Association Of

Independent Advocates

It is common knowledge that currently there are no legal provisions enabling the use of e-voting for the Bar bodies, which is the only procedure that could provoke a large-scale effective participation of all lawyers in the election activity and suspend all wrongful practices in a pre-election campaign by urging the lawyers to vote by numbers or selected lists handed over before receiving the ballot paper. The Bar councils and the SBC’s resolutions are not always published, and some resolutions are uploaded online with great delay. Moreover, only the operative part of the Bar councils’ resolutions get published, but not the narration of facts, discussions, reasons nor the findings on which the resolution is based, thus making the access to information only partial and indirect. This also allows all the members of the Supreme Bar Council responsible for a certain resolution to enjoy anonimity and remain hidden. That being said, the outcome is that members of the Bar are denied the possibility to be aware at all times of all resolutions mandatory to the Bar bodies and entailing disciplinary liability.

There are no electronic lawyers’ cards, there is no disciplinary proceedings’ register accessible to lawyers. The latter proceedings are sometimes used as a pretext for the persecution and silencing of nonconformist lawyers since the jurisprudence of different Bar Disciplinary bodies is not known to the public and cannot be compaired. Court-appointed defence lawyers ans special representatives are not randomly allocated and it leads to dependencies of the lawyers from the bodies which become apparent mostly in the Bar elections.

A great number of requests from the FCBL and separate lawyers addressed to the Supreme Bar Council remain unanswered – another form of improper behaviour which should come to an end. The development of the Bar requires that a possibility for a dialogue exist between the bodies and the lawyers. Different conferences and fora are held by the Bar bodies, but ordinary lawyers are not typically granted access to such events, they are not streamed and the materials for the events are not distributed.

An e-justice portal has been created to enable lawyers to access and review electronic copies of the court files and to obtain excerpts of the files. Through the portal are accessible only court files of courts that are technically connected to the portal. The portal itself contains a list of all participating courts. All courts but the administrative courts and the Supreme Administrative Court, are connected to the buffer storage of the portal. The administrative courts’ connection should be subject to revision and adjustments so that their software becomes compatible with the e-justice portal concept. Currently there are three major problems obstructing the effective use of the electronic portal and requiring proactive position of the Bar:

1. Access to every electronic file of the court case is only possible after an initial registration of the user. Each lawyer is expected to submit a request for registration in every separate court participating in the portal and willing to allow electronic exchange. The registration requests can not be filed through electronic means though, meaning that the lawyer shall travel and organize to visit each court separately and file the requests for registration in person. The issue has been brought to the attention of the competent officials by members of the FCBL and is soon expected to be resolved.

2. The data contained in the electronic files is not properly arranged and organised. The incoming documents are not in chronological order but instead divided in sections and thus rendering the information unusable in electronic form. The reasons for such strategic mistake in the conceptual mode of structuring the portal is due partly to the fact that the Bar’s representatives have not been consulted at all during the technical assignment to the contractors despite being the most significant user of the portal. These issues have been again brought to the attention of the members of the Supreme Judicial Council by members of FCBL and a solution is expected to be found.

3. The electronic files are not full and do not contain all documents from the court files. Not all documents get scanned and moreover not even all court rulings are uploaded. Rulings regarding the administration of the case are missing, but these rulings are yet of utmost importance to the lawyers to ensure speed and accuracy of the administration of justice.

The participation of the Bar in the implementation of a working electronic justice is absolutely necessary and indispensable. On the request of FCBL’s members the Supreme Judicial Council has undertaken to develop and assign a project for a help desk center and a call center focused on servicing 24/7 the questions and notifications for problems with the portal’s access. E-justice should be deemed a priority for the Bar’s activity. Therefore the dialogue with the SJC’s representatives should be kept up and even intensified until all issues are resolved.

Disciplinary proceedings under the Bar Act are considered faulty and with great weaknesses and these problems have their repercussions on every single lawyer. The jurisprudence in these proceedings is contradictory to say the least due to the differing approach and interpretation of a flawed and problematic law (the Bar Act), the gaps in the professional training of the disciplinary panels and even some custom-made disciplinary actions.

