After several years of disputes within the Belarusian legal community, the new Law No. 334 – Z "On the Bar and Legal Practice in the Republic of Belarus" (the "Law") was passed on 30 December 2011. It will enter into force on 6 April 2012, replacing the current Law No. 2406-XIII dated 15 June 1993 "On the Bar" (as amended).The Law implements a radical reform to the legal profession and legal market in Belarus.
1. Current Status Quo of the Legal Market in Belarus
At present, the market for legal services in Belarus can be characterized as a two-tier system. In particular, legal services may be provided by (i) advocates, an equivalent of English barristers ("Advocates"), and (ii) commercial lawyers, an equivalent of English solicitors ("Attorneys").
Advocates are entitled to provide a full range of services in all fields of law. They may represent clients in any court in Belarus. However, traditionally, Advocates mainly deal with civil and criminal matters. To practice law, Advocates must meet the following requirements: (i) hold a licence from the Ministry of Justice of the Republic of Belarus (the "Ministry") and (ii) be admitted to a local bar. Advocates may practice law exclusively within legal aid offices (chambers) which are branches of a local bar without the status of a legal entity ("Legal Aid Offices").
In comparison, the scope of legal services which can be rendered by Attorneys is limited to providing advice on business law matters. Attorneys are entitled to represent clients only before commercial courts. To practice law, Attorneys must (i) obtain a qualification certificate and (ii) either obtain a licence for solo practice or be employed by a law firm with such a licence. Both the qualification certificate and the licence are issued by the Ministry. Attorneys may practice law independently or within a commercial law firm.
2. Key Changes Introduced by the Law
2.1 Monopoly of Advocates on Litigation
Starting from 6 April 2013 (i.e. one year after the Law enters into force), Advocates will have a monopoly on representing clients in all courts in Belarus. Accordingly, Attorneys will be banned from appearing before any courts in the country (including commercial courts); however, they will still be entitled to represent clients in arbitration proceedings and provide advice on transactions and other matters not related to litigation.
Since only Attorneys (unlike Advocates) are entitled to work in commercial law firms, the above innovation will materially affect the business of not only domestic but also international law firms with offices in Belarus. As arbitration matters only account for a small percentage of a law firm’s turnover, the scope of their business will boil down to merely consulting and transactional work.
2.2 Legal Forms for Practicing Law by Advocates
In addition to practicing law within Legal Aid Offices (as described in Section 1), Advocates are granted an opportunity to practice law (i) independently or (ii) within advocate bureaus.
An advocate bureau is a non-commercial legal entity set up by two or more Advocates (partners). The company name of an advocate bureau may include only one or several names of its partners. Consequently, international law firms would not be able to use an advocate bureau as a way of maintaining a presence in the Belarusian legal market unless they restrict their presence to mere cooperation with a local advocate bureau.
The right of an Advocate to practice law independently or in an advocate bureau is subject to endorsementby the administration of a local bar. Moreover, all Advocates – regardless of the selected form of practice – shall be subject to the "free advice"obligation with respect to certain criminal, labour, and civil law matters.
2.3 Changing Status
As a general rule, any Attorney may become an Advocate (i) after having attended a practical training course (3 – 12 months depending on previous experience) and (ii) after having passed a simplified bar exam which would cover only some areas of law: criminal, family, and housing law.
There is one exception to the above rule: within 1 year of the Law entering into force, all Attorneys with five or more years’ professional experience will be "grandfathered" and may obtain Advocate status without having to attend a practical training course and pass a bar exam. However, such Attorneys will have to be evaluated by the Ministry. The procedure for this evaluation has not yet been established.
Furthermore, such Attorneys after changing their status to Advocates would be entitled to practice law independently or establish an advocate bureau without endorsement by the administration of a local bar (please see Section 2.2 above).