Its head Volodymyr Polishchuk told “Legal Practice” about the work of the Qualification and Disciplinary Commission of the Kyiv Oblast Bar during the war — the main challenges, the development of disciplinary practice, the relationship between the bar and the military.
— What were the first decisions of the Qualification and Disciplinary Commission of the Kyiv Oblast Bar after the beginning of the full-scale invasion of the Russian Federation into Ukraine?
— On February 24, 2022, the KDKA of the Kyiv region was scheduled to hold a qualification exam for acquiring the right to practice law in Ukraine.
However, in the morning, after powerful explosions, it became clear that the war had begun.
The exam was cancelled. People who were invited to the exam were not able to inform about it, because the site of the KDKA of the Kyiv region was not working since the morning, due to unauthorized intervention.
The vast majority of people who expressed a desire to take the qualifying exam for the right to practice law on that day, realized that the war had started, and did not come. However, there were those who arrived at the specified time and place to take the qualifying exam.
On February 27, 2022, a meeting of the KDKA of the Kyiv region was held with the help of one of the messengers, through a survey, at which they condemned the aggression of the Russian Federation against Ukraine and made a decision to provide financial assistance to the Armed Forces of Ukraine, which was listed for the first time on February 28, 2022.
After that, until May 31, 2022, the KDKA of the Kyiv region did not carry out its activities.
Starting from June 2022, the commission resumed work in the usual mode, meetings of the KDKA of Kyiv region, the qualification and disciplinary chamber of the KDKA are held, at which the issue of admission to the qualification exam is decided, qualification exams are organized and conducted, complaints are considered, disciplinary cases are resolved, and other issues are resolved , assigned to the powers of the qualification and disciplinary commission of the bar of the region.
— Do members and employees of the KDKA of the Kyiv region undergo military service in the Armed Forces of Ukraine?
— From the beginning of the war to the present, the members of the qualification chamber Viktor Kikkas and Mykhailo Kelemen, as well as the accountant of KDKA of the Kyiv region Ruslan Pastukhov are serving in the Armed Forces of Ukraine.
— Are there any data on the number of lawyers (in particular, from the Kyiv region) who went abroad after 24.02.22?
— There are no such data in the KDKA of the Kyiv region. Information about lawyers who have gone abroad appears in the commission after receiving complaints against them. As a rule, they wish to take part in the meeting of the disciplinary chamber remotely – in the mode of a video conference, or they write a petition to conduct the case without their participation, due to the fact that they are abroad.
— What were and are the main challenges during the war for the work of the KDKA of the Kyiv region, and how did the bar respond to them?
— In connection with the occupation of part of the Kyiv region in February-April 2022, some members and employees of the commission changed their permanent place of residence, and in order to resume the work of the KDKA, it was necessary to gather people. A meeting of the KDKA is considered authorized if more than half of the members of its chambers are present. A meeting of the chamber is considered valid if more than half of its members are present. The decision of the disciplinary chamber to terminate the right to practice law must be made by two-thirds of the votes of its total members.
There were also problems with notifying complainants and lawyers, in respect of whom disciplinary cases are being considered, about the date and time of the case hearing, sending decisions, etc.
In March 2022, the Bar Council of Ukraine made changes to the Regulation on the Procedure for Accepting and Reviewing Complaints Regarding the Lawyer’s Misbehavior, which may result in his disciplinary responsibility, as well as to the Regulations of the KDKA of the region, according to which the meeting of the disciplinary chamber of the KDKA of the region can be held remotely: online ( in real time when connected to the Internet) using programs, video conferencing and other means of communication. The lawyer against whom a disciplinary case has been initiated, and the person who initiated the issue of the lawyer’s disciplinary responsibility, in case of technical possibility, have the right to participate in the meeting remotely – in video conference mode.
It was also provided that a statement (complaint) about the behavior of a lawyer can be sent to the KDKA, including by e-mail with the use of an electronic digital signature, and the KDKA of the region is given the right to send all correspondence related to the consideration of complaints and disciplinary cases to electronic to the lawyer’s e-mail address, which is specified in the ERAU, and to the e-mail address of the complainant, which he must specify in the complaint.
These changes simplified the organization and conduct of the meeting of the disciplinary chamber, provided the opportunity for complainants and lawyers who have changed their place of residence to participate in the meeting online, the possibility of submitting complaints electronically and receiving correspondence by e-mail.
Another challenge for the work of the KDKA of the Kyiv region was (is) air alarms. As the head of the commission, I am responsible for the safety of people in the KDKA premises, and we do not have a proper bomb shelter. In the autumn-winter period, there was a constant power outage. This problem was solved thanks to the purchase of a charging station, and the Charity Fund for Assistance to Lawyers of the Kyiv region also handed over a generator to the commission.
— How many meetings of the qualification and disciplinary chambers of the KDKA of the Kyiv region were held in 2022?
— In 2022, 18 meetings of the qualification chamber were held, including 6 qualification exams for acquiring the right to practice law in Ukraine were organized and conducted, 314 people were admitted to the exam, 282 people successfully passed the qualification exam.
