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The Bar Council of Ukraine adopted decision No. 141 of December 15, 2021 "On the clarification of the possibility of being elected at the conference of lawyers of the region as the head of the bar council of the region, the head of the qualifications and disciplinary commission of the bar of the region of a lawyer who was previously elected as a member of the bar council of the region, a member of the qualification and disciplinary commission of the bar of the region for two terms in a row".
The Bar Council of Ukraine, guided by Articles 55 and 57 of the Law of Ukraine "On Advocacy and Advocacy, the Regulation on the Bar Council of Ukraine, decided to approve the clarification on the possibility of being elected at the conference of lawyers of the region as the head of the bar council of the region, the head of the qualification and disciplinary commission of the bar of the region of the lawyer , who had previously been elected a member of the regional bar council, a member of the qualification and disciplinary commission of the regional bar for two terms in a row.
The Bar Council of Ukraine, having considered the appeal of lawyer Vadym Oksyuta dated December 6, 2021, regarding the possibility of being elected at the conference of lawyers of the region as the head of the regional bar council, the head of the qualification and disciplinary commission of the bar of the region of a lawyer who was previously elected as a member of the regional bar council, a member of the qualification and disciplinary board commission of the bar of the region for two terms in a row, established the following.
In accordance with Part 2 of Article 48, Part 2 of Article 50 of the Law of Ukraine "On Advocacy and Advocacy" (hereinafter – the Law), the chairman and members of the regional council of lawyers, the chairman and members of the qualification and disciplinary commission of the bar are elected by the conference of lawyers of the region from among lawyers, seniority whose legal practice is at least five years and whose workplace address is located respectively in the Autonomous Republic of Crimea, oblasts, the city of Kyiv, the city of Sevastopol and whose information is included in the Unified Register of Lawyers of Ukraine for a period of five years. The same person cannot be the chairman or member of the regional bar council, chairman or member of the qualification and disciplinary commission of the bar for more than two terms in a row.
Article 49 of the Law establishes that the head of the regional bar council represents the regional bar council in state authorities, local self-government bodies, enterprises, institutions, organizations, before citizens; ensures the convening and holding of meetings of the regional bar council, organizes and ensures the administration of the regional bar council, performs other actions provided for by the regulations on the regional bar councils, decisions of the regional bar councils, the regional bar councils, the Bar Council of Ukraine, the Bar Congress of Ukraine.
The regulations on regional bar councils define a more detailed list of the powers of the heads of regional bar councils. In particular, they include the right of the heads of the regional bar councils to represent the regional bar councils in state authorities, local self-government bodies, enterprises, institutions, organizations, before citizens without a mandate; to represent NAAU, as the founder of the Bar Council of the region, before the subjects of state registration, regarding the state registration of changes to the information of the Bar Council of the region, contained in the Unified State Register of Legal Entities, Individual Entrepreneurs, and Public Organizations on behalf of the Chairman of the Bar Council of Ukraine, NAAU; manage funds and property of the regional bar council; to conclude labor, civil-law agreements, business contracts on behalf of the bar councils of the region; to authