Questioning an Attorney as a Witness in the Client’s Case: Issues of Legality of Compelling Appearance and Admissibility of Evidence

The paper studies the legal regime of questioning an attorney (defense lawyer) as a witness in the client’s criminal case.

Given the opinion of the Constitutional Court of the Russian Federation, the author considers in which cases it is necessary to obtain a preliminary judicial determination on the performance of investigative activities against an attorney. The paper analyzes the constitutional and legal positions of the Constitutional Court of the Russian Federation, given in the ruling of April 11, 2019 No. 863-O, and the emerging court practice. The author concludes that the investigative practice of calling upon and questioning an attorney as a witness in their clients’ cases without a preliminary court determination can be adjusted by the specified definition of the Constitutional Court of the Russian Federation. Based on the constitutional and legal positions reflected in the ruling of the Constitutional Court of the Russian Federation No. 863-O, an attorney cannot be brought to trial in a criminal case where he provides legal assistance to the client. Also he should not be forced to participate in investigative actions that are being carried out against him without obtaining a preliminary determination.

If there is a preliminary court determination to conduct investigative actions against an attorney in the status of a witness in his client’s criminal case, it is impossible to challenge the attorney in this criminal case. If the investigator fails to comply with these requirements, the recognition of the evidence obtained in this way should be deemed inadmissible, and the right of the principal to defense should be considered violated. This violation should be recognized as significant and regarded as an obstacle to consideration of the criminal case on the merits in the judicial stages of the domestic criminal process. If we are talking about violations of a criminal law nature on the part of a lawyer, his principal or a third party, the guarantees of the regime of lawyer secrecy do not apply to such relations. It is not necessary to obtain a preliminary court determination on the questioning of a lawyer as a witness in such situations.

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