Our judicial system is so built that courts do not trust advocates

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The Bar Day is coming, a holiday for all advocates in the country, and we put behind us a difficult year with new challenges for the institution. Should advocates be divided into state and contract advocates, how justified are the numerous disciplinary complaints against advocates, and why is the opposition of the Bar with the Ministry of Justice and anti-corruption bodies only intensifying? ZiB was looking for answers to these questions together with the Chair of the HQDCB, Sergiy VYLKOV.

"People from the Prosecutor's Office and the judicial system should enter the legal profession on a general basis"

- December marks the Day of Advocacy of Ukraine, and this is a professional holiday for more than 60 thousand advocates. How complicated is the procedure for entering the legal profession now? Which changes to the existing procedures would you support?

- Since 2012, the qualification requirements for advocates are uniform - if you have a legal degree, two years of legal experience, you have no positions incompatible with the status of an advocate, like status of civil servant, criminal record or dismissal for corruption offenses, you are not in the army, do not work as a notary or forensic expert – welcome to qualification exam. The details are determined by the law "On the Bar and Practice of Law" and the instruments approved by the Bar Council of Ukraine - the Procedure for Admission, Preparation and Methodology for Assessing Qualification Examinations, the corresponding Program. Our Qualification and Disciplinary Commissions administer qualification exams. The task of the exam is to identify both theoretical knowledge in the field of law, knowledge of the history of the Bar, ethics principles, and the level of practical skills and abilities in applying the Law.

In addition, having the status of advocate, everyone is obliged to annually improve their professional level in accordance with the established procedure, completing some amount of training hours. Failure to comply with this obligation may entail disciplinary liability.

I emphasize that the level of qualification, knowledge for an advocate is established exclusively by the regional Qualification and Disciplinary Commissions of the Bar. When some fake qualification commissions, NGOs and firms are trying to usurp this exceptional function of Bar self-government, in fact, organizers of these "schemes" should understand that they will face both disciplinary and criminal liability.

Taking over of the powers of bar self-government also occurs when the departments of the Ministry of Justice hold competitions for the selection of advocates to work within free secondary legal aid system. Such competition commissions do not have the right to assess the qualification level of advocates and decide on whether advocates may or may not work in the FLA system. All advocates entered the profession upon successfully passing qualification exam and do not need to be re-certified by the authorities as a matter of law.

- The Strategy for the Development of the Justice System and Constitutional Justice for 2021-2023 provides for a revision of the requirements for acquiring the right to practice law, in particular, "the introduction of a transparent procedure for conducting a single qualification exam, traineeship". How will this proposal be implemented?

- The working group of Ukrainian National Bar Association has been working on the methodology for introducing a transparent procedure for single exam for several years. As far as I know, in early 2022, a document should be prepared. Upon discussing the matter with UNBA, BCU President Lidiya Izovitova, we reached common understanding that singe qualification exam may be introduced without changing the existing institutional system of regional QDCBs.

- How easy is it to become an advocate for an employee of the prosecutor's office or a judge? Now both the judicial system and the prosecutor's office experience an increased outflow of personnel, including highly qualified. Should these groups of lawyers be granted fast track access to the legal profession, or should the be admitted thru general procedure?

- I defend the position that permission for a simplified procedure for entering the legal profession to employees of the prosecutor's office or judges is wrong. Those lobbying for these ideas is the former prosecutors and judges themselves. I will not be the first to say that working in law enforcement leads to certain perception of the reality, while advocate’s work is vastly different. If a person has been working for years in a system aimed at proving the charges, one will not turn his professional arsenal of knowledge and skills in the other direction in a month. Therefore, newcomers from the prosecutor's office and the judicial system should enter the legal profession on a general basis. However, I am also not a supporter of the discriminatory restrictions currently proposed by some draft laws. On the other hand, advocates willing to become judges have no preferences, pass all stages of training, examination, and entry into the judicial profession.

"Only 30-40% of complaints to the QDCBs have merit"

- The institution chaired by you is considered by ordinary citizens and law enforcement agencies as punisher of advocates. What percentage of complaints submitted to HQDCB, you could call justified? How often the final decision made by the HQDCB entails disbarment?

- The regional QDCBs receive many complaints against advocates, since this is the nature of any dispute - there are always someone dissatisfied with the results of its dispute resolution. Of course, large number of regional QDCB decisions are appealed to HQDCB, since, again, there is always a dissatisfied party. However, I must say that only 30-40% of complaints have merit. Others are either completely frivolous, or their arguments do not find confirmation during consideration.

