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DOI: https://doi.org/10.34069/AI/2023.70.10.19
How to Cite:
Rezvorovych, K., Vovk, M., Koretskyi, S., Shupyana, M., & Alonkin, O. (2023). Self-governance structures in EU Nations:
Drawing lessons for Ukraine's bar systems. Amazonia Investiga, 12(70), 210-219. https://doi.org/10.34069/AI/2023.70.10.19
Self-governance structures in EU Nations: Drawing lessons for
Ukraine's bar systems
Estructuras de autogobierno en naciones de la UE: Extrayendo lecciones para los sistemas
de colegios de abogados en Ucrania
Received: September 12, 2023 Accepted: October 27, 2023
Written by:
Krystyna Rezvorovych1
https://orcid.org/0000-0003-1183-613X
Mariia Vovk2
https://orcid.org/0000-0002-8740-8222
Serhii Koretskyi3
https://orcid.org/0000-0001-6465-7712
Maryana Shupyana4
https://orcid.org/0000-0003-1569-6832
Oleksii Alonkin5
https://orcid.org/0000-0002-7867-350X
Abstract
Objective: The objective of the study is to
examine the experience of the organization of
lawyers, the self-governance of lawyers, and the
professional ethics of lawyers in the EU, to
develop, from the analyzed material, practical
recommendations aimed at strengthening the
status of a lawyer and improve the Bar
Association in Ukraine. Methodology: The
methodological basis of the study is formed by
general philosophical methods, and private legal
methods of knowledge of the objective reality in
the field of the organization of the bar association
and the professional ethics of lawyers in the EU.
Findings: The study found that the organization
of lawyers and the professional ethics of lawyers
in the EU are well developed and meet
international standards. EU lawyers have a
recognized professional status and play an
important role in protecting human rights and
justice. Conclusion: The findings of the study
provide a solid basis for strengthening the status
1
Doctor of Juridical Sciences, Head of the Department of Civil Law and Procedure, Faculty of Training Specialists for Criminal
Police Units, Dnipropetrovsk State University of Internal Affairs, Dnipro, Ukraine. WoS Researcher ID: AAJ-2416-2021
2
PhD in Law, Associate Professor of the Civil Legal Disciplines Department, Institute of Law, Lviv State University of Internal
Affairs, Lviv, Ukraine. WoS Researcher ID: ADJ-3397-2022
3
PhD in Law, Associate Professor of Department of Law, Kyiv Cooperative Institute of Business and Law, Kyiv, Ukraine.
WoS Researcher ID: JTV-7086-2023
4
PhD in Law, Associate Professor of the Department of Criminal Law and Criminology, Faculty of Law, Ivan Franko Lviv National
University, Lviv, Ukraine. WoS Researcher ID: JTV-7374-2023
5
PhD in Law, Associate Professor of Department of Legal Support of Business Security, State University of Trade and Economics,
Kyiv, Ukraine. WoS Researcher ID: B-3921-2019
Rezvorovych, K., Vovk, M., Koretskyi, S., Shupyana, M., Alonkin, O. / Volume 12 - Issue 70: 210-219 / October, 2023
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of lawyers in Ukraine. The Ukrainian
government could improve the status of lawyers
by adopting legislation that fully recognizes their
autonomy and role in society.
Keywords: Western, Europe, legal,
supranational, rule-making.
Introduction
The subject of the study is the organization of the
Bar Association and the professional ethics of
lawyers in the EU. This research is relevant due
to the reform of the legal aid sector in Ukraine.
The article is divided into three sections: the first
section analyzes the legal regulation of the Bar
Association in the EU; The second section
analyzes the self-governance of Bar Associations
in the EU; and the third section analyzes the
evolution of the process of simplification of the
procedure for the free provision of services by
lawyers in the Common Market.
In 2013, the Law of Ukraine “On the Bar and
Practice of Law” was adopted (Law of Ukraine
No. 27, 2013) and in 2017, the Reporting and
Election Congress The Reporting and Election
Congress of Advocates of Ukraine adopted the
Rules of Attorneys' Ethics (Rules of Attorneys'
Ethics, 2012), which establish mandatory rules of
conduct for each advocate in the practice of law
based on moral criteria and traditions of the Bar,
as well as international standards and rules of the
legal profession.
