Court confirms legitimacy of disbarment for participation in covert investigative (search) actions

The obligation of an attorney to cooperate confidentially during operational and investigative measures or investigative actions is a violation of the Law «On the Advocacy and Practice of Law» and may result in disciplinary liability.

This conclusion was reached by the Sixth Administrative Court of Appeal in case No. 640/21514/21. The relevant resolution dated 31.10.2023 was recently published in the Unified State Register of Court Decisions.

The lawyer filed a statement with the SBU reporting the fact of extortion of undue advantage by an officer of the National Police of Ukraine in a car theft case (in this case, the lawyer provided legal services to the suspect).

The State Bureau of Investigation opened criminal proceedings based on this statement. During the interrogation of the lawyer, it was found that the SBU officers had given him funds to control the commission of the crime in the form of a special investigative experiment. This covert action resulted in the detention of a National Police officer. The latter filed a complaint against the lawyer with the QDCB.

The Disciplinary Chamber of the QDCB concluded that under the circumstances, the advocate participated in confidential cooperation, using his status as a lawyer and defense counsel for his client in criminal proceedings. Therefore, the advocate was brought to responsibility in the form of disbarment, with subsequent exclusion of information from the Unified Register of Advocates.

The lawyer appealed to the administrative court. He believed that the decision of the QDCB did not meet the requirements of the law due to the absence of a violation of the oath of an advocate of Ukraine, the Rules of Professional Conduct and the Law «On the Advocacy and Practice of Law», given that the contested decision did not specifically indicate which actions of the plaintiff as an advocate had signs of disciplinary misconduct.

The first instance dismissed the claim, so the attorney filed an appeal.

The Sixth Administrative Court of Appeal referred to Art. 275 of the Criminal Procedure Code, which prohibits the involvement of lawyers, in particular, in confidential cooperation during covert investigative actions, if such cooperation is related to the disclosure of confidential professional information.

The appeal also took into account the decision of the Bar Council of Ukraine No. 123 dated 15.11.2019, which approved an explanation of the inadmissibility of involving a lawyer in confidential cooperation with pre-trial investigation authorities with the client's consent.

In this decision, the BCU emphasized the legislatively defined obligation of law enforcement agencies to carry out operational and investigative measures or investigative actions within the framework of the current legislation.

The advocate's consent to confidential cooperation during operational and investigative measures is a violation of the Law and, accordingly, may entail disciplinary liability.

In this decision, the BCU explained that in the context of the provisions of Art. 23 of the Law and the CPC, each advocate is obliged to refrain from participating in confidential cooperation during operational and investigative measures or investigative actions, since such cooperation may lead to the disclosure of the attorney-client privilege, while in case of receiving proposals for such illegal actions, advocates should apply to law enforcement agencies and report such facts to the regional bar councils in order to protect their rights and guarantee the practice of law.

The court separately reminded that in accordance with Part 1 of Art. 57 of the Law, decisions of the Bar Council of Ukraine are binding on all advocates.

Based on this, the panel of judges of the Sixth Administrative Court of Appeal stated that the lawyer, in violation of the Law and the CPC, allowed confidential cooperation with the pre-trial investigation authorities.

Therefore, the appeal was dismissed, and the decision of the court of first instance was upheld.