Regarding the decision of HQDCB to disbar an advocate, the Commission always comprehensively and carefully evaluates the appealed decisions and case files, and if the advocate has actually committed the relevant disciplinary misconduct - makes an objective decision to terminate his/her right to practice law. Such decision are fairly common, just at the preceding hearing, the Commission decided that advocate disciplinary liable and imposed disciplinary penalty in the form of termination of the right to practice law.

- If there is a conflict between advocates, they turn to disciplinary bodies for resolution. For example, conflicts between FLA advocates and contract advocates in criminal cases against well-known politicians or officials were quite resonant. How common are appeals to the QDCB and HQDCB when the court involves FLA advocates thus excluding defenders chosen by the client independently?

- Yes, advocates also act as complainants against other advocates. Indeed, there is a practice where contract advocates file against free legal aid advocates.

Also, the practice has become quite widespread now, when the Higher Anti-Corruption Court, despite the presence of contracted advocate defending the accused, involves an FLA advocate, ignoring the right to a defender of person’s own choosing. What is the connection between an appointed state FLA advocate and contract advocate chosen by the client? It is a rhetorical question. The answer thereto can be given by the client himself.

By the way, at the last meeting, HQDCB considered the complaint of the client against state-appointed FLA advocate involved in the case on the basis of the decision of the HACC.

"Advocate rendering free legal aid must be independent and work without external control or interference as well."

- The above-mentioned Strategy also provides for improving the  procedure and conditions for involving advocates in the provision of free legal aid.

 - This strategic priority, taking into account the real situation in FLA system, means that the legislation on the organization of free legal aid must be radically changed. The current law on FLA was adopted earlier than the law "On the Bar and Practice of Law". A system developed thereupon does not take into account the principle of self-governance of the Bar. The idea of transferring the administration of the FLA to the Bar self-government is economically feasible, because it saves state budget funds, and to a greater extent complies with the principles of independent advocacy. An advocate provided by the State can be and must be independent and work without external control or interference. This approach has been repeatedly supported at the Congresses of Advocates and discussed at the BCU. I know that the BCU is working on a draft FLA law and will pass this document to the subjects of the legislative initiative.

- For some time, between the state tried to lay dividing lines between FLA advocates and the community at large, including ethical ones. Clients from legal aid centers, sometimes is the only way for an advocate to make a living. How to eliminate the dependence of advocates’ income from being listed in dedicated FLA state register and compliance with state-imposed legal aid standards?

- I want to emphasize that the Bar of Ukraine is the unified institution, and all advocates are equal therein. I do not discriminate advocates under the contract and "FLA advocates", all of them are advocates Ukraine to me. Advocates should be equal in their ability to provide free legal assistance to those in need, regardless of their presence or absence in the Register of free legal aid advocates. Any person is entitled to professional legal assistance and has the right to freely choose a defender to protect its rights, and therefore, limiting the right of free choice of defender, in my opinion, is unacceptable. Every advocate can provide professional legal assistance, and every person has the right to freely choose an advocate to protect its rights.

- Why didn’t the Bar support the reform, which provided for the introduction of the so-called ‘peer review’ of cases?

- This idea has been in the air for several years now. This year, the government submitted a bill that introduces peer review in a way that does not comply with the Constitution of Ukraine. The said bill was discussed by advocates and representatives of the Council of Europe. The participants weren’t impressed by the draft to say the least.

Firstly, the introduction of such a reform is not justified. The Ministry of Justice insisted this initiative would improve the FLA quality, but the reports of the same Ministry indicate that advocates selflessly and effectively work in the FLA system, manage to get acquittals for their clients. According to official statistics, there are also almost no complaints against advocates from the clients. There is no need for new bureaucracy under the guise of quality control. It is unclear which criteria they use for such control and who is ultimately responsible for the formation of these bodies. It is proposed that Ministry of Justice fills in the gaps by its internal orders on the go. We proposed that such commissions should evaluate quality of aid rendered by advocates from FLA system, while quality of advice provided by private-sector advocates be evaluated by the commissions formed by the regional Bar Councils. These commissions already exist, although the Ministry of Justice, when defending the bill in expert circles, for some reason decided that the Bar did not form such commissions. The Bar refuted such misleading statements.

In the end, the relevant Committee of the Parliament agreed that the idea of peer review makes the entire bill on amendments to the FLA unlikely to pass and contradicts the standards of legal practice. This bill never went to a vote in Verkhovna Rada, and the best option, after almost a year of pause, is to withdraw it.

"Advocates elected to Bar self-government may not be subject to the law "On Prevention of Corruption"

- Since the middle of this year, a public dialogue has been held between the Bar and the National Agency for the Prevention of Corruption, if not the conflict, regarding the obligation of advocates -members of regional QDCBs and HQDCB to file declarations. Why did this story come up only this year? Have there been cases where advocates have agreed and filed declarations to avoid financial control problems?

