Who is an advocate and what does advocacy activity include
In Georgia, advocacy activity is carried out by an advocate — a member of a liberal profession who is subject only to the law and the norms of professional ethics and who is a member of the Georgian Bar Association. Advocacy activity includes giving legal advice to the person who has approached the advocate for assistance (the client); representing the client in a constitutional dispute and in criminal, civil or administrative cases before courts, in arbitration, and in bodies of detention and investigation; preparing legal documents addressed to third parties and submitting any documentation in the client's name; and providing legal assistance that is not connected with representation before a third party. The advocate's function is therefore much broader than appearing in a courtroom: through consultations, documents and representation, the advocate protects the rights of both natural persons and organisations effectively in every instance where their interests are at stake.
The principles of advocacy activity
The law establishes the principles that together define the character of the profession and by which every advocate must be guided in daily work:
- legality;
- supremacy of law and fair administration of justice;
- professional competence;
- the advocate's integrity, good reputation and respect for the legal profession;
- freedom and independence of advocacy activity;
- equality of advocates and the impermissibility of discrimination against them;
- non-interference in advocacy activity;
- respect for and protection of the client's rights and freedoms by the advocate;
- the impermissibility of refusing to exercise the right of defence, except in cases provided for by law;
- protection of professional secrecy by the advocate;
- observance of the norms of professional ethics by the advocate.
Requirements for a person wishing to become an advocate
An advocate may be a citizen of Georgia who has a higher legal education; has passed the advocates' qualification examination in the manner established by law, or has passed the qualification examination for the judiciary or for the prosecution service; and has completed the professional adaptation programme approved by the Executive Board of the Georgian Bar Association, which is a one-year programme consisting of a theoretical part and an internship. At the same time, the law sets restrictions. A person convicted of an intentional grave or especially grave crime may not be an advocate, unless the conviction has been removed or expunged under the procedure established by Georgian legislation. Nor may an advocate be, at the same time, an official defined by the Georgian law on the fight against corruption or another person who is prohibited by Georgian legislation from carrying out advocacy activity. A special privilege concerns veterans of the court system: a person with at least 3 years of experience working as a judge of the Constitutional Court of Georgia, as a judge within the system of common courts and/or as a prosecutor is required to complete only the 3-month theoretical part of the professional adaptation programme, without an internship.
The advocates' qualification examination
Any person with a higher legal education has the right to sit the advocates' qualification examination. The examination is held at least twice a year; the rules of administration, the examination programme, the date and the place are determined by the Executive Board of the Georgian Bar Association. The examination may be general or by specialization, and specialization takes place in the fields of civil law and criminal law. General testing covers the following subjects:
- constitutional law;
- international human rights law, including the case law of the European Court of Human Rights;
- administrative law;
- administrative procedure;
- criminal law;
- criminal procedure;
- civil law;
- civil procedure.
For advocates with a specialization the list changes accordingly: in the civil law specialization, testing covers constitutional law, international human rights law including the case law of the European Court of Human Rights, administrative law and administrative procedure, civil law and civil procedure; in the criminal law specialization it covers the constitutional and administrative subjects together with criminal law and criminal procedure. It is also notable that the Executive Board is authorized to introduce into the examination programme a question that does not derive from the subjects listed above.
The trainee, the assistant and the organizational form of activity
After passing the examination, the applicant completes an internship: he or she must apply to the Georgian Bar Association with an application containing information about the supervising advocate. The trainee is selected according to the rules determined by the professional adaptation programme approved by the Executive Board, and the applicant's right to freely choose the supervising advocate is guaranteed. The period of the advocacy internship counts both towards general work seniority and towards seniority of professional activity. Within the cases and in the manner established by legislation, the trainee exercises the powers of the supervising advocate on the latter's assignment; however, the trainee may not be questioned as a witness on matters that became known in the course of professional activity, and the obligations of professional secrecy extend to the trainee. For technical or other assistance, an advocate may hire an assistant: the assistant does not enjoy the rights of an advocate and is not admitted to proceedings, but in the presence of the respective advocate or on the advocate's assignment, on the basis of a permit signed and certified by the advocate, the assistant may familiarize himself or herself with the materials of a pending case. The assistant likewise may not be questioned as a witness on matters learned through professional activity and is bound by the duty of professional secrecy.
As to the organizational-legal form, an advocate may practise individually or, together with other advocates or other persons, establish an advocacy bureau in the form of a partnership or of an entrepreneurial legal entity defined by the Georgian law on entrepreneurs. Information on the establishment of the bureau — its address, contact telephone, e-mail, the identity of the advocate or advocates united in it and the field of law in which they practise — must be submitted to the Executive Board within 10 days of its establishment. The bureau itself determines the rules and structure of its organization and work, but in relations with a client in the bureau's name only an advocate exercises representative powers. Advocacy activity is carried out on the basis of a contract: in investigative bodies or in court the advocate must present, together with the certificate confirming the right to carry out advocacy activity, a document issued by the client — a power of attorney or an order. A non-commercial legal entity that, for its statutory purposes, implements a grant or state programme of free legal aid has the right, on the basis of a contract with an advocate, to issue an order. The form of the order is developed and approved by the Executive Board.
Membership in the Association and the advocate's oath
For membership, a person applies to the Association and submits his or her first name, surname, date of birth, addresses of residence and of the advocacy bureau, contact telephone and, if the qualification examination by specialization has been passed, the specialization. The Executive Board decides on admission or refusal within 1 month of receiving the application, and the person must notify the Association of any change in the submitted data within 2 weeks of its occurrence. For admission the person must take the following oath: "I swear to be faithful to the ideas of justice, to perform the duties of an advocate conscientiously and honourably, to protect the Constitution and the laws of Georgia, the Code of Professional Ethics of Advocates, human rights and freedoms!". If a person, because of his or her worldview, refuses to take the oath, he or she instead writes a statement confirming that he or she will conscientiously perform the duties of an advocate established by law. The person signs the text of the oath or statement and it is kept in the personal file. After taking the oath, the person acquires the status of an advocate and receives the certificate confirming the right to carry out advocacy activity, with which the activity is exercised.
Suspension and termination of membership, and the transitional period
An advocate's membership in the Association is suspended by decision of the Executive Board — on the basis of a personal application, in the case of deprivation of the right to carry out advocacy activity, or where the person holds a position that the law declares incompatible with advocacy. Membership is terminated on the basis of a personal application; by decision of the Ethics Commission and/or a court; where a court has recognized the person as having limited legal capacity or as a recipient of support, has declared the person missing or dead; where a court judgment of conviction for an intentional grave crime has entered into force; where it has become known that the person did not satisfy the requirements, the timely discovery of which would have led to refusal of membership; where the person does not pay the membership fee; and in the case of death. Separate regulation concerns the transitional period: before the creation of the Bar Association, advocates' testing was ensured by the High Council of Justice of Georgia, and at least half of the qualification commission is composed of representatives of the associations of advocates and other lawyers. Persons who have not passed the testing and do not hold the respective certificates are prohibited from exercising representative powers before the courts of appeal and cassation instances, except employees of state power bodies, municipal bodies and organizations — in cases of those bodies and organizations.