Pros and cons of advocates' monopoly

The news of the abolition of the advocates' "monopoly", initiated by the President (draft law No. 1013), "stirred up" the entire legal community of Ukraine. We recall that the document provides for the abolition of the advocates' monopoly on representation in court, leaving only a monopoly on the protection of a person from criminal charges. So far, the VRU has approved in its entirety the resolution that sent the draft law to the Constitutional Court to obtain a conclusion on compliance with the requirements of the Constitution.

Eugen Solodko, advocate, deputy head of the UNBA Committee on Protection of Advocates' Rights:

«Has the Ukrainian Bar grown into a monopoly?

The exclusive right of advocates to represent in the courts is an important step in any democratic state that seeks to effectively and professionally protect the rights and interests of its citizens. The advocates' monopoly has been in place in the vast majority of European countries and the United States for more than ten years and is an indicator of a high level of fair trial.

In Ukraine, the advocates' monopoly was introduced in 2016 by adopting amendments to Art. 131-2 of the Constitution of Ukraine. The then adopted draft law No. 3524 was widely discussed with the involvement of representatives of various political forces, the public, national and international experts, and received a commendable assessment by the Venice Commission, which concludes that "the latest version of the amendments to the Constitution of Ukraine prepared by the Working Party of the Constitution is very positive and well-prepared and deserves full support.”

The introduction of the exclusive right of advocates to represent in the courts involves four stages: 2017 - in the courts of cassation; 2018 - in the Courts of Appeal; 2019 - in the courts of first instance; 2020 - in the courts of state and local self-government bodies.

Thus, the introduction of advocates' monopoly in Ukraine is a consequence of the long and fruitful work of Ukrainian and international industry specialists, whose purpose is to bring the Ukrainian bar in line with international standards.

Pros and cons of a advocates' monopoly

Among the advantages of advocates' monopoly are the following:

- a doctor, a teacher or a rescuer have to do their deal, and so an advocate has to defend the interests of the citizens in court. For some reason, no one questions the existence of the exclusive right of doctors to provide medical care, teachers - to teach children, rescuers - to eliminate fires. Nobody wants to trust their own lives and health to a charlatan or amateur. It should be the same in the Bar, as it is one of the hallmarks of any developed country;

- exclusive representation in courts is aimed at improving the quality of legal services and obtaining professional assistance. Unlike lawyers, advocates are required to take proficiency exams, take internships, and improve their professional skills annually. Appropriate actions only contribute to the updating, maintenance and acquisition of new knowledge, which enhances the professionalism of legal aid;

- an advocate is obliged to keep the attorney-client privilege. This is any information that has become known to the advocate, its assistant or trainee about the client, the nature of the assistance, the documents. Disclosure of attorney-client privilege or the act that led to its disclosure is grounds for disciplinary action. Lawyers are not subject to the relevant rules, which may adversely affect clients' interests;

- the advocate bears disciplinary responsibility for violation of the Law of Ukraine "On the Bar and Practice of Law". Disciplinary penalties may be applied to the advocate in the form of termination of the right to practice law. This is an additional guarantee of adequate legal assistance and adherence to the principles of advocacy;

- to provide legal assistance, an advocate may request information from the appropriate authorities. This is an important tool in gathering evidence and, as a consequence, in building a legal position and proper protection of rights. The refusal to provide information on advocate's request, the late or incomplete provision thereof, shall be subject to liability.

In contrast to the advocates' monopoly, the authors of the draft law No. 1013 state that the budget should be saved, that is, the state budget is “not rubber”. The state must not only think about budget savings, but also about the quality of the services received and compliance with international human rights standards. Non-professional representation in the courts will lead to delays in the proceedings, loss of state authorities and self-government in the courts, which are additional state funds. So what kind of savings are they talking about surrounding the President?

If the new government wants to save budget, it should do so not by restricting the constitutional rights of every person in Ukraine, but by introducing reasonable change. The issue of payment of court fees can be resolved by amending the Law of Ukraine “On Court Fees”; issues of who will pay for postal items - by regulatory acts; the question of how to get to a court located in another city concerns the lawyers of a state-owned enterprise or body with self-government that will need to pay for travel, accommodation and other business expenses. Instead, an advocate can be summoned to represent him in that city, which will save the state budget.

Is advocate's certificate a guarantee of quality of service or a means of pressure?

My answer is unequivocal: the advocate's certificate is a guarantee of the quality of the advocate's services to the client. Yes, of course, there are exceptions. However, professional and dedicated advocates value their advocate's certificates, because they know how difficult it is to obtain them, and then - to earn credibility with clients. Therefore, any advocate follows high standards and ethics rules, which in turn precludes unethical conduct in the process. In addition, there are mechanisms (and they are sufficiently effective), for example, to hold an advocate accountable, in particular through the Higher Qualification and Disciplinary Bar Commission, which may have negative consequences for breaches of professional ethics.

Instead, there is no guarantee that a person acting on the basis of a power of attorney can professionally and honestly perform the functions of an advocate. In Ukraine, there have been cases where a power of attorney could have committed acts aimed at abuse of procedural rights, disruption of court hearings, and in some situations pressure on the justice without fear of disciplinary action. In addition, it is impossible to bring to justice the person who fraudulently, on the pretext of providing legal protection services, retrieved a retired person, a mother with numerous children, a disabled person and disappeared with them.

That is why, in the case of the unplanned constitutional amendments proposed by the new government, our country will start to move in a diametrically opposite course, which does not correspond to the course of most democratic countries, where the institute of professional legal services is introduced."

The text was published on September 4 in Yurydychna Gazeta

Автор публікації: Eugen Solodko

Eugen Solodko

Deputy Head of the UNBA Committee on Protection of Advocates' Rights