It only increases the necessity of all lawyers to have access to the decisions of the disciplinary panels and to be informed what are the reasons and circumstances for which their behavior could be prosecuted and found a disciplinary misdemeanor. The publication of all decisions could be an incentive to the disciplinary judges to not abuse their powers being themselves lawyers in a competitive market. The disciplinary proceedings follow no fixed and uncertain procedure. Lots of the panels do not abide by the rules of the Criminal procedure code (CPC) referred to by the Bar Act, but instead fabricate their own rules often to the detriment of the lawyers brought to account. The disciplinary decisions rendered against lawyers which do not form part of the Bar bodies, are not subject to review by the judiciary. It represents a breach of the constitutional rights of the lawyers and necessitates prompt changes in law. Until such changes are implemented though, the publication of the disciplinary decisions could bring progress in limiting potential abuse of powers.

The electronic lawyer’s card with an optional e-signature could significantly facilitate the lawyers’ work and reduce their workload. The launch of the e-cards system will enable the access to files by electronic signatures, access to databases and state registries, which is an indispensable benefit. It could as well become a possibility after appropriate legislative changes to grant access to the lawyers to databases and present an opening for lodgement of statements of claim, appeals, oppositions etc. by electronic means with e-signature.

The registry officials’ practice is rife with instances of inconsistent and contradictory application of the law, and registry officials are often not very successful in keeping up with case law on appeals against their resolutions to deny entries. The time needed for verification and resolution/entry on the Annual financial statements applications is also excessively long. We mustn’t also forget the 17 days crash of the Commercial Register back in 2018.

One of the goals of the Association of Independent Advocates is to cooperate with and assist the Registry Agency officials in their effort to streamline the functioning of the Commercial Register, including cooperation and assistance in cases involving bug fixes and improvements related to the new web-based platform, which is expected to become operational in early 2020.

From the perspective of the legal profession, the Property Register is still very close to the level it used to be 10 years ago when the IKAR platform was first brought into operation. One of the goals of the Association of Independent Advocates is to urge and assist the officials from the Registry Agency, the Ministry of Justice and all other competent institutions to follow through with the undertakings they have made during one of our recent meetings, including: enabling remote access for lawyers to the Property Register’s archives and the scanned images of all registered title deeds. We consider it highly inappropriate for lawyers to wait in line at the Registry Agency Archives Office along with lay citizens. It is more than clear that the time wasted waiting before the offices of the Registry Agency ultimately leads to otherwise avoidable charges to our clients. Therefore, the lack of remote access, exercised by means of a qualified e-signature or another authentication method has a direct negative effect on both individuals and businesses.

The functionality of the registers can be significantly improved as long as the Registry Agency and Ministry of Justice officials strive to do so, and, if necessary, following legislative amendments. In any event those officials must maintain good communication with the actual users of both registers. Naturally, lawyers are among the most frequent professional users of the registers. They possess the required experience and expertise to provide the authorities with valuable feedback and recommendations regarding their operation. The very first steps towards achieving this goal have already been made.

In connection with the initiatives of the members of the Facebook Community of Bulgarian Lawyers and with the assistance of the Ombudsman of the Republic of Bulgaria, two meetings were held with the Minister of Justice and officials of the Registry Agency. All issues have been brought to the attention of the responsible officials in writing. Following those meetings, the Registry Agency issued Practical guidelines as a first step towards assisting the registry officials in the execution of their duties and establishing of uniform rules and criteria with respect to the processing and resolution of registration applications. When the Association of Independent Advocates was formed, the Registry Agency has addressed a letter to its president, expressing desire to cooperate with AIA on issues related to the operation of the Commercial and Property registers. In this regard, AIA will be providing feedback and recommendations on testing and bringing into operation of the new Commercial and Non-Profit Organizations Register portal and we will continue to insist on providing lawyers with remote access to the Property register archives.

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Yes. As of 2019-2020, numerous advocates and various persons without the said capacity engage in unfair competition, thereby infringing the interests of advocates abiding the law and adhering to fair market behavior.

Unfair competition is carried out by advocates, as well as by various persons, who are not registered in the bar associations: traders, accountants, developers, brokers, etc.

