Advocacy privilege in Ukraine, England and Scotland: round table discussion

The Ukrainian National Bar Association hosted an international roundtable discussion on «Advocacy privilege in Ukraine, England and Scotland: comparative analysis and practical aspects». The event was dedicated to one of the fundamental principles of independent advocacy — advocacy privilege and legal privileges in the practice of advocacy.

The discussion brought together Ukrainian and British lawyers.

The UNBA representative in Scotland and the United Kingdom Oleksandr Chernykh focused on the regulatory framework of advocacy privilege in Ukraine and the problems of its practical implementation, which have become particularly acute in the context of martial law. He emphasized that advocate-client privilege, by its legal nature, is not a corporate privilege of advocates, but rather a direct guarantee of an individual's constitutional right to defense.

The advocate also outlined systemic threats to this guarantee, in particular searches of advocates, seizure of electronic media and means of communication, the use of criminal proceedings as a tool of pressure, and the tendency to automatically equate the status of an advocate with «increased risk». In this context, the practice of the Appeals Chamber of the High Anti-Corruption Court in determining the limits of attorney-client privilege was analyzed, and attention was drawn to the need to maintain a balance between the interests of the investigation and real guarantees of defense.

In this regard, O. Chernykh noted that it was the Convention on the protection of the profession of advocate, adopted by the Council of Europe on March 12, 2025, that for the first time at the international level explicitly imposed on states the obligation to ensure the protection of advocate-client privilege, the independence of advocates, and the independence of bar associations.

Lawyer in England and Wales Olena Chaban presented the doctrine of legal professional privilege in England and Wales, which was developed primarily within the common law system but is also enshrined in legislation. The speaker explained in detail the difference between legal advice privilege and litigation privilege, their criteria for application, and the approaches of courts to determining the circle of persons whose communications are covered by privilege.

Key court decisions were used to demonstrate the consistency of the English legal system in protecting the confidentiality of legal assistance and to emphasize the fundamental principle of the irreversibility of privilege, according to which it is preserved regardless of the time and stage of the legal relationship, unless the client has expressly waived it.

Scottish solicitor and notary public Olena Batryna dedicated her presentation to the specifics of legal professional privilege in Scotland. It was emphasized that the Scottish model is distinguished by clear legislative restrictions on the possibilities of state interference in the confidential sphere of legal assistance.

In particular, attention was drawn to the provisions of the Data Protection Act 2018 and the practice of the Court of Session, which confirm that even regulatory authorities cannot access materials covered by legal privilege without the client's consent.

The key point was that the privilege belongs exclusively to the client, and the advocate's duty to maintain confidentiality is indefinite and does not depend on the completion of the case or the termination of the professional relationship.

«The professional discussion showed that attorney-client privilege is a universal value of a democratic state governed by the rule of law, but the mechanisms for protecting it vary significantly depending on the jurisdiction. A comparative analysis has demonstrated the need to strengthen practical guarantees in Ukraine, the advantages of the stability of case law in the English system, and the clarity of the Scottish approach to limiting state interference», - commented O. Chernykh on the results of the event. In his opinion, the implementation of the Council of Europe Convention on the protection of the profession of advocate could be an important step towards the unification of European standards and strengthening trust in justice in Ukraine.