- It is difficult to call it a dialogue, it is rather a confrontation, and the Bar aims to protect its independence.

It is worth starting with the fact that with a systematic analysis of the provisions of the Law "On the Bar and Practice of Law" and international legal acts, the conclusion is that the Bar in Ukraine is an independent self-governing professional human rights institution, civil society institution, that is, not controlled by the State, its activities are not related to the functions of the state power or local self-government. State authorities and local self-government have no right to interfere with the activities of the Bar and Bar self-government, and therefore, I insist on the position that advocates elected to the Bar self-government, do not and cannot be subjected to the law "On Prevention of Corruption" in terms of being obliged, just as civil servants to submit e-declarations and report to the NACP.

As to why the issue of such a controversy came up just this year, and not earlier, it seems to me that this is due to the change of the leadership of the relevant specialized agency. The newly appointed Head came from the ranks of prosecutors and, possibly, holds a grudge against the Bar.

The legislator himself found that there is definite legal uncertainty in this matter, and therefore, the Parliament continues review of bill No. 3602, which should eliminate the said legal uncertainty and stop the confrontation of the two institutions.

It is worth noting that there were singular cases when advocates filed e-declarations due to issues that were not related to their election to the Bar self-government. Most likely, these filings were the result of personal discretion.

- For the second year, Ukraine has been operating under quarantine restrictions, however, the judicial system is functioning. Obviously, to solve this problem, a bill has been submitted that gives the HACC the authority to bring administrative responsibility. How much more complicated did the quarantine complicate the relations between advocates and judges and were there more complaints against advocates from judges for reasons of failure to appear in court?

Advocates are also humans; advocates may fall sick. Of course, in the context of a pandemic, there are cases when advocates cannot appear in court due to the fact that they are sick, feel unwell, or should be on the isolation due to the relevant quarantine rules.

Our judicial system is built in such a way that the courts do not have confidence in advocates and require in every case all possible documents to confirm the justification of their failure to appear in court. Indeed, this year there were a considerable number of cases in which judges complained about the reasons for the failure of advocates to appear in court. Judges question the circumstances that the pandemic may prevent an advocate from appearing in court. Judges believe that advocates use the pandemic as a means of delaying the process, although I note that no one is protected from the virus, not even an advocate. The judges themselves, when they are sick and withdraw cases from consideration, do not inform advocates, as well as other participants in the proceedings, and provide no evidence that judges were actually ill and the withdrawal was in fact legit, or the hearing postponed for good reasons. However, we have to simply believe them.

- Strategically, further changes in the Bar will provide for the specification of the grounds, procedures for bringing an advocate to disciplinary liability and the procedure for appeal; introduction of the institute of simplified disciplinary proceedings; improving the procedure for considering complaints about the actions of an advocate. That is, these are comprehensive changes in the institution of disciplinary responsibility.

- Of course, any changes should develop in the direction of improvement and betterment. Now the first steps of the introduction of simplified disciplinary proceedings have already been made. In particular, the decision of the BCU of 03.07.2021 No.64 on amendments and additions to the Rules of Procedure of the HQDCB and the Regulations on the Procedure for Accepting and Considering Complaints about improper behavior of an advocate, which may result in its disciplinary liability, amendments to the relevant regulations were made, namely the following:   consideration of complaints against the decision of the QDCBs of the region on the initiation of a disciplinary case, refusal to initiate disciplinary case, the advocate's request to take measures to ensure the consideration of the complaint by HQDCB, takes place at the meeting of the HQDCB without the participation of the parties to the disciplinary case (paragraphs 3.2., 3.14. of the HQDCB RULES of Procedure, Article 38-2 of the Regulation).

Such simplification of disciplinary proceedings corresponds to the position of the Supreme Court, which noted that the decision to initiate a disciplinary case against an advocate does not meet the criterion of legal significance, does not entail legal consequences for an advocate in the form of the emergence, change or termination of his rights and does not give rise to any obligations for him, since the legal consequences for the complainant can arise only from decision rendered upon results of consideration of a disciplinary case (Administrative Court of Cassation Resolution from 24.06.2020, case No. 813/2639/18).

Separately, it should be noted that acts regulating the activities of QDCBs are currently being amended in order to introduce simplified disciplinary proceedings therein.

- You are involved in trying the case of the murder of a well-known advocate Yuriy Grabovsky. When will a court decision be made against the accused and will this decision be the answer to the question of who killed advocate Grabovsky?

- This case has been heard for a long time. The process is quite complicated, the panels of judges and defenders of one of the accused have repeatedly changed.

I take part therein from the very start and hope that the court will make a lawful and fair decision. Given the presumption of innocence, I will note only that the court will soon put an end to this case. We wait for sentencing hearing.

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