Draft law on advocacy – same old corruption in the new good hands!

A new wave of “patriotism” is sweeping us – we want to adopt a new law on advocacy in order to eliminate Viktor Medvedchuk from influencing this legal profession.

Of course, eliminating Viktor Medvedchuk from influencing the governance of the country is a godly thing. But we have the Security Service, the Prosecutor’s Office, and the courts for this. And the Parliament, when adopting the law, should not think about the names, but about the quality of the profession that will provide legal assistance and on which the protection of human rights in the country depends largely.

For a lawyer to be able to help a person, he/she must be of scrupulous integrity, professional and professionally independent. How can we achieve this?

The qualification selection system should guarantee the equal quality of lawyers, evaluating their knowledge and skills, in the first place. The disciplinary system is the main watchdog of compliance with ethical standards. High-quality self-management of lawyers should guarantee their independence.

What does the bill (9055) suggest? The first problem with self-management in the law is the federalization (that is, feudalization) of lawyer’s self-management. In our unitary Ukraine, it is proposed to create a national bar association and 27 regional chambers as legal entities. The regional chambers are not under the control of the national association, they have their own funds, they themselves select lawyers and bring them to disciplinary responsibility. In such circumstances, we will have 27 different selection procedures and different disciplinary responsibility. In reality, this will mean that future lawyers from 27 chambers will choose those where it will be easiest for them to become lawyers and where there will be no so strict punishments for misdemeanours. Such a “competition” will nullify both competitive selection and disciplinary responsibility — these will be the worst winning.

When we hear the word “self-management” in any context, it is necessary to draw a mini-model of the state. In any self-management, there should be a division into constituent, executive and controlling (judicial) power. Constituent power should define general rules for the community. The executive one should collect and spend community money. And the controlling power should watch how the executive power observes rules, collects and spends money. And the most important thing is that each of these power branches cannot depend on each other in making decisions and spending their money.

The bill seemingly provides for the expected distribution. The national association should have a congress of lawyers (constituent power), a lawyers’ bar (executive power), as well as a higher revision, higher qualification and higher disciplinary commission (controlling power).

However, it will be one person to manage all the property, money, bank accounts of the entire association – the chair of the lawyers’ council (that is, the head of the executive branch), who is also the chair of the national association. This is as if the Prime Minister were also the President at the same time and disposed of the property and means of the Parliament, the courts, everything and everyone.

An identical system is suggested for the regional chambers.

The same chair of the lawyers’ council will determine the agenda of the congress, and the congress delegates will not be able to change it. That is, there will be a kind of Communist Party Congress, which everyone will attend to thank the chairman of the council for their happy lives. Let me remind you that this is the congress that will elect the members of the High Council of Justice, the highest qualification commission of judges and the qualification commission of prosecutors.

Such a system is authoritarian, and therefore it cannot guarantee the independence of lawyers.

We could have stopped here. But let us add a couple more facts.

Public servants will be able to work as lawyers. These public servants have their seniors who will tell them what to do and how to do this. And what if the instructions will be contrary to the requirements of ethics? What kind of professional independence can we be talking about then?

What is the main task of a lawyer and how will the concepts of “legal assistance”, “representation” and “protection” work together? This bill mixes several concepts in a strange way – we have legal assistance as a generic concept somewhere, in other places, there is representation, while elsewhere these concepts are of equal meaning. But it is still important for people to know what exactly the lawyers will do.

Moreover, the bill is full of illiteracy, which is not permissible for such a law.

Last but not least. It is true that the current system is no better. It is true that the current advocacy leadership must be changed. But the proposed bill will not change the system. It will only create a “Medvedchuk Nouveau”.

And to Viktor Medvedchuk himself, this law will do almost no harm. Because his people will remain in the system, and very soon they will adjust to it and thrive.

Oksana Syroid
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