By ROBIN CAPEHART Special to the Sunday News-Register

Editor's note: Wheeling resident Robin Capehart, his wife, Saun, and daughter, Emily, currently live in the former Soviet Republic of Moldova where Robin is working with Moldovan officials to establish a tax system there. This is a report of the Robin's impressions of the country's legal system.



By ROBIN CAPEHART

Special to the

Sunday News-Register

MOLDOVA ¡ª There were trials under Communism. Before the fall of the Soviet Union, Moldova had a judicial system with judges and lawyers and rules of procedure and courts of appeals. You could be charged with a crime and taken before a jury or sue the guy who hit you with his Lada.

Yet, very seldom did the outcome of any judicial proceeding in the U.S.S.R. conflict with the wishes of the Party. Corruption and influence inevitability trumped evidence and advocacy.

In 1992, the Republic of Moldova's independence produced a new constitution that granted its citizens a host of rights unreachable under Soviet rule. These rights reflected Moldova's desire to replace "the subjective rule of man" that characterized the Soviet justice system with "the rule of law" that is indicative of a country pursuing liberty and individual rights.

Obviously, this change also had a significant impact on the practice of law in Moldova. As an attorney with the West Virginia law firm of Steptoe and Johnson, I looked forward to learning about the practice of law in a country undergoing the transition from communism.

Since August, I've had the opportunity to be a part of the law faculty at Moldova State University. I have met and discussed Moldova's justice system with local lawyers and law students. In addition, I've met American lawyers who are working for the American Bar Association's Central European and Eurasia Law Initiative (ABA/CEELE) which is monitoring and assisting in the development of the judicial system in this former Soviet Republic.

Like many facets of Moldovan life, the practice of law been slow to develop due to undeveloped institutions and ingrained attitudes that are still tethered to the past.

Legal Education

In Moldova, law school, or "faculty of law" as its known, provides a type of legal training that is vastly different than in the U.S. In the U.S., law students must first earn good grades in an undergraduate major; receive an undergraduate degree; score well on the law school admissions test (LSAT); and withstand an often rigorous competition for acceptance into an ABA-accredited law school. While most law school curricula require students to complete a standard list of classes such as torts, contracts and property law, they also offer a wide selection of elective courses which will allow students to pursue a particular area of interest. Usually, law school is three years and leads to a Doctor of Jurisprudence degree.

In Moldova, the first degree in law is an undergraduate degree which takes either four or five years depending upon whether the student had completed eleven or twelve years of secondary education prior to matriculation. Upon admission, the student is placed with a group of classmates with whom they take all of their classes throughout the four or five year period.

While the curriculum is similar to a traditional western law school, there are no electives and most classes consist of a professor dictating his or her notes and the law student memorizing them for the test. A trip through the law school's "book store" reveals the only publications available are the various Moldovan codes in both Romanian and Russian. Likewise, these are memorized.

Critical thinking is rarely taught and the curriculum seldom includes any practical application of legal theory. Students report that month long internships with courts, police and prosecutors are perfunctory and of little value.

Once again, corruption is a cancer with many students reporting that bribing professors for grades is routine. Although I have not personally been approached, these stories coincide with the findings of the ABA/CEELI.

For the most part, the need for funding often discourages professors from applying demanding standards in the classroom. This is unfortunate since I have a number of very bright students in my class who are eager to be challenged and could succeed anywhere in the world. Yet, most students who will earn an undergraduate degree are ill-prepared for the practice of law.

There is a reason for optimism, however. Most of the younger professors with whom I've met are well-aware of the shortcomings in the current system. One professor in international relations helped organize the school's first moot court team. She admitted that in their first competition they were vastly overmatched in terms of the skills necessary to compete in an advocacy situation. She was also very proud, though, of the fact that in the following year they made a substantial improvement in their position among other European schools.

The Practice of Law

A person who earns an undergraduate law degree is classified as a "jurist" and can immediately begin practicing civil law which would include advising and representing clients in contractual matters and domestic relations disputes. Since the practice of law by jurists is not regulated by the state or any independent association, there is no test or internship required

In order to practice criminal law, however, practitioners must become an "advocate" by first completing an internship with a "supervising advocate;" then pass an oral examination administered by the Commission on Licensing Advocates. The test consists of candidates answering one random question drawn from each of three piles. Thus, every candidate answers a different question. The candidates are not tested on critical thinking skills; the ability to apply the law to a certain set of facts; or the practical application of theory.

