Identity Crisis

Identity crisis

Romanian law is also going through a worrying identity crisis and is still far from European principles and values. The moment of joining the EU surprises us in a particularly difficult position both morally and institutionally.

A serious challenge has so far come from the direction of alternative bars, parallel, original and atypical forms of organizing the legal profession, located outside the traditional structures and in opposition to them for many years.

The initiator of the challenge is Pompiliu Bota [8] , the self-titled ” bomb lawyer ” who for many years handles skillfully and visibly amused, both the press and the judiciary, obtaining legal recognition of parallel professional organizations, called Bars and Union, and of some professional insignia (including at OSIM), such as the logo of justice, certain names of Bars, and even the term “ robe ”. Everything towards the helpless exasperation of the “ dismounting ” bars (the expression was also launched by Pompiliu Bota), allegedly springing directly from the law 51/1995 on organization and functioning, in the absolute absence of any constitutive and formal association acts, sanctioned as such by authorizations judicial.

Pompiliu Bota and his organization even achieved the enviable performance of obtaining, as he himself boasts [9] , no less than 93 resolutions not to initiate criminal proceedings in criminal complaints filed by the traditional bars against him and his proselytes, of which more than 36 were subsequently confirmed by the courts. His defense was simple: he does not recognize the legal establishment of traditional Bars and insists that they legitimize themselves by presenting their constitutive acts. As they do not appear, because they do not exist, Bota leaves the police triumphant [10] .

Alternative bars have put an ontological mirror in front of traditional bars in which the latter have not yet found the courage to look sincerely. But the emergence of alternative bars was possible only on the background of the insufficiency, narrowness and hypocrisy of traditional structures, accusing by their mere existence a series of defects in the organization of the profession that have not been remedied even today.

Thus, the parallel structures set up by Pompiliu Bota, older (Constitutional Bar) or newer (county bars of the same name to traditional bars, the Free Union of Romanian Lawyers, etc.) currently have about 2000 alternative lawyers, all licensed in law, but less fortunate when they tried to find a place in traditional bars. Bota is brave about the low costs of access and operation in its bars (in its associative structures taxes are excluded, but it is absurd to practice a system of “donations” from members, so that it is still possible to raise funds.)

Hysterical reactions

Through the amendments brought to Law 51/1995 by Law 255/2004 [11] , a series of barricades were established against the proliferation of alternative professional structures in connection with the legal profession. By amending art. 1 para. 3 of the Law provided: “The establishment and operation of bars outside UNBR are prohibited. The acts of incorporation and registration thereof are null and void. ” [12] . Quite frustratingly, even this time a case of express absolute nullity failed to reactivate, so it seems that the parallel organizations of lawyers previously formed by Pompiliu Bota and not recognized by UNBR did not care that they had just been outlawed. . […]

However, the reasoning introduced in the law seems to follow an inverted logic, a way of putting the cart before the horses. It seems that no one has noticed that UNBR cannot be a source of legitimacy for bars for the simple reason that bars form the union and not the other way around. In the same vein, it should be noted that no one has bothered to qualify in an unequivocal manner the legal regime applicable to the Bars (within the meaning of Law 51 art. 48.2 – organizations with legal personality, assets and own budget ).

As Bota claims nothing more than that its bars and unions are constituted and function according to Law 51/1995, even modified, culminating, by law 255/2004, as shown in their own founding documents [13] , everything they found more good to do lawyers in traditional bars, was to alter the law of organization of the profession to the limit of (unconstitutionality), reaching, here, to condition the legality of free association to the establishment of Bars [14] , their membership and reception within UNBR .

A similar failure was registered in the invocation (rhetoric) and the application in practice (on behalf of the alternative bars, of course) of the drastic interdictions introduced also on the occasion of Law 255/2004 by amending art. 82 of Law 51/1995 following an intense parliamentary lobby [15] .

Bota claims that his lawyers do not owe any “tithing” to any lawyer’s insurance company, but not because the system he created would be more generous, but simply because his organization does not set up any autonomous social insurance system, organized within the profession. Bota applies only the titles that suit him from the republished Law of Law 51/1995, and completely ignores any other provisions that bother him.

He thus simplified his existence and revolutionary mission, with the wide concurrence of his naive partisans. At the same time, however, he urges reflection on the current functioning and future credibility of the social security system of lawyers, enshrined in Law 51/1995 and operating under the traditional structures of the legal profession.

