Representatives of self-governing law enforcement agencies are convinced that changes are needed, but the innovations offered by the reformers will block access to the profession. At the same time, the Ukrainian National Bar Association has their own vision of improving standards. What corruption risks is the idea of accessing the lawyer exclusively through the lawyer's assistant lawyer? How will those who want to obtain a certificate pass the exam? Valentyn HVOZDII, deputy chairman of the Ukrainian Bar Association, and the Council of Lawyers of Ukraine, spoke about this and the other.
Valentyn Hvozdii, Deputy Chairman of the Ukrainian National Bar Association, Council of Lawyers of Ukraine: "We are ready for systemic changes without revision of the provisions of the relevant law"
"If a person has ambitions and knowledge to take an exam and undergo an internship, she will become a lawyer"
- Valentyn Anatoliiovych, on May 15, 2018 an UNBA report was published on the activities of higher and regional bodies of advocacy self-government. It notes that the number of lawyers is 39107 people. Is it enough to satisfy the request for legal aid in Ukraine?
— The UNBA is authorized by the law to keep the Unified Register of Lawyers of Ukraine. In annual reports, we provide analytical information on the dynamics of changes in the URLU. Last year, 4212 new lawyers were registered in the register, while in 1985 they stopped working, and 419 renewed the validity of the certificate. We do not regulate the number of lawyers in Ukraine, and there are no restrictions on admittance to the lawyer community. If lawyers have a desire to come to the bar, the only obstacle in their way is the lack of professional training. If a person has ambitions and knowledge to take an exam and undergo an internship, she will become a lawyer. Whether a sufficient number of lawyers in Ukraine determines the market for legal services and the competitiveness of each lawyer.
— How will the number of lawyers grow in the near future? After all, only last year to the URLU information about more than 4,200 new professional defenders was introduced.
- The number of lawyers registered at the URLU has been showing a tendency for growth for some years. How much this trend will strengthen the phased introduction of a lawyer's monopoly - to predict too early. To lobbiate the grace period for access to the profession on the basis of underestimated criteria of professionalism and to motivate it by introducing a monopoly – is from the evil one. Such an approach does not correspond to either the objectives of a monopoly (the provision of guaranteed professional legal assistance) or the goal of advocacy.
— Are all those wishing to obtain an attorney's certificate able to achieve the goal? The UNBA has repeatedly stated that the draft amendments to the law "On Advocacy and Legal Practice", prepared by the Council on Judicial Reform, will complicate access to the profession.
— In the version of the amendments to the specialized law that was passed to the last discussion within the framework of the Judicial Reform Council, examinations may be blocked at all. It is proposed to involve three bodies at once - the regional qualification-disciplinary committees, regional advisory councils and the High Qualifications-Disciplinary Commission of Bar Assosiation. The examinations must be attended by three members of the Supreme Audit Commission, for which, according to the authors of the project, they must travel to the regions.
If you count, then out of the 30 members of the HQDCBA one can form ten such triples. Under such a formula, in practice, it will be impossible to organize a stable test schedule in all regions of the country, which will satisfy demand. Now the wish lists include several hundred lawyers in the area, and in case of acceptance of new requirements the queue will stop moving at all.
Objectively, an obstacle will also be the norm of the law, according to which the path to the advocacy is solely through the institution of the lawyer's assistant. After all, the work of an assistant is paid and at lawyers there is no possibility and need to keep a large number of assistants. If to analyze further, then in this idea with the helpers you can see the corruption component. Does the advocacy reform, which opens new corruption windows, is a rhetorical issue?
"Transitional Provisions", however, simplify access to the profession in a way that will lead to degradation of the professional level of lawyers. After all, the lawyer is invited to take all lawyers on the results of examinations, without practical experience of speaking in court, etc. Another detail: if we take into account that such a simple version will be in force until 2021, then it will be discrimination against those who will receive education and legal experience after that date.
"The concept is revolutionary and involves on-line registration, on-line payment, independent choice of the test date"
— However, the UNBA offers to simplify the procedure for examining future lawyers and improve its qualitative content. How will this happen?
On March 30, the Council of Lawyers of Ukraine approved the Concept of reforming the procedure for passing the qualification exam. This is a very important decision, which shows that we are ready for systemic changes without reviewing the provisions of the specialized law and are initiators of reform processes in the bar. The concept is quite revolutionary and involves on-line registration, on-line payment, an independent choice of the date of the exam and the region.
As a matter of fact, the qualification examination procedure will include testing for the identification of theoretical knowledge in the field of law, the history of advocacy and law ethics, and practical tasks with solving legal problems, drafting procedural and other documents necessary for the lawyer in their daily work. The test will have 100 questions merged into 10 thematic blocks. It will take 2 hours to complete. 20 min
The test results will be stored in the QDCBA, HQDCBA and will be available on the UNBA website. In the case of obtaining 94% of the correct answers for the tests, the applicant will be admitted to the second stage of the exam. Practical tasks will include three blocks: criminal law and process; civil / economic / administrative law and process; work with the client (drafting a contract on legal aid, correctness of filling the order, consulting, etc.).
During the implementation of the practical task, it will be possible to use the software League: Law without document templates (or tek.gov.ua) and the Unified register of court decisions. Duration of the practical part - 4.5 hours, at the rate of 1.5 hours. for each block. When examining practical tasks, the form and content, legal justification, ECHR practice and finesse will be assessed.
— What is the principle that a bidder will choose a region? Can a contender, for example, from Poltava take an exam in Kyiv, realizing that it will work in Lviv?