As a result of the reforms that have brought about
global changes in all spheres of state and society,
a fundamentally new legal situation has been
created that requires revision and legal
clarification of the organizational foundations of
the practice of law and the Bar as one of the main
mechanisms for protecting human rights around
the world. At the same time, Ukraine has the
main subject of realization of the constitutional
right to receive qualified legal aid - the Bar,
which is of scientific research interest. Thus, in
recent years, the role and place of the Bar, as well
as the range of its tasks in protecting rights and
legitimate interests have changed significantly.
In addition, these legal acts have significantly
changed the status of an advocate and the basis
of the practice of law in Ukraine, in particular,
expanded his or her procedural rights.
At the same time, there is currently no scientific
research devoted to a comprehensive,
comprehensive, conceptual understanding of the
organization of the Bar and the professional
ethics of attorneys in Western Europe.
However, it is particularly relevant for two
reasons: from a theoretical point of view, it is
necessary in the context of clarifying the new
legal environment in which the Western
European bar operates; from a practical point of
view, knowledge of the achievements and
shortcomings of the Western European bar could
provide significant assistance in reforming the
legal aid sector in Ukraine.
The legal regulation of the Bar in the European
Union has peculiarities related to the integration
process that has determined the direction of
development of the European continent in recent
decades. The formation of the Common Market
in the European Economic Community was
accompanied by the proclamation of new rules
for conducting business activities. The Treaty of
Rome in 1957 laid the foundation for the
formation of the Common Market by eliminating
all obstacles to the free movement of people,
goods, services, and capital.
However, despite these positive trends, the
current state of the legal aid sector in Ukraine can
be considered ineffective both from the point of
view of the legal community and public
authorities, as well as the majority of the
population. In today's Ukraine, there is a
dichotomy of entities providing legal aid to
citizens and their associations, and there are
double standards of regulation of the legal
profession: one part of practicing lawyers is
subject to the requirements of corporate law,
while the other is completely free from them.
Unlike Ukraine, which has adopted a specialized
law on the Bar and the Practice of Law, the EU
did not provide for a special rule regulating the
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legal status of the Bar in the Rome Treaty.
However, its provisions imply that the activity of
a lawyer in providing legal services (the activity
of persons of free professions, Article 60) is a
type of economic activity. Based on this
provision, the institution of the bar is subject to
the legal regime of the Common Market
freedoms, and lawyers can provide legal services
in any member state of the European Economic
Community.
The prolonged absence of proper legal regulation
of the organizational foundations of the practice
of law and the Bar in Ukraine, the lack of
reference to the positive experience of historical
development, and the formation of the legal
framework for the exercise of professional
activities by lawyers in foreign countries (e.g.,
the EU) caused significant shortcomings in the
activities of the recently reformed Ukrainian Bar.
Foreign and domestic law firms and consulting
companies operate in more favorable conditions
than advocates, and the current legislation on the
Practice of Law and the Bar does not contribute
to the improvement of organizational and legal
forms of the Bar; the cases of free legal aid
provided for by Ukrainian legislation do not
cover the current social needs related to the
development of civil turnover and its legislative
regulation; approaches to defining activities
incompatible with the status of an advocate need
to be changed. Undoubtedly, this is the case with
the Western European bar, which has deep
historical roots. Based on the comprehensive
experience of Ancient Greece and Ancient
Rome, European nations gave this legal
institution a new meaning, turning it into a
universal tool for providing legal assistance to
citizens and their associations.
The lack of proper legal regulation of the status
of the bar self-government institution and the
Ukrainian bar itself caused significant
shortcomings in its activities. Therefore, the
adoption of new codes, primarily the Criminal
Procedure Code of Ukraine, which came into
force on April 13, 2012, also significantly
affected the status of the bar, Judicial reform in
Ukraine has been going on for over a decade, and
the reform of the bar has only recently begun.
The adoption of the relevant specialized law
legally formalized the attribution of the Bar to
civil society institutions and the assignment of
certain public legal functions to it. These changes
have removed the obstacles which hindered the
growth of the Bar as a corporation of
professionals in the field of legal aid.
The purpose of the article is to study the
European Union legislation in the field of
regulation of the Bar and Bar self-government,
and also the evolution of the process of
simplification of the procedure for free provision
of services by attorneys in the Common Market.
Theoretical Framework or Literature Review
The deep integration processes taking place in
various spheres of EU life have directly
influenced the creation of a system of legal
norms related to the activities of lawyers in the
pan-European space, which provide for the
creation of the necessary conditions for the free
provision of services (freedom of movement of
services), freedom of institutions, recognition of
a common system of higher education diplomas,
elimination of protectionist instruments
restricting the free movement of lawyers.