The “threat” that Bota still represents today, the UNBR Standing Committee understood, as we will show, to dedicate to it the last Congress of Lawyers in the summer of 2006, putting in the background any other issues that might be of interest. on Romanian lawyers.

However, we have the intimate and unanimously shared conviction of large circles of acquaintances that Bota is by no means a real, quantifiable and imminent danger. He is by no means perceived as such by a majority of lawyers in traditional structures, but rather is skillfully used for diversionary purposes by the alienated managements of traditional bars, as a good scarecrow in all circumstances, and always preferable to responsible approaches to real issues. background, which we face.

Alienation and diversion

Responding to these concerns and helplessness, Congress lawyers in Mamaia from June 29, 2006 has adopted for the third consecutive year a new judgment ON PROTEST legal profession about the refusal of the competent authorities to restore law and order legal profession AND TO PREVENTED THE ILLEGAL PRACTICE OF THE LAW PROFESSION IN ROMANIA.

Its text [16] , published in a visible place both on the UNBR website ( www.unbr.ro ) and on the Bucharest Bar website ( www.baroul-bucureşti.ro ), ritually announces that it has been decided to use it as a form of protest against the attitude of public authorities that allow and do not sanction the flagrant violation of Law no. 51/1995 on the organization and exercise of the legal profession, the suspension of legal assistance in criminal and civil cases in which the defense is mandatory, starting with September 11, 2006. More in Romanian: STRIKE!

It is an approach that is as absurd, unjustified and ineffective as it is impossible to take seriously. Few lawyers have even heard of the enormity decided at the last Congress, and practically no one has set out to strike in the manner and with the motivation shown. The strike is currently suspended, avoiding a predictable and embarrassing outcome. The call for a strike may be resumed. Or maybe not. For now, SUSPENDED!

What is actually aimed is to divert the attention and skills of these bodies of the profession with decision-making attributes (meetings, congresses) from the usual agenda (presentation and debate of annual financial statements, approval of budgets, discharge). Skillfully manipulated, the debates in these forums focus sterilely and exaggeratedly on the alleged resurgence of the phenomenon of alternative bars.

The dean of the Bucharest Bar, Cristian Iordănescu, is most concerned about the problem of alternative bars, and when he does not demand the arrest of Pompiliu Bota, we follow him as he proposes with an insistence worthy of a better cause the unification of all legal professions within a the only legal profession [17] . His idea is difficult to understand and is a bit meaningless; so far he has not met any declared fans, apart from the proponent himself.

On the other hand, he tries at another level to revive the former (interwar) Association of Magistrates and Lawyers in Romania, as an integral part of the legal reform in Romania [18] , most likely in the idea of ​​indirect re-legitimation in this way of Bar Institutions and UNBR, of course, with the exclusion and final defeat of the parallel structures set up by Pompiliu Bota.

Substantive issues

The leaderships of the traditional bars, of the National Union of Romanian Bars and of the Lawyers ‘Insurance House aimed every year to transform the bomb lawyer Pompiliu Bota into the public enemy number 1, on the occasion of general assemblies and lawyers’ congresses, thus avoiding substantive debates. on current issues, less exciting and indisputably more boring, related to the good organization of the profession, namely: analysis of annual management reports, approval of revenue and expenditure budgets, harmonization and modernization of statutory provisions, etc.

Indeed, in the report [19] of the Insurance House of Lawyers for 2005 presented on the run at the Congress in Mamaia, and only after Bota and the danger posed by him kept the headline of the debates for several hours, pointed out, among other things, that 29.87% of CAA members pay minimum fees and contribute about 10% of their income; 5.43% pay maximum quotas and bring a contribution of about 20% of the system revenues, and 59% pay percentage quotas and bring a contribution of about 70% to the system revenues . Only this issue is related to the background of concerns for the smooth running of the social security system, providing some indications regarding the inefficiency and inequity of collecting contribution quotas from active lawyers in the profession.

It should be noted that it is comforting, but also worrying, that compared to the small number of people currently in payment (retired lawyers, beneficiaries of other rights), the system naturally records, despite a poor collection of contributions, significant annual surpluses – real assets held in liquid form – therefore extremely perishable and subject to investment risks, but about which we know very little.

