Independence of an Advocate in Disciplinary Proceedings: Comparative Approach with a Focus on Ukrainian Experience
Abstract
This research brings a special focus on the notion of disciplinary liability of advocates, regarding their status in a legal system dedicated to universal standards of competitive fair trial. The article is based on experience of Ukraine in shaping an efficient system of the bar, with a wide comparative insight into the systems of disciplinary liability of lawyers in European counties. Universal standards of professional legal ethics are being peculiarly adverted. Safeguards of procedural independence of lawyers in disciplinary proceedings are presented regarding best European practices. It has been concluded that confidentiality is a cornerstone of professional status of a lawyer and limitations of this principal should be strictly envisaged by law. Otherwise, trustful relationships of a lawyer and his client would be challenged. Independence, due proceedings of investigation of disciplinary offences, proportionality are mentioned as basic principles on which the system of disciplinary liability of lawyers in a democratic society is being founded. Local bar associations play a leading role in protection of advocates’ professional rights and shielding them from unwanted attacks of any type, including infringements of procedural rights of lawyers, coming from law-enforcement authorities.
References
[2] Alekseev, S.S. 1964. General Theory of Socialist Law. Sverdlovskiy Yuridicheskiy Institut.
[3] Bakayanova, N.M. 2017. Functional and Organizational Basics of the Bar in Ukraine. Yurydychna Literatura.
[4] Bar Act of Slovenia. 1993. Official Gazette of the Republic of Slovenia (Uradni list). No 18-817/1993 of 9th April 1993. http://www.odv-zb.si/en/regulations/bar-act.
[5] Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba. 1990. https://www.ohchr.org/en/professionalinterest/pages/roleoflawyers.aspx.
[6] Baulin, Y.V. 2013. Legal Liability: Issues of Exclusion and Dismissal. VD Kalmius.
[7] Biryukova, A.M. 2019. Legal Status of a Lawyer and Advocate: A Domestic Model in the Context of Globalization Processes. Nauka.
[8] Case of albert and le compte v. Belgium. 1983. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57422%22]}.
[9] Case of Oleksandr Volkov v. Ukraine.2013. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-115871%22]}.
[10] CCBE Recommendations: On the protection of client confidentiality within the context of surveillance activities. 2016. Council of Bars and Law Societies of Europe. https://www.ccbe.eu/NTCdocument/EN_surveillance_reco1_1469525991.pdf.
[11] Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyer. 2013. CCBE, Brussels. http://unba.org.ua/assets/uploads/legislations/inshi-dokumenty/kodeks_povedinky_yevropeyskykh_advokativ(orig).pdf.
[12] Code of Conduct for Lawyers in the European Union. 1988. CCBE. https://www.idhae.org/pdf/code2002_en.pdf.
[13] Code of Conduct of the Spanish Bar. 2001. https://www.ccbe.eu/NTCdocument/Spain_EN_Codigo_deon1_1251981686.pdf.
[14] Code of Ethics of Attorneys. 2011. http://unba.org.ua/assets/uploads/legislations/pologennya/kodeks-etyki-adwokackiej-ukr.pdf.
[15] Convention for the Protection of Human Rights and Fundamental Freedoms. 1950. Council of Europe. https://www.echr.coe.int/Documents/Convention_ENG.pdf.
[16] General Principles for the Legal Profession Adopted by the International Bar Association. 2006. https://www.icj.org/wp-content/uploads/2014/10/IBA_International_Principles_on_Conduct_for_the_legal_prof.pdf.
[17] Høedt-Rasmussen, I., and Voorhoof, D. 2015. A great victory for the whole legal profession. Strasbourg Observer. https://strasbourgobservers.com/2015/05/06/a-great-victory-for-the-overall-profession-of-lawyers/.
[18] International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. 1966. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
[19] Ivanitskiy, S.O. 2017. Theoretical Basics of Organization of the Bar in Ukraine: Principles and System. Interservice.
