UNBA succeeded in defending the amendment proposals of advocates from all over Ukraine to the draft law "On the Bar and Practice of Law"

UNBA succeeded in defending the amendment proposals of advocates from all over Ukraine to the draft law "On the Bar and Practice of Law," concerning the strengthening of the professional rights and guarantees.

Some of the amendments agreed in the Working Group change provisions on advocate's professional rights, including changes to the Code Criminal Procedure, which are meant to improve advocate's procedural rights in court.

"Following the discussions in the working group, this part of the draft law may be called complete, and it expanded the rights of lawyers and strengthened the guarantees of their activities. From this point of view, the draft law in the current version can be cautiously considered as an accomplishment of the legal profession. You know how risky has the profession become lately," - said UNBA/BCU Vice-President Valentyn Gvozdiy, who is a member of the Working Group from UNBA. After the resumption of the Working Group meetings on January 15 this year, UNBA managed to bring into discussion and agree most of the proposals from the entire legal community of Ukraine in a rather constructive manner.

At the same time, UNBA categorically disagrees with the ideologists of the draft lawl on three fundamentally important points:

- access to profession;

- bar self-government;

- advocate's monopoly;

These points, as currently worded, are not acceptable for the reasons given below.

Access to profession

Ideologists of the draft law proposing to restrict access to the profession by admitting only judges, or trainees after two years of work experience. Only these two categories will be allowed to take the Bar exam. Meanwhile, the transitional provisions of the draft law even propose to make legal profession just a part-time activity, by allowing anyone, who at some point in life got a law degree, to pass the Bar exam, without the need to undergo traineeship. Also, the authors propose that Bar exam should be administered by a single central body - Higher Qualification Commission of the Bar (which will presumably become part of the UNBA). Such an approach is simply devastating for the profession. First and foremost, since 2021, the said provisions will unduly restrict access to the profession for future generations of lawyers and thus discriminate them, and second, opening the 'floodgates' for full five years to all those who wish to enter the profession without a proper traineeship may lead to highly undesirable consequences. Such 'innovations' will bring down the quality of advocates' corps, may draw into profession the people that don't have proper set of skills or simply disregard traditions of the profession. The new mechanism for passing the Bar examination, which involves the participation of three representatives of prospective HQCB in the process of administering exams in every region, poses apparent risks of corruption.

Lawyer's self-government

The draft law provides for the elimination of national and regional bodies of Bar self-government. Instead of Bar councils and QDCBs at the regional level, it is proposed to create single legal entity for every region - the Regional Chamber of Advocates (similar to the one in the former USSR and present-day Russian Federation). It is suggested that structure of such a legal entity should include the following bodies: the Bar Council of the region, the Qualification Commission of Advocates of the region, Disciplinary Commission of the Bar of the Region and the Bar Audit Commission of the region. The Chair of the newly-elected body will manage all regional Bar authorities and will have the entire regional budget for disposal.

At the national level, it is proposed to eliminate HQDCB as a distinct legal entity and create two separate chambers instead (Higher Qualification and Higher Disciplinary Chambers) within the structure of UNBA. In this case, the UNBA President will have the power to distribute the funds among the chambers on its own volition. In addition, it is proposed to destroy the unity of the Bar organization, by dividing it into two levels: regional and national. In fact, it is proposed to introduce a federal model for the Bar organization.

UNBA view this approach completely unacceptable since there is no valid justification for such drastic change, which will result in destroying the existing balanced, efficient model of advocates' self-government; dismantling of the existing system of checks and balances; imposing of the actual dictatorship of the Chair both at the regional and national levels. Besides, these masterminds seek to introduce lustration in relation to the current Bar leadership and limit their right to be elected to only one term. Such pseudo-reforms are a direct violation of the recommendations of the Venice Commission regarding the independence of the legal profession, which are implemented in the current law 'On the Bar and Practice of Law.'

"Without a strong, united self-governing organization, advocates' professional rights and guarantees will remain a mere declaration, the Bar will be weak, and advocates will be unprotected," as stated by Valentyn Gvozdiy.

Advocates' monopoly

The authors of the draft law proposed to introduce: (1) the right for an advocate to be employed by legal entities, and (2) the right for advocates working as civil servants, having suspended their right to practice law, to represent the interests of a relevant state body in court as an advocate. Regarding employment relations, UNBA believes that introduction of such a model is possible only after such advocates receive legislative guarantees of protection from potential pressure.

Regarding civil servants, the proposed model is corrupt in its essence, and therefore cannot exist, since advocates-civil-servants will thus be forced to undertake two incompatible activities - civil service and legal practice. The right for civil service advocates with suspended right to practice law to represent any client in a court violates the constitutional principle of the exclusive representation by an advocate in the court of law and gravely undermines legally defined advocates' professional rights and guarantees. UNBA further maintains that side-stepping the European standards in the process of reforming the Bar must not occur. The current system is built in accordance with the Joint Opinion of the Venice Commission and proved its organizational efficiency and the ability of the Bar to tackle all the issues within the legal profession by itself. Further reform should strengthen institutional stability of the self-government instead of introducing complicated bureaucratic procedures, the destruction of the unity within national system.

In essence, CJR, without any justification or reasoning, proposed to rebuild the entire system from the ground up (current self-government system will be liquidated). However, such a restart is doomed to failure.

By the end of the week, UNBA will submit to the Council for Judicial Reform an alternative view of these components of the draft law. According to the Workgroup Coordinator Viktor Korolenko, a roundtable discussion with representatives of the advocate's self-government will be held next week to discuss the Bar reform.

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