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Heparticipated in gathering and verifying survey data, initiated database analysis andbuilt a model on matters related to the topic of independent activity of attorneys inRussia.The author's personal contribution to exploring the problem entails the firstever analysis and demonstration of the following facts:1. It is the first attempt in Russia to illustrate based on empirical data thatindependent activity of attorneys is achieved through a balance between controlexercised by the market, professional community and the state. Shifting influenceelsewhere causes a loss of independence and the resulting deterioration of legal aidquality.2.
This research is the first attempt in Russia to analyze the effects of varioussocio-economic factors on the independence of attorneys. Market demand, socialcapital, professional experience and attorneys' ethics are shown to be statisticallyrelated to the percentage of cases in which their clients consent to plea bargain,including the confession of guilty without the right to appeal. Our researchsubstantiates why a high percentage of cases heard by court in accordance with aspecial order can evidence a weaker position of the attorney.53. Free legal aid and court-appointed work in Russia have been proven toinvolve different attorney groups despite sharing similar goals.
Pro bono work isdone by reputation-oriented attorneys with a high social capital, whereas courtappointed work is performed by attorneys with virtually no contacts with theircolleagues. This has a direct impact on the independence of professional activity andaffects the quality of activity of legal services.4. Urgent problems facing by attorney’s profession have been identifiedbased on quantitative data: decrease in the “resource base” (drop in demand ofcitizens with a fall in real terms payment for work on the appointment of the court)and the violation of defendants' rights by law enforcement officers.
These problemspose a threat to independent activity of attorneys yet motivate an active part of thecommunity to take collective action.5. This study assesses the effects of various socio-economic factors on theattorneys' demand for the activity of professional associations, which has never beendone before on a large sample. This analysis makes it possible to demonstrate a linkbetween the identified problems facing by attorneys and their willingness to changethe situation.Various aspects of this research have been presented by the author at 15 Russianand international academic conferences between 2014 and 2017, including theICCEES IX World Congress in Makuhari, Japan (2015), the Third ISA Forum ofSociology in Vienna (2016), and the Annual Conference of BASEES (BritishAssociation for Slavic and East European Studies) in Cambridge (2017).Theoretical framework of research"Activity of attorneys" is the key concept for this research.
The theoreticalchapter of this research touches on the following characteristics of activity ofattorneys: inability to control quality, high levels of outcome uncertainty, a lack ofcomplete standardization and a whole range of further restrictions. With due regardto the above peculiarities, activity of attorneys can be treated as a professional work,i.e. a special type of work which requires higher education, professional ethics, andwell-developed professional organizations performing supervisory roles.6The concept of professionalism which derives from the works of E.
Durkheim,F. Tönnies, G. Simmel, and M. Weber puts a strong focus on distinguishing between"professional" and "non-professional" activities. In the opinion of T. Parsons, thefounder of this approach, professionals using their knowledge and skills performsocially important functions while remaining emotionally neutral and targetedtowards public welfare.
T. Parsons's followers elaborated on different criteria ofprofessionalism, more specifically, proposed that various attributes of any givenoccupation be measured empirically to find out to what extent it is professional. Theopponents of T. Parsons argued that professionals are not altruists. They use theirknowledge to monopolize the accomplishment of certain objectives, thus earningrespect in the society and a high social status.
A successful "professional project"entails that any particular occupation, acting through professional associations anduniversities, wins a legitimate and often exclusive right to perform certain activities(e.g., to act on behalf of the client in court or to make a surgery). However, amonopolistic perspective on professions was later aligned with Parsons's valuebased approach through synthesis.
Accordingly, the existing theory recognizes a"tension" between striving for personal gain and performing socially significantroles, which is important for the analysis of the independent activity of attorneys.The theory of the "juridical field" suggested by Pierre Bourdieu plots animportant trajectory for exploring the issue of independent activity of attorneys. Inthis study we show that the analysis of the legal profession in terms of the fieldstheory, in many respects, appears to be similar to the concept of professionalismalthough the author rejected even the concept of "profession." It important tohighlight the differences between the attorney with the relevant social and culturalcapital and the client who cannot do really much within the juridical field and has touse their economic capital to hire a defender (and social capital to find the same).The attorney is given the opportunity of "symbolic violence" in respect of their clientbut simultaneously has to come to grips with other professional participants in the7juridical field.
