Identification of a lawyer with a client: who is responsible?

From crimes against the sexual freedom of minors to war crimes, persons suspected of committing them almost never enter into legal aid agreements with lawyers.

This feature was highlighted by the Ukrainian National Bar Association in its Report on Current Issues of the Legal Aid System in Ukraine, which was presented last week.

The UNBA Committee on Legal Aid (where the report was prepared) explains this by the fact that lawyers themselves are mostly unwilling to be defenders in such cases because of internal conflict. Therefore, the most serious, unacceptable and sensitive criminal cases for society are handled through the legal aid system. After all, those suspected of such crimes also have the right to defense guaranteed by the Constitution, which is provided by the bar.

Lawyers who provide free secondary legal aid on the basis of relevant instructions from the centers work in very specific conditions:

First, they do not have the opportunity to choose their clients. This is done for them by the state in the person of a specific employee of the respective FLA center.

Secondly, due to the specifics of the cases, it is the FLA lawyers who are the most vulnerable in terms of the identification of lawyer and client.

It should be reminded that the prohibition of identification of an advocate with a client is directly provided for in Article 23 of the Law «On the Bar and Practice of Law».

«The problem has become especially important after February 24, 2022 - since the full-scale invasion. War crimes, which were almost unknown to Ukrainian law enforcement before, have become the norm today and exist in the form of thousands of criminal proceedings, - says Oksana Kadenko, Chairman of the UNBA Legal Aid Committee. - The fact that Ukrainians have zero tolerance for such crimes does not require much explanation. And it is on the suspects that all the hatred of the Ukrainian people for the war and its horrors is poured out. Lawyers who are obliged to provide assistance to such suspects and defendants are subjected to condemnation, criticism and even outright hatred and harassment».

The report notes that the legislative prescription of the prohibition of identification should be considered not only as a norm requiring everyone to refrain from actions to equate a lawyer with his or her client, but also as a binding legal norm that provides for the obligation of the state, represented by its bodies and officials, to take measures aimed at preventing and suppressing any cases of identification.

In addition, since the state has now taken over the administration of the process of providing free legal aid, it is the state that should take measures to prevent the identification of lawyers cooperating with the FLA system with their clients.

«But over the past two years, an absolutely uncivilized standard has been formulated in Ukrainian society. As if defense against charges of committing war crimes and other «painful» crimes for society can only be provided on behalf of the state. Because a patriotic lawyer will not agree to defend the aggressor or his accomplice for money. And a lawyer who provides such assistance almost under duress and even for free must provide it poorly, - says O. Kadenko. - And if a lawyer provides assistance of high quality or does it under a contract, he is the same as his client».

The issue was also studied by the USAID Justice for All Program. The researchers interviewed lawyers providing free legal aid, as well as judges, prosecutors, and lawyers who were involved in war crimes cases. In general, half of the lawyers who had experience defending this category of cases indicated a negative public reaction to their involvement.

In view of the above, the UNBA sees the establishment of criminal liability for the identification of lawyers with clients, as well as the joint efforts of the Bar, the Ministry of Justice, the CC, the Ukrainian Parliament Commissioner for Human Rights and other entities in carrying out legislative, organizational and other work aimed at combating this phenomenon as the ways to solve the problem.