Only lawyers have the right to control the quality of free legal aid

The model of interaction between the bar and the bodies involved in the provision of free legal aid, as well as the special status of lawyers in the FLA system, as defined by law, should be reflected at the subordinate level.

Oksana Kadenko, the chairman of the UNBA Committee on Legal Aid, drew attention to this when assessing the draft resolution of the Cabinet of Ministers «Some issues of organization of free primary legal aid provision by local self-government bodies».

The document, which was prepared by the Ministry of Justice, was reviewed on October 11 by the Government Committee on Economic, Financial and Legal Policy, Fuel and Energy Complex, Strategic Industries and Law Enforcement.

It is planned to be approved by a Cabinet of Ministers resolution:

• The procedure for engaging lawyers and other specialists in the relevant field of law by local governments to provide free primary legal aid;
• The procedure for providing free primary legal aid by entities established or contracted by local governments.

Among other issues, the qualification requirements for lawyers proposed for their participation in the provision of free primary legal aid (FLA) and the subjects of quality control of assistance were objected to during the meeting.

Thus, according to the draft Procedure, lawyers who meet the following four requirements will be allowed to provide FLA:

1) availability of information about them in the URAU;

2) at least one year of legal practice experience;

3) participation in the professional development activities of the Ukrainian Bar (during the current or previous year);

4) no disciplinary sanctions (within the last year).

At the same time, there are only two requirements for other legal professionals who can also provide FLA: a higher legal education and at least one year of work experience in the relevant field of law (for the last two years).

Representing the position of the developer, Deputy Minister of Justice Oleksandr Banchuk explained that such requirements for lawyers should provide local governments with ample opportunities to find FLA providers. However, he did not comment on the feasibility of introducing increased requirements for lawyers.

However, Ms. Kadenko called this differentiated approach completely unreasonable and discriminatory. «It is presumed that a lawyer is a professional, highly qualified legal service provider by his status. He or she already has the relevant work experience, has passed the qualification selection, is constantly improving his or her skills, etc. - If the state believes that all lawyers who have one year of work experience after obtaining a bachelor's degree can provide free legal aid, what are the grounds for setting additional higher standards for lawyers?».

As for the quality, completeness, and timeliness of free legal aid, the drafters intend that local governments should monitor this. As the Deputy Minister explained, it is the person who pays for the work who should control the quality of the work.

At the same time, according to Part 2 of Article 25 of the Law «On the Bar and Practice of Law», the provision of free legal aid by lawyers should be evaluated by commissions established for this purpose by regional bar councils. Local self-government bodies are defined only as subjects of application.

«In other words, the law attributes the assessment of the quality of legal aid provision to the functions of the bar self-government, and specific bodies - quality assessment commissions - are designated as the subjects of the assessment», - explained the head of the UNBA's specialized committee.

She insisted that the quality of professional activity cannot be checked outside the bar by third parties. «In fact, the proposed wording of the draft law negates the independence of the bar from state authorities and local self-government bodies guaranteed by law, as the latter receive control functions over lawyers, - noted Kadenko. - According to the law, the bar has created a system of bodies for assessing the quality of free legal aid provision, and this system is able to fulfill its tasks».

«Today there are neither factual nor legal grounds to violate the law and to grant the same powers to local governments», - summarized the UNBA representative.

The Ukrainian National Bar Association will continue to defend the position of inadmissibility of interference of state authorities and local governments in the exercise of self-governing functions by the bar. Therefore, the draft resolution of the Cabinet of Ministers will soon be considered and evaluated by the Bar Council of Ukraine at a special extraordinary meeting.