German practice of advocate-client conciliation should be adapted for Ukraine — Lidiia Izovitova

The German practice of advocate-client conciliation can be applied in Ukraine, taking into account the specifics of the relevant legislation and national mentality.

This was mentioned by the UNBA, BCU President during her opening speech at the Ukrainian-German Forum “Alternative dispute resolution”.

“We do not have a conciliation commission, but its existence is necessary”, - said Lidiia Izovitova.

The difference between the two models lies in the fact that in Ukraine the disciplinary matters are being solved by the disciplinary chambers consisting of advocates, whereas in Germany there are disciplinary courts comprised of judges. The conciliation commission is not composed of the advocates only, and solves disputes between the advocate and client in writing.

At the suggestion of the UNBA President, in the Ukrainian system of the bar self-government such commissions could be created at the level of regional bar councils, and the members of public should be invited to form its composition together with the advocates, “so that nobody says that we support the interests of advocates only”.

Thus, the conflicts between the advocate and client could be resolved without any disciplinary procedures. The emotionality of such disputes and overestimated expectations, which as a rule the clients hold for their advocates, are considered by the UNBA President to be an additional argument in favor of introduction of such conciliation commissions.

“When a misunderstanding occurs, of course, an emotional stimulus arises as well, and the parties express complaints that are not related to legal field, but have quite a different color. It would be nice if we had such commissions in our self-government bodies. Then, before the claim against an advocate is considered within the framework of the disciplinary procedure, there would be an opportunity to try to resolve this conflict”, - said Lidiia Izovitova.

The procedure of dispute resolution between the advocates is regulated by the Rules of Advocate's Ethics, which provide for a conciliation procedure. In the event of filing a disciplinary complaint against the advocate, the conciliation procedure is conducted by the Chairman of regional council or any other authorized representative of the bar self-government body.

Ukraine should borrow a German system of legal aid, which provides for the application of the financial insolvency criterion for the payment for advocate’s services, as well as a free choice of advocate. In addition, the legal aid system reform in Ukraine should make this system independent of the state. The state’s function should be limited to financing, whereas the legal aid management should be entrusted to the bar. The system of the bar self-government bodies and the existing Unified Register of Advocates of Ukraine are a real working basis that can support the provision of legal aid to citizens in need.

“The legal aid system has become an instrument of the advocate’s access to the client, when, upon obtaining an order for the provision of legal aid, the advocates enter into contracts for provision of services to the same clients on a fee-paying basis”, - stated the UNBA President. The Congress of Advocates has approved the amendments to the Rules of Advocates’ Ethics, and the Bar Council of Ukraine has adopted decision prohibiting such practice. “The advocate, if he/she has accepted the order, and if he/she works in the legal aid system, has no right to conclude a contract with this client. This should be another advocate. I suspect that very soon we will see the advocates providing legal aid and their disputes on these matters. And it is desirable that they are resolved by commissions established under the German model”, - suggested the UNBA President.