Проблемы оспаривания соглашений с адвокатом в процедуре несостоятельности (банкротства) доверителей

Abstract

In the article the author analyzes the existing judicial practice in cases of contesting legal assistance agreements in insolvency (bankruptcy) proceedings of the client and identifies the most vulnerable terms of such agreements from the point of view of protection of the attorney’s rights to remuneration. Special attention is paid to the position of the courts in assessing the attorney’s knowledge of the client’s financial insolvency and the expected future initiation of bankruptcy proceedings, as a result of which the attorney may be deprived of the remuneration received and, in some cases, may even be held criminally liable. The author sums up that this situation causes irreparable damage to the human rights mechanism in Russia, of which the Bar is an integral part, undermining its reputation and reducing the motivation to ensure the exercise by subjects of their constitutional right to legal assistance. In the author’s opinion, the means of changing the current malicious practice of depriving attorneys of their just remuneration can be the introduction of an additional stage prior to the conclusion of the agreement, i.e. the analysis of the risks of entering into a potentially void transaction, which would allow to protect the attorney, at best, from financial losses and, at worst, from accusations of his complicity in the unlawful reduction of the bankrupt’s assets.