“Respect for all common civilizational values
such as rights, freedoms, and legitimate interests
of a person and a citizen are the foundations on
which a legal and democratic state rests”
(Rezvorovych, 2022: 163). The institution of the
Bar is the guarantor of their protection, since
“justice and democracy have become among the
most important affairs of mankind that public
institutions must achieve and enforce” (Kumar,
2021: 19).
The main areas of development of the Bar in
Ukraine at the present stage are the
implementation of international legal standards
relating to the provision of legal aid and the
activities of the Bar in the domestic legal system;
reform of procedural legislation aimed at
improving the independence of lawyers,
increasing guarantees of their protection,
ensuring the equality of the parties in court and
at the pre-trial stage; further reform of Ukrainian
legislation to formulate a comprehensive legal
framework for the provision of legal aid. The
magnitude of the tasks facing the institution of
the Bar in Ukraine at the present stage is
primarily due to the fact that “today's information
society faces open challenges with hidden
opportunities and risks in further evolution”
(Gevorgyan & Baghdasaryan, 2021: 37).
The experience of organizing the Bar was studied
on the basis of epistemological, ontological, and
socio-historical approaches. The use of these
approaches makes it possible to study the object
of research, following the logic of its
development through its immanent
characteristics. «The latest advances in science
and technology demonstrate the need for
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transformation in social life, particularly in
jurisprudence» (Filipova et al., 2021). As one of
the main mechanisms for the protection of human
rights in a law-based democratic state.
Methodology
To achieve the aims and objectives of the study,
the author used general scientific methods
(systemic, structural and functional, object-
subject, logical (deduction and induction), and
private scientific methods (formal legal,
comparative legal). The use of a particular
method depended on the solution of a particular
research task. Thus, in the process of collecting
and evaluating factual material, the method of
comparative legal research was used; in the
process of processing and studying factual
material, the following methods were used:
specific sociological, normative and dogmatic,
statistical processing methods, special legal,
comparative legal methods; at the stage of
preparing conclusions and findings, logical
research methods (formal legal method,
deduction and synthesis, induction and analysis)
were used.
In the process of collecting and evaluating factual
material, sociological methods, such as surveys,
interviews and focus groups, were used. In the
process of processing and studying factual
material, normative and dogmatic methods were
used, such as the analysis of EU and Ukrainian
legislation and jurisprudence. In the stage of
drawing conclusions and findings, statistical
methods were used, such as descriptive statistics
and statistical inference.
Results and Discussion
In its evolutionary development, the Western
European Bar has passed through certain stages
of historical formation, each of which had
distinct forms of existence (antiquity, the Middle
Ages, the Modern period, and the contemporary
period), which determined the specifics of the
institution the modern period of development of
the Western European bar is characterized, on the
one hand, by a great variety of manifestations of
its individual institutions (models of bar self-
government, organizational and legal forms of
practice of law, attitude to the bar monopoly),
and, on the other hand, by universal features and
attributes. In all Western European countries,
deontological codes of attorneys-at-law (codes of
professional ethics of attorneys-at-law) have
been adopted and are in force, which are a
mechanism for controlling the performance of
professional duties by attorneys-at-law. The
moral and ethical rules that guide Western
European attorneys go back to the long-standing
legal traditions in Western Europe and are
correlated with the conditions and nature of the
tasks performed by attorneys. Western European
states recognize the legal profession as an
institution of civil society and therefore promote
the institutional independence of the bar.
At present, when the debate between scholars
and practicing lawyers on possible ways to
reform the legal aid sector in Ukraine has
intensified, legal knowledge of the organization
of the bar and the ethics of professional activity
of lawyers in Western European countries is
needed, as it will allow to perceive a significant
part of the legal experience gained in Western
Europe.
The institution of the bar in the EU is subject to
the legal regime of the Common Market
freedoms, so lawyers can provide legal services
in any member state of the European Union. In
this context, it is necessary to distinguish
between two fundamentally different ways of
providing legal services. The first is the
possibility for an attorney to permanently
practice in one Member State and occasionally
provide legal services in another EU Member
State (e.g., representation of a client in court).
The second method involves the relocation of an
attorney to another EU member state with the
subsequent permanent practice in its territory.
