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Developing Mongolia's Legal Framework: A Needs Analysis : The Legal Profession
The AdvocatesWhile the economy and society were heavily regulated by the state, citizens had little need for legal advice unless they were party to a criminal case. As a result, there seems to be no tradition of seeking professional advice and little regard for its potential usefulness. Advice is rarely sought before entering into a contract. In addition, there is an expectation that advice will be free, and certainly it appears that general legal advice is sought from places such as the General Prosecutor's Office, local governments and ministries. There has been an advocacy profession in Mongolia since the early socialist period. In 1928 a body of advocates was set up and its members were authorised to act as defence counsel and to prepare legal documents. The right of a defendant to retain counsel was later enshrined in the Constitution. However, there was no monopoly on those activities and any adult could represent someone in court. The work of advocates was largely confined to criminal matters, although they were sometimes called on to advise state enterprises and organisations such as agricultural cooperatives. The Law on Advocacy came into effect at the beginning of 1995 and outlines the structure of the advocacy profession. It does not regulate government legal advisors who are specifically prohibited from joining the Association of Mongolian Advocates. Under the new law, advocates can give legal advice, prepare legal documents, represent their clients in court and before administrative organs and participate in investigations. However, they still have no monopoly on these activities and a defendant may choose to be represented in court by a lay person. The precise number of advocates in Mongolia - and of lawyers generally - has not been easy to establish. In late 1994, there were said to be around 200 practising advocates. Most were working in the courts on criminal matters. By mid-1995, the Association of Mongolian Advocates had nearly 400 members. In 1994, the aimag of Bayan-Olgie had only three advocates, of whom two were of pensionable age and none had any recent training in commercial law. Only two or three firms in Ulaanbaatar can provide commercial advice, but there does not seem to be a demand for more. There is also one foreign law firm with an office in Mongolia. In fact, there are few law firms as such and most advocates practise independently, often from home There is nothing to prevent a group of advocates from setting up as either a partnership or a company and thus limiting their liability, although the high tax rates for business entities may be a disincentive. The Law on Advocacy does provide that if a clientūs property is damaged as a result of an advocate's malpractice, that loss must be compensated, but it does not say by whom or what happens in the case of limited liability if it is not covered by insurance. By law, four percent of an advocate's fees must go towards insurance which is organised by the Association of Mongolian Advocates. All advocates must belong to the Association of Mongolian Advocates, which is independent of the government and is funded by a levy of six percent of its members' fees. In keeping with the size of the profession, the Associationūs office in Ulaanbaatar is small, with a full time staff of around four. There are branch offices in all the aimags. The Association has plans to increase the services offered to its members by providing a regular newsletter and seminars. It has also recently drawn up a code of ethics to which all advocates must adhere, and a set of standard fees for various advocacy activities although these are not binding. According to this scale, advice costs around Tug 200 ($0.43) per hour. To qualify as an advocate, it is necessary to have a law degree, no criminal record, and to pass an examination administered by the Association of Mongolian Advocates and the Ministry of Justice. It is possible for judges and prosecutors to become advocates after a gap of one year from their previous position. Foreigners may also conduct advocacy activities in Mongolia, although the law is not clear on what requirements there are before this can be done. It is difficult to make any specific recommendations as to the needs of advocates, partly because advocates do not form an especially cohesive body. In addition, although they seem on the whole to have little commercial or market economy experience, the demand for advice on commercial matters is only developing slowly and at present seems to be met by the few advocates practising in that area and by bodies such as the Mongolian Chamber of Commerce and Industry which provides legal advice to its members. What advocates may need to foster at this particular stage is a greater public awareness of what assistance they can give and in what sort of situations they can help, but recommendations as to this sort of marketing are beyond the scope of this report. Advocates may also be assisted by greater interaction among themselves, and between themselves and other members of the legal profession. One area in which training might be useful is in the use of the adversarial process, which is still unfamiliar to advocates and judges alike. A second is in developing skills in arbitration and alternative dispute resolution. As noted previously, however, arbitration is limited in its availability and there is not much incentive at present for litigants to use alternatives to a court system which is relatively inexpensive and quick. Both of these factors will undoubtedly change, and there is already some request for training in arbitration.
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