then this is quite easy for him to do. An audio recording is of little help here: if the lawyer did not turn on the recording in advance, then it will be impossible to prove the bad behaviour later. And Pashin said that he does not know of any cases where a judge has been held accountable for an abusive exchange in court. In addition, many lawyers reasonably try not to enter into a conflict, reasoning that the client will only suffer all the more from this. And some, according to Pashin, are also afraid of losing their accreditation before the court.
This problem, Pashin told Nezavisimaya gazeta, existed in Soviet times, but now at last ‘there are legal ways to resolve such conflicts and these are being used more often.’ However, until the revolution of 1917, the decision of the Moscow Council of Lawyers was in force, meaning that, in the event of offensive actions on the part of the court, it was possible to leave the courtroom. Now such manoeuvres are unacceptable and they will at least be regarded as a betrayal of the defendant. In addition, in Tsarist Russia, there were so few lawyers, only about 5,500, that they were able to create obstructions. Now there so are many lawyers that there is always someone to replace anyone who displays such obstinacy.
Pashin is convinced that this represents primarily a problem of a lack of culture and a real inequality between the parties involved in the trial. Foreign judges, he said, behave unequivocally courteously, if only because they perceive all participants in the trial as colleagues, and not just the prosecutors. Especially since, for example, in England only lawyers become judges. ‘As for our judges, then here the service sector is relevant, hence the businesslike way of communicating with a hint of arbitrariness,’ the retired judge explained. ‘And in addition, our judges are mostly from the punitive structures or from the administrative structures of the courts themselves, the so-called career judges. For them, citizens with their worries are rather a factor distracting from the main matter. A court consultant or the secretary treats these subordinate people with disdain, and becoming a judge, such an attitude is continues.’
However, Ilya Prokofiev, deputy chair of the Moscow-based Tsentryurservice law firm, for example, believes that cases where judges indulge in an informal and rude attitude towards lawyers are rather rare. And often this is the result of the decision to introduce wholesale audio recording of court hearings. He recalled that the norms of conduct of judges are regulated by the norms of the Code of Judicial Ethics, “for the violation of which judges can be brought to disciplined, including up to dismissal.’ Therefore, they try to behave as correctly as possible in relation to both lawyers and to all participants in the trial. Sometimes, according to Prokofiev, the restraint of judges ‘evokes sincere respect, since sometimes the behaviour of the participants in the trial can be inappropriate and provocative.’ He himself does not believe that rudeness towards lawyers has developed into a means to deal with those who are particularly active: ‘For this, there are quite a large number of quite legal procedural means to “annoy” the defence if, for some reason, his personality in the case does not suit the judge.’ For example, a judge can schedule hearings at an extremely inconvenient time for a lawyer and not respond to requests to agree the dates. ‘Also, the judge can, absolutely correctly, reject all the motions made by a lawyer and stop any line of questioning. Taking into account established practice, such actions will not be interpreted as violations by any higher judicial authority,’ the expert emphasized.