The successful functioning of the Common
Market at the initial stage in the field of legal
services depended on the readiness of states to
create equal conditions for both national lawyers
and those coming from other EU countries. The
main problems were the differences in the
national legislation of the EU member states, the
legal unification of the profession, and the
professional requirements for persons applying
for the status of an attorney. The requirements for
future attorneys are quite strict in the EU member
states. The applicant must have high moral
qualities, the required level of legal education,
and successfully pass the bar admission
procedure: courses, qualification exam,
internship, etc.
The rights of a foreign advocate are almost fully
consistent with the rights of a national advocate
(membership in the bar association, the right to
vote in decision-making), but they can provide
legal services with some restrictions compared to
national advocates. According to Art. 5 of
Include Directive 98/5/EC of February 16, 1998
Directive 98/5/EC of the European Parliament
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and of the Council, 1998 (Legislation, 1998),
Member States retain the right to restrict foreign
lawyers from representing clients independently
in national courts (only together with a national
lawyer). However, some countries have
abandoned this approach to restricting the rights
of foreign lawyers acting in the host country,
such as France.
At the same time, foreign attorneys have certain
privileges: there is no need to be proficient in the
national language of the receiving state, as well
as to be an expert in its legal system. The novelty
of Directive 98/5/EC of February 16, 1998 is an
alternative mechanism for obtaining the status of
an advocate in an EU member state. While the
1989 Directive provides for the acquisition of the
status of an advocate on the basis of legal
education and recognition of diplomas, the 1998
Directive provides for the possibility of acquiring
the status of an advocate for permanently
practicing foreign advocates.
In order to obtain equal rights and status with
local attorneys of the host country, a foreign
attorney must meet the following criteria: to
practice law in the host country under a
professional title for three years; to practice law
continuously; the practice of law must relate to
the national law of the host country, as well as
the law of the European Union and international
law. If the foreign advocate meets these
requirements, he or she shall apply to the relevant
institution of the host state for the status of a
national advocate. The facts of the practice of law
in the receiving state shall be proved by any
documentation that testifies to the following.
This mechanism for acquiring the status of a
national advocate, which does not require either
an examination or an internship, has been
implemented in the national legislation of almost
all EU member states. For example, by 2002, 378
attorneys from other EU member states had been
employed in Belgium using the system
established by Directive 98/5/EC. For
comparison, in 1997-1998, in accordance with
the provisions of Directive 89/48/EEC, 155
applications were received from applicants, of
which 20 passed the test, 44 failed, and the
remaining applications were under consideration
or appeal or were automatically rejected. In
France, no foreign lawyers were admitted in
1997-1998, while after the adoption of Directive
98/5/EC, their number increased to 33. In Italy,
in 1997-1998, 64 applications were received, of
which in 57 cases the applicants passed the test,
7 were rejected; after the adoption of Directive
98/5/EC, 47 lawyers were admitted.
The European Union of Lawyers (Union des
Avocats Européens, UAE), a general
professional organization of lawyers practicing
in the European Union, also contributes to the
development of the freedom of legal services.
Any lawyer who is a member of a national
professional organization of lawyers in an EU
member state can become a member of the UAE,
and there is a possibility of associate membership
for other lawyers. The UAE declares the main
purpose of its activities to be the promotion of the
free flow of legal services throughout the EU, the
development and adaptation of common EU
professional standards of practice in order to
unify legal services within the EU, and the
introduction of the practice of applying the
Convention for the Protection of Human Rights
and Fundamental Freedoms.
Thus, the pan-European regulation of admission
to the practice of law shows a significant
evolution with a tendency to simplify the
procedure for advocates to exercise the right to
practice law in a state other than the one in which
they received their professional education and
the status of an advocate. It is thanks to
supranational rulemaking that this opportunity is
practically realized.
Acquisition, suspension, and termination of the
status of an advocate in the EU are fully within
the competence of the national self-governing
body of advocates (national bar association).
Based on a direct analysis of the EU legislation
regulating the acquisition, suspension, and
termination of the status of an advocate, it is
possible to distinguish the following models of
bar self-government (Table 1):
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Table 1.
Models of bar self-government in the EU
The model of bar self-government
The EU member state that represents the bar
self-government model
Classical. Membership in the Bar is associated with affiliation
with a chamber of advocates. The members of the chamber
(collegium) are advocates who are assigned to the Supreme
Court of the same land, region, or territory.
France, Italy, Greece, Spain, Holland, Belgium.