[20] Karnavas, M.G. 2016. Lawyer’s Ethics. OSCE Mission to Skopje.
[21] Kostin, A. 2014. Independence of the bar: Europe against regulation or beyond? Paper presented at theIXth Bar Leaders' Conference, held by International Bar Association, May 21-24, in Brussels, Belgium.
[22] Kovalenko, T.S. 2010. Disciplinary Liability of a Lawyer. Nauka.
[23] Kritzer, H.M. 2017. Lawyers’ professional liability: comparative perspectives. International Journal of the Legal Profession 24(2): 73-89. DOI: 10.1080/09695958.2016.1223673.
[24] Kuhar, А.V. 2012. Professional responsibility of a lawyer: concept, form and place in the system of legal liability. Scientific Herald of the National University of Bioresources and Nature Management of Ukraine 173(1): 63-72.
[25] Law of Georgia ‘On the Advocates’. 2004. No 970 of 29 December 2004 – LHG I, No 6, 19.1.2005, Art.55. https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/National_Regulations/National_Laws_on_the_Bars/EN_Georgia_The-Law-of-Georgia-on-Advocates.pdf.
[26] Lenk, H. 1989. Responsibility in Technology, for Technology, with the Help of Technology. Progress.
[27] Leyst, O.E. 1981. Sanctions and Liability under Soviet Law (Theoretical Problems). MGU Publishing.
[28] Lipinskiy, D.A., and Musatkina, A. A. 2013. Legal Liability, Sanctions and Protection Measures. RIOR, INFRA-M.
[29] M.S. v. Croatia. 2015. Judgement of Grand Chamber of the European Court of Human Rights from 19 February 2015. https://hudoc.echr.coe.int/eng#{‘itemid’:[‘001-152259’]}.
[30] Melnychenko, R.G. 2010. Professional Responsibility of a Lawyer. Nauka.
[31] Model Rules for Lawyer Disciplinary Enforcement. 1989. https://www.americanbar.org/groups/professional_responsibility/resources/lawyer_ethics_regulation/model_rules_for_lawyer_disciplinary_enforcement/.
[32] Moliterno, J., and Harris, G. 2007. Global Issues in Legal Ethics. West Academic Publishing.
[33] Mollo, M. 1894. Rules of Legal Profession in France. Tovarishchestvo skoropechaty.
[34] Morice v. France. 2015. Judgement of Grand Chamber of the European Court of Human Rights from 23 April 2015, application no. 29369/10. http://www.menschenrechte.ac.at/orig/15_2/Morice.pdf.
[35] On Advocates and Advocates’ Practice. Law of Ukraine 2012. Article 22. 2012. https://zakon.rada.gov.ua/laws/show/5076-17.
[36] On the Freedom of Exercise of the Profession of Lawyer: Recommendation No Rec 2000 (21) of the Committee of Ministers to Member States. Adopted by the Committee of Ministers on 25th October 2000. https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016804d0fc8.
[37] On the Prevention of the Use of the Financial System for the Purposes of the Money Laundering of Terrorist Financing. 2015. Directive 2015 /849 of the European Parliament and of the Council of 20 May 2015. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32015L0849.
[38] Quafishen, M.M. 2018. A century of the law profession in Palestine: quo vadis? International Journal of the Legal Profession 25(2): 175-212. DOI: 10.1080/09695958.2018.1442635.
[39] Rarog, A.I. 1987. Wine in Soviet Criminal Law. Izdatelstvo Saratovskogo Universiteta.
[40] Regional Qualification-Disciplinary Commission of Advocates. 2013. https://vkdka.org/en/17-18-october-2013-higher-qualification-and-disciplinary-bar-commission-holds-its-regular-meeting/.
[41] RichtlinienFür Die Ausübung Des Rechtsanwaltsberufes (RL-BA 2015). – Stand: 1.1.2016. 2016. https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/National_Regulations/DEON_National_CoC/DE_Austria_Rechtlinien_fuer_Ausuebung.pdf.
