Attorney Tetyana Lezhukh spoke about the practical aspects of being held administratively liable for failing to respond to a lawyer’s request during an event to improve the professional level of attorneys held at the NAAU Higher School of Advocacy.
The lecturer, together with the participants, analyzed in detail the practical aspects of bringing an individual to administrative liability for failure to respond to a lawyer’s request, namely:
- 1. Incomplete response to a request/unsubscribe: what to do?
- 2. Typical mistakes made by lawyers.
- 3. Obtaining information through legal proceedings.
- 4. Algorithm for holding accountable for failure to respond.
- 5. Why is it important for lawyers to defend their right to information?
- 6. Nuances of drafting attorney requests.
- 7. Interesting disciplinary practice.
The following is emphasized in the characterization of failure to respond to a lawyer’s request:
1. Incomplete response to a request/unsubscribe: what to do?
According to part 3 Art. 24 of the Law of Ukraine “On Advocacy and Advocacy Activities”, refusal to provide information at the request of an attorney, untimely or incomplete provision of information, provision of information that is not true, entail liability established by law, except in cases of refusal to provide information with limited access.
According to part 1 Art. 20 of the Law of Ukraine “On the Bar and Legal Practice” During the performance of legal activities, an attorney has the right to perform any actions not prohibited by law, the rules of attorney ethics, and the legal aid agreement necessary for the proper performance of the legal aid agreement, in particular: to address legal requests, including those regarding obtaining copies of documents, to state authorities, local governments, their officials and service personnel, enterprises, institutions, organizations, public associations, as well as to individuals (with the consent of such individuals), etc.
2. Typical mistakes of lawyers:
- Delays in filing a complaint about an administrative offense;
- Incorrectly completed request and order;
- Lack of contact information (email, phone number) in the lawyer’s request;
- Sending a statement of prosecution without specifying the person;
- Incorrect wording of the statement;
- The request should not concern personal matters;
- It is important to distinguish between a public information request and a lawyer’s request;
- Incorrectly formatted description;
- The authorized person was incorrectly identified;
- The case is not being tracked;
- Requesting confidential information without specifying the purpose;
- Requesting confidential information that is a trade secret.
3. Obtaining information through legal proceedings
Materials on an administrative offense submitted to the court must contain:
- protocol on administrative offense;
- explanations of the person against whom the report was drawn up regarding the circumstances of the administrative violation (if any are submitted) and if they are submitted separately from the report;
- documents regarding circumstances that mitigate/aggravate liability for an administrative offense (if any);
- a copy of the application (appeal) of the lawyer, the QDCA, its chamber or member, with attached materials.
4. Algorithm for bringing to justice for failure to provide answers
According to part 5th century 212-3 of the Code of Administrative Offenses, unlawful refusal to provide information, untimely or incomplete provision of information, provision of information that is not true in response to a lawyer’s request, a request of the qualification and disciplinary commission of the bar, its chamber or a member in accordance with the Law of Ukraine “On the Bar and Advocacy” entails the imposition of a fine on officials from twenty-five to fifty non-taxable minimum incomes of citizens.
The victims of the administrative offense provided for in Article 212-3 of the Code of Administrative Offenses are lawyers, members of the qualification and disciplinary commissions of the bar, their chambers, whose right to receive information has been violated.
In paragraph 9-1 of the 1 Art. Article 255 of the Code of Administrative Offenses states that in cases of administrative offenses considered by the bodies specified in Articles 218-221 of this Code, protocols on administrative offenses have the right to be drawn up by: the chairman of the Bar Council of the Autonomous Republic of Crimea, the regions, cities of Kyiv and Sevastopol, or a member of the Bar Council authorized by the council.
Proceedings on a complaint about an administrative offense, provided for in Article 212-3 of the Code of Administrative Offenses (violation of the right to information), in terms of violation of the right to information, are initiated upon applications by an attorney, the qualification and disciplinary commission of the bar, its chamber or a member, in the territory of the jurisdiction of the relevant regional bar council, at the address of the attorney’s main workplace (where the attorney paid the annual attorney’s contribution to ensure the implementation of attorney self-government), the location of the qualification and disciplinary commission of the bar, its chamber.
The decision to draw up a report on an administrative offense is made after the inspection, provided that the lawyer’s request, application (appeal) and the materials attached to it are in accordance with it.
The review may consist of sending written or oral requests to the applicant and the person being held administratively liable in order to obtain additional explanations.
5. Why is it important for lawyers to defend their right to information?
- Respect for the professional rights of lawyers is being formed.
- Increased level of trust from customers.
- The ability to use information in the interests of clients.
6. Fees for processing lawyer requests
According to Article 24 of the Law of Ukraine “On the Bar and Advocacy”, a lawyer’s request is a written appeal by a lawyer to a state authority, a local government body, their officials and employees, enterprises, institutions and organizations regardless of their form of ownership and subordination, and public associations for the provision of information and copies of documents necessary for the lawyer to provide legal assistance to the client.