Territorial. It is characterized by the fact that the chambers are
formed on a territorial basis and unite all advocates entered in
the Register of the authorized body of a particular subject of the
federation of an administrative-territorial unit). The jurisdiction
of each chamber of advocates extends to the territory of the
federal subject (administrative-territorial unit) in which this
chamber was founded, and even to all advocates included in the
list of this chamber of advocates.
Austria.
Associative. It provides for self-governance of the bar through
associations and unions, and membership in an association is
not mandatory.
The Swedish Bar Association and the Swiss
Bar Association.
Corporate. Management with the help of the legal community.
With certain reservations Switzerland (Bar
Association), Sweden (Bar Association).
Author’s development*
In the UK, a country that was a member of the
EU, another model of bar self-governance is
characteristic - management through judicial inns
and barristers. The first and second models are
united by the fact that they involve membership
in a chamber or panel. All of these models strictly
distinguish between the forms of bar self-
government and the organizational and legal
forms of the practice of law.
National legislation in the EU is aimed at
encouraging the practice of law in various
organizational and legal forms, which provides
for the introduction of restrictions for non-
attorneys in order to weaken their influence on
decision-making in the bar associations. The
main organizational and legal form for bar
associations in the EU is a non-profit partnership
(civil law association): GB-Gesellschaft of
German law; “Advokaterselskab” of Danish law;
“association” or “societe civile professionelle” of
French, Belgian and Luxembourg law;
“maatschap” of Dutch law; “sociedades civis” of
Portuguese law; “despachos collectivos” of
Spanish law.
In the Netherlands and France, the organizational
and legal form of the practice of law is a business
partnership. Also in these countries, bar
associations may be established in the form of
bar holdings; in Denmark, it is possible to
establish the legal profession in the form of a
limited liability company, joint stock company,
or bar joint stock company.
The mechanism of control over the performance
of the advocate's professional duties is the
professional ethics of advocates (deontology),
which provides for strict compliance with its
provisions by those to whom they apply, as is
customary in any civilized society. Most of the
national deontological codes (codes of
professional ethics for lawyers) of the EU
member states are regulatory rather than legal
acts, as they are adopted by corporate self-
government bodies rather than legislative or
other authorized state bodies. However, in some
EU member states, deontological codes (codes of
professional ethics for lawyers) are by their
nature legal acts, as they are approved by laws or
decrees of the heads of state. Some of the codes
supplement the provisions of the legislation
regulating the activities of lawyers with their
guidelines.
The legal regulation of the practice of law and the
status of an attorney in Ukraine is carried out in
accordance with the provisions of national
legislation and internal principles, in addition to
international legal acts, which "... can be
classified by the object of regulation and divided
into three main groups of international acts: those
regulating the organisational and legal
framework of the activities of attorneys (Basic
Principles on the Role of Lawyers, 1990, "The
Common Code of Practice for Lawyers of the
European Community of 1988, etc.); those
regulating the procedural basis of the activities of
advocates (the International Covenant on Civil
and Political Rights of 1966, the Universal
Declaration of Human Rights of 1948 "The
Convention for the Protection of Human Rights
and Fundamental Freedoms of 1950, etc.); those
that define the role of lawyers (attorneys) in
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society (Standards of Independence of the Legal
Profession of the International Bar Association,
etc.)" (Mozhaikina, 2020: 31).
Thus, the institution of the Bar and bar self-
government must take into account the positive
experience, “the European vector of Ukraine's
development has caused the emergence of new
mechanisms of interaction between the state, the
individual, and society” (Bakalinska et al., 2022:
146). It provided a clear definition of the term
“lawyer”, according to which in each EU
member state it covers only the profession of
lawyer. Therefore, when it comes to the
provision of services, as well as freedom of
movement, it means only a lawyer, who, in
addition, in the process of providing legal
services, must indicate in the language used in
the country from which he came, the name of his
profession (title) and the professional
organization that issued him such a diploma. At
the same time, the receiving country has the right
to request documents confirming his/her
qualifications. According to the direct provision
of Art. 4 of the said Directive, the practice of law
in the exercise of the freedom of movement of
services cannot be conditioned by the need for an
advocate to be a resident of the receiving state, as
well as the need to join the professional
community of lawyers of that state.
When rendering legal services, the foreign
advocate shall be subject to the rules of practice
of law of the receiving state. National legislation
may stipulate that a foreign attorney shall
represent a client's rights jointly with a local
attorney and may be subject to professional
restrictions similar to those applied to local
attorneys.
