How should an advocate act if a relative works in the police: clarification from the BCU regarding conflicts of interest

In villages and small towns, advocates often find themselves in situations where their relatives work in institutions related to the justice system. As a result, advocates may sometimes lose their practice, and citizens may be deprived of their right to freely choose a defense advocate.

Advocate Rostislav Pavliuk asked the Ukrainian National Bar Association to explain how to deal with a possible conflict of interest. His son works as a criminal investigator at the local police department and is involved as an expert in various criminal investigations. At the same time, the advocate does not have information about the specific cases in which his son is involved. It is only possible to find out this information by reviewing the materials of the criminal proceedings in accordance with Article 290 of the Code of Criminal Procedure.

In this regard, the advocate expressed concern that his conclusion of contracts for the provision of legal assistance in criminal proceedings could be considered a violation of paragraph 5 of part 1 of Article 28 of the Law «On the advocacy and the practice of law».

According to this provision, an advocate is prohibited from concluding a contract for the provision of legal assistance and is obliged to refuse to perform it if he or she is a family member or close relative of an official who has participated or is participating in economic, civil, or administrative proceedings, criminal proceedings, or the consideration of an administrative offense case, in relation to which the advocate is approached with a proposal to conclude a contract for the provision of legal assistance.

The advocate noted that, among other things, in such circumstances, the right of a person to freely choose a defense lawyer may also be restricted.

The issue was considered at a meeting of the Bar Council of Ukraine, which is being held on October 17-18 in the village of Plavya, Lviv region.

During the discussion, members of the Bar Council of Ukraine expressed the opinion that the mere fact of concluding an agreement by an advocate cannot be regarded as a disciplinary violation if he was not aware of his relative's participation in a specific criminal proceeding. At the same time, once an advocate becomes aware that a close relative has participated in the proceedings as a specialist, they must terminate the contract for the provision of legal assistance.

In order to ensure a balance between compliance with professional standards of legal practice and the right of a person to freely choose a defense attorney, the Bar Council of Ukraine, following a discussion of the issue, recommended that advocates in such situations inform their clients of a potential conflict of interest that may arise as a result of family ties. In the event of an actual conflict, the provisions of paragraph 5 of part 1 of Article 28 of the Law «On the advocacy and the practice of law» shall apply.