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National Research University – Higher School of EconomicsFaculty of Social SciencesManuscriptAnton KazunSocial and Economic Factors of Independent Activity of Criminal DefenseAttorneys in Contemporary RussiaAbstract of Thesisfor the academic degree Philosophy Doctor Higher School of Economics (PhD HSE)Social sciencesAcademic supervisorDr.
Andrey Yakovlev, Ph.D inEconomicsMoscow, 2018Problem statementIndependent activity of criminal defense lawyers is among the keypreconditions for allowing the citizens of any country to access public justicealongside other factors, such as the supremacy of law and judicial independence. In2017, Russia was ranked 89th in the Rule of Law Index of World Justice Project1,which, according to the calculation methodology, was due to high levels ofcorruption and low levels of independence of the judiciary. The community ofattorneys (advokaty2) in contemporary Russia still manages to remain independentdespite a plethora of factors which reduce the level of its autonomy from the state.Russia's law enforcement system has inherited from the USSR severalinstitutional characteristics which make it much harder for attorneys to perform theirprofessional duties.
Because of "accusatory bias" in public justice, less than 0.5% ofcriminal cases end with the verdict of "not guilty," thus hindering attorneys fromseeking a more favorable outcome for their clients and forcing them to search forvarious trade-offs.
The reason why this kind of situation persists is that employeesacross all levels of the law enforcement system must comply with the score-basedsystem of reporting3 (“palochnaya sistema”) requirements where the performanceof any law enforcement officer is measured by the growth or reduction in the currentyear's KPIs against the previous year. Year by year, these criteria have beenincreasingly difficult to meet, and an independent attorney finds himself to be anobstacle to the achievement of the necessary KPIs. Moreover, law enforcementofficers have significant administrative resources to impose restrictions on activityof attorneys, sometimes breaking the law.1See the official project website at [http://data.worldjusticeproject.org/]Advokaty (in this text attorneys) are a special group of lawyers with no analogues in foreignpractice.
There is no division into barristers and solicitors in Russia, but there is a clear distinctionbetween advokaty and private lawyers. To become an advokat, a candidate must have higher legaleducation and at least two years of professional experience and must pass a qualification exam.Being an advokat authorizes an attorney to handle criminal cases, though advokaty are notrestricted to working on such cases. An advokat must abide by the Legal Ethics Code and be amember of the regional Chamber of Lawyers.3Sometimes it is called “heavy-handed system of reporting”.12Certain institutional peculiarities of Russia's law enforcement systemoriginated in the post-Soviet period, including a possible use of force by lawenforcement officers to achieve their personal goals.
For example, in the 1990s,some of unscrupulous law enforcement officers were actively involved in "violententrepreneurship"4 and in the 2000s they became an instrument of hostile corporatetakeovers5 and blackmail through the initiation of criminal cases againstentrepreneurs6. Naturally, not all law enforcers are involved in "misappropriation"but even this part is capable of significantly hindering the work of attorneys inRussia.If one pole is represented by a powerful, bureaucratically-thinking, andcorrupt law enforcement system, then maintaining a balance necessitates building astrong and independent profession of criminal lawyers.
Historic factors haveaffected not only the law enforcement system, but also the legal profession in Russia.In the 1990s, low barriers to entry to the profession, which used to be prestigious,were coupled with a surge of demand for lawyers in the commercial sector and theemergence of numerous faculties of law. It was not until after the 2002 reform thatobtaining the attorney's status again required passing a state exam. As a result,contemporary attorney profession is characterized by high levels of heterogeneitywhich is a possible reason behind the weakness.Recent years have seen the strengthening of government regulation in Russia,thus underlining how important it is for contemporary attorneys to remainindependent as they are the last actor that is relatively independent from the state.All the foregoing explains why it is crucial to study the social and economic factors4Volkov, V. Violent Entrepreneurs: The Use of Force in the Making of Russian Capitalism.Cornell University Press.
2002.5Rochlitz, M. Corporate Raiding and the Role of the State in Russia. Post-Soviet Affairs 30, no.2–3 (May 4, 2014): 89–114. https://doi.org/10.1080/1060586X.2013.856573.6Volkov, V., Paneyakh, E., Titaev, K. Voluntary Activity of Law Enforcement Agencies in theContext of Fight Against Economic Crime. Research Notes on Administration of the Law Issues.Saint Petersburg: Institute for the Rule of Law (IRL) at the European University at SaintPetersburg (EUSPb).
2010. (in Russian)2of independent activity of attorneys, which have never been looked at through thelens of economic sociology.The scope of prior researchThe socio-economic approach to the analysis of attorney’s profession isrepresented in a limited number of studys which focus on certain aspects of activityof lawyers. L. Karpik puts an emphasis on the collective actions of French attorneysand the analysis of the economics of singular goods, including, but not limited to,legal services. H.
Hwang and W. Powell analyze in their studys the streamlining offree professional services. N. Fligstein proposed a view on the market for legalservices as the platform on which the disputes arising in other markets are arbitrated.B. Uzzi and R. Lancaster reviewed how social embeddedness affects the prices setby law firms.Much of foreign literature focuses on professionalism. Key research wasundertaken by A. Abbott, M. Larson, M.
Saks, and J. Evetts. "The Third Logic" byE. Freidson, which analyzes the difference between the logic of professionalism andthat of market and bureaucracy, is of paramount importance. The development andtransformation of professions in Russia was a much-discussed issue in the studys ofE. Yarskaya-Smirnova, P. Romanov, R. Abramov, V. Mansurov, O. Yurchenko andothers.Important fields of research include the study of attorneys' work using thetheory of the juridical field suggested by Pierre Bourdieu. As part of this approachR.
Dinovitzer and co-authors reviewed issues, such as the connection between alawyer's social class and work satisfaction, gender inequality in the lawyers' salaries,the hierarchy of legal community, etc.Much attention has been paid by researchers to a variety of aspects related tothe functioning of Russia's law enforcement system: A.
Ledeneva and K. Hendleyanalyzed the phenomenon of "telephone law," P. Solomon studied the nature of pleabargaining and "special procedure court hearings" in Russia. The problem of thescore-based system of reporting was discussed by E. Paneyakh. The impact of thedefendant's social status is analyzed in the works of V. Volkov and K. Titaev.3The research team of the Institute for the Rule of Law (V. Volkov, M. Shklyaruk, E.Paneyakh, K. Titaev, E. Khodzhaeva, M. Pozdnyakov, E. Moiseeva, A. Dmitrieva,T.
Bocharov, I. Chetverikova) prepared several books and numerous research noteswith a focus on various issues related to the functioning of the law enforcementsystem: independence of the judiciary, the role of prosecutors, the professionalismof investigators, professional activity of attorneys, etc.A large number of literature put an emphasis on diverse forms of activity ofattorneys control related to the fiduciary nature of legal services: the issue ofgovernment control (R. Mrowczynski, T. Halliday), clients (H. Kritzer), colleagues(R. Abel).
A standalone field of research focuses on the analysis of the socializationof law students (E. Mertz), the problem of lawyer’s ethics (A. Abbott, R. Abel, A.Evans) and the motives for rendering free legal aid (C. Epstein, S. Cummings, D.Rhode, R. Granfield, R. Sandefur).Research goals and objectivesThe goal of the research is to identify, describe, and measure the effects of socialand economic factors on the independent activity of attorneys."Independent activity of attorneys" means the attorney's ability to vindicateinterests of clients (more specifically, oppose the prosecution as needed), as well asthe ability to build freely client base, i.e. to work pro bono (in Latin "forthe public good"), to work on appointment of the court or to work under the contract(for a fee), acting out of their own will under no economic or administrativecompulsion. Independent activity of attorneys is an essential precondition forpreforming legal services at a high professional level.A number of objectives are planned to be accomplished in order to achieve thegoal:1.
Developing methods for the socio-economic analysis of independent activityof attorneys based on the existing theoretical and empirical studies.2. Identifying the key challenges facing Russian attorneys during theirprofessional activity.43. Analyzing the factors affecting the percentage of cases in which the attorney'sclients consent to plea bargaining (the so-called "special order") and showingthat the percentage of "special order" is the indirect evidence of the attorney'sindependence level.4. Studying the factors affecting the level of the attorney's involvement in theirwork on the appointment of the court and the factors affecting the attorney'sinvolvement in rendering pro bono free legal aid.5. Assessing the attorneys' demand for the activity of professional associationsin respect of tackling the key problems facing the attorney community, andstudying the factors affecting such demand.The author's personal contribution to exploring the problem and gatheringdataThe author of the Ph.D thesis was a co-author of a research methodology.
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