The reasons are complex. On the one hand, the Bar does not have the necessary mechanisms, including organizational and human resources to cope with unfair competition. On the other hand, unfair competition is profitable. Those who practice it very quickly see the economic incentive to continue and even invent new unfair practices. As a result, many typical trading methods and techniques are beginning to enter the legal services market. This leads to a decrease in the quality of legal services and a loss of credibility for our profession.

One possible approach is to engage the liability of the persons involved with unfair competition. This approach has some weaknesses. Firstly, the bodies of the Bar can only effectively engage the liability of advocates. With regards to persons outside the Bar, our bodies have limited competence and so far have shown no will for handling the situation. Second, engaging this liability requires the implementation of a number of procedures. The bodies of the Bar who possess the necessary competence do not always have the resources needed and the motivation to exercise them. Moreover even when liability of certain advocates is engaged their place is soon taken by other offenders. The second possible approach is complex. On one hand, the bodies of the Bar should be more proactive and seek more rational approach to the offending advocates. On the other hand, the Bar must correctly identify the problem with persons outside the Bar who are engaging in unfair competition. This problem lies with the Bar itself, which defines as legal activity certain services that can be provided by other legal professionals as well. As a result, advocates are subject to many restrictions that do not apply to their competitors - merchants or other legal professionals. Some of these restrictions are advertising bans and minimum fees, which often exceed three times the free market prices. Those restrictions place the Bar in a disadvantageous market position compared to other market operators that are our competitors with regards to this type of services. It should be noted that these are often services that do not require particularly in-depth legal expertise, but are, on the other hand, popular: business registration; company changes; drafting up some blank contracts, etc. In other cases (e.g. real estate transactions), our competitors use the services of trained lawyers.

1. Clear definition of the advocate's activity as exclusive and non-exclusive types of activity; 2. Removal of the restrictions on advertising of legal services which represent non-exclusive advocate’s activity in order to place the advocates in an equal market position with the other providers of these services who are not lawyers; 3. Withdrawal of the minimum fees restrictions provided for in Ordinance 1 for services that are non-exclusive advocate’s activity. This measure is again aimed at placing the lawyers on an equal market position with other providers of these services who are not lawyers and to whom minimums do not apply; 4. Concentrating the activity of the disciplinary bodies of the Bar on cases where unfair competition is performed by advocates and concerns services which are exclusive advocate's activity.

Both the Constitution of Republic of Bulgaria and the Law on Advocacy speak of independence of advocates. Lawyers are often discussing how exactly it should be defined. Does it come down to positioning of the Bar outside the structure of state bodies (which makes it independent of them) or it relates to the personal independence of each advocate, expressed by his freedom to protect his client and to defend his rights at any cost, even contrary to his personal interest. Perhaps advocate’s independence is a combination of both, but in all cases, in order for it to be well-guaranteed, the advocate must be financially secured. The poor advocate is not an independent advocate. And no matter that this rule has of course its exceptions; the widely recognized view is that precisely the adequate remuneration is the guarantee for independence. Therefore, defending the fair remuneration for advocates, we actually defend their independence, as a safeguard for the protection of the rights and freedoms of citizens and we believe that the independence of the advocate is just as important as that of a judge.

If the independence of the advocate is as important as that of a judge, then it is logical to conclude that the remuneration of the advocate should be in the same parameters as that of a judge. Unfortunately, through a series of legal provisions contradictory to the European law and the Bulgarian Constitution and through the humiliating regulation of legal aid, our state has managed to exceed all limits and to equate the advocate's remuneration to that of a low paid unskilled worker. We don’t only consider such remuneration unfair, but we also think that through its regulation the Republic of Bulgaria would be unable to fulfill its obligations under the ECHR related to providing of guarantees for a fair trial, one of which is precisely to secure the right to an independent advocate.

You can read our detailed arguments on what we consider is the fair minimum remuneration of the advocate's work in our written opinion on the matters of minimum amounts of the attorneys' fees. In any case, the minimum must be related to the amount of expenses required to perform the advocate's activity, as well as the time it takes for an advocate to provide a quality legal service.