As we managed to find out from the debates carried out with difficulty and only in extremes at the Bucharest Bar Assembly on March 11, 2006 [20] (when Dean Cristian Iordănescu also placed the enemy Bota in the designated center of the “concerns” of the assembly), the largest the surplus is registered by the Bucharest Branch of CAA with 39,130,774.35 lei (the equivalent of 10.99 million Euros !!!). We can suspect that the total surplus available to the National House is even higher, but we can also suspect the existence of certain shortcomings, because it is about managing huge sums that the management of the National Insurance House “forgets” to communicate to members.

As expected, the situation will be completely different in the next 5-10 years, and it is good to start questioning the system from now on. We note that the cumulative multiannual surpluses reach impressive figures, but these are nowhere even clearly expressed by the rapporteur, the chairman of the CAA av. Viorel Pascu, nor by the censorship commission. Despite the repeated requests made by the lawyers present at this year’s General Assembly of the Bucharest Bar, the management of the Bar and the Bucharest Branch of the CAA stubbornly refuses to be transparent and allow professional auditing of the execution of annual budgets and cumulative surpluses.

We therefore ignore both the real volume and the portfolio structure of the investments made by the Lawyers’ Insurance House, an extremely rich institution that does not seem to account to anyone, but demands from all lawyers a contribution rate of 10%. from gross monthly receipts. That gives us enough to ask where our money is going.

Less extensive accounting records are in corporate matters, but also in associative matters, subject to transparency norms based on half-yearly reports , as well as on the basis of the annual specialized audit . CAA censors ( two active lawyers and one retired lawyer , as required by law!), Are not even economists by profession [21] , and cannot be credible when they report in writing, formally and unconvincingly, once a year, the execution without reproach of the budgets of an autonomous institution with legal personality under public law [22] .

The CAA report presented at the last Congress surprises and worries with the news that “ in the meeting of the CAA Council of 26.10.2005 was analyzed the possibility of making real estate investments by allocating a percentage of 25% of the existing available in the centralized fund of the system (!?) And available under the administration of Bucharest branches for the construction of an office building . ” The proposed investment is estimated at the amount considered “modest” of 6-7 million Euros and is not based on any feasibility studies!

The investment intention and size cannot fail to strike, as it would irreparably affect the Insurance House’s budget, in the medium and long term, in a considerable proportion, all based on a classic recipe (of the bottomless bag) for embezzlement of presumed liquid funds in real estate business with uncertain yield. For comparison, the construction and finishing of a Mall building , an eminently lucrative business, costs around 18-20 million euros and pays off in 15-20 years, and a Carrefour hypermarket is significantly cheaper!

On the same occasion, the honored CAA Council also proposed to the Congress, but not in authentic debates, but half-heartedly, through the written material on the map “ capitalization by sale of lands owned by CAA located in Poiana Brasov Resort (!? ) and the city of Predeal (Bucharest Branch) (!?), localities where very high prices are practiced, but the construction costs a lot and the use of the amounts resulting from the alienation of these real estates is, for example, within Breaza (!), or Cornu (!!), or Comarnic (!!!), or Poiana Câmpina (!!!!), etc., where to build a hotel with multipurpose services, for pensioners and lawyers in activity, for the maintenance of health and rest, and for young lawyers, including with golf course to international standards …”We are not told about the description, the exact location, the accounting or market value of the respective tangible assets, and the inventory of the patrimony of the Lawyers’ Insurance House, established since 2001, remains a desideratum this time as well.

Investors past the retirement age of the CAA management also estimate that “the financial support of the complex would be ensured from its rent, receiving a part of the price from certain categories of pensioners – those with modest incomes will benefit from free accommodation – and lawyers assets and a full amount – price – from other tourists . ” and confident that those times are over, they hope that ” such a goal would be put into operation in 2009. ” Given that these approaches are not only far from being put into practice, but also completely fanciful, we express once again [23] our concern about the amateurism of such claims.

Ambiguities of the legal profession

The figures presented in the activity reports of the bodies of the profession and in the budgets formally approved in the annual general meetings of the Bars and in the Bar Associations from 2000 to the present have never been highlighted in comparative terms, and data on previous years have been systematically missing. exposure. Likewise, the graphs and synoptic presentations were missing, and no one could analyze the trends or forecast the systemic functioning for the future.

Even more disturbing is the fact that the people chosen to represent the interests of lawyers in the management structures have made a habit of trying to hide the topics of interest, systematically omitting in recent years to make public in a timely manner the materials to be submitted. analysis in these meetings, so that no one can attend the debates with the topics made in advance.

