The Parliament of Ukraine has recently adopted in the second reading a new law on the Bar and Practice of Law (“the Law”) and it is now being prepared for signing by the President of Ukraine. If in force, the new Law will introduce significant changes to the Bar in Ukraine including innovations to the organization and self-administration of lawyers admitted to the Bar (“attorneys”), their rights and obligations, disciplinary liability, the scope of the “attorney-client privilege”, the process of admission for the national qualified lawyers as well as members of the foreign Bar and others. In particular, some key innovations of the Law relate to the following:
- Organization and self-administration of the attorneys. The radical changes, among other, include establishment of such new self-administration authorities as the National Association of the Attorneys (membership in which will be mandatory for lawyers admitted to the Bar), regional councils and the National council of the attorneys, regional auditing committees and the High Auditing Committee, etc. The self-administration authorities will primarily focus on securing the independence of the attorneys and non-interference to their professional activities, provision of the information about the Ukrainian Bar and all its members, attorney and client protection, etc.
- “Attorney-client privilege”. Specifically, the law clarifies the scope of “attorney-client privilege”, which covers any information (about clients or potential clients and their inquiries/assignments) that became known to the attorney, his/her assistant, his/her trainee, any person employed by attorneys, and the attorney bureau (association). The privilege will also extend to content of legal consultations, legal advice, executed documents, information stored electronically, and any other information and documents obtained by such an attorney while carrying out his/her professional obligations. The “attorney-client privilege” may be lifted upon a written consent of the client (potential client). The Law also foresees a possibility to lift the “attorney-client privilege” in case of the client complaint against the respective attorney to the extent necessary for defence of the rights and interests of such an attorney.
- Professional rights and obligations of the attorneys. Apart of the rights and obligations, already in place, the Law entitles the attorneys, for the purpose of evidence collection, not only request and research the documents, obtain their copies or other items, but also withdraw such documents under certain terms. The attorney will also be permitted to record by means of the technical devices the procedural and other activities where he/she participates or which are required for performance of his/her professional obligations. Furthermore, the new Law introduces liability of the state and other officials responsible for addressing the attorney requests (inquiries) should they unlawfully refuse provision of the requested information and/or provide it in part or with delay.
- Process of admission to the Bar. The changes to such process include, inter alia, the right of the qualification chamber that accepts the documents from the candidate to verify the background of the latter and request the necessary information from the state and other authorities. Failure of the candidate to provide consent for such verification to be carried out will be a ground for rejection of the application. Furthermore, in addition to the Bar exams, the candidates will be required to have a six months internship under supervision of the experienced attorney (having not less than 5 years of experience). Upon completion of the internship, the respective regional council of the attorneys will take a decision on admission of the candidate to the Bar or extension of the internship for the period from one to six month.
- Admission of a member of the foreign Bar to Bar in Ukraine. The Law provides for possibility of foreign attorneys to be admitted to the Bar in Ukraine upon which such foreign attorney will enjoy the same rights, obligations and bear disciplinary liability as the Ukrainian ones.
- Procedure for imposing the disciplinary liability on the attorneys. In particular, the disciplinary proceedings can be initiated by anyone who possesses the information on the alleged offence committed by the attorney. The attorney can be hold liable within one year from the day of committing such an offence. Disciplinary liability may include the warning, suspension of the license (for the period from one month to one year) or prohibition to practice law and exclusion from the State Unified Registry of the Attorneys (for national attorneys) and exclusion from the State Unified Registry of the Attorneys (for foreign attorneys), etc.
Taken the above, it is evident that the new Law, should it enter into force, introduces many radical changes to the Bar and its functioning in Ukraine. Nevertheless, since the new Law is indefinite in certain parts, it remains to be seen how this Law will be implemented in practice as well as the way it will interact with the new Code of the Criminal Procedure of Ukraine, taking effect in November 2012, and other recently amended legal acts.
Author: Olga Putevets