Disciplinary Liability in Advocacy
This page examines professional misconduct and disciplinary liability as established by the Georgian law on advocates: which breaches of duty trigger disciplinary prosecution, which time limits operate, which sanctions are possible and how the Ethics Commission examines the case. For an advocate, a disciplinary sanction means the interruption of professional practice, even if temporary, — defense is therefore always needed.
Principles and Duties of Advocacy
The assessment of a disciplinary transgression begins with the standards the advocate is obliged to observe. The law names as the principles of advocacy the legality; the supremacy of law and the fair administration of justice; professional competence; the advocate's integrity, good reputation and respect for the legal profession; the freedom and independence of advocacy; the equality of advocates and the inadmissibility of their discrimination; non-interference in advocacy; respect for and protection of the rights and freedoms of the client; the inadmissibility of refusing to exercise the right of defense except in the cases provided by law; protection of professional secrecy; and observance of professional ethics. The advocate must perform professional functions in good faith, observe the norms of professional ethics exactly and unwaveringly, not infringe the rights of the court and other participants, inform the client of a conflict of interest and fulfill continuing education requirements.
Professional Secrecy and Conflict of Interest
Disputes most often concern exactly these two duties. The advocate must protect professional secrecy regardless of elapsed time and must not disclose, without the client's consent, information received in the course of the practice; even the identity of the client may not be disclosed where the client has previously demanded this in writing. The exceptions are named precisely: the client's consent; the use of information in the process of representation or defense where necessary in the client's interests and not previously prohibited by the client; and the defense of the advocate against an accusation brought against him or in a court dispute over an unpaid fee. Under the conflict-of-interest rule, the advocate must not perform such acts or establish such relationships as endanger the client's interests, his professional activity or independence; he may not perform functions in a case where he has already acted for the other party or has worked on it as a judge, prosecutor, investigator, mediator, arbitrator, expert or in another capacity.
Grounds for Disciplinary Liability and the Time Limit
An advocate bears disciplinary liability for non-performance of the duties established by law and for violation of the code of professional ethics — these are the two grounds; no other circumstance can become a source of sanction. The time limit matters: disciplinary proceedings are terminated if 5 years have elapsed between the commission of the disputed act and the application to the Ethics Commission of the Georgian Bar Association. Disciplinary prosecution is initiated by the Ethics Commission, which decides on initiation or refusal within 2 months of receiving the relevant information. These deadlines are the defense's first check: their expiry terminates the proceedings.
Sanctions and the Procedure of Imposing Them
The law defines as sanctions a warning; deprivation of the right to practice advocacy for a term of 6 months to 3 years; and termination of membership in the Georgian Bar Association. Alongside sanctions, the law provides measures of disciplinary influence — an address by private letter of recommendation and termination of the powers of a member of the Bar Association, its executive council, the Ethics Commission or the audit commission. The severity of the sanction is confined to the types named by law, which lets the defense argue proportionality.
The procedure prescribes a strict form of collegiality: the Ethics Commission examines the case in a composition of 3 members and decides by majority of votes; the issues of depriving the right to practice or terminating membership are examined by a composition of not less than 10 members, and such a decision requires not less than 8 votes; a dissenting opinion is attached to the decision. Before the decision is adopted, the advocate must be given the opportunity to express an opinion orally or in writing, to request and submit evidence, and to fully exercise the right of defense. The hearing is closed, although it may be held publicly upon the motion of both parties; the decision is announced publicly. Where the advocate is absent for a valid reason, the examination is postponed for a term of not less than 10 and not more than 30 days, and the advocate must indicate 3 acceptable dates; a repeated absence without a valid reason does not hinder the examination. The reasoned decision must be sent to the parties within 30 days of its public announcement. Violation of these guarantees — composition, votes, the right of defense — is a strong ground of appeal.
Frequently Asked Questions
The questions advocates raise most often in disciplinary matters, answered from the law.
Which body decides an advocate's disciplinary case?
The Ethics Commission of the Georgian Bar Association — it checks incoming information about an advocate and decides the question of disciplinary liability collectively at its sitting.
Which sanctions exist?
A warning, deprivation of the right to practice advocacy for 6 months to 3 years, and termination of membership in the Association.
How does the law protect the advocate in the procedure?
Before the decision, he must be given the opportunity to express an opinion, to request and submit evidence and to fully exercise the right of defense.
How We Help on Legal.ge
On Legal.ge the service is delivered by advocates working on professional liability and ethics issues. We verify time limits, the correctness of the grounds, procedural guarantees and the sufficiency of the evidence on each episode.
Contact us through Legal.ge — we will defend the advocate's professional reputation before the Ethics Commission and prepare grounds of appeal where the decision is unfounded or procedurally flawed.