“The legal sphere, like any other sphere of public
activity, requires transformation; however,
jurisprudence has its own peculiarities in terms
of updating the organization and principles of
work” (Paryzkyi, 2021: 27). Thus, the further
development of integration within the European
Community required mutual recognition of the
professional qualifications of representatives of
various professions, including the legal
profession. At the moment, an attorney who
wishes to move to another EU Member State and
practice law there has two options for acquiring
the attorney's status: one can use the general
system of recognition of diplomas based on the
1988 Directive, or the special procedure
introduced in 1998. During this period, it is also
worth noting such important processes that
influenced the adoption of these directives as the
fact that “while new activities developed for a
part of the legal profession, most notably
lobbying and mediation activities, lawyers
contributed to blurring the border between the
public and the private sphere at the European
level” (Avril, 2018: 859).
To eliminate these restrictions, a special
Directive 98/5/EC of February 16, 1998, was
adopted on simplifying the procedure for the
permanent exercise of the legal profession in a
Member State other than the one in which the
qualification was obtained. This legislative
reform was in line with the needs of the labor
market and the rule of law, which is “...as a well-
established and well-defined principle whose
core meaning is further shared as a common
value among all Member States” (Pech, 2022:
107).
The Directive is intended for practicing lawyers
and provides for an alternative procedure for
their admission to practice law in the receiving
state. The Directive provides for the right of an
advocate to practice in another EU state while
retaining the professional title obtained in the
state of which he or she is a citizen. Art. 3 of the
Directive stipulates that an advocate must
register with the competent authority of the
receiving state by providing evidence of
permanent professional legal activity in the state
of origin, and after registration, the advocate is
granted the status of a foreign advocate.
Thus, with the formation of a special
supranational association of the EU, the modern
institution of the bar in the territory of its member
states begins to take shape, which, in particular,
provided for the possibility of “...providing
opportunities for advocates to connect and share
experiences” (Antone et al., 2021: 585). The
institution of the Bar in the EU is becoming, on
the one hand, an institution of civil society, and
on the other hand, a means of implementing state
guarantees of the constitutional right to legal aid
(the right of citizens to seek the assistance of a
lawyer in case of any form of restriction of liberty
(Spain), the right to defense (Switzerland,
Portugal), the right to defense and legal
representation (Italy), the institution of a trustee
(Germany). Thus, “advocates are a critical
component in the search for material truth in the
judicial process, particularly in criminal cases.
From the client's perspective Protection is
another goal of the settings” (Alatas & Santiago,
2022: 1).
The state considers the Bar to be a public legal
institution and, by adopting special legislation,
establishes certain criteria for the functioning of
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the Bar, provides conditions that facilitate the
training of advocates to provide citizens and their
associations wiovth various types of legal aid. In
particular, the institution that distinguishes the
legal profession from the vast majority of other
professions, is general in nature, absolute, and
unlimited in time, “confidentiality is a
cornerstone of the professional status of a lawyer
and limitations of this principle should be strictly
envisaged by law” (Nazarov et al., 2020: 603).
Due to his or her status, a lawyer becomes a
client's confidant, so the existence of the
attorney-client privilege is in the public interest.
«The advantage of procedural legal personality
in administrative and criminal proceedings,
compared to the status of other subjects of
procedural relations of a public nature, is the
strict enshrining in the legislation of the
procedural rights of participants in
administrative-procedural relations and criminal-
procedural relations and possibilities of their
implementation» (Khalilov, 2023). The attorney-
client privilege is a right and an obligation of the
attorney. The right and obligation to maintain the
attorney-client privilege extend to everything
that became known to the advocate in the course
of the performance of his or her assignment and
continues to be maintained after its execution.
EU member states have different approaches to
the question of who can release an attorney from
the obligation to maintain the attorney-client
privilege. In some countries, it is generally
accepted that the client has the right to release the
lawyer from the obligation to keep the attorney-
client privilege; in others, it is believed that the
lawyer cannot be released from the obligation to
keep the attorney-client privilege by his client, or
by any authority, or by anyone at all.
“Lawyers, for example, are taught that they can
retain unbiased beliefs while advocating for their
clients and that they must do so to secure just
outcomes” (Melnikoff & Strohminger, 2020:
1258). In the course of his or her professional
activities, the advocate has legal and ethical
obligations to clients, the court, and other public
authorities with which the advocate enters into
relations while performing the client's
instructions, to the legal community as a whole,
and to colleagues separately, to the society for
which the existence of an impartial and
independent legal profession is a prerequisite for
the protection of the rights of citizens and their
associations.
