The rights of the advocate
An advocate has the right to represent and defend the client, the client's rights and freedoms, before the constitutional, supreme and common courts, in arbitration and in investigative bodies, as well as in relations with other natural and legal persons. For the purpose of protecting the client's interests, the advocate may, in the manner established by legislation, demand and receive the documents, certificates and other factual data necessary for carrying out advocacy activity. The guarantee of communication with detained persons is particularly important: the advocate has the right to meet face to face, without hindrance, at any time and without control, in the manner established by criminal procedure legislation, a person placed in a place of detention, arrest or other restriction of liberty, and to correspond with that person. The law also entitles the advocate to supply the police or other authorized bodies with information about a possible act of violence against women or domestic violence, where a danger of repetition of the violence exists. In addition, the advocate enjoys other rights provided for by procedural legislation, and the advocate's activity may be restricted only by law — no other act or person may restrict it within the scope of the mandate.
The duties of the advocate
Together with the rights, the law imposes strict duties on the advocate, some of which serve the client and some the public interest:
- to perform professional functions conscientiously;
- to observe the norms of professional ethics exactly and unwaveringly;
- not to violate the rights of the court and of other participants in the proceedings;
- to protect professional secrecy;
- to perform the duties assigned by procedural legislation and, in case of a conflict of interests, to notify the client immediately;
- to fulfil the requirements of the mandatory continuing legal education programme approved by the Executive Board of the Georgian Bar Association;
- to provide the Financial Monitoring Service of Georgia or the Bar Association with information on transactions provided for by the Georgian law on facilitating the suppression of money laundering and the financing of terrorism, the Association ensuring the submission of the respective certificate in the form and procedure established by that law and by the normative act of the Financial Monitoring Service.
Protection of the client's interests
The advocate has the right to use every means not prohibited by legislation or by the norms of professional ethics in order to protect the client's interests — this establishes the principle of maximum effectiveness of the defence. At the same time, the advocate is obliged to provide the client in due time with all information and to explain every possible financial obligation connected with the conduct of the client's case. The client is thus informed both about the state of the case and about the expected costs, which makes the relationship transparent and allows the client to make reasoned decisions at every stage.
Professional secrecy — content and limits
Professional secrecy is the cornerstone of the advocate's activity. The advocate is obliged to protect it regardless of the passage of time — the duty does not disappear after the end of the dispute or of the relationship. Without the client's consent, the advocate may not disclose information received from the client in the course of carrying out advocacy activity or connected with the client's case (confidential information). Moreover, the advocate may not disclose even the client's identity if the client has previously demanded this in writing. Any information that the advocate has received from the client or from another person seeking legal advice is confidential. Violation of professional secrecy entails liability provided for by the law and by the Advocates' Code of Professional Ethics.
The law precisely defines the exceptions where the advocate may disclose confidential information: with the client's consent; where the use of such information is necessary in the process of representation or defence arising from the client's interests and the client has not previously forbidden its disclosure; and where it is necessary for the advocate to defend himself or herself against an accusation or claim brought against the advocate, or in the existence of a court dispute over an honorarium not received by the advocate. The reporting form on transactions provided for by the anti-money-laundering law is sent by the advocate only where this does not contradict the principle of protection of professional secrecy defined by the legislation regulating the advocate's activity.
Conflict of interests and the advocate's insurance
The advocate is obliged to refrain from any action and from establishing any relationship that would endanger the client's interests, the advocate's professional activity or independence. The advocate is not entitled to perform professional functions if, in the same case, advocacy activity has already been carried out for the benefit of the other party — this is a direct expression of the principle of loyalty to the client. It is likewise impermissible for the advocate to perform professional functions in a case in which the advocate has already participated in another capacity, namely:
- as a judge, prosecutor or investigator;
- as a mediator, arbitrator or enforcement officer;
- as a judge's assistant or secretary of a court session;
- as an interpreter, attendant or witness;
- as an expert or specialist;
- as a public servant or notary, as well as in another capacity provided for by procedural legislation.
For the purpose of compensating possible material damage to the client, the advocate is obliged, in the cases and in the manner established by law, to insure his or her professional liability — this mechanism gives the client an additional financial guarantee that harm caused by poor-quality assistance will be compensated.
Liability, legal protection and the mantle
For committing a legal violation, the advocate bears liability under the general rules established by Georgian legislation, while for successful activity the general assembly of the Bar Association may, on the proposal of the Executive Board, establish forms and rules of encouragement of advocates. The advocate carries out activity independently: unlawful interference in the advocate's activity, obstruction of it, improper influence by a state body or another person, intimidation, harassment, coercion, persecution, pressure, infliction of moral or material damage, violence or the threat of violence — and any other action that may violate the advocate's independence — are impermissible. Advocates are equal before the law. An advocate may not be questioned as a witness in a case in which he or she participated as a defender or representative. The advocate bears no liability for statements presented orally or in writing to a court or administrative body arising from the client's interests — this protects the procedural position and prevents the persecution of instruments of defence. Surveillance and recording of conversations between the advocate and the client are impermissible, while their correspondence is inviolable. A criminal case against an advocate must be examined by a district (city) court according to jurisdiction. Finally, by decision of the general assembly of the Bar Association, special attire — the mantle — may be introduced for advocates when cases are examined in the constitutional and common jurisdiction courts; the form of the mantle is approved by the general assembly on the proposal of the Executive Board.