— As the concept suggests, the region's choice will be free. However, if a person wants to pass an examination under the new rules not in the region where he resides, the payment will be doubled. Perhaps the coefficient will be different in the final version of the new rules.
In this way, we support so-called small regions where the number of lawyers is small. In this case, of course, the certificate of the right to practice advocacy gives the right to practice freely throughout the country, regardless of the region in which the document was issued.
— Does the UNBA pay attention to the uneven distribution of lawyers in the regions? According to the report, the largest number of specialists is concentrated in the capital, the smallest - in Sumska, Kirovohradska, Khersonska oblasts. What might interest applicants, so that they went to work there, where lawyers lack?
— Of course, we pay attention to it. But there are objective reasons: the level of regional development, the population, and the capacity of the legal services market, and the presence of powerful law universities that are not available in every regional center. Only the presence of clients can interest lawyers.
"Corruption risks arise where decision-making is under the influence of a human factor"
— One of the innovations proposed in the concept is automation of the testing process for those who wish to join the bar. To do this, the creation of specially equipped premises with computers and video surveillance. Perhaps this idea needs software development?
— Exactly. We propose to make the process fully automated and computerized. For content content, testers should be involved, and the launch of the system will involve the development of software, equipment of the premises of the QDCBA by the necessary equipment.
— In addition, the process is very costly. At what expense will automation be carried out?
— I think it will be funded by advocacy, but we would also welcome the intentions of our international partners to provide us with technical assistance.
— How did you get the idea of maximizing your exam automation? Is it not the desire to minimize corruption risks?
— Corruption risks always arise where decision-making is under the influence of a human factor. Of course, the automation of all stages of exam preparation - from submission of documents to obtaining evaluations - excludes the human factor. I am convinced that this is the most systematic solution to the problem that was proposed so far.
— When will the questions of answers be posted on the UNBA website?
— Once the system is implemented, tests will be available on the UNBA website. A working group has been formed which will deal with the implementation of the provisions of the concept. The decision of the CLU identifies the first deadline by September 1 of this year.
— How much is it planned to develop questions? Will this list be exhaustive? Will it be supplemented, changed?
- A total of 10 thematic blocks for 100 questions will be offered. This is a general array for which you can prepare for the exam. On the exam itself 100 questions from this array are given. The extent to which this list will be varied will be determined by a working group involving lawyers, members of the QDCBA of the regions, as well as testers.
— Is the situation with the examinations resolved during the period when two councils of Kyiv lawyers functioned in the capital? Did anyone who wanted to get a certificate become lawyers?
- The situation when the examinations in the capital took illegitimate QDCBA, resolved in 2016, CLU in a package of anti-crisis decisions, which concerned the correction of the situation with the lawyer's self-government in the capital, recognized the lack of a qualification-disciplinary commission of lawyers in Kyiv, created in accordance with the law "On Advocacy and Legal Practice", as well as the fact that its functions were illegally taken over by an organization created on the basis of other legislation that illegally organized and conducted qualifications examinations took the decision to issue certificates of drawing up the qualifying examinations.
Another decision of the CLU to persons qualified to take a qualifying examination in Kyiv was allowed to compose it in any other region of Ukraine prior to the formation of a legitimate QDCBA. In November 2016, such a commission was created and there were no alternatives to take exams in the capital, except on Borisoglebskaya Street. Persons who have passed the exam in an illegitimate body – KS QDCBA, have the opportunity to re-go through this procedure in a lawfully selected Kyiv Qualification Disciplinary Commission of Bar Association.
"We conventionally understand young attorneys of those whose seniority does not exceed 10 years"
- Recently, the chairman of the UNBA Lidiia Izovitova stated that the association intends to support projects for young lawyers. What is it about?
- The UNBA carefully addresses the need for young lawyers in professional growth, career development, professional contacts, experience gains, and ambitions to participate in lawyer self-government. This is done both through separate decisions of the CLU, projects such as the Higher School of Advocacy, as well as other projects that will be announced in the near future. In its international activity, the UNBA also takes into account the orientation of young specialists for integration into the European law community. On May 18th, in Prague, I met with the President of the International Association of Young Lawyers. We discussed the possibility of the UNBA joining this organization. It will also strengthen our youth policy and expand our institutional partners.
- What does "young lawyers" mean? Young people or beginners in the profession, regardless of age?
- If you look at the age criterion, for example, in the international association, the membership is open to lawyers under 45. We conventionally understand young attorneys of those who do not exceed 10 years of experience. These are young professionals, and a group called young professionals, from which we expect first of all new ideas, a new vision of a profession, engagement in self-government and constructive dialogue with older generations. At the same time, we expect to find leaders not only in Kiyv, but also in the regions.
- Do the Council of Lawyers of Ukraine support the creation of law school skills in the regions?
- The UNBA supports any projects aimed at raising the level of lawyers' professionalism. Given the dynamically changing legislation, it is unlikely that the demand for continuing education will exceed the supply in the near future.
- And whether they can take care of raising the qualifications of the person who are not involved in the bodies of advocacy self-government?
- At the UNBA there is an Expert Council on the issues of accreditation and certification for the advancement of lawyers. The Expert Council certifies persons admitted to advocacy activities as speakers, lecturers, trainers or experts. This is an open information, and the procedure for passing these procedures is known. Of course, he assumes that speakers at such events may not only lawyers, but also experienced lawyers, experts, judges, etc.
Valentyn Hvozdii's interview was published on the website website of the All-Ukrainian weekly newspaper "Law and Business".