Setting up requirements
Constitutional changes in 2016 enshrined the exclusive right of attorneys to judicial representation. But contrary to popular belief, the “monopoly” is not a reason for attorneys to relax, because at the same time the requirements will become stringent and the level of their professional responsibility is increased
Ukrainian legislation is developing rapidly and being brought into line with world regulations and standards. In 2016 the Constitution of Ukraine enshrined the exclusive right of attorneys to protect individuals from criminal charge and court representation. This stage of judicial reform is being introduced gradually in Ukraine. Thus, since 1 January, 2017 only attorneys can represent the interests of parties in the Supreme Court and courts of cassation. The first consequences of these innovations are already visible in practice: the higher courts are suspending cassation appeals filed not by attorneys indicating that signing and filing an appeal is a procedure for exercising powers on representation.
But the reform does not end with adoption of the law. This is a long process requiring effort and patience, and the efficiency of innovations is verified only by practice. The effectiveness of the so-called judicial monopoly of attorneys had long been confirmed by the experience of many European countries. The establishment of exclusive rights of attorneys to court representation puts our country on a par with those states where the protection of human rights comes first and brings a judicial trial to a completely new level of quality.
We are confident that the benefits of such innovations will be assessed by both the professional bar community and clients over time.
According to the rules of legal ethics, an attorney cannot ensure the result to his/her client. However, appeal to an attorney for legal assistance is by itself a guarantee given by the state that assistance will be provided at the proper level. Representation of a person in court exclusively by attorneys is primarily qualitative and professional provision of legal services, providing additional benefits for the client too.
First of all, it is worth noting that the “client-attorney” relationship is protected by law. A number of duties are imposed on the attorney with special provisions, including compliance with the rules of legal ethics. It is unacceptable for an attorney to mislead his/her client as to the prospects of the process, promise to attain unlawful results, and act through methods forbidden by law due to the risk of prosecution, right up to expulsion from the profession.
But the most important thing in the “client-attorney” relationship is confidentiality. Only the attorney is endowed with a legal tool to protect the attorney's secrecy. According to legislation, the attorney is obliged to provide the conditions that will make the access of unauthorized persons to the attorney's secrecy or disclosure of it, impossible.
In addition, when concluding an agreement with the attorney, the client can be confident of the professional level of his/her attorney, because the law sets requirements for attorneys to be constantly improving their professional level.
Unlike a lawyer, the attorney is also endowed with special rights that expand the possibilities for providing high-quality legal assistance to the client. For example, the attorney may apply to state authorities, any private and state organizations with an attorney's request. Administrative liability is established in the event of failure to provide a response to such request.
Contrary to popular belief, the “monopoly” is not a reason for attorneys to relax, because procedural codes that were recently revised in a new version are designed for professionals.
Consider the following case of introduction of an e-court: reduction in procedural terms is expected simultaneously with reduction in paperwork; the procedure for exchange of documents between the court and trial participants in electronic form is introduced. The majority of permanent trial participants, including attorneys, are obliged to register official e-mail addresses in the Unified Judicial Information System. Thus, attorneys will be able to submit procedural documents on behalf of the client in electronic form using their electronic digital signature. This will speed up litigation, and the delivery of mail online will confirm a Due Notice.
This is still a concept, and its implementation raises many issues related to data protection, confidentiality and the ultimate cost for the state. For example, in Germany the process of implementation of special e-mail addresses for attorneys has been implemented for the fourth year and still not completed, and the project’s cost has already exceeded several million euros.
Or, for example, an institution for dispute settlement, borrowed from the Anglo-Saxon legal system, with the participation of a judge in certain types of cases, known as the “institution of judicial mediation”. This procedure should be provided in two forms: joint meetings (with the participation of representatives of both parties and a judge) or closed meetings (at the initiative of the judge with each party separately). During such meetings the judge must find out what concessions the parties in dispute are ready to make, and then guide them to a compromise.
An attempt to relieve the courts by increasing the number of cases that end with conciliation of the parties will be effective only if the client clearly understands his/her risks and the prospects for litigation. But it is difficult to achieve this without the mediation of a professional.
Introduction of such advanced methods of consideration of cases should optimize the judicial process, so that it conforms to the level of social and technological development. But a considerable number of regulations are aimed at improving the discipline of the parties; thus, both the attorney and his/her client may incur liability for violation of procedural rights and obligations.
There were objections voiced to this innovation during voting in Parliament. In our opinion, some MPs criticized such regulations with good reason, claiming that they are intended to limit the instruments for protection and contain risks of pressure on the party through subjective levers provided to the court.
The court would be entitled to make a determination in cases of abuse of procedural rights, violations of procedural duties, improper performance of professional duties or other violation of law by the attorney or his client. Improper performance of professional duties will also be considered in a case when a statement of claim signed by the attorney contains major deficiencies. Such determination regarding the attorney is submitted to the Legal Qualification and Disciplinary Commission, which is entitled to bring attorneys to disciplinary responsibility.
Moreover, the court may decide to recover from a person a penalty for failing to provide evidence requested by the court, failure to inform the court about the impossibility to provide such evidence, failure to execute the decision on the claim, and in certain other cases. In the economic procedure the amount of the penalty is 2-20 living wages of able-bodied people, and in civil and administrative procedures the figure is 0.5 to 5 living wages of able-bodied people.
All innovations, including the above, are closely interconnected and reveal the essence of constitutional changes made in 2016.
On the one hand, the attorney's “monopoly” is introduced but, at the same time, the requirements of attorneys are tightened, and the level of their professional responsibility is increased. As a consequence, representation of both individuals and legal entities will require attorneys to maintain the highest level of professionalism and understanding of personal responsibility for every action taken in the interests of the client.