The Disciplinary Chamber held 8 meetings at which 147 decisions were made, including 46 decisions on initiation of disciplinary proceedings, 10 decisions on suspension of the right to practice law for a period of one to twelve months, and 2 decisions on deprivation of the right to practice law.
— How many lawyers have had their right to practice law suspended since you were elected head of the KDKA of the Kyiv region?
— During my tenure as the head of the KDKA of Kyiv region, a decision was made to terminate the right to practice law for 27 lawyers, of which: for 25 lawyers, in connection with disciplinary liability and the application of disciplinary sanctions in the form of disqualification to practice law with the subsequent exclusion from the Unified Register of Lawyers of Ukraine, 2 lawyers — in connection with establishing the facts of providing false information to obtain a certificate of the right to practice law and take the oath of a lawyer of Ukraine.
Also, 4 lawyers from foreign countries were brought to disciplinary responsibility and a disciplinary sanction was applied to them in the form of exclusion from the Unified Register of Lawyers of Ukraine.
— What were the reasons for depriving lawyers of the right to practice law, give examples?
— Violation of the lawyer’s oath, disclosure of information constituting the lawyer’s secret, systematic or gross one-time violation of the rules of lawyer’s ethics, which undermines the authority of the legal profession.
In particular, one of the lawyers concluded agreements on the provision of legal assistance with more than 20 participants of the anti-terrorist operation, according to which he had to challenge in court the inaction of the Ministry of Defense of Ukraine, the Land Department regarding the non-provision of land plots, and provide legal assistance in the case of non-fulfillment of the terms of the agreement by a housing and construction cooperative, removal of seizure from bank accounts, etc. Funds were paid to him for providing legal assistance. During the year, the lawyer assured his clients that he had prepared all the necessary documents, submitted claims to the courts, but due to the heavy workload of the judges, the case was delayed. The complainants decided to check for themselves the status of the proceedings in the courts, and it turned out that the claims in their interests were not even submitted to the court.
Another example, the lawyer offered to resolve the issue of the client’s funds seized during the search quickly and with a guarantee and without submitting complaints to the court. In this regard, an agreement on the provision of legal assistance was concluded, and at the request of the lawyer, the client signed a receipt for the receipt of funds in advance so that the lawyer would personally hand it over to the investigator and bring the funds seized during the search. However, the lawyer returned only a part of the seized funds in the amount of more than 700,000. hryvnias and reported that the rest is more than 100,000 hryvnias. US dollars and approximately 100,000 euro will be taken and transferred later, but this did not happen. Another client’s lawyer filed a complaint against the investigator’s inaction regarding the non-return of temporarily seized property. At the court hearing, the investigator provided the court with a receipt received from the lawyer, which stated that he received the seized funds in full, in a clearly defined amount in various currencies.
That is, the agreement on the provision of legal assistance was not aimed at the actual provision of legal assistance by a lawyer, but was concluded with a different purpose.
The commission also applied a type of disciplinary sanction in the form of deprivation of the right to practice law for the lawyer’s denial of the existence of the Ukrainian language, by publishing a corresponding post on a social network, for the lawyer of Ukraine acquiring the status of a lawyer of the Russian Federation in the occupation authorities of the city of Sevastopol, for confidential cooperation with law enforcement agencies, for using advocate of his rights contrary to the rights, freedoms and legitimate interests of the client, protection in conditions of conflict of interests, etc.
All decisions made by the KDKA of the Kyiv region, including on the deprivation of the right to practice law, are motivated. When choosing the type of disciplinary sanction, the circumstances of the misdemeanor, its consequences, the identity of the lawyer and other circumstances are taken into account.
— What current trends can you identify in the issue of disciplinary responsibility of lawyers?
— Most often, complaints come from judges, for the non-appearance of lawyers at court sessions. The number of complaints related to violations of the rules of behavior of lawyers in social networks and Internet platforms has increased. Complaints are received for violation of the rules of lawyer’s ethics when submitting lawyer’s requests. Clients complain about lawyers who improperly fulfill contracts for the provision of professional legal assistance. In recent months, VKDKA has forwarded complaints to several lawyers who are registered with the Bar Council of the city of Sevastopol and the Bar Council of the Autonomous Republic of Crimea, related to a possible violation of the Rules of Bar Ethics in the occupied territory.
— Are there any examples of prosecution of lawyers who went to military service and did not suspend the validity of the certificate?
— There are no such examples in the KDKA of the Kyiv region.
— How would you describe the relationship between the legal profession and the military, including fellow lawyers?
– Positively. Many lawyers have become defenders of Ukraine with weapons in their hands, the bar actively helps colleagues – soldiers, and all other defenders of Ukraine who are at the front. As I said earlier, from the first days of the war, the KDKA of the Kyiv region financially helped the Armed Forces of Ukraine, this year charitable assistance was provided in the form of drones and other material assets.
(The interview was conducted by Oleksiy Nasadyuk , “Legal practice”)