Since many British companies operating in Russia took legal action against either the state or other companies operating in Russia, it is important to provide a sketch of the legal representation available to British companies. Lawyers with whom British companies would have contracted to act on their behalf, would have varied between different geographical regions in terms of the type of lawyer that would have been likely to have been available, and the degree to which the Russian lawyers would
96 TNA, FO 368/716, f. 712, Blakey to Smith,21 December 1911.
have potentially shared the ideal of the defence of the rights of the individual against the state.
In late Imperial Russia, lawyers were divided into two groups. The judicial reform of 1864 created an independent regional bar council that consisted of sworn advocates and their assistants.98 By 1892, there were stringent educational requirements for membership of the Russian bar, which included a degree-level law qualification, and a certain length of time working as an apprentice. Bar associations were only created in Moscow, St Petersburg and Kharkov, however, due to subsequent restrictions on their establishment in 1874. Thus the sworn advocates in these areas broadly evolved towards an ideal of a regulated Western profession to a greater extent than their counterparts elsewhere, who were regulated by the circuit courts.99 In these areas where autonomous bar associations existed, sworn advocates to an extent developed a recognizable professional identity, as opposed to an estate identity, through the development of regulated behaviour and codes of ethics. 100
The growth of this professional identity coincided with support for western liberal values, such as the defence of the individual from attacks by the state, opposing administrative rule in favour of civic autonomy protected by the law.101 Wortman argues that faced with the general lawlessness prevailing in Russia, the legal profession regarded the dispensation of justice as their particular responsibility, claiming an authority that had been the monarch’s prerogative.102 Defence speeches made by these individuals in the trials of revolutionaries often attacked the basis of government authority, and lead the government to attempt to transfer these cases to military courts. Although by 1892 the reaction following the assassination of
Alexander II dampened such liberal spirits, from the 1890s there was a new wave of activism involving the formation of political clubs and groups.103 However, it would
98 Wortman, The Development of Legal Consciousness, 261; William Pomeranz, ‘‘Profession or
Estate?’ The Case of the Pre-Revolutionary Advocatura,’ SEER Vol. 77, No. 2 (1999), 247.
99 Pomeranz, ‘Profession or Estate?’, 255, 267.
100 Huskey, Russian Lawyers and the Soviet State (Princeton: Princeton University Press, 1997), 12-
14; Burbank, ‘Discipline and Punishin the Moscow Bar Association,’ RR Vol. 54, No. 1 (1995), 48;
Pomeranz, ‘Profession or Estate?’ 268.
101 L. Engelstein, ‘Combined Underdevelopment’, 348; Baberowski, ‘The Judicial System and the
Legal Profession’, 363.
102 Wortman, The Development of Legal Consciousness, 269.
be unrealistic to assume that all sworn advocates were idealistic defenders of the individual against the state; research into complaints brought before the Moscow bar association indicates that there was a considerable amount of lawyerly misbehaviour in Late Imperial Russia, such as charging extortionate fees and not taking action in cases.104
Generally, though, it appears that this class of lawyer would have been better educated and would have been more likely to have a desire to protect the individual against the state than their private, unsworn counterparts. The latter branch of the law profession was created in 1874. There were no formal or educational requirements for these individuals, and they could only practice at courts at which they had been registered. They were prevented by the government from forming a collective professional body, and they remained a highly fragmented group in comparison to the sworn advocates.105
Whether British companies used either sworn advocates or private advocates for their dealings with the Russian legal system would have to an extent depended upon their geographical location. Sworn advocates tended to be located in large cities. By 1914, over half of all the sworn advocates in Russia were located in St Petersburg,
Moscow, Warsaw and Kiev, while only 6.2 percent of the profession were located in small provincial towns. Also, due to the restrictions placed upon the establishment of bar associations, sworn advocates who belonged to a truly independent governing body were only available in St Petersburg, Moscow and Kharkov.106 In comparison, private advocates tended to dominate at the provincial town level. When dealing with companies operating in the more remote areas of the empire, such as Siberia, there was a severe shortage of legal advocates, meaning that often the accused was often not able to obtain legal counsel, a situation which is likely to have applied to foreign companies engaged in commercial disputes.107 In areas where sufficient legal counsel were available commercial cases were viewed as less prestigious by the Russian legal profession. The competition for cases tended to be fiercest for litigation cases,
104 Burbank, ‘Discipline and Punish’, 49.
105 Huskey, Russian Lawyers and the Soviet State, 14-15.
106 Pomeranz, ‘Profession or Estate?’, 255.
and less successful advocates were forced to fall back on the commercial side of legal practice.108 Therefore, the legal advocacy available to companies would have been distinctly lower in quality than the legal advocacy generally on offer in a particular area.
Somewhat indirectly, therefore, government policy with regards to the regulation of the legal profession meant that British companies were less likely to obtain legal representation capable of defending their interests in the courts, and sympathetic to the defence of the rights of companies against the whims of the state. Although this was partly the result of the general outlook and culture of the legal profession in Russia, the restrictions placed upon the formation of a professional identity by the state meant that the oppositional attitudes common among the sworn advocates in the period, which occurred in other areas such as divorce law,109 were much less
prevalent. Combined with the legal impediments that British companies suffered from in legal areas such as bankruptcy, British interests were therefore further subordinated to the state. It is likely that due to these impediments and the lack of high quality legal representation, more cases involving British companies would have reached the Senate court of appeal.