[42] Rules of law ethics. 2017. Approved by Congress of Advocates on June 9th 2017. http://unba.org.ua/assets/uploads/legislation/pravila/2017-06-09-pravila-2017_596f00dda53cd.pdf.
[43] Rules of Professional Conduct and the Rules of Competition of Lawyers of the Czech Republic (Code of Conduct), approved by Resolution of the board of directors of the Czech bar association. 1996. Official Journal of the Bar 1/1997. https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/National_Regulations/DEON_National_CoC/EN_Czech_Republic_Resolution_of_the_Board_of_Directors_of_the_Czech_Bar_Association.pdf.
[44] Rules of Professional Practice. 2018. https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/National_Regulations/DEON_National_CoC/EN_Germany_BORA_Rules_of_Professional_Practice.pdf.
[45] Senyakin, I.M. 2010. Personal rights and state responsibility for their implementation. Government Bulletin of Khanty-Mansiysk Autonomous Region 5(26): 7-9.
[46] Summary of Disciplinary Proceedings and Contact Points in the EU and EEA Member States. 2016. CCBE. https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/EU_LAWYERS/Position_papers/EN_EUL_20161128_Table_discipline.pdf.
[47] The right to a lawyer. 1982. http://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU19820160124.
[48] Ukrainian National Bar Association. 2013.http://en.unba.org.ua/regulatory-acts.
[49] Venugopal, B.S. 2011. Civil liability of lawyers for deficiency in services: a critical analysis. Journal of the Indian Law Institute 53(2): 275-309.
[50] Vilchik, T.B. 2015a. Advocacy as an Institution of Safeguarding of the Right for Legal Aid: A Comparative Insights of the EU and Ukrainian Legislation. Pravo.
[51] Vilchik, T.B. 2015b. Disciplinary and civil liability of lawyers. Information and Law 3(15): 115-122.
[52] Vilchik, T.B. 2015c. Disciplinary liability of lawyers in EU countries and in Ukraine. Finance and Law 4: 38-44.
[53] Vitruk, N.V. 2009. General Theory of Legal Liability. Norma.
[54] Yonas, G. 2001. Principle of Responsibility. Libra.
[55] Zaborovskiy, V.V. 2017. Legal Status of a Lawyer in the Period of Transition of Civil Society and Law Rules State in Ukraine. Gelvetyka.
[56] Zadoya, I.I. 2014. Types of disciplinary penalties for lawyers: problems of legislative regulation. Scientific Herald of the International Humanitarian University 902(2): 10-13.
[57] Zippelius, R. 2004. Legal Methodology. Referat.
The Copyright Transfer Form to ASERS Publishing (The Publisher)
This form refers to the manuscript, which an author(s) was accepted for publication and was signed by all the authors.
The undersigned Author(s) of the above-mentioned Paper here transfer any and all copyright-rights in and to The Paper to The Publisher. The Author(s) warrants that The Paper is based on their original work and that the undersigned has the power and authority to make and execute this assignment. It is the author's responsibility to obtain written permission to quote material that has been previously published in any form. The Publisher recognizes the retained rights noted below and grants to the above authors and employers for whom the work performed royalty-free permission to reuse their materials below. Authors may reuse all or portions of the above Paper in other works, excepting the publication of the paper in the same form. Authors may reproduce or authorize others to reproduce the above Paper for the Author's personal use or for internal company use, provided that the source and The Publisher copyright notice are mentioned, that the copies are not used in any way that implies The Publisher endorsement of a product or service of an employer, and that the copies are not offered for sale as such. Authors are permitted to grant third party requests for reprinting, republishing or other types of reuse. The Authors may make limited distribution of all or portions of the above Paper prior to publication if they inform The Publisher of the nature and extent of such limited distribution prior there to. Authors retain all proprietary rights in any process, procedure, or article of manufacture described in The Paper. This agreement becomes null and void if and only if the above paper is not accepted and published by The Publisher, or is with drawn by the author(s) before acceptance by the Publisher.