The Development of Kazakhstan’s
Legal Profession and Code of Ethics
Chairman of the Board of Kazakhstan
Bar Association (KazBar)
Having just celebrated its 20th anniversary of independence, Kazakhstan is a young country. Prior to independence, within less than a century Kazakhstan jumped from feudalism to socialism and then from socialism to capitalism. This rapid, dramatic pace of change confused and disoriented many Kazakhstanis, and prompted the country to re-examine its goals and to re-evaluate its people’s values and aspirations. Nonetheless, despite these challenges, Kazakhstan benefited from this rapid, radical transformation. Independence enabled Kazakhstan to re-position itself and reconsider its principles, although this could only be done through the prism of its feudal and Soviet heritage.
Kazakhstan’s Constitution proclaims the country to be firmly governed by Rule of Law (Article 1). This in itself was a huge step forward. In reality, however, this was more of a wish, a bright goal that the country hoped to achieve in the future. Much has been accomplished over the past twenty years as Kazakhstan proceeds to reorganize its legal system, creating a completely new body of law that allows the market economy to develop freely and for the defense of individual rights and freedoms – among these the right to hold private property and to operate in a competitive business climate. But this is only the beginning of a process in which society should work together so that Kazakhstan will become a country truly governed by Rule of Law.
Requirements for the Legal Profession
A well-regulated legal profession is a necessary element in the legal system to guarantee Rule of Law.
The term «profession» has been disputed by academics for the past century. In a broad sense this means «occupation», «specialty» or even «job». This definition was widely used during Soviet era and is still used in Kazakhstan today. However, historically «profession» is often used in a more narrow sense, implying an occupation requiring special training and/or skills based on theoretical knowledge. It is widely recognized in developed societies that there are three professions often termed «learned professions» - law, theology and medicine.
What these three professions have in common, apart from skills and theoretical knowledge, is that professionals and their clients must be bound by trust, a basic requirement for a sound professional reputation.
A profession can only survive if it meets people’s expectations and demands. As such, practitioners of any profession, including the legal profession, must fulfill the following requirements:
· They must have skills based on theoretical knowledge and the ability to apply this knowledge to the special circumstances of each case;
· They must be registered, licensed, or admitted as professionals by authorized state bodies or organizations;
· They must be regulated by law or by their own voluntary organization with a special enforcement mechanism;
· They must adhere to special rules based on standards that are usually higher then those for non-practitioners of the profession (Code of Ethics);
· They must be required to regularly upgrade their skills and knowledge through continuing education and training.
When Kazakhstan became an independent country, the legal profession was seriously under- developed. The right to land and fixed assets as private property was almost non-existent; there was almost no market economy and therefore no need for practicing lawyers independent of the state. In 1991, when Kazakhstan proclaimed its independence, the situation suddenly changed. Young, ambitious Kazakh businessmen started their own businesses.
In these early days when the legal profession was still being formed, we lawyers worked solely on the basis of our general, often intuitive understanding of a legal advisor’s roleю Since that time much has changed. Many talented lawyers received high-quality legal education abroad, and these are now Kazakhstan’s most professional, competent legal practitioners. There are also many outstanding local lawyers who did not receive legal training abroad, but have still built impressive legal practices. Many well-educated lawyers are employed in-house in foreign and local companies, in government, and in nationally-owned companies. Thus twenty years of independence has resulted, among other achievements, in the formation of Kazakhstan’s legal profession, which continues to develop rapidly.
A New Idea: The Kazakhstan Bar Association
The time has now come to take Kazakhstan’s legal profession ‘to the next level’.
It has become apparent to leading lawyers in Kazakhstan that the country’s legal profession must be better organized and regulated in order to meet new market conditions and client expectations. After serious discussion, the country’s leading law firms - Sayat Zholshi and Partners, Dentons, Aequitas, Grata, Olimpex Advisers, Yelubayev and Partners, and others decided to organize a professional law association – the Kazakhstan Bar Association (КазБар).
Currently in providing legal services not related to advocate services does not require a license or special knowledge, not even a law degree. As a result, legal services are often provided by ‘lawyers’ with absolutely no legal education or by foreign lawyers who do not know Kazakhstan’s laws and cannot even read the law in its original language. As a result, the reputation of the legal profession suffers and judges often have to deal with untrained, unethical ‘lawyers’ representing clients in court. We share these concerns with the Supreme Court which now requests setting requirements for legal practitioners with the right to represent clients in court. КазБар intends to carefully select its members based on their education, reputation and other credentials, and will ensure that being a КазБар member guarantees a high degree of professionalism, education, and competency.
Similar to practitioners of other «learned professions» such as doctors, lawyers can provide their services only when they are trusted by the public. If a patient needs surgery, he or she obviously seeks out the best surgeon. The same holds true for lawyers. Therefore, reputation is a lawyer’s most important asset. However, a lawyer’s individual reputation is dependent on the general reputation of his/her country’s legal profession. It is therefore in the best interests of Kazakhstan’s lawyers to ensure that their peers uphold the reputation of the legal profession as rigorously as they themselves do.
Lawyers can raise their collective reputation to a high standard by combining the most important aspects of this process. КазБар plays a fundamental role in raising the legal profession’s reputation, guaranteeing that its practitioners adhere to the highest professional standards.
Code of Ethics
One of КазБар’s most important goals was adoption of a professional Code of Ethics. Such Code has been adopted recently. This Code is based on best international practices by established law societies and bar associations. Although participation in the КазБар and acceptance of its Code of Ethics is voluntary, we believe the Code will serve as a major impetus for lawyers to join КазБар. Those who join will have a professional advantage because they can guarantee their services adhere to the Code of Ethics.
The need for a Code of Ethics has been discussed by lawyers and judges, including Supreme Court justices, for some time. The moment has arrived to make a reality of this Code for the legal profession.
The public should feel confident that lawyers adhere to the highest ethical standards and that a mechanism exists to enforce these standards.
Self-Regulation and External Regulation
It is recognized that to provide legal services, lawyers must possess a certain degree of autonomy. They must have the right to regulate themselves through their own professional associations. This right already exists in Kazakhstan, since the licensing system for lawyers providing ‘non-advocate services’ has been eliminated and no new system has been introduced. However, this is not enough. Lawyers must possess sufficient autonomy to protect their clients (both institutional and individual) under attorney-client privilege, to avoid conflicts of interest, and to observe legal ethics in all aspects of their practice.
The Kazakhstan Bar Association intends to work closely with the Government and Parliament to create a Code of Ethics and appropriate legislation to regulate Kazakhstan’s legal profession so that it can better serve its clients and society at large.