Filed an application for termination of the FLA assignment - notify the client – project
If a lawyer applies to a regional center for free legal aid with a request to terminate a previously received assignment, he or she must inform his or her client about it.
This obligation of a lawyer is proposed to be enshrined in the draft law No. 13117 of 18.03.2025 «On Amendments to Article 26 of the Law of Ukraine «On Free Legal Aid» Regarding the Duties of a Lawyer».
The reason for the legislative initiative was one of the decisions of the Higher Qualification and Disciplinary Commission of the Bar in a case that was included in the Generalization of the Disciplinary Practice of the CDC on the provision of free legal aid by lawyers, approved by the decision of 28.12.2023 No. XII-011/2023.
The lawyer provided legal assistance in criminal proceedings on behalf of the regional center for free legal aid, providing defense as assigned. In particular, she drafted and filed a complaint with the investigating judge to cancel the notice of suspicion.
However, after the investigator issued a decision to suspend the pre-trial investigation and put the suspect on the wanted list, the lawyer filed an application with the center to terminate the power of attorney. At the same time, she did not inform either the client or his father about this, although she continued to communicate with them.
13 minutes before the start of the next court hearing, where the decision on appealing the notice of suspicion was to be announced, the lawyer wrote in a messenger that she could not provide defense, since her power of attorney had been terminated and this made it impossible for her to attend court hearings.
Then the former client filed a complaint with the QDCB against the lawyer. He believed that by appealing the notice of suspicion (being present at the court hearing), the lawyer was obliged to receive the full text of the decision to dismiss the complaint. The complainant himself could not do this, and the deadline for appealing is only 5 days. Therefore, the lawyer had to receive and pass on the document so that the suspect could appeal it. By refusing to receive the full text of the decision, the lawyer deprived her client of the right to defense.
The QDCB refused to initiate a disciplinary case. They referred to the requirements of clause 5, part 1, Article 23 of the Law «On Free Legal Aid» (in the version in force at the time of the case), which provides that the provision of free secondary legal aid is terminated by the decision of the Center for the Provision of Free Secondary Legal Aid if a person receiving free secondary legal aid is wanted in criminal proceedings. The disciplinary chamber also concluded that the lawyer had properly carried out the defense within the framework of the relevant legislation and in a proper legal manner.
The suspect appealed the decision to the HQDCB. The Higher Commission drew attention to Art. 18 of the Rules of Professional Conduct, according to which an advocate shall inform the client about the conduct of the case entrusted to him or her, including the legal position in the case. The advocate shall impartially and objectively inform the client of the existence of factual and legal grounds known to him or her that may positively or negatively affect the probable fulfillment of a particular assignment, and inform in general terms what time and amount of work will be required to fulfill this assignment and what are the legal consequences of achieving the result desired by the client.
Also, in accordance with Art. 26 of the RAE, the advocate is obliged to inform the client about his or her legal rights and obligations. The advocate shall inform the client with reasonable frequency about the progress and results of the assignment and timely respond to the client's requests about the status of his or her case. The information shall be provided to the client in the amount sufficient to enable him or her to make informed decisions regarding the essence of his or her assignment and its fulfillment.
Therefore, having decided to apply to the regional center with an application for termination of the assignment, the lawyer was obliged to inform the client about her decision, as well as about the decision of the regional center to terminate the assignment, in order not to violate the right to defense. Taking this into account, the HQDCB reversed the decision of the QDCB and made a new decision to initiate a disciplinary case against the advocate (decision of the HQDCB No. V-011/2023 of 26.05.2023).
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