Dispute over fees: BCU explained the possibility of disclosing information subject to advocate-client privilege

In certain cases, an advocate may be exempt from the obligation to maintain attorney-client privilege. The Bar Council of Ukraine considered a practical situation in which an advocate needed to transfer documents prepared while working with a previous client to a colleague in order to protect his own rights in court.

The advocate entered into a contract with the client, performed the agreed work, but never received payment for it. Then, to protect his rights, he decided to file a lawsuit to recover the unpaid fee.

To prepare the lawsuit, the lawyer engaged another advocate and entered into a corresponding agreement with him. However, such representation required the transfer of materials to his colleague that had been formed in the course of previous cooperation with the client, in particular, a copy of the main agreement and procedural documents containing attorney-client privilege.

In this situation, the advocate wondered whether it was permissible to transfer such documents without the separate consent of the former client, or whether this would contradict the requirements of the Law «On advocacy and legal practice» and the Rules of Professional Conduct.

Due to this conflict — the need to protect his own rights in court and the simultaneous obligation to maintain attorney-client privilege — the advocate submitted an official request to BCU for clarification.

According to Article 22 of the Law, attorney-client privilege covers any information that has become known to the advocate about the client, as well as the issues raised by the client, the content of the advice, consultations, and explanations provided by the advocate, the documents prepared by the advocate, information stored on electronic media, and other documents and information obtained by the advocate in the course of his or her professional activities. Such information or documents may lose their status as attorney-client privilege upon written request of the client. In this case, the advocate is obliged to ensure conditions that prevent access by third parties to attorney-client privilege or its disclosure.

Referring to Part 2 of Article 29 of the Law and Article 31 of the RPC, Bar Council of Ukraine noted that if a client fails to fulfill their obligations to pay the advocate's fee under a contract for the provision of legal assistance, the latter has the right to judicial protection and professional legal assistance, which are guaranteed by Articles 55 and 59 of the Constitution.

At the same time, in accordance with Article 22 of the Law and Article 10 of the RPC, if the client makes any claims against the advocate in connection with the advocate's activities, the advocate is released from the obligation to maintain attorney-client privilege (confidential information) to the extent necessary to protect his rights and interests.

And upon consideration of the circumstances specified in the request of the advocate who transferred to another advocate the contract for the provision of legal assistance and procedural documents created while working with the client, having concluded a contract with another advocate for the provision of legal assistance, in order to file a lawsuit with the court to recover unpaid fees from the client, it appears that the provisions of the Constitution and the relevant law come into effect simultaneously.

If an advocate is forced to defend himself against elements of tort or other contractual legal relations, the provisions of Article 22 of the Law and Article 10 of the RPC shall apply by analogy to such legal relations.

In the situation under consideration, we are talking about the possible disclosure of attorney-client privilege by an advocate who has the status of a client. But here, an additional guarantee against the disclosure of sensitive information is provided by the advocate who accepts the assignment from his colleague. And such an advocate, having familiarized himself with the documents containing attorney-client privilege (legal assistance agreement and procedural documents), having concluded a legal assistance agreement, assumes the obligation not to disclose information that has become known to him in the course of his professional duties, which makes further disclosure of such information impossible.

Otherwise (without receiving the documents), the advocate is deprived of the opportunity to write a statement of claim, substantiate it, and attach such documents as evidence, i.e., fulfill the terms of the agreement on the provision of legal assistance.

Thus, the BCU concludes that when applying to the court, as well as when concluding a contract for the provision of legal assistance with another advocate for the purpose of recovering the agreed but unpaid fee from the client, the advocate exercises his rights to judicial protection and professional legal assistance and is released from the obligation to maintain attorney-client privilege (confidential information) to the extent necessary and sufficient to prove his right to receive the unpaid fee before the court.

The full text of the BCU decision dated October 17, 2025, No. 117, «On the approval of clarification regarding the release of an advocate from the obligation to maintain attorney-client privilege to the extent necessary to protect his rights and interests», - can be viewed at this link