Dr Uyanga Delger, attorney-at-law
“… human rights and fundamental freedoms are all the better safeguarded to the extent that the judiciary and the legal professions are protected from interference and pressure.”,[1]
Mongolia has only around 4000 practicing lawyers registered at the Mongolian Lawyers’ Association (MLA). Last week new draft laws to regulate the legal profession was introduced to the public discussion. This column covers the main features of the draft laws.
- Poor should not become a lawyer
Whereas the law should promote diversity and social mobility in the legal profession, the draft laws do not bother with the matter of ‘little people’. In Mongolia, young people spend at least six to seven years of their life with none or very little income in order to obtain lawyer’s qualification. State aid or labour law protection for ensuring a fair access to the legal profession does not exist. Despite this fact, the draft laws require that law school absolvents shall complete further 18 months of “qualifying study” at law schools in addition to their four to five years of law study. MLA shall act hereby as a supervising authority.
- More bureaucracy towards advocates
All lawyers – judges, prosecutors, advocates, notaries and employed and other lawyers – hold currently statutory membership at MLA, that was established by the reforms of 2012. In other words, the lawyers, who’s role is defending the interests of their clients before courts and state prosecution offices, are brought under one roof together with judges and prosecutors.
The current structure of MLA does not fulfil the basic requirement of institutional protection of lawyers, who defend interests of individuals and enterprises before courts and state authorities (The Defacto Gazette No. 22). Unfortunately, the draft laws are not intending to abolish the system introduced by the 2012 reforms and proposes instead more bureaucracy towards advocates.
- Two separate legal service markets
2012 Law on Legal Status of Lawyers changed the previous institutions and regulations radically. The Mongolian Association of Advocates (AMA), the successor of the former “Advocates Collegium”, lost its public law competence of licencing lawyers as advocates (The Defacto Gazette No. 22).
Since 2013, AMA is actively lobbying to regain its public law competences as a self-governing organisation with mandatory membership and disciplinary competences. At the same time, there are lawyers who are energetically opposing AMA. These lawyers render primarily legal consulting services.
The draft laws are intending to split the legal service market into two sectors. The term “legal advisor” is introduced by the drafts. Legal advisors will be licensed and disciplined by MLA directly. Their business will be primarily in legal consulting service. They may represent clients in the procedures before state agencies except from court and administrative offence procedures.
The draft laws purpose reintroduction of the Law on Advocacy that was abolished by the 2012 reforms. AMA will hereby obtain it’s previous competences of licensing of and disciplinary measures against advocates. AMA’s lawyers will be providing legal advice to clients and represents them in state administration, court and administrative offence procedures.
- Perspectives
The institutional regulations purposed by the draft laws are complex and bureaucratic. If the draft laws passed by Parliament, the access to the legal profession might be hindered by the obligation of 18 months additional legal studies and licensing by both MLA and AMA.
In future, advocates might hold membership to two different organisations and might need to contribute to their financing. It could have been better if advocates and legal counsels were organised under a single self-governing organisation and all independent legal services providers were called as advocates. The fees of around 4000 lawyers would make much more sense to financing of a single organisation and hence to its financial independence.
Finally, legal advice and representation are “connected vessels” that mostly a continuous relationship is necessary. The draft laws do not respect this and purposing instead a division of the legal service market. It is questionable if this would have positive impacts on strengthening the judiciary and the rule of law, especially in a country, where state agencies tend to interpret laws according to their own opinion and courts are still struggling to be recognized and respected within the government system.
March 2018
First published in The Defacto Gazette No. 38, 24 Mar 2018
[1] UN doc. E/CN.4/Sub.2/1993/25, Report on the independence of the judiciary and the protection of practicing lawyers, para. 1.
DELGER IP MONGOLIA 