Chief Justice orders to eliminate incompatibility of lawyer's status with military service – media

The lawyers who went on military service in the Armed Forces of Ukraine but did not stop practicing law will have to make amends in the near future. Either such «military lawyers» submit a corresponding application to the Bar Council, or their commanders initiate the issue of bringing them to disciplinary responsibility.

The Glavkom publication reports on the relevant separate order of the Commander-in-Chief of the Armed Forces of Ukraine dated 10.05.2024.

According to journalists, based on this order, commanders in military units began issuing orders to explain the provisions of Article 7 of the Law «On the Bar and Practice of Law» to military personnel who have the status of a lawyer.

This article contains requirements for incompatibility. In particular, military or alternative (non-military) service is considered incompatible with the advocate's activity. And in the event of incompatibility, the advocate is obliged to submit an application for suspension of the practice of law to the regional bar council at the address of his or her workplace within three days from the date of occurrence of such circumstances.

Also, the commanders of the units will warn the servicemen who fail to comply with this requirement that the military unit will initiate the issue of disciplinary action and other disciplinary measures before the relevant regional bar councils. It is proposed to report on the measures taken to implement the order in writing, providing copies of applications for suspension of the practice of law with evidence of their submission.

«The combination of professions leads to improper performance by a citizen of the duties of both a military officer to protect the sovereignty and independence of the state and a lawyer to defend, represent and provide other types of legal assistance to a client, - said Hanna Kolesnyk, the Chairman of the UNBA Committee on Human Rights Protection. - She draws attention to the fact that the specifics of the goals and objectives of the bar require maximum independence of the advocate in the exercise of his or her professional rights and duties. At the same time, according to the Statute of the Internal Service of the Armed Forces of Ukraine, one of the main principles is the sole authority and strict subordination».

At the beginning of the full-scale aggression, the Bar Council of Ukraine decided not to consider it a violation of the requirements for incompatibility of military or alternative (non-military) service by lawyers during martial law and not to apply such a ground for bringing a lawyer to disciplinary responsibility (Decision No. 24 of 03.03.2022).

«It is unlikely that anyone will question the idea that those lawyers who are really fighting at the front have no time to provide legal assistance to clients, - explains H. Kolesnyk. - But some lawyers took Decision No. 24 as a permission to combine military service with the practice of law. And those of them who are «sitting on their hands» in the rear somehow secretly found time to earn extra money. Moreover, they even allow themselves to come to court in military uniforms, considering such behavior quite normal. The Unified State Register of Court Decisions contains many decisions made with the participation of such military lawyers. And such lawyers openly violate the direct provision of the law, sometimes hiding their essentially illegal activities with patriotic slogans».

Due to the ambiguity of the perception of the content of this decision, it was later clarified (decision of 02.08.2022 No. 60) that the exemption from liability does not exempt lawyers from fulfilling the requirements for suspension of the practice of law due to incompatibility.

That is, if, due to urgent mobilization, the advocate did not have time to suspend his or her right to practice law (to submit a corresponding application) for obvious reasons, he or she should not be disciplined for this, but when the advocate-military man has the opportunity, he or she should submit an application for suspension of the practice of law.

It is also worth noting that the suspension of the right to practice law does not deprive a person of the status of an advocate. Such a person may freely return to the profession after the relevant circumstances disappear (for example, discharge from military service). To do so, they do not need to pass any competitions or take exams again. It is enough to inform the Bar Council of your decision.

As a general rule, the practice of law in conditions of incompatibility is not allowed. And according to clause 1 of part 2 of Article 34 of the Law «On the Bar and Practice of Law», violation of the requirements of incompatibility is a disciplinary offense of an advocate, and is, accordingly, the basis for bringing an advocate to justice.

Thus, performing military service and practicing law (drafting procedural documents, participating in court hearings, including via video conferencing) constitutes a disciplinary offense.

Read more about this in the article «Why there are no military lawyers».