Methodology for calculating episodes when paying for FLA lawyer's services should be clarified, - BCU

The Bar Council of Ukraine is initiating changes to the Cabinet of Ministers' resolution on payment for services and reimbursement of expenses of lawyers providing free secondary legal aid.

The relevant decision was made at the last meeting of the UNBA following the discussion of the appeal of a lawyer who complained about the unfairness of the payment formula used by regional FLA centers (Cabinet of Ministers Resolution No. 465 of 17.09.2014).

The lawyer submitted to the center an act of services rendered and a calculation of the amount of remuneration in criminal proceedings at the stage of pre-trial investigation, taking into account ten episodes of offenses. However, officials determined that the calculation should be based on only two episodes.

According to the resolution, the severity of the alleged crime for each episode is taken into account when determining the amount of payment. One of the crimes the person was suspected of committing was the illegal sale of psychotropic substances. Each of the episodes of the violation was registered in the URPTI, as the facts of the sale were characterized by a separate time, place, and method of commission and had their own subject of proof. In addition, each fact was a separate sufficient ground for bringing a person to justice. But the center decided that it was a continuing offense. And according to the rules, if the offense is treated as a continuing offense in the proceedings, it is taken as one episode when calculating the reward.

«This position, in the reasonable opinion of the Committee, is unfair, - said Oksana Kadenko, a member of the BCU, chairman of the UNBA Committee on Legal Aid, during the meeting. - After all, it does not take into account the scope of work of a lawyer in the defense of a person... This, accordingly, is a completely different scope of research of evidence, work with a client, research of materials, formation of a position, etc. The assessment of this situation clearly does not meet the goal of differentiating the payment of attorneys' fees depending on the scope of services provided».

She drew attention to the fact that if the lawyer had agreed to the qualification with a sign of repetition, the issue would have been resolved, but such formalization of the indictment directly contradicts the interests of the client, because this sign of repetition aggravates criminal liability.

The participants of the meeting agreed that the problem does exist. And Barbara Kalyuzhna, a member of the BCU, additionally pointed out that a similar situation is associated with the representation of several victims, when, despite the significant volume, payment is made as if for work with one victim.

In the end, the UNBA stated the need to amend the calculation methodology and proposed to introduce three criteria in the context of remuneration of lawyers: the number of episodes according to the extracts from the URPTI, the number of episodes according to the indictment and the number of episodes according to the verdict of the court of first instance.  At the same time, the largest of the three indicators should be used to pay for the work of a lawyer.