In the autumn of 1990, work for the developing of the new Bar Association Act was started. The main problem was whether to proceed from the Estonian Bar Association Act of 1938 or take modern acts adopted in the Western countries as a basis. The ones favouring the first version won. It was decided that differently from the act of 1938 the texts of the act and the statutes were to be assembled into separate acts. On 10 December 1991, the Supreme Council adopted an act of the Republic of Estonia about the Estonian Bar Association.
On 19 and 20 February 1992, a general assembly of the advocates took place, where the Estonian College of Advocates ended its activity and the Estonian Bar Association was declared its legal successor. With this the Estonian Bar Association liquidated on 1 March 1941 had been restored.
In October 1992, the Estonian Bar Association was accepted as a full member of the International Bar Association (IBA), who together with the so-called European Bar Association has acknowledged the Estonian Bar Association as an independent trade association of advocates.
The activity of the modern Estonian Bar Association started in 1992, when the Estonian College of Advocates operating during the Soviet Republic of Estonia ended its activity and the Estonian Bar Association restored the Estonian Bar Association liquidated in 1941. Such changes became possible in relation to the re-independence process of the Republic of Estonia and the act of the Republic of Estonia on the Estonian Bar Association adopted in 1991. Starting from 1992, Estonian Bar Association is a member of IBA and starting from 1999 an observer member of the association uniting the bar associations of the European Union (CCBE), in addition to this Estonian Bar Association participates in several international forums and has close contacts with the bar associations of several other countries.
The need to keep up with time and specify the norms regulating the advocate’s activity the preparation of the new Bar Association Act was started in 1997. Riigikogu adopted the Bar Association Act on 21 March 2001.
As important changes, giving of a status of a person in public law to the Bar Association, establishing of a professional liability insurance requirement of the advocate and inclusion of judges and representatives of the Ministry of Justice in the activity of the bodies of the Bar Association should be mentioned. The separate chapters of the act deal with issues related to the acknowledging of the professional qualification acquired in a foreign country and the right of activity of the advocate of a foreign country in Estonia.
Proceeding from the Bar Association Act on 24 May 2001, the general assembly adopted the internal rules of the Estonian Bar Association. The activity of the Bar Association is also regulated by legal acts adopted in several general assemblies: code of ethics, statutes of the symbols, procedure for payment of the membership fee of the Bar Association, procedure for remuneration of the work performed by the advocates in the interests of the Bar Association and procedure of remuneration of state legal aid.
Bar Association is an independent legal person and acts through its bodies, which include the general assembly of the Bar Association convened once per year and other bodies elected by it for the organization of the activity of the Bar Association: chairman, Board, audit committee, professional suitability assessment committee and court of honour. Bar Association is an open organization. Every person meeting the requirements established to the advocates can become a member of the Bar Association.
Members of the Bar Association or advocates are professional and independent representatives and legal assistants. For the performing of his/her duties more extensive rights for the gathering of information, documents and evidence have been granted to the advocate by law, also safeguards to preserve the confidentiality of the client-advocate relationship and immunity of the advocate have been established. The freedom and independence of the activity of the advocate is one of the most important safeguards of human rights. The duties of an advocate include protection and legal counselling of the client in an honest manner within the limits of all legal and ethical possibilities, thereby being free of direct or indirect influence and preserving the information acquired from the client and by helping the client, confidential information received from the client and in relation to assisting the clint. Advocates are expected to have thorough legal knowledge, but in addition to this the profession of an advocate establishes also high legal and moral obligations to the clients, courts and other state authorities, other advocates and the public.
At present the number of advocates in Estonia exceeds eight hundred. The members of the Bar Association – attorneys-at-law, senior assistants of attorney-at-law and assistants of attorney-at-law – have passed a thorough qualification exam and been declared suitable for the profession of an advocate by education, knowledge as well as personal characteristics.
Advocates operate in law offices and provide different legal services: assist at administration, prepare document drafts and legal opinions, represent and defend clients in courts and administrative agencies in criminal and misdemeanour cases as well as in civil and court disputes, participate as experts at the preparing of legal acts, represent at negotiations and provide other similar services. Attorneys-at-law can also operate as trustees in bankruptcy and arbitrators and conciliators.
Additional information on the Estonian Bar Association and the law offices operating in Estonia can be obtained from the Board of the Estonian Bar Association or directly from the law office of interest.
