Stake on a rise
"To create a legal state, it is necessary to create incentives for strengthening the bar as an institution" OLEKSIY FILATOV, DEPUTY CHIEF OF THE UKRAINIAN PRESIDENTIAL ADMINISTRATION, COORDINATOR OF THE COUNCIL ON JUDICIAL REFORM, ASSERTS
— The Law of Ukraine On the Bar and Legal Practice was adopted in 2012. Why did the need arise for a new act five years later?
— The quality of a law is not determined by its "age". Let's see: does the bar have no problems, including at the legislative level? Searches of attorneys, violation of their rights and guarantees, the opening of criminal cases against attorneys related to the activities of their clients, non-admission of attorneys to participation in proceedings against their clients. The list can go on and on. The provisions that relate to the rights and guarantees of attorneys clearly require revision and reinforcement, and their violation must entail effective sanctions. The law-stipulated mechanisms fail to guarantee the effective protection of attorneys. This has a negative effect not only on attorneys, but (even primarily) their clients, citizens and business.
The second issue is self-government: can bodies of attorney self-government exist simultaneously, is the situation permissible when some bodies of legal self-government are unable to get across to others and solve their problems only through a court? Does this help the authority of the legal profession and a legal career in general? If these problems have not been solved by attorneys yet, then new legislative tools are needed.
Because of the fact that attorneys have recently been granted exclusive right to court representation, it is necessary to review admission to the legal profession, ensure the transition to the profession of lawyers who represent their clients or their employers in courts, but are not attorneys. Such a transition should be comfortable, but not automatic. There is also a need to resolve issues related to internships, examinations, the elimination of elements that potentially provoke corruption when admitted to the profession.
Yet, there are other issues. For example, financial relations in the system of bodies of attorney self-government, their transparency, control of attorneys over the use of their subscriptions. It is important that the bodies of attorney self-government have authority and a good reputation, first and foremost in the legal community, and they will have no such authority and reputation as long as there are questions regarding the transparency of finances.
The first five years of application of the law revealed these and other problems that could not be solved in 2012. Therefore, the working group, including attorneys, is now developing a draft amendment.
— Should we expect a decrease in the number of "...Law Firm" LLCs in favor of law unions due to exclusive representation?
— I see no reason to restrict the existing forms of advocacy or to force attorneys to choose only specific organizational forms. If attorneys so wish, the law union can probably be created in the form of a limited liability company. At some point, our practice has taken a different path, and the law union has become a separate legal form, which, in general, does not exist in European countries. I do not think that this is the most urgent issue at the present time.
— Tax authorities try to dictate to attorneys the form in which they must work.
— This once again confirms the necessity of clarification at legislative level. It is not the tax authorities which shall determine how attorneys shall carry out their activities.
— Do you expect that representatives of business advocacy will enter the bodies of legal self-government, those who, one might say, dictate the fashion in terms of the quality of services provision?
— We need to move towards the creation of a single legal profession. The activities of a state governed by the rule of law depend on whether professionals who provide legal assistance on a professional basis influence public and state processes. Their voice will be heard when they are united by common interests within one professional corporation. Therefore, the law should provide incentives for all groups of attorneys to participate in legal self-government. Now many people have concentrated on their own business, and they are not concerned about corporate interests. Others, on the contrary, were so carried away that self-government became their work replacing legal practice, and they know about modern quality standards, and the requirements of customers from hearsay only. Both extremes have negative consequences: due to a lack of consolidation, the influence of the legal profession on the development of the state is, frankly, unnoticeable now. Although, of course, there are many people in the bodies of self-government who sincerely want to raise the level of legal profession in general. But their number must be bigger.
All groups of attorneys and lawyers would rather be interested that the opinion and interests of the legal profession were regarded. Therefore, it is necessary to create incentives for strengthening the legal profession as an institution and increasing its authority and influence in society and in the country.
— The provisions of the new procedural codes and all of judicial reform are based on the fact that in the event of a court dispute one should hire a professional representative — an attorney.
— It can be either a lawyer who is a member of staff of the enterprise and who has the status of an attorney. One should not equate independent advocacy with the status of an attorney. The status means that persons are admitted to practice, particularly to representation in court. They can, but are not obliged, to carry out their activities as an independent activity. Although in the case of employment at the enterprise, attorneys should bear in mind that they can only represent their employer in court, since they will no longer be considered independent. They will also have limited guarantees of professional activities, especially with regard to attorney-client privilege.
— Attorneys are provided with new and effective tools for work, is there a balance in the form of quality control of their work?
— Any rights must be balanced by responsibility for their use. Certainly, in both the future law and the procedural codes, great attention should be paid to expanding the rights of attorneys, which will enable them to provide legal assistance to clients in the adversarial process more efficiently and qualitatively. The balance should be responsibility for any abuse of these rights. There should be strong tools for protecting the rights of the client in relations with an attorney – within the framework of disciplinary responsibility, including compliance with quality standards and ethics. However, tools must be in place as protection from abuse of disciplinary responsibility.
— What advantages does business have from the use of attorney services, has the question of the risk of increasing the cost of services for judicial representation been taken off the table?
— I am sure that the market will regulate the cost of attorney services, and business will decide by itself what it stands to benefit from: to turn to independent attorneys and law unions or have employees with the status of an attorney as part of its staff. Both approaches have their own advantages and disadvantages. If it is important for a businessman to have an employee who is included in the management vertical and is ready to limit the guarantees and rights of such an attorney, then this is one position. If a business attaches importance to confidentiality of communications, protection in relations with law-enforcement agencies, independent quality control of services and ethical standards, it will deal with an independent attorney or a law union. The priorities will be different in different situations. Therefore, let both clients and attorneys have maximum freedom of choice in terms of the forms of activities and cooperation.