Grounds for disciplinary liability and time limits
An advocate bears disciplinary liability for non-performance of the duties established by the law — these include both the general duties and the rules on protection of the client's interests, professional secrecy, conflict of interests and insurance — and for violation of the Advocates' Code of Professional Ethics. The law also sets a time limit: disciplinary proceedings against an advocate are terminated if 5 years have passed between the commission of the disputed act by the advocate and the application to the Ethics Commission of the Georgian Bar Association. This means that the fact of a breach alone is not enough — a complaint or other information must reach the Ethics Commission in due time, otherwise the possibility of holding the advocate disciplinarily liable expires.
Initiation of disciplinary prosecution
Disciplinary prosecution against an advocate is initiated by the Ethics Commission of the Georgian Bar Association. The Commission decides on initiating disciplinary prosecution or on refusing to initiate it within 2 months of receiving the respective information. The taking of the decision is thus limited in time, and a case cannot be postponed indefinitely — the professional community receives a clear answer within a defined period.
Types of disciplinary sanctions and measures of disciplinary influence
The law distinguishes between types of disciplinary sanctions and measures of disciplinary influence. The types of disciplinary sanctions for an advocate are:
- a warning;
- deprivation of the right to carry out advocacy activity for a term of 6 months to 3 years;
- termination of membership in the Georgian Bar Association.
The measures of disciplinary influence are an address by a private recommendation letter and termination of the powers of a member of the Association, of the Executive Board, of the Ethics Commission or of the Audit Commission. The law clearly separates a sanction from an influence measure: the former is a penalty proper, while the latter is a measure provided as an instrument of correction — the choice among them depends on the circumstances of the case and the gravity of the breach.
The procedure for imposing a disciplinary sanction
The question of imposing a disciplinary sanction on an advocate is considered by the Ethics Commission at its session, collegially, in a composition of 3 members, and the decision is taken by a majority of votes. The question of depriving the advocate of the right to carry out advocacy activity or of terminating membership in the Association is examined by the Ethics Commission in a composition of no fewer than 10 members, and taking a decision on these questions requires the votes of no fewer than 8 members of the Commission. Where a dissenting opinion exists, it is attached to the decision.
Before the Commission takes a decision, the advocate must be given the opportunity to express an opinion orally or in writing, to request and submit evidence and to enjoy the right of defence fully — a sanction without a proper hearing cannot be lawful. The session of the Ethics Commission is closed; however, on the basis of mediation by both parties, the Commission is authorized to hold a public session. The decision is announced publicly, and the parties are entitled to receive a reasoned decision. If the advocate is absent for a valid reason, the examination of the disciplinary case is postponed for a term of no less than 10 and no more than 30 days, and the advocate is obliged to indicate 3 dates acceptable to him or her for the examination, taking into account the deadline established for the examination. A repeated absence without a valid reason does not hinder the examination of the case. The reasoned decision of the Commission must be prepared and sent to the parties within 30 days of its public announcement.
Appealing a sanction and examination of the complaint
An advocate may appeal the decision of the Ethics Commission on imposing a disciplinary sanction to the Disciplinary Chamber of the Supreme Court of Georgia within 1 month of its transfer to him or her. The complaint is filed with the Ethics Commission, and within 1 week of its receipt the Chair of the Commission transfers the disciplinary case together with the complaint to the Disciplinary Chamber of the Supreme Court and notifies the parties. The Chamber examines the advocate's complaint under the procedural rules established by the Organic Law of Georgia on Common Courts, taking into account the provisions of the law on advocates. The parties to the disciplinary proceedings are the public law legal entity — the Georgian Bar Association — and the advocate on whom the sanction was imposed. The process of the disciplinary proceedings is confidential and the session of the Disciplinary Chamber of the Supreme Court is closed; at the request of both parties the session must be held publicly. Minutes are kept at the session and are signed by the Chair of the Chamber and the secretary of the session. The minutes record the date of the session, the times of its opening and closing, the composition of the Chamber and the secretary, the name and registration number of the disciplinary case and the date of the Commission's decision, information about the parties and other persons presented, the substance of the motions of the parties and the results of their examination, the positions of the parties, the evidence and arguments submitted, and the content of the Chamber's decision.
The Ethics Commission — composition and competence
The Ethics Commission is composed of 15 members, of whom no fewer than 12 are advocates. The members are elected for a term of 4 years by the general assembly of the Bar Association in the manner established by its charter, and those candidates who receive more votes than the other candidates are considered elected. An advocate member of the Commission must be a person who has reached 30 years of age and has at least 5 years of professional experience — disciplinary cases are thus decided by seasoned professionals. The Commission carries out its activity independently, in accordance with the law and on the basis of the norms of professional ethics. From its composition the Commission elects, by secret ballot and by a majority of the full composition, a Chair for a term of 2 years; the Chair must at the same time be a member of the Bar Association, and a person may be elected Chair consecutively only twice. Together with the members, the general assembly elects no more than 6 alternate members of the Commission — from among those candidates who received more votes than others but did not enter the composition; where a member's powers are terminated early, the next alternate member in the list takes the place. The Commission is thus always ensured a full composition, and its decisions remain legitimate.