Does the court have the right to suspend the decision of the bar disciplinary body imposing a penalty on a lawyer pending the consideration of the case on the merits? Although some servants of Themis make such procedural decisions, the question arises: do they comply with the law and the nature of securing a claim?
Limits of Admissibility
Securing a claim in administrative justice has an exclusive and auxiliary nature. According to part 2 of Article 150 of the Administrative Procedure Code, the court may take measures to secure a claim only in two cases: if the failure to take such measures (1) may significantly complicate or prevent the execution of the court’s decision, or (2) the violation is so obvious that it already justifies preventive intervention in the action of the disputed act. The law does not provide for other grounds.
At the same time, securing a claim is not a form of premature protection that replaces the consideration of the case on the merits. Moreover, it cannot serve as a way to temporarily suspend the action of a decision of a subject of official powers if this decision already has legal force and is provided for by special law. As the Supreme Court has repeatedly pointed out, the mere fact of the negative impact of the decision on the person to whom it is applied does not indicate the existence of grounds for securing a claim.
In addition, according to established practice, the court cannot apply a measure to secure a claim that effectively resolves the dispute before its consideration. This directly contradicts the legal nature of the institution of securing – a temporary, proportionate, and minimally invasive measure that does not substitute for a final judicial decision.
Therefore, in each case, the court must not only check the formal signs of a violation of rights but also ensure that the intervention in the action of the act of the subject of official powers is justified by an objective necessity and does not turn into premature satisfaction of the claim. In cases of disciplinary responsibility of lawyers, these criteria acquire special significance, as they concern the institutional autonomy of the profession.
Higher Instance Opinion
In these cases, the Supreme Court has repeatedly expressed a legal position according to which the application of measures to secure a claim in the form of suspending the decisions of the Disciplinary Chamber of the Bar Association or the Disciplinary Chamber of the Bar Association is legally unjustified.
First of all, the court emphasized that appealing a decision to bring a lawyer to disciplinary responsibility does not suspend its action. This is directly provided for by the third part of Article 32 and the first part of Article 42 of the Law “On the Bar and Legal Practice.” Making an exception to this rule by adopting a decision to secure a claim leads to the continuation of the lawyer’s activity, contrary to the decisions of disciplinary bodies, which are competent to make decisions on imposing disciplinary sanctions.
A separate argument is the nature of the disciplinary decision. The Supreme Court in rulings of 24.05.2023 (case No. 640/10883/22), 03.08.2023 (No. 600/2304/22-a), and 20.04.2021 (No. 640/17351/19) notes that such a decision, although it may have a negative impact on a person’s rights, does not in itself create conditions that would prevent the execution of a future court decision or significantly complicate it. Therefore, it does not require securing.
The court emphasized that the assessment of the obviousness of the unlawfulness of the decision of the disciplinary body, which is often used as an argument for securing a claim, cannot be made before the consideration of the case on the merits. But such a conclusion indicates the court’s legal position in advance. Because establishing the obviousness of a violation is possible only based on clarifying the factual circumstances of the case, as well as assessing the relevance, admissibility, and reliability of each piece of evidence separately, as well as the sufficiency and interrelation of the evidence available in the case materials as a whole.
Moreover, the practice of the Supreme Court directly indicates: the application of a measure to secure a claim in the form of suspending the decision of the Disciplinary Chamber effectively substitutes for a substantive judicial decision.
In general, securing a claim in such cases leads to the continuation of the lawyer’s activity by a person who, according to the current decision of the disciplinary body, has lost this right – thus, casting doubt on the effectiveness of disciplinary jurisdiction.
Unjustified Intervention
Because taking measures to secure a claim in the form of suspending the decision of the bar disciplinary body goes beyond the procedural powers of the court and creates systemic threats to the entire model of bar self-government. Such an approach leads to the destabilization of the disciplinary process, weakening the powers of qualification-disciplinary commissions, and blurring the boundaries between procedural supervision and interference in the content of decisions of the self-government body.
Suspending the decision of the Disciplinary Chamber within the framework of securing a claim effectively restores the right to practice law until a final court decision, although the law does not provide for such a possibility. On the contrary, it is directly established that the appeal itself does not suspend the decision. This construction is aimed at protecting the authority of the profession, public trust, and procedural discipline. The judicial suspension of a decision without verifying its legality disrupts this balance.
In addition, when making a decision on securing, the court does not conduct a full examination of the evidence, does not have procedural opportunities to investigate the circumstances of the disciplinary offense, assess the proportionality of the sanction, or the good faith of the parties. In such conditions, suspending the decision of the Disciplinary Chamber takes on the nature of preventive amnesty, which directly contradicts the public-law nature of disciplinary responsibility.
A separate problem is the substitution of functions of the self-government body. By applying suspension as a measure to secure a claim, the court essentially interferes with the internal jurisdiction of the body that has a special mandate to assess the professional conduct of lawyers. Such substitution of the decision-making subject at the preliminary securing stage undermines the principle of institutional autonomy laid down in the Law “On the Bar and Legal Practice”.
Control Standards
Administrative justice cannot annul the autonomy of bar self-government bodies but must ensure its legal limit. Judicial control in such cases should be procedural and retrospective, not preventive or duplicative.
The function of the administrative court in disputes over challenging disciplinary decisions lies in verifying compliance with the procedure, providing an assessment of the justification and legality of decisions – after a full clarification of the circumstances and analysis of the evidence.
Therefore, securing a claim cannot turn the court into a substitute for the disciplinary body. Especially when it directly contradicts the special status of a lawyer and the logic of special legal regulation. In such cases, the court must act within the limits set by the law and interpreted taking into account the practice of the Supreme Court and the European Court of Human Rights.
The right to a fair trial, guaranteed by Article 6 of the European Convention on Human Rights, does not mean the right to immediate reinstatement in the profession before the dispute is resolved on the merits. In the case of “Hirvisaari v. Finland,” the ECtHR emphasized that the court’s decision must be reasoned, comply with procedural guarantees, and respect the balance of interests. This standard prevents the application of measures that entail final legal consequences before a judgment on the merits is delivered.
It is necessary to clearly distinguish disputes where securing a claim is necessary to preserve the subject matter of the dispute or evidence from those where it artificially alters the legal status of the parties. In the disciplinary process, securing in the form of suspending the decisions of the Disciplinary Chamber or the Disciplinary Chamber is precisely such an artificial mechanism – and does not fall under any of the two permissible grounds defined in Part 2 of Article 150 of the Administrative Procedure Code.
The establishment of unified standards of law enforcement implies that the decisions of bar self-government bodies remain in force until they are annulled, not until a decision on securing is made. Otherwise, legal certainty gives way to situational expediency. And this already enters into contradiction with the principle of the rule of law.
The material is published in the publication “ADVOKAT POST”.