Tim Elliot: Lots of questions in. Can you have a lawyer from your country represent you in the U.A.E.? The first question.
Ludmila Yamalova: It depends. Yes, in short. Because there are different ways of representation. If you are in the DIFC, for example, and your lawyer is in the U.K., the DIFC and the ADGM as well, a lot of the British barristers have the right of audience before these courts. By the way, in the DIFC right now a lot of the barristers are not at all based in Dubai. They are all in England and even for the hearings they appear online, or they will fly in for the hearing. There is that.
Now also, if you want, even in local courts if you have a lawyer in your own country, they could work with a local advocate here. The local advocate would be the counsel on papers, of record, but they could be working together with your lawyer in your country. That is another way of doing it.
A third way is, let’s say if you are representing yourself and your lawyer in your own country is helping you to structure and draft, it is all possible. You just need to bear in mind that you are still in a different jurisdiction. For example, if you ask me to go and litigate or to represent somebody in France or Australia, I would not be the best choice, so I would not recommend it. I think it would be a disservice to my client to be hired to represent them in Australia or France or some jurisdiction where I’m not practicing. But certainly, it is possible and, even in practical terms, it has been done before and it can work.
Tim Elliot: Okay. That leads me two questions. I’ll ask you them both. There are similarities. To what extent can you manage without a lawyer in the U.A.E. since so many systems are now based online? And we have seen much of the legal system here go online in the last couple of years. Can I self-represent my case even if I have a lawyer? That is another question.
Ludmila Yamalova: Yes, but you definitely want to be in communication with your lawyer, especially if you have another lawyer and that lawyer is on record, then you certainly want to make sure that whatever it is that you do is communicated to the lawyer because they may just not want to be making submissions or making arguments while they are registered as your counsel of record and they have no say in it. There is that.
Or, for example, if you have a lawyer but it’s not a registered lawyer, in terms of not being registered with the courts, just a lawyer that you have used for counseling along the way, but not registered as your advocate for that particular case with the court, then you can represent yourself. By the way, you can represent yourself also these days, as you rightfully said, Tim, it is much easier because now for the most part all of us have access to the court website, and not just the website but our own case management, our own court database, and it’s basically almost the same right and the same access as lawyers get. In other words, when you register with the courts, you can create your own login into the court portal and then through that login you basically access your entire court library. This is like a virtual courtroom and court library, if you will, and through this you can see all the submissions that have been made, even in different cases, because you might have multiple cases. It could be different cases, all the submissions by the other side, by your side or by your lawyers, all of the judges’ decisions, all the other statements or requests or comments made on the case. The hearings are also attended online, and all of the requests are made online. Basically, if you have access like that, you can absolutely make all your requests online. You don’t have to have a lawyer, by the way. That is also important to understand. In the Court of First Instance and in the Court of Appeal, you don’t need to have a lawyer in the U.A.E., but for the Court of Cassation you will need to have an advocate to represent you. But in the first two courts you don’t, so you can be your own party, but in that case, it is you who are listed as the party to the case, and you are being represented by yourself. Now you can have a lawyer counseling you along the way and recommending and drafting, but it will be your name and all of the submissions are made by you. Now with having this digital access into the courtroom and the court library, you can basically make all the requests and you can do everything on your own without having to have a lawyer.
Tim Elliot: Two questions. I think we’ve answered these really, but just for the purposes of being thorough. Can expat lawyers litigate in the U.A.E., and if you have a criminal case, can you consult a general practice law firm, or should you speak directly with a criminal lawyer?
Ludmila Yamalova: It is interesting because in certain countries, like in the West for sure, you have lawyers and law firms and practices that are truly based on specific expertise in an area of practice. For example, criminal lawyers in the U.S., all they do is practice criminal law, and in other countries as well. It is not so in the U.A.E. In the U.A.E., as I mentioned earlier, in criminal cases, you would need to have representation before the authorities and you would want to have a local advocate that is an Emirati national with license as a local advocate to represent in court. You want such an advocate in criminal cases. You do not have to always, but you want to. Therefore, all local advocates, for the most part, have experience in criminal matters. Not all like to necessarily practice in that area, but they all have the right and experience in criminal cases. Some may opt to not practice criminal law. There are no specialized criminal lawyers. There is that.
Then there is a lot of benefit and a lot of expertise that one can have as a lawyer in criminal law without actually being a local advocate. In many cases clients just need advice. For example, could there be a criminal case? Is this in violation of the criminal law? To know the U.A.E. criminal law, you don’t need to be a local advocate. Especially since the laws are changing here so much, and we just had new criminal law that was issued last year in 20222, and that is the U.A.E. crime and punishment law which is a brand-new law. You don’t need to be an Arabic speaker to read and know that law. It’s translated and available in English. Therefore, a lot of non-advocates also are very familiar with criminal law in the U.A.E.
