If a lawyer has not stopped his activity, he is not unemployed – SC

The fact that a person has the right to practice law makes it impossible to grant him or her unemployment status and appropriate benefits.

This conclusion was reached by the Grand Chamber of the Supreme Court in case No. 761/38813/21 (resolution dated 28.08.2024 is available in the Unified State Register of Court Decisions).

A person filed an application for unemployment status through the Diia Unified Electronic Services Portal. In the application, he stated that due to the lack of work, he had no earnings or other income provided for by law, was not self-sufficient, did not receive a pension on preferential terms, and was not a member of a personal farm, a farmer or a member of a farm.

By order of the employment center, the man was granted unemployment benefits as an insured person, taking into account his insurance period.

Later, the Center found that the person was registered with the Bar Council of Kyiv Oblast and, during the period of being registered with the employment center as unemployed, had the right to practice law as an individual attorney. The man's registration as unemployed was terminated due to the fact that the person had submitted false data and documents, in particular, a certificate of the right to practice law. The payment of his allowance was terminated, and a decision was made to return the financial support already accrued and paid.

Then the lawyer filed a lawsuit and the case went to the Grand Chamber of the Supreme Court.

In particular, the court referred to the provisions of the Law «On the Bar and Practice of Law» stating that a lawyer who practices law and works individually is a self-employed person.

And in accordance with Article 4 of the Law «On Employment of the Population», the employed population includes persons who provide themselves with work on their own.

The high judges also emphasized that a lawyer has the right to terminate his or her practice at any time at his or her own discretion and without giving specific reasons, after which he or she loses the status of a person engaged in independent professional activity and, accordingly, a self-employed person, since such a lawyer has no right to practice law (Article 31 of the Law «On the Bar and Practice of Law»).

There was no information in the case file on the suspension or termination of the advocate's right to practice law.

Article 45 of the Law «On Employment of the Population» stipulates that the registration of an unemployed person is terminated, in particular, in the event of: employment of a person or establishment of the fact that a person has submitted false data and documents.

Given that a person has a job and is entitled to practice law, he or she cannot be recognized as unemployed, the court ruled. The Grand Chamber rejected the plaintiff's arguments that he did not receive any income from practicing law, as the person's right to practice law makes it impossible to grant him unemployment status and appropriate benefits.

The references to the fact that the lawyer had confirmed compliance with all the criteria for unemployment status were also found to be untenable. Here, the EP noted that the plaintiff, when applying for unemployment status, misled the employment center about providing employment by stating «I do not provide myself with work on my own».