A passing score on the oral examination is eight out of ten. Even if a candidate passes the test, the Commission may still deny the candidate a license. If a person fails the oral examination or is denied a license, there is no right of appeal.

Legal Ethics

There are few rules of professional responsibility that apply to jurists. Because they are not members of a legally recognized profession, there is no law nor a code of ethics governing the professional activity of jurists. Recently, an independent Union of Jurists has published a vision of legal ethics for its members, yet it has not produced a binding code of conduct.

On the other hand, the Law on the Legal Profession which applies only to advocates includes a code of ethics which requires licensed lawyers to maintain client confidentiality and avoid conflicts of interest. Under the law, advocates may specialize, but they may not advertise. The law establishes an ethics commission to oversee compliance, but the panel lacks the ability to effectively enforce the rules. Also, the independent Congress of the Bar has adopted a Code of Ethics that establishes the proper relationship between advocates and the criminal justice system.

Unfortunately, advocates make up a very small minority of those who practice law. For example, in 2003, there were a total of 1,027 advocates in the entire country. In that same year, nearly 2,700 students received undergraduate law degrees which entitled them to begin to practice civil law.

The Law Firm

Jurists and advocates are free to organize law firms, but office space is limited and expensive. It is not unusual for four to six lawyers to share one office. Most advocates have new copies of the various codes, but research resources are scarce and practically nonexistent in the rural areas of the country. There is a national law journal to which most jurists and advocates subscribe which apprises them of the latest changes in the law. There is also an online service that is available free of charge that provides the latest changes in the laws.

For the most part, compensation is low. Those representing businesses may charge by the hour, but fixed fees are more common. For example, the fee in a typical civil case ranges from $50 to $100 and $100 for a criminal case. Advocates in major criminal cases, however, may command fees from $1,000 to $5,000. Courts routinely appoint advocates to represent indigent persons in criminal matters. The customary court-approved fee for such services is $4 per day.

In 2004, Parliament passed a law requiring mandatory continuing legal education. However, there are few opportunities for lawyers to attend such classes and none outside Chisinau, the country's capital.

In Court

As it is with most institutions in Moldova, corruption is still the major problem facing the judicial system. Unfortunately, lawyers are judged more on their ability to work the system and know the right people than their skill in presenting a client's case.

One ABA observation team saw a lawyer enter a judge's chamber with a suitcase full of money and exit without it moments before his trial was to begin. Other reports claim that judges will require a share of the fees before he grants his approval.

The role of an attorney in Moldova is the antithesis of his American counterpart. For the most part, there is no advocacy in the courtroom. In civil matters, lawyers advise their clients of the law but are passive when the matter is heard in court. Attorneys will take statements of witnesses prior to court and present them to the judge. Often, the only testimony in court by a witness is whether or not statement is his. Cross-examination is illegal although Moldovan attorneys are quickly learning how to elicit the necessary testimony through direct examination.

The Appeals Process

Moldova has a judicial hierarchy consisting of district courts, courts of appeals and a supreme court. While the district courts are the primary trial courts, courts of appeals are entitled to accept new evidence without a showing of why the evidence was not presented in district court. A common strategy by attorneys who believe they will get a more favorable hearing in the appeals court is to withhold evidence until the case reaches the court of appeals.

Moldova has a separate constitutional court whose role is to hear only cases that involve constitutional matters. Their decisions may be binding on the litigants in a particular case, but the judicial system in Moldova only recognizes statutory law and does not rely on precedent in rendering a decision.

The Future

The formation of independent Bar Congress was a major step in the advancement of the practice of law. It is anticipated that the Ministry of Justice will relinquish its control over the practice of law to the Bar which will pave the way for better educational and professional requirements as well as providing an independent body to monitor the conduct of judges and court proceedings, in general.

In America, we have our share of concerns about our legal system. Yet, when you look around the world you realize that our system is the best that mankind has every created in terms of protecting our rights and guaranteeing a fair hearing of our grievances. We are truly blessed.