Bringing advocacy closer to best European practices – ratifying the Council of Europe Convention

Discussions on reforming the advocacy profession must be based on real conditions: wartime security risks, strict procedural requirements for convening a congress, compliance with European standards, and the priority of ratifying the Convention on the protection of the profession of advocate.

This was emphasized by Hanna Lazarchuk, a member of the Bar Council of Ukraine from the Rivne region, during the XIV Judicial Forum of the Ukrainian Bar Association, one of whose sessions was devoted to advocacy.

H. Lazarchuk emphasized that the discussion on reform should be conducted in a real, not imaginary, framework. All claims boil down to four blocks: the absence of a congress of advocates, the non-election of two members of the High Council of Justice, the requirement to «bring» the legislation on advocacy closer to the best European practices, and the issue of disciplinary procedures.

Commenting on the situation with the congress, the advocate recalled that the BCU had already decided to convene it in September 2022. However, the holding of the congress is not hindered by unwillingness, but by security and process issues. Unlike judges, who elect delegates at internal meetings in court premises, bar conferences must be announced publicly in the media 30 days in advance, specifying the date, time, and place. For frontline and border regions, this creates real risks, as evidenced by incidents such as the shelling in Sumy.

The second problem is the quorum math: the congress is only legit if reps from at least 14 regions show up, and right now, she thinks it's impossible to get that many safe regions together.

The advocate called proposals to switch to electronic voting, which activists call an obvious solution, detached from reality. According to her, a significant number of advocates do not have activated electronic accounts, and state digital tools such as Diia are not available to everyone. Added to this is the lack of special software for electoral procedures and the banal issue of funding: advocacy exists solely on annual contributions, does not receive grants, and does not receive compensation from the state for such technical projects.

As for the two vacant seats in the High Council of Justice, the problem is not a reluctance to delegate representatives, but the fact that without a congress, self-government bodies have no legitimate instrument to implement this norm. In terms of sentiment, she said, advocacy is interested in having its representatives in the HQC, but is hampered by the same security and procedural restrictions.

The most objections were raised by the requirement to «bring» the legislation on advocacy into line with two European documents from the end of the 20th century. H. Lazarchuk pointed out that one of them was adopted in 1977, and the other in 1998, while the Ukrainian law «On advocacy and legal practice» has been in force since 2012 and has received a positive opinion from the Venice Commission on its compliance with European standards, including those acts referred to in the Roadmap. From this perspective, the requirement to «catch up» with long-established documents appears to be a consequence of the Roadmap authors' lack of familiarity with Ukrainian legislation. According to the advocate, the real step towards reform should be Ukraine's ratification of the Council of Europe Convention on the protection of the profession of advocate.

In the section on disciplinary procedures, the advocate described the Bar Council's ongoing internal work on the regulations of the QDCB and HQDCB and cited the introduction of a new information service as the latest example. Now, both the advocate against whom a complaint has been filed and the complainant have online access to all materials of the disciplinary case, which should increase the transparency of the proceedings.

When asked by the moderator whether advocacy had reached an impasse and whether it was worth simply waiting for the war to end, Hanna Lazarchuk replied without illusions: the situation is painful even for the self-governing bodies themselves, where many people have long wanted to hand over power to their successors. In her view, the choice is limited to two options: either passively wait for an undefined «after the war» or prepare changes to the legislation that will allow for the modernization of procedures, taking into account security realities. And this, she emphasized, can only be done through ongoing dialogue with the entire legal community.