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It is no secret that the attempts to establish a fixed payment per lawsuit have resulted in reluctance by lawyers
to work under the new system. That was the case, for example, in South Africa. However, some law firms have
come up with the offer to conduct competitions for the best payment. But we propose that our calculations be
founded on the average rate of payment to the lawyer for participation in a case. Thus we propose not a fixed
rate for this sum but that a pay scale is developed.
6. The advantages of the proposed pay scale are obvious: when taking on a case, the lawyer
initially has a guaranteed amount of remuneration and is interested in finalizing the proceedings
as soon as possible. Another point of our concept is heightening the lawyers’ interest in winning
the case. To this end we propose a system of contingent fees. The contingent fee measures
whether the hopes placed on the lawyer have been justified. This is kind of a guarantee that the
client will get the desired outcome. Where a success fee is applied the lawyers will have a stake
in the outcome and will apply all their professional knowledge and skills to achieve the desired
result.
This form of lawyers’ remuneration is not new and is fully consistent with global practice. It is a common
practice, widely used in the U.S., U.K., Australia, and Canada.
The contingent fee implies the lawyer’s right to claim a percentage of the winning amount. But a system of
success fees, in our view, may be likewise applicable for criminal cases. The success fee for the lawyer is a
bonus for the high-quality work, an incentive and a way to prove his or her value as a specialist. A word of
caution is needed for the criminal cases as the contingent fee may be misleading for a client, who might
assume that the result which is paid for is the real goal that the lawyer has promised to achieve. However, in
this study we touch on the rewards system only for the appointed counsels. Any talks about winning guarantees
are an obvious abuse of official position and a violation of the lawyer’s professional ethics. Nevertheless, the
lawyer should be motivated to win the case. The success fee amounts may be developed for the adopted pay
scale or in some other way. The key is that this amount should not become a mere formality but be able to
encourage a lawyer to assume a responsible approach to the defense actions. In this case the lawyers will have
the financial motivation to treat the case with greater responsibility and seriousness, that is, with maximum
professionalism. However, Article 16 of the Law On Legal Practice in the Republic of Kazakhstan provides for
the legal ethics, as follows:
When providing legal aid the lawyer must adhere to the following professional rules:
1. Demonstrate diligence and motivation by not avoiding fulfillment of necessary actions that require
great effort or time outlays;
2. Behave correctly towards the bodies and officials considering the legal issues;
3. Avoid unnecessary delays of the case, illegal methods of legal aid, fraud, by behaving, and limiting
their professional behavior, in accordance with the rights and legitimate interests of the person who
has applied for the legal aid; and
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4. Be loyal to the interests of the person who has applied for legal aid, and commit no actions contrary
to this person’s interests.
Evidently, the observance of these rules lies fully on the lawyer’s conscience.
The proposed concept would simplify the scheme of calculation and payment of financial compensation for
the services of the appointed counsel who would be interested both in the speedy completion of a case and
in its quality.
7. Legal aid is split into primary and secondary subtypes. Primary legal aid consists of consultations,
the provision of legal information, and the preparation of legal documents. Primary aid may be
delivered by a professional lawyer or even by a person who is well versed in law. Secondary
legal aid envisages legal representation and pretrial assistance in the process of inquiry and
investigation. It involves prolonged contact with the client and must be performed by a defense
counsel, and not just by a lawyer, in contrast to the primary legal aid, which may be provided
either by a lawyer or a legally-educated person.
It is essential that a system of free legal clinics be supported as these could dominate in terms of primary
legal aid. Generally, the model of legal clinics exists in many countries. It operates either through a non-
governmental non-profit organization dealing with legal issues, or through a law department of a university.
Most services are provided for free by the volunteers and law students of the clinic, under the supervision of a
professional counsel and lawyer. The volunteers working for the clinics are driven to improve their professional
skills and obtain the experience of working with clients. The majority of the clinics provide a goodly proportion
of primary aid, thus taking part of the burden from professional lawyers’ organizations. The legal clinics may
receive additional funding in the form of grants, both from the state (our state social order system that has
been in operation for more than a year fits this role well) as well as from private donors, which is now quite
a widespread practice wherever these organizations exist. In Hungary, for example, the state budget funding
may be provided to pay for free legal aid services rendered by NGOs and university legal clinics. The proposed
system, by the way, is found in many regions of Kazakhstan, increasing the effectiveness of the entire legal
defense system. The key point is not to suppress it, but to support it and develop to the maximum.
8. Our concept suggests that the service providers be represented by the bar associations, law
firms, and private practitioners, on the one side, and the legal clinics, on the other side. These
two structures will not compete in the market of free legal services, but rather harmoniously
complement each other.
Attracting a variety of providers to implement legal aid programs can foster competition for financial resources
allocated by the state, which, in turn, is a way to ensure the most efficient investment of public funds and
maintain fairly high quality of legal services. Therefore, the mere existence of legal clinics and the possibility
of free legal aid provision should be an incentive to enhance the quality of services for all other groups of
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