The birth of the Estonian Bar Association is associated with 14 June 1919, when the first general assembly of attornies at law was held and the council of Estonian advocates was elected on the premises of Tallinn court chamber. Yet, the history of advocates’ activity in Estonia reaches back to far distant times.
10th –14th CENTURY
At the viewing of the development of law Tallinn town law, Riga town law and Estonian and Livonian law (knight law) must be differentiated on Estonian territory.
Together with the arrival of Germans, legal acts regulating administration of justice started to function on Estonian territory. For example, in the 13th century spokesmen, who were the assistants of the court parties, knowing and explaining legal customs and norms and who assisted the court in finding out the truth, performed in the court. In Germany such spokesmen were already known in the 8th century.
In the 13th century, the services of a spokesman both in civil as well as criminal matters were provided for a fee. The institution of a spokesman also spread on Estonian territory, according to which in 1257 Lybeck town law, also requiring spokesmen, was established in Tallinn. In 1270, the town of Riga started to use Hamburg town law, which expanded to South Estonia and the town of Haapsalu. Here also spokesmen were required. The institution of a spokesman was far more extensively treated in Tallinn town law, which for a second time was borrowed from the town of Lybeck in 1282. Also the old Livonian knight law mentioned spokesmen
According to all laws spokesmen could be grown up free persons with flawless and honest manners, except for women and ministers of religion. A person declared dishonest, outlawed or a person under the oath of church could not be a spokesman.
The spokesman was not required to have any education, he had to know the customs of the court and assist the court and the parties. If someone requested a spokesman the court had to appoint one. The spokesman received a reward, the size of which differed by different towns and spokesmen were called the knights of law and peace.
The aforementioned institution functioned on Estonian territory during the second half of the 10th century, when for the most part common law served as a basis for administration of justice.
During time legal norms became more complicated and Roman and canon law were taken into use, due to which ordinary citizens were not able to understand all laws. But there were people who studied laws and represented co-citizens in court and outside of it for a fee. For the first time such persons were mentioned in the decision of Pärnumaa Maapäev of the second half of the 16th century, where they were referred to as procurators.
In the end of the 16th century, the procurator and advocate got a concrete definition both in Riga and Tallinn regulations and laws, also in Estonian knight law, which set norms for their activity. There was a request of honest jurisdiction and an obligation to keep the secrets of the client confidential, not to demand too high a fee, acquire legal education and experience for work, also help the poor and widows free of charge. Prior to starting the procedure they had to take an oath before the town council and they could not be witnesses and offer advice to the other party or protect the other party simultaneously in one and the same case.
Estonian knight law (1555) defined the terms of simple, special and general authorization and the spokesman was requested to avoid offending the court or useless prolongation at the hearing of a matter in court. The secret of the client was protected.
In 1696, the Royal County Court published a pact, which stated that for the deliberate or vexatious prolongation of the matter by the advocate the latter was to be punished with an imprisonment of 8 days.
Larger and more principal changes took place in the Bar Association in Tallinn and Riga town laws during the Swedish reign in the 17th century, where increased requirements to the morals of an advocate have been established.
Starting from the end of the 18th century, advocates were required to have higher legal education.
In 1687, Tallinn City Council adopted new regulations of the Bar Association together with two annexes, which in addition to the provisions on the morals of the advocate also included rules for collecting a fee and the text of the oath given to the city council.
Since 1666, advocates were exempted from all taxes and duties of the city. The regulations were effective until the middle of the 19th century.
During Swedish reign the Bar Association belonged to the court and was liable for its activity to the court. Advocates were almost independent of administrative power. They did not yet have their own organization, as sworn officials they belonged to court figures. Advocates were admitted to service in towns through city councils, which was the highest court instance at the time.
During the Great Northern War Estonian territory fell under the Russian empire. In capitulation the former court administration and jurisdiction remained in force. Hence, also the laws pertaining to the Bar Association remained effective, although Russian rulers absolutely disliked advocates. Peter the Great called advocates tattlers (jabetnik), sole sellers (duðe pradavets) and even thieves (vor). Also, Kathrene I was very unfriendly to advocates. Nikolai I was also of the opinion that as long as he ruled, Russia did not need any advocates. Hence, the Baltic countries were the only part of Russia, where advocates could act and develop on a legal basis.
The changes introduced to the Russian court administration in the end of the 18th century and beginning of the 19th century also had an impact on the court administration and regulations of the Bar Association of the Baltic countries, sometimes even hindering the development of the Bar Association.
Starting from1840, in Livonia the right to admit a person as an advocate belonged to the highest court, in Estonia to the higher county court, in Tallinn and Riga to city council.
