Estonian courts have sharply criticized a draft law by the Ministry of Justice that would prescribe a lawyer's exam in pursuit of harmonizing the level of legal representatives. Prosecutor General Andres Parmas has voiced support for the exam plan.
A representative of the Estonian Lawyers' Union said that changes and measures prescribed by the bill are set to do more damage than good both for those in the legal profession and society at large.
"Based on analysis and conclusions from debates, we can say that the [justice ministry's] solution is neither justified nor suitable," the union's acting president Heino Junolainen wrote.
"It is doubtful whether the bill's goals need to include affecting the quality of legal education. Curricula are constantly being developed. Universities' law programs have undergone considerable change by today and correspond to the conditions of public-law contracts," Junolainen added.
He remarked that ways of boosting the professional aptitude of lawyers are known. These include additional funding and training to allow legal professionals to develop competencies for meeting labor market needs.
Courts: Lawyer's exam would not solve problems
Tiina Pappel, chairwoman of the Tartu Circuit Court, wrote in her feedback that the court finds the problem of incompetent non-professional legal representatives to be an infrequent one. "There is more of it in civil proceedings, while the problem should be addressed on a case-by-case basis, using the court's right to remove incompetent counsels. On the other hand, errors that harm the client are by no means rare among legal professionals. Therefore, there are no grounds to believe a lawyer's exam would fix the problem," Pappel remarked.
She added that the ministry has failed to estimate to what extent a mandatory examination would lower the number of persons who qualify as legal representatives. "Pushing aside capable legal aid service providers in court proceedings runs a clear risk of higher legal assistance costs in a situation where legal aid is already difficult to access for parties to proceedings."
Harju County Court judge Kai Härmand remarked that the bill's constitutionality has been analyzed on a rather primitive level and only highlights positive considerations, glancing over how it would infringe on fundamental rights, such as freedom of association and right to free self-realization.
"Effects analysis and designation of target groups is of regrettably poor quality. If the professional exam requirement is applied to all traditional legal professions, it holds considerable effect for the functioning of the entire state as it concerns both judicial and executive power levels. It would definitely impact all lawyers or those engaged in traditional legal professions, covering most of the target group," Härmand wrote.
The judge added that analysis of whether the bill is in accordance with the EU economic freedom principle and especially the free movement of services is also unclear.
Interior ministry refuses to approve the bill
The Ministry of Internal Affairs refused to approve the bill. The ministry provided several reasons, including that the bill's explanatory memo fails to demonstrate whether the Ministry of Justice has considered ways of solving the problems using cheaper and faster solutions.
"The explanatory memorandum of the bill mentions the problem of insufficient availability of legal assistance in Ida-Viru County. We find it questionable whether adding a mandatory examination requirement for legal aid practitioners would help solve service quality problems in Ida-Viru County," Minister of Internal Affairs Lauri Läänemets (SDE) wrote in his reply.
Läänemets added that while the explanatory memo describes passing the exam as a badge of professional level, there are no grounds to conclude that a law student's five years of studies cannot ensure the same level of quality as an exam of just a few hours.
The plan to introduce a lawyer's exam has previously been criticized by jurists and Chancellor of Justice Ülle Madise.
The plan to have lawyers take an exam has the support of Prosecutor General Andres Parmas. "Still, we would note that a separate lawyer's exam is not a perfect solution and that the prosecution would prefer a complex exam to be taken upon graduation as opposed to a separate national one after completing studies," Parmas clarified.
The Ministry of Justice communicated last March that it wants people who wish to work as attorneys, prosecutors, judges, assistant judges, notaries, bailiffs or trustees in bankruptcy to take a lawyer's exam. One would also have to pass the exam to represent people in court.
Editor: Marcus Turovski