BCU strengthens its position on the right of advocate to prioritize cases

In legal practice, it is not uncommon for court hearings in different cases to be scheduled at the same time. This raises the question: which case should the advocate attend first, and can the court interfere with this decision?

In June 2025, an advocate was involved in criminal proceedings as a court-appointed defense advocate in the High Anti-Corruption Court. However, on the date of the next hearing set by the court, the advocate was also scheduled to participate in two other proceedings in the Kyiv Court of Appeals. Therefore, four days before the hearing, he filed a motion with the High Anti-Corruption Court to postpone the hearing, attaching confirmation of his appointment to other cases. He also noted that one of the cases concerned a defendant who was in custody.

However, on the same day, the panel of judges of the High Anti-Corruption Court, without summoning the parties, decided to hold the hearing via videoconference, determining that the advocate should participate remotely from the premises of the Kyiv Court of Appeal. In the reasoning part of the ruling, the court noted that the advocate's notification of his inability to participate was formal in nature and did not contain an explanation of how he had determined the priority of the cases.

The advocate informed the Ukrainian National Bar Association of Ukraine of the court's decision and expressed concern that he could be held disciplinarily liable for failing to appear at the hearing.

The circumstances of the case were considered by members of the Bar Council of Ukraine at a meeting held on October 17-18 in the Lviv region.

In presenting the facts of the case, the rapporteur, a member of the BCU from the Chernivtsi region Anatoliy Telman recalled that, in accordance with Decision No. 169 of December 13, 2019, the BCU noted that the decisive factor in these matters is the exclusive right of an advocate to determine, at his or her own discretion, the priority of various procedures scheduled for the same time, based on factors that may be important or decisive in each specific situation.

During the discussion, members of the BCU noted that the practice of the High Anti-Corruption Court of holding meetings via videoconference is inconsistent and creates risks for ensuring the rights of the defense. Representative of the Rivne region Hanna Lazarchuk noted that in some cases, panels of judges independently decide on VCCs even without a motion from the parties, while in others, they hold a full discussion, hearing the opinions of all participants, including the defendant and the prosecutor. Her colleague from the Khmelnytskyi region Oksana Kadenko added that VCCs in the hands of judges often become a tool of procedural pressure used to limit the procedural capabilities of advocates.

The head of the Secretariat of the UNBA, BCU Vadym Krasnyk emphasized that the practice of law is not limited to participation in court hearings. An advocate can simultaneously perform other professional duties — participate in investigative actions, searches, and provide urgent legal assistance to clients. Therefore, choosing priorities between several simultaneous actions is part of professional judgment.

The Bar Council of Ukraine should strengthen its position on the priority of cases. This point of view was expressed by the President of the UNBA, BCU Lidiya Izovitova noting the risk that a lawyer's choice of case priority could be interpreted as an abuse of procedural rights. She noted that this trend could lead to disciplinary proceedings against advocates for failure to appear in court, even when several hearings are scheduled at the same time.

According to the President of the UNBA, BCU it is the advocate who has the right to independently determine which case is a priority, taking into account the nature of the proceedings, the risks for the client, and other relevant circumstances. At the same time, the advocate is obliged to inform the other court of their inability to attend. She stressed that this is an inalienable right of an advocate and not a disciplinary violation.

In this regard, L. Izovitova proposed to strengthen the decision of the BCU No. 169 and clearly state that such behavior of an advocate cannot be regarded as an abuse of procedural rights.

The full text of the BCU decision on this issue will be published on the UNBA website in the near future.