The opinion of the state council approved by the tsar on 5 July 1840 established a requirement for the advocate that the person had to have graduated from a legal faculty of some Russian university with the master’s or doctor’s degree and passed a practical exam.
In 1845, a new law on the administration of the Bar Association was adopted, which was mandatory to all the members of the Bar Association of the Baltic countries both in the countryside as well as towns. The court reform of 9 July 1889 declared the law of 1845 invalid and the norms established for attornies at law in the internal state of Russia in 1864 were applied to the Baltic countries. The right to the renaming of the persons working as advocates into attornies at law was granted to the minister of court. Yet, the fact that Russian, which the local advocates did not command, became the language of the court turned out to be a major problem to local advocates. Using an interpreter was not allowed; all laws and judicial practice were in Russian. This is also the reason why many old advocates gave up their profession.
In the end of the 19th century the number of advocates in Estonia and Livonia was very small. There were no Estonian minded advocates, as the power in the court had belonged to the Germans. Starting from 1866, the Council of Sworn Advocates was in Petersburg and was not German minded. The Russian Bar Association Act was one of the most progressive ones in the cultural world of that time. The Bar Association was considered to be an independent corporation, operating by the chamber of court. This gave several Estonian later jurists a push to study law in Tartu University and other universities.
Only persons having graduated from a legal faculty of the university and having for at least 5 years worked in such a profession by the court, where they could acquire practical knowledge of the court procedures or who had during this time worked as assistants to a attorney at law, could become attornies at law.
Attornies at law had their own bodies, the general assembly, council and audit committee. The functions of the council were similar to the fields of activity of the present-day board of the Bar Association.
The revolution of 1917 ended the activity of the Council of Sworn Advocates in Petersburg.
The Temporary Government of the Republic of Estonia with its decision of 18 November 1918 for the first time regulated the first Estonian court institutions of the statehood. At the same time also the work areas of the court were established, the names of judges, court investigators, prosecutors were determined. Advocates, on the other hand, operated in Estonia without legal surveillance, as the surveillance of Petersburg Council of Sworn Advocates no longer functioned in Estonia and the surveillance of the German courts of the occupational era disappeared together with the disappearing of the occupational government. Such an uncontrolled situation lasted until April 14, 1919, when the first regulation concerning the Bar Association requesting all attornies at law and their assistants and private advocates to register themselves by 1 May 1919 by local peace assemblies was published in “Riigi Teataja” no. 24.
Russian time attornies at law, their assistants and other person with higher legal education could register themselves as attornies at law on condition that they “understood state language to a necessary extent”. All registered advocates gave a signature on the basis of an oath that they solemnly promised to be faithful to the Republic of Estonia and their professional duties. The names of the registered advocates, who had the right to proceedings in Estonian courts, were published in “Riigi Teataja”.
In order to bring back to life the Council of Sworn Advocates in Estonia, the Temporary Government changed the law of Russian court institutions and the number of advocates necessary for the establishing of a council was decreased from 20 to 10, as there were no more attornies at law in Estonia.
On 14 June 1919, the first general assembly of attornies at law was held on the premises of Tallinn chamber of court, on which a notice was published in “Riigi Teataja” that on 14 June 1919 a general meeting of the attornies at law of the Republic of Estonia was held for the election of the Council of Sworn Advocates, pursuant to which the following composition of the council was elected:
chairman – Jaan Teemant
assistant to the chairman– Martin Hirsch
Hence, 14 June 1919 may be considered the birth date of the Estonian Bar Association.
The first meeting of attornies at law took place on 28 June 1919, where the requirements for becoming a attorney at law were developed. These were the following: the candidate had to present a document on the graduation from a higher judicial educational institution and passing of the exam(s) and three recommenders (incl. patron), whereas he/she had to have at least five-year experience of professional work and had to have participated in at least ten civil or criminal cases. Those whose five-year service was over by 14. June 1919, had to provide three reports. This way a basis was established for the future development of the Bar Association. On 24 September 1919, a new text of the oath was adopted: “I swear to remain faithful to the democratic republic of Estonia and its legal government and to my conscience in an honest manner fulfil all the obligations, the profession of an advocate requires from me being aware of the fact that the law punishes for the violation of professional duties” (RT 1919, art 73).
The religious element, which had earlier dominated in the oath, was left out of the oath.