Plus, the civil and criminal law in the U.A.E., there is a thin line between them. Therefore, a lot of civil lawyers, commercial lawyers, business lawyers in the U.A.E. ultimately also deal often with criminal matters just because the crossover is so frequent. For example, if somebody insulted you, or somebody shouted at you in the middle of a supermarket, that is a criminal offense. Or, for example, someone defrauded you online in a financial or banking transaction, that is also a criminal offense. For things like this, often you want to go to a lawyer that knows the law, knows how the system works, and also who is able to guide you in terms of how this particular law will be applied in this instance. For that, your lawyer does not need to be advocate, but you do need your lawyer to have experience in this country. A lot of these cases are very nuanced and very specific to the U.A.E., and the laws are also changing.
For example, as an employer if you made a claim against your departing employee for a breach of trust because they went and spoke with your competitor. In the past, a breach of trust was a criminal offense and you would go to the police and tell them the employee breached your trust by talking to a competitor, and you really did not need to present very much and you could easily open a criminal complaint against an employee. It would be investigated as a criminal complaint at first. Ultimately, it might be dismissed as not having any merit to begin with or as not being criminal, but that was how it would start and that was only for a breach of trust. Now, anything that stems from an employment relationship for the most part, the authorities say you go to civil court and it is no longer criminal. In other words, your lawyer need good experience and understanding of how the U.A.E. jurisprudence is forming, establishing, and evolving, and how it is growing, because these kinds of changes a lawyer needs to be able to know and advise clients along the way.
Tim Elliot: There is no substitute for local knowledge, is there, Ludmila, wherever you go in the world. Two more questions, and then I have one final question to ask you for this particular podcast. Here is one. What happens if you don’t reach the result you were expecting with your lawyer? Do you have to pay the remaining fee?
Ludmila Yamalova: I mean, it depends. In most cases, I will tell you, yes, you do. Because in most cases, it is contract based. Contractually, I have yet to see – maybe some do, but very rarely so – lawyers who would take on clients on the representation of a guaranteed outcome. That’s not possible.
Over the years in my practice I’ve had many people come and ask, well, can you guarantee?
Absolutely not.
Well, I need assurance.
I can’t. I’m a mere lawyer. I’m just a lawyer. All I can guarantee you is that I will do the best I can do within the framework of the law and my own abilities and experience. My team, we will do the best that we can do within these parameters, but I cannot guarantee anything else. The only thing you can guarantee in life is death and taxes, and that’s it. Therefore, any law firm that would have guaranteed a result, they are basically setting themselves up to fail. I would say in most cases a law firm could represent that this is likely a potential outcome, but they would never guarantee.
Therefore, when you don’t receive your desired result, it depends on how you draft the terms of engagement, but let’s say, if the lawyer – and often this happens with special local advocates, they will say a certain payment is received upon successful resolution of the case, and in that case you don’t have to pay if the last payment is contingent on the results of the case. But in most cases, that is not the case.
Tim Elliot: It’s not as simple as that.
Ludmila Yamalova: It’s not as simple as that. Lawyers can only legally do what the law allows us to do. Ultimately, it is in the hands of the judges. How can you guarantee something that’s not in your control?
Tim Elliot: For sure. I guess that’s question predicated on the no-win, no-fee that you see in other jurisdictions which, as far as I’m aware, does not exist as a concept here?
Ludmila Yamalova: It did a little bit before and then less so after, but now again legally it has now become possible and contingency arrangements are now expressly allowed. Before they were actually expressly disallowed. Now they are expressly allowed, but they have to be properly documented and such. Yes, in many cases, they are not purely no-win, no-fee. In most cases there is some kind of payment involved and if the result is successful at the end, there is an additional payment, but these are the only kind of arrangements here. Otherwise, I have not yet seen here a no-win, no-fee, like a pure contingency-based arrangement.
Tim Elliot: Final question. The final TikTok question, since we are still live. Can I change my mind about my legal representation at the last minute?
Ludmila Yamalova: Absolutely. Yeah. Yeah. You can always change your legal representation. You just need to be mindful of what that will do to your case. First you need to make sure that you appoint the new lawyer in a timely and effective manner to allow them to actually make a difference in your case and not make it worse and also that you deal with your previous lawyers correctly so they can recuse themselves and can de-register themselves from the case. That means, obviously, you have to finalize that relationship properly. Yeah. Absolutely. Then also you need to advise the judge. You cannot ultimately use this, if you are talking about at the last minute, you cannot use this as an excuse to request more time to delay proceedings. If it’s going to affect the flow of your case, you need to be able to present to the judge why it is that you are changing counsel at this point in time so late in the game.
