26/11/2020
The Bar Chamber is considering an ENEMLOS implementation model with the Supreme Court
In the premises of the Supreme Court of Montenegro, on November 26, 2020, consultations were held on the ENEMLOS implementation model between the representatives of the Bar Chamber, project manager dr Nina Radulović and Secretary Ivana Aničić, and the Secretary of the Supreme Court, Ksenija Jovićević M.A. with an associate, that leads the project implementation on behalf of the Supreme Court.
The BC’s project manager explained the aspiration and readiness of the Chamber to ensure the successful implementation of the project and its lasting sustainability even after termination of external funding. An implementation model was presented that enables the achievement of the noted goals, while being completely in tune with the national legal framework. According to this model, the legal clinic could provide a complete legal service to the target group, i.e. vulnerable social structures, namely the both "legal advice" and "legal representation". Legal representation could be provided in accordance with the current Law on Free Legal Aid, pursuant to Article 30, by introducing the ENEMLOS project with a specialized staff list to the List of Attorneys for Free Legal Aid submitted by the Chamber to judicial institutions, which is within exclusive competences of the Chamber. This would also provide a specific number and structural portfolio of legal cases necessary for the successful implementation of ENEMLOS, as envisaged by the International Agreement on Cooperation in the project. In the long run, this approach is the key for the sustainability of the legal clinic, as the social engagement of lawyers on this basis would be offset by existing funding mechanisms within the national legal system. In addition, the proposed model of project implementation absolutely does not hinder the general rights of lawyers to act ex officio, because it does not disturb the order of representation according to the existing List of Attorneys made for these purposes, but negligibly slows it down, given the small number of cases delegated on this basis
Secretary of the Supreme Court Jovićević welcomed the inter-institutional cooperation on the project and assessed the project as a useful effort to introduce legal practice into the system of higher education of lawyers as a systemic and binding tool. She noted the fact that the elements of implementation, such as assembling the List of Attorneys for Free Legal Aid and eventual conclusion of contracts for implementation of the project with certain lawyers, are issues of internal character under exclusive competences of the Bar Chamber. She expressed the opinion that the application of the Law on Free Legal Aid is a separate matter in relation to the implementation of the project, i.e. that its application is not necessary for the project implementation. In the opinion of this institution, the paths to the sustainability of the legal clinic are currently very uncertain and their vision is not clear; whether the sustainability will be possible will be seen and decided upon the project’s termination. Furthermore, the opinion was expressed that lawyers have been already paid for work on the project with students from the project funds, while the engagement at the legal clinic in the field of legal representation, which refers to drafting lawsuits, other submissions and undertaking other legal actions, should be realized free of charge. As a possible solution for reaching the quota of legal cases envisaged by the international agreement as a condition for successful implementation, Jovićević suggested that lawyers from the ENEMLOS personnel list should share with the law clinic students the cases that they commonly receive for ex officio representation or their other cases. Finally, lower judicial instances are not partners in the project in order to be involved in its implementation, concluded Jovićević.
Dr Radulović agreed with the annotation that the application of the Law on Free Legal Aid is not necessary for the implementation of the project, and pointed out that it is a matter of inter-institutional agreement and good will. The application of this law would provide the project with "added value" through the known mechanisms of financing legal aid to vulnerable social groups, whereby the rules of Erasmus + do not prohibit financial support, but encourage co-financing. Moreover, placing cases before judicial institutions exclusively with the engagement of lawyers, i.e. through their availability to share work on their personal cases with students, would cause a number of problems in the work of the clinic. Given that a relatively small number of lawyers participate in the work of the clinic in relation to the total number of lawyers from the List of Attorneys for Free Legal Aid, the legal clinic would have to wait a long time to receive these cases, which in some cases can take several years. There would be no possibility for lawyers as mentors to be assigned to students in legal cases from the law domains for which they are the most qualified. Additionally, all other cases recommended directly by lawyers should be charged at the minimum labor price prescribed by the Lawyer's Tariff, which is binding for all the attorneys, and is twice less favorable for the target group of the project, i.e. vulnerable social sections, than the labor price prescribed by the Law on Free Legal Aid. According to the current project framework, the engagement of an attorney is paid for mentoring students, and not for undertaking legal representation, which enables the work of the clinic only in the area of legal advice. Ultimately, the Bar Chamber, within its competencies and possibilities, makes a generous offer important for the establishment, success and sustainability of the legal clinic, but does not insist on it, if other partner institutions have no interests; Radulović pointed out.
The interlocutors jointly concluded that further consideration of the proposed model and other possibilities for achieving the sustainability of the legal clinic is necessary, together with organizing a trilateral meeting with representatives of the Faculty of Law of UoM as coordinators and beneficiaries of the project in order to examine their preferences.