For a correct information and critical appreciation, it would be desirable for the materials to be brought to the lawyers’ knowledge, especially in virtual form, on the Internet, at least once the convening of the summons and the setting of the agenda. We consider that regarding the management of the funds of the Lawyers ‘Insurance House, it is also necessary to launch a public debate for the adoption of prudential rules for placement and investment of multiannual surpluses registered by the Lawyers’ Insurance House in liquid and semi-liquid funds, excluding any adventures. real estate. In this context, it should be noted that neither the law of operation, neither the statute nor the operating regulations of the CAA provide ANY INDICATIONS regarding the destinations that the accumulated funds can receive from the collection of contributions, nor the regime of periodic verification of the integrity of the patrimony. Such an escape is simply astonishing.

A similar situation is encountered in the financial years of the Bars and UNBR, bodies that do not even know the constitutive acts and operating regulations, because, as we have already shown, they are considered disqualifying® directly from the Law and the status of the legal profession. [24]

In fact, the activity of the Romanian Bars takes place in a totally non-transparent way, the bars do not have representative and convincing websites and that they do not make public in any way the debates and decisions adopted in the meetings of the Bar Councils in Bucharest and in the country. These documents cannot be freely accessed even by members of bar libraries.

Under these conditions, we are not the keepers of any (valuable) traditions, and we can in no way consider ourselves superior to Bota’s alternative bars. In passing, the Bucharest Bar (considered the leading bar with almost half of the total number of lawyers in Romania), would even have the financial resources to start at national level the effort of transparency in the virtual environment on behalf of all Bars. But it lacks initiative and especially the power of example. The only (stupid) example with which the Bucharest Bar earns the reputation of a bunch of irresponsible people is the FORUM [25] completely immoderate and absolutely anonymous that works trivially on the representative site of the institution. The follow-up, even occasional, of the filthy discussions that take place on the virtual forum of the Bucharest Bar, in which even the staff very frustrated and crushed by internal contradictions from the headquarters of Dr. Râureanu Street no. 3, can be a thrilling experience, if not embarrassing at the same time, and also a great waste of time, for anyone with a chair on their head.

Returning to the substantive issues, we consider that it is necessary to amend the law and the statute in order to regulate more clearly the hierarchical relations of subordination between Bars and CAA Branches (at least at the level of subordination between UNBR and CAA) and the imperative dissociation of nominal bar councils ( and the UNBR council) in relation to the councils of the CAA branches (as well as of the National House), and in the same order of ideas it is desirable the emancipation of the UNBR Council under the de facto tutelage of the Bucharest Bar, because the presence of some and the same people mutually counterbalanced, it invariably makes the control mechanisms not work.

We also want to point out the embarrassing, but sincere, fact that the Statute of the legal profession contains aberrant provisions (real Trojan horses built cunningly precisely for the obvious purpose of defrauding the law). We refer to the regulation contained in art. 308 para. 4, from the last published version [26] (January 2005) of the Statute of the legal profession, amendment adopted and introduced in the spirit of a shameful resolution of the Congress of Lawyers in 2004. It is a text with a benign appearance, but with important meanings on the line of institutional fraud of the insurance company’s funds by most interested lawyers. The text provides that “The lawyer who pays the maximum contribution quota is not obliged to declare the amount of income in addition to the quota paid”. Clearly, the Lawyers’ Insurance House refuses its prerogative to highlight the total gross income collected by lawyers, implicitly giving up the possibility to correlate the revenues declared by taxpayers to the House with the gross income declared to ANAF by comparison with income tax returns.

In fact, the annual regularizations of the payments of the contributions due to the CAA remained an extremely rare and atypical phenomenon outside the periodic settlements of accounts of the people in possession, with the dissidents in the profession. We note, moreover, that the operating regulations of the House omit to establish imperatively regular regularizations of the payments of contributions with the annual income tax returns.

The regulation I referred to has paradoxical effects not only on the level of collection of contributions (tithes) by the House, but also on the collection of taxes owed by lawyers to the tax authorities: many will feel free to declare lower income to the tax authorities, taking advantage the impossibility of their cross-correlation of the annual income tax returns with the monthly statements of gross receipts to the CAA.

We would also like to point out that the maximum cap on the contributions due monthly (and not half-yearly or annually!) To the social insurance fund, is in itself a wide-open gate for CAA income fraud. Clearly, for monthly receipts higher than RON 7200, lawyers are not only not required to declare gross income (as shown above), but they no longer owe contributions to the House except up to the limit of RON 720.