The lawyer’s request shall be accompanied by copies of the certificate of the right to practice law, a warrant or an order from a body (institution) authorized by law to provide free legal aid, certified by the lawyer. It is prohibited to require the lawyer to submit other documents along with the lawyer’s request.
A lawyer’s request cannot concern the provision of consultations and clarifications of legal provisions.
Providing a lawyer with information and copies of documents obtained during criminal proceedings is carried out in accordance with the procedure established by criminal procedural law.
In accordance with Part 2 of the same article, a state authority, a local government body, their officials and service personnel, heads of enterprises, institutions, organizations, and public associations to whom a lawyer’s request has been sent are obliged, no later than five working days from the date of receipt of the request, to provide the lawyer with relevant information, copies of documents, except for information with restricted access, and copies of documents containing information with restricted access.
According to Article 21 of the Law of Ukraine “On Information”, information with limited access is confidential, secret and official information.
Obtaining confidential information by sending a lawyer’s request is possible if other documents are attached to the lawyer’s request that entitle the lawyer to receive such information.
Submission by a lawyer of a request for legal advice is a professional right of a lawyer in connection with the provision of legal assistance on the basis of a legal assistance agreement.
A lawyer’s request must meet the requirements of Article 24 of the Law, which, in particular, establishes that it must be accompanied by copies of a certificate of the right to practice law, a warrant or an order from a body (institution) authorized by law to provide free legal aid, certified by the lawyer.
A lawyer has the right to send a lawyer’s request not to satisfy personal interests, but only within the framework of the execution of the contract with the client in order to provide the latter with legal assistance.
It is prohibited to submit requests to lawyers for the purpose of obtaining consultations and clarifications of legal provisions.
Jurisprudence:
- Absentee decision of the Irpin City Court of Kyiv Region dated 05/20/2015 in case No. 367/1922/15-ts:
The above-mentioned claim was filed with the Irpin City Court of Kyiv Region, which the plaintiff motivates by the fact that he practices law on the basis of a certificate of the right to practice law No. 3359 dated 05/29/2008, issued by the city qualification and disciplinary commission of the bar. He notes that on the basis of the agreement on the provision of legal assistance No. 18/07 dated 07/18/2014, PERSON_3 provides legal assistance. In order to properly execute the agreement, on 08/27/2014 PERSON_2 addressed the director of LLC “Construction Company “Opora” with a lawyer’s request under reference No. 127, in which he requested to provide the official information necessary to protect the client’s rights and duly certified copies of documents confirming this information. He notes that the lawyer’s request fully met the requirements Art. 24 of the Law of Ukraine “On the Bar and Legal Practice”. However, the defendant, within the period specified by the Law of Ukraine “On the Bar and Advocacy” , did not provide a response to the lawyer’s request, in connection with which the plaintiff notified the Bar Council of Kyiv Region of the violation of professional rights. It is noted that, upon the submission of the Bar Council, a protocol on an administrative offense was drawn up in relation to PERSON_2, and by the Resolution of the Irpin City Court of Kyiv Region dated 24.12.2014, the defendant was found guilty of committing an administrative offense, provided for in Part 4 Art. 212-3 CUAP. Indicates that the failure to respond to the lawyer’s request has caused damage to the business reputation. That is, as a result of the defendant’s unlawful actions, the plaintiff’s business reputation as a lawyer has been humiliated, namely: the plaintiff’s appearance before the client as unable to properly protect his rights and interests, which deprives him of the opportunity to further provide legal assistance to the client – PERSON_3 and receive other clients on his recommendation. Therefore, he requests to recover from the defendant monetary compensation for moral damage in the amount of UAH 6,000.00.
Based on the circumstances established by the court and the specified norms of the Law, since PERSON_2 was found guilty of committing an administrative offense provided for in Part 4 Art. 212-3 CUAP regarding the failure to provide information on the lawyer’s request PERSON_1 dated 27.08.2014, as a result of which the lawyer’s business reputation was degraded, namely the failure to provide proper legal assistance to the client – PERSON_3, therefore the court concluded that there are legal grounds for recovering from the defendant in favor of the plaintiff compensation for moral damage. However, the court believes that the amount of compensation for moral damage, which the plaintiff insists on, is overstated and not fully confirmed, therefore it recovers from the defendant in favor of the plaintiff 5,000.00 UAH. compensation for moral damage.
- Resolution of the Supreme Court composed of the panel of judges of the Cassation Administrative Court of November 29, 2019 in case No. 807/178/18:
As noted, the lawyer addressed the defendant with a legal request, in which she asked to provide her with information about the date of issuance of the passport to a third person – PERSON_4 and a copy of his application for the issuance of a passport in 2014.