By 1 January 1920, 43 attornies at law and 15 assistants had registered themselves. In 1929, there were 124 attornies at law and 280 assistants. Too rapid growth of the Bar Association became an important problem. This brought along unemployment and material difficulties and unjust competition and abnormalities related to this, endangering the reputation of the Bar Association. This created a situation, where pursuant to the decision of the general assembly in 1928 one attorney at law could only have two assistants to ensure actual surveillance of their work. During the first three years the assistant had to work in the office of a patron and deal only with the matters given by the patron. If the assistant had acquired five years of service, within three weeks he/she had to present to the council an application for his/her admitting as a attorney at law or extension of the length of service, if all requirements had not yet been met.
In 1933, there were 213 attornies at law and 280 assistants, due to which the growth of the Bar Association had to be hindered once again.
One of the biggest and most difficult jobs of the council was surveillance of the professional ethics of the advocates and discussion of disciplinary matters.
The new Bar Association Act became effective in 1938 and remained in force until the spring of 1941.
The regulation signed by J. Lauristin, the chairman of the Council of People’s Commissars, on 29 October 1940 established the statutes of the People’s Commissariat of the Court of the Soviet Republic of Estonia, on the basis of which it was the duty of the People’s Commissariat of the Court to organize the Bar Association and manage its activity in accordance with the regulations of the Bar Association and prepare the staff of the Bar Association. A. Jõekäär, the people’s commissar of court, started active work for the restructuring of courts, notaries’ offices and the Bar Association according to the Soviet model, pursuant to which on the basis of regulation no. 319 of the Council of People’s Commissars dated 25 February 1941 starting from 1 March 1941 the Panel of Attorneys of the Soviet Republic of Estonia was established. The given regulation requested the application and translation into Estonian of the regulation of the Bar Association of the Soviet Union approved by the Council of People’s Commissars of the Soviet Union on 16 August 1939 and liquidation of the present Bar Association together with its bodies starting from 1 March 1941. At the same time it was established that persons belonging to the former Bar Association may before the publication of the present regulation perform as representatives in courts in the given matters within the period of one month from the publication of the present regulation, after which authorizations issued for court procedures became invalid.
The people’s commissar of the court formed the Agency of the Bar Association Organization, which had to form a Soviet Panel of attorneys subjected to the state audit office in accordance with the regulations of 1939. According to the given regulations a member of the attorneys’ panel could be a person without a legal higher education, but who had worked in the court, prosecutor’s office or some other legal body for at least one year.
As it appears higher education, which was requested already since 1840, was of no importance, if one had experience in practical work.
The People’s Commissariat of the Court of the Soviet Union and the People’s Commissariat of the Court of the union republic had a right to remove the attorneys accepted to the panel and this right was actively used by the people’s commissars of the Soviet Republic of Estonia.
On 1 March 1941, the first general assembly of the members of the Attorneys’ Panel convened by the Agency of the Bar Association Organization took place, in which 114 advocates participated (473 applications for becoming a member of the panel were presented, 145 of these were satisfied).
World War II starting in 1941 and the German occupation put an end to the activity of the newly established Attorneys’ Panel. After the returning of the Soviet troops to Estonia in the autumn of 1944 the People’s Commissariat of the Court registered the remaining advocates and issued temporary certificates to them. Starting from 1947 purification stared in the Attorneys’ Panel, in the course of which the staff was changed mainly due to political reasons. The main reason was working in the Bar Association of the Estonian Republic, being on the territory occupied by the Germans during the war, belonging to a students’ corporation.
If in the end of the war 98% of the attorneys in the panel had higher education, then as the result of the activity of Court Minister Ussenko in 1959. Only 81 persons out of 110 advocates remained and only 2/3 of them had higher education. The same ratio also applied for 1953 and 1954.
In 1944-1951, at the request of the Court Ministry of the Soviet Republic of Estonia a total of 71 advocates were dismissed from the Bar Association. Often the reason for dismissal was not stated in the documents.
At the session of the presidium of the Attorneys’ Panel taking place on 22 January 1990 it was decided to declare the dismissal of 71 advocates ungrounded.
In 1965, there were 128 attorneys in the panel (10 of them did not have higher education), but gradually the number of attorneys started to increase and by the beginning of 1979 the number of attorneys reached 155 and by the beginning of 1990 there were 183 attorneys with higher education. The numerous clauses principle prevailed and every year the general assembly decided the number of attorneys to be admitted in the following year.
There is no need to tackle all the difficulties and negative circumstances in the activity of the Bar Association during the post-war period, which many colleagues still remembers quite vividly.