"We simply don’t want to see a Bar that is owned by a handful of firms," was the explanation offered by Aleksandar Cvejic, Board Member and Secretary of the Board of the Belgrade Bar Association in support of the controversial draft bylaws submitted for a vote at the upcoming assembly of the Belgrade Bar on September 24, 2016.
The main controversy surrounding the proposed draft relates to a limitation of the voting rights of lawyers employed in law firms.
Rastko Petakovic, Senior Partner Karanovic & Nikolic, explained that Serbia's 2011 law on lawyers effectively voided all existing bar association bylaws. This prompted the Belgrade bar to set up a commission to generate new draft bylaws, which ended up producing two drafts, according to Cvejic, who explained that, "since the Board is the only body authorized to submit drafts of the bylaws to the assembly, we decided to accept one of them with minor changes. We now published it on our website and all lawyers in Belgrade have the right to propose amendments to our draft. Based on that, we will put forward a final draft to the assembly."
While all lawyers will be able to vote in the upcoming assembly, Rastko Petakovic is concerned about the implications of the draft bylaws — particularly the prohibition of Associates in law firms from voting in subsequent elections: "If you are a member of a large law firm you will no longer have the right to vote and if you want to nominate anyone to take a leadership position in the Bar in the future from such a firm you will only be able to nominate one lawyer." This, he argued, will discriminate against any lawyer in a firm, in favor of lawyers who operate as solo practitioners.
Although JPM Jankovic Popovic Mitic Senior Partner Nikola Jankovic concedes that "in reality, most young lawyers in Serbia, if they work for a larger firm, will likely not do so under an employment contract — rather a contract of mutual cooperation," he agrees that the current draft is "highly discriminatory towards big law firms." He explained "in its current form, the limitation on voting would apply to attorneys employed by a law firm. Furthermore, all unlimited partnerships are only allowed one member on the Management Board, Supervisory Board, Disciplinary Prosecutor’s Office, and Disciplinary Arbitrator’s Office."
And its not just large firms that are concerned. Nenad Stankovic, Senior Partner at Stankovic & Partners, explained that, if passed in their current form, the new bylaws will certainly impact them as well. He clarified that it is unlikely that it will have impact them directly, but voiced a concern over a "conservative approach leads to uncertainty for any corporate law structured law firm in the market."
Indeed, while Cvejic mentioned "only minor changes" to the draft from the commission, one member of the commission that worked on the initial draft (who requested anonymity) told CEELM that "the Governing Board of the Belgrade Bar will present a draft proposal of the Statute that, as I believe, does not provide effective mechanisms for fair election procedure. There are no guarantees for transparency of the election process and it limits voting rights." He added: "I proposed 6 amendments on this draft, in order to establish grounds for a fair election process, based on effective tools for supervising elections and unlimited voting rights for all members of the Bar. Only secured and fair elections can result in legitimate representatives of the Bar which is crucial for stable and functional Bar Association in the future. We will have open discussion on Assembly meeting where I will present my standings and arguments."
A Difference in Philosophy
When asked about the justification put forward for the proposed change, Jankovic noted that the Belgrade Bar is currently run by individual lawyers, who are almost exclusively working as solo practitioners and who tend to focus almost exclusively on criminal law. "With the rise of the business lawyer — with us launching in ’91, Karanovic & Nikolic in ’95, and a good number that followed," he said, "those currently running the Belgrade Bar realize that between the largest 10-15 law firms, there are enough lawyers to amass considerable voting power." However, he believes this logic is flawed, as it assumes that he "can, or would, influence [his] younger lawyers as to how to vote." He added: "We should, but we are not really interested in this. I don’t want to lose time, energy, and money coordinating these things."
Jankovic’s analysis appears correct, as Cvejic, at the Bar Association, speaks in similar terms: "The voting limitation is meant to counterbalance the risk that huge law offices might privatize the board and end up in a situation where a few law offices retain power within it." He elaborated: "They have 200-300 lawyers who can vote, which amounts to a considerable say in terms of who ends up in the Board which could be problematic" — a concern which, he said, was not only shared by the incumbent Board but "other lawyers as well."
Thus, Cvejic reports, lawyers working under employment contracts at firms are, in fact, a different beast: "We [the Bar Association Board] are of the opinion that those lawyers under employment are not lawyers anymore — they are employed by lawyers and have lost their independence as a result." He noted that this loss of independence "is not in accordance with our law," and added, "our position is that if lawyers are Partners, that is fine, but if they are not and are simply employed by a firm, they are not independent, and we believe that is essential to the vote."
Jankovic, perhaps unsurprisingly, believes the proposed bylaws represents an unfortunate conservatism: "We have here an issue of two ‘worlds,’ one representing an old, conservative, closed society of vested interests and another, new, young, modern, transparent, aspiring, and willing to embrace new trends on the legal market." Cvejic, meanwhile, insists that the suggested bylaws are not the result of an opposition to corporate lawyers per se, but instead reflect a concern that a handful of firms might try to assume power within the bar, which, he argued "would be wrong in our perspective." Cvejic did note that there might be some personal disputes at times, but argued those are "natural in the profession" and emphasized that they are not the main reason for the proposed draft, concluding: "We simply don’t want to see a Bar that is owned by a handful of firms."
Another Controversial Proposal
A second controversial provision is that requiring minimum levels of experience for certain positions within the Bar. According to Petakovic, the draft includes "a rule that no one can be elected as a Board Member or as the President of the Bar unless he/she has at least 7 or 15 years of experience respectively." This, he argued, will certainly harm young lawyers in the market. Even Cvejic reports that he opposed the proposed rule, but mentioned that "there are a number of proposed amendments and there are chances that it will be changed by the assembly."
The Vote This Saturday
Predicting the likely outcome of the session on Saturday is difficult, according to Nenad Stankovic, who reports that views on the current draft are "rather divided." He reported that even within the “conservative” side, it looks that it is only a few members that are pushing for the current version of the bylaws. Jankovic as well noted that there were other drafts in play at various stages, and he believes those, or other amendments to the current one, will inevitably come up, so he does not expect the current version to go through on Saturday.
Ultimately, Stankovic commented that while "certain aspects of Serbian attorneys' activities need to be subject to real reforms for sure," it is "important to remember that these types of disputes are not typical to Serbia alone — rather they exist in pretty much all countries. We need to either figure out to co-exist or set up separate chambers. The latter could be a good solution but it is uncertain at this point if we'd see an approval from the existing bar to go forward with this."
But until the right solution and balance is achieved, the first step is clear, according to the member of the commission originally tasked with drafting the Bylaws: "It is of great importance for Belgrade lawyers to come to Assembly meeting on Saturday and to adopt the Statute, because the Statute is a basic precondition for organizing elections for the Belgrade Bar Association boards and other bodies, after more than six years."