Thus, the resolution of the issue of the right to receive the requested information is within the scope of two laws – the Law of Ukraine “On Advocacy and Advocacy Activities” and the Law of Ukraine “On Access to Public Information” . The first determines the right of an attorney to submit and consider an attorney’s request, and the second regulates the regime of access to information requested by the attorney.
Therefore, the appellate court reasonably applied the provisions of Part 1 of Article 24 of the Law of Ukraine “On the Bar and Legal Practice” regarding the right to receive the requested information from the defendant.
The second aspect of the right to obtain the requested information is its classification as public. The appellate court correctly established that the requested information was created by a public authority and in the exercise of his public authority, and therefore is public.
The fact that the defendant is a controller of public information is not disputed in this case, and accordingly, the restriction of access to information by the controller in view of the requirements of Part 2 of Article 6 of the Law of Ukraine “On Access to Public Information” must be carried out as follows: 1) establishing the correspondence of the restriction of access to the requested confidential information to one of the protected interests; 2) establishing the possibility of causing significant harm to these interests; 3) comparing this potential harm with the right of the public to know this information in the interests of national security, economic well-being or human rights. If this harm does not outweigh the public interest in access to information, then the confidential information may be disclosed and access to it may not be restricted.
Thus, a refusal to provide information is justified if the administrator indicates in the letter which interests are threatened by the disclosure of the requested information, what is the significance of the harm to these interests from its disclosure, and why the harm from the publication of such information outweighs the right to this information in the interests of national security, economic well-being, or human rights.
That is, the defendant determined that the confidentiality of the information was the basis for refusing to provide the requested information, but the justification for such refusal, in accordance with the provisions of Part 4 of Article 22 of the Law of Ukraine “On Access to Public Information” , indicating which specific information requested is confidential, was not provided.
At the same time, according to the provided lawyer’s request, in addition to information, a document was also requested. The defendant’s letter of January 25, 2018 also does not contain information about the consideration of this issue.
Therefore, the requested information is information containing personal data of an individual, however, given the purpose of its provision and scope, it cannot cause significant harm to the interests of this individual.
In this regard, the cassation court believes that the appellate court reasonably satisfied the claim by obliging the Main Department of the State Migration Service of Ukraine in the Transcarpathian region to provide the lawyer with information in accordance with the lawyer’s request dated January 19, 2018.
- Resolution of the Supreme Court composed of the panel of judges of the Administrative Court of Cassation dated November 7, 2024 in case No. 340/2502/23:
The Supreme Court agrees with the conclusions of the courts of previous instances on the fallacy of the plaintiff’s arguments in terms of identifying the submitted lawyer’s request for information on the possibility of obtaining a deferral from military service during mobilization PERSON_1, with an application for a decision on a deferral from military service during mobilization, in view of the following.
Part one of Article 24 of the Law of Ukraine “On the Bar and Advocacy” defines a lawyer’s request as a written appeal by a lawyer to a state authority, local government body, their officials and service personnel, enterprises, institutions and organizations regardless of their form of ownership and subordination, and public associations for the provision of information and copies of documents necessary for the lawyer to provide legal assistance to the client.
In accordance with Part Two of Article 24 of the Law of Ukraine “On Advocacy and Advocacy Activities”, a state authority, a local self-government body, their officials and service personnel, heads of enterprises, institutions, organizations, public associations to which a lawyer’s request has been sent, are obliged, no later than five working days from the date of receipt of the request, to provide the lawyer with relevant information, copies of documents, except for information with restricted access and copies of documents containing information with restricted access.
Based on the above legal norms, a lawyer’s request is a written appeal by a lawyer addressed to government officials and other legal entities, the purpose of which is to obtain the information necessary for the lawyer to provide legal assistance to the client.
Given the legal nature of the “lawyer’s request”, and considering the issues raised in the lawyer’s request of March 31, 2023, the latter is not an appeal by a conscript to resolve the issue of granting a deferment from conscription for military service during mobilization.
The above circumstances indicate that PERSON_1 did not apply to the defendant with documents confirming the right to a deferral from military service during mobilization on the grounds specified in Article 23 of the Law of Ukraine “On Mobilization Training and Mobilization” , and the defendant responded to the lawyer’s request by letter dated April 5, 2023, reference No. 6/3924.
7. Interesting disciplinary practice :
- Decision of the Supreme Administrative Court No. II – 001/2023 dated 02/23/2023;
- Decision of the Supreme Administrative Court No. XII – 006/2021 dated 01.12.2021;
- Decision of the Supreme Administrative Court No. IV – 004/2022 of April 29, 2022;
- Decision of the Supreme Administrative Court No. II – 005/2022 dated 01.02.2022;
- Decision of the Supreme Administrative Court No. VI – 018/2021 dated 06/30/2021.
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