The highest legal guarantee of human and civil
rights and freedoms is their judicial protection
(Article 55 of the Constitution of Ukraine). Such
judicial protection is provided through
constitutional, civil, commercial, administrative,
and criminal proceedings. The exercise of
judicial protection in all types of proceedings is
inextricably linked to one of the fundamental
constitutional rights of a person and citizen in
Ukraine, namely the right to legal aid.
It is undisputed that the main entity responsible
for providing such assistance is the Bar, which in
the civilised world serves as an indicator of the
level of democracy in society. In addition, the
proper functioning of the Bar is one of the main
features of determining the level of human rights
protection.
In this case, we should agree with the statement
of the Committee of Ministers of the Council of
Europe, which notes the important role of
lawyers in ensuring the protection of human
rights, considering their activities as one of the
main components of the development of the rule
of law in each country.
The new law on the Bar adopted in Ukraine
provides that the scope of professional rights of
advocates has been quantitatively increased, but
mainly not through qualitative changes, but by
actually artificially separating certain rights from
the list of those guaranteed before. In addition, it
should be noted that a number of such rights are
only declarative in nature and cannot be properly
used in the practice of law. Thus, the said law
stipulates that the advocate has the right to collect
information about facts that may be used as
evidence in accordance with the procedure
established by law, to request, receive, and seize
things, documents, copies thereof, to get
acquainted with them and to interview persons
with their consent. In this case, the procedural
procedure for the seizure of things and
documents by the advocate from persons is not
regulated at all, and therefore the mechanism for
the exercise of this right and the procedural status
of such documents (things), in particular in civil
cases, remains unclear.
In addition, the advocate is deprived of the
possibility of proper use of such a right as the
right to conduct interviews with persons with
their consent. Firstly, there is no procedural
mechanism for the exercise of this right by the
advocate, which may result in such actions being
considered as pressure on a witness. Secondly,
the legislator has not established the legal nature
of the testimony of such persons, namely the
possibility of their being classified as evidence.
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It is undeniable that, in addition to a number of
negative features, a significant number of
positive characteristics have been enshrined. In
particular, a fundamentally new system of
formation of qualification and disciplinary
commissions of the Bar has been established
(their composition is elected and formed
exclusively from among the advocates by the bar
self-government bodies), which in a certain way
increases the independence of the Bar as a whole.
The strengthening of guarantees for the
protection of the advocate's activities is also
positive, in particular, the obligation of the body
or official who detained the advocate or applied
a preventive measure to him/her to immediately
notify the relevant regional bar council. The
procedure for conducting searches and
inspections of advocates is also described in
some detail. As for the other guarantees, they are
mostly declarative or duplicate the provisions of
the existing legal acts. The issues of bringing
advocates to disciplinary liability, internships for
persons who have expressed a desire to become
advocates, and others that are the subject of
separate research remain controversial in
connection with the adoption of the Law.
Conclusions
Legal regulation of the Bar in the European
Union depended on the development of the
Common Market of the European Economic
Community, and subsequently of the European
Union. Each step in the development of
legislation in this area was significant progress in
comparison with the regulations that had been
adopted earlier. Despite the peculiarities of the
legal profession, the European Union has
managed to create a system that allows lawyers
to exercise their rights to freedom of movement
of services and freedom of establishment on an
equal footing with representatives of other
professions and to practice freely in any EU
member state on a permanent and temporary
basis. As a result of the study, the following
conclusions can be drawn:
1. the legal regulation of the Bar and bar self-
government in the European Union
depended on the development of the
Common Market of the European Economic
Community and, subsequently, the
European Union. Legislation regulating the
status of a foreigner is marked by significant
progress and gradual improvement;
2. despite the peculiarities of the legal
profession, the European Union has
managed to create a system that allows
lawyers to exercise their rights to freedom of
movement of services and freedom of
establishment on an equal footing with
representatives of other professions and to
practice freely in any EU member state on a
permanent and temporary basis;
3. the constitutional and legal status of the Bar
stems from the principle of the rule of law in
combination with fundamental human
rights, but most often, unlike the right to
defense and legal aid, the institution of the
Bar does not have direct constitutional
consolidation.
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