Most recent theoretical research has made it possible to synthesize 7the theory of P. Bourdieu and the concept of professionalism8. This circumstanceallows both theories to be relied on when building a methodological framework ofthis research.The theoretical framework of this study builds on a group of quality researchaimed at capturing legal and other professional activity. This line of research hasbeen developed by the Soviet and Russian researchers from among the followers oflabor sociology (Shkaratan, Yadov, Rutkevich, Zdravomyslov, etc.) and thesociology of the professions (Romanov, Yarskaya-Smirnova, Abramov, Mansurov).It follows from this research that a strong focus should be placed on the confrontationamong different logics of professional activity (including the existing tensionbetween professionalism and managerialism), as well as on the socio-politicalcontext in which professions evolve.
Finally, due regard should be given to the socialsignificance of professional activity as it imposes on professionals additionalliability to their clients and the society alike.The second key concept in this study is control. Control is necessitated by theabove-mentioned peculiarities of attorneys’ services, which are associated withhigher risks of opportunist behaviors and simultaneously aggravate the effects ofunethical practices on the society. Control for activity of attorneys thus does affectthe quality of activity of attorney’s services.
However, the reverse side of control isthe issue of preservation of professional independence. Abbott distinguishedbetween three levels of control for professional activity: individual, informal, andformal. The first level derives from professional ethics which is learnt at universityand in the workplace. Informal control is exercised by colleagues, while formalcontrol is undertaken by the state.
Finally, direct control (supervision) should beSchinkel, Willem, and Mirko Noordegraaf. “Professionalism as Symbolic Capital: Materials fora Bourdieusian Theory of Professionalism.” Comparative Sociology 10, no. 1 (January 2011):67–96.8A similar analysis has been conducted by the author of this study, see Kazun A. Juridical Fieldor Legal Profession? Comparison of Bourdieusian Theory and Theory of Professionalism forStudies of Legal Community // Comparative Sociology. 2016. Vol.
15. No. 5. P. 572–592.87exercised by the client who can submit breaches (if any) to the state and/or the barassociation although the client can find it difficult to detect such unethical practicesof the attorney.The importance of legal ethics has been primarily explored as part of theabove-mentioned concept of professionalism. A code of ethics is what differentiatesa professional from non-professional. From Freidson's point of view, ethics servesas a mechanism of control of "entry" to and "exit" from the profession, making itpossible to remove mala fide members.
However, the functioning of ethics as amechanism of control necessitates the existence of a strong professional community.In turn, it is by no means always the case that ethical behavior implies altruism; infact, compliance with ethical standards can be viewed as a long-term investmentwhich will necessarily pay off through reputation.
Important characteristics of legalethics include being multidimensional. Parker and Evans show that there are as manyas four legitimate types of ethics: "adversarial advocate" "responsible lawyer""moral activist", and an "ethics of care". In different situations attorneys can switchbetween different modes of ethics without breaching the Code of ProfessionalEthics. Ethics is thus an insufficient instrument for the control of activity ofattorneys.The attorney's ethics directly affects their client interactions and thusultimately has a significant impact on the outcome of a specific case.
What isimportant in the context of this research is that the attorney can recommend that theclient consent or dissent to plea bargaining ("special order"). Although some studiesshow that the client can impose his/her position on the attorney in certain situations(and from a legal standpoint the attorney has to give due consideration to the client'sposition), in reality, the attorney-client relationships always remain unequal.
Thelawyer has many opportunities to affect the progress of the case and rarely asks theclientwhichsolicitationtacticstochoose.Defense resources available to the client are an important factor. A lack offunds available to the defendant coupled with the requirement to have a defender incourt creates a new class of interactions related to work on the appointment of the9court (paid by the state) and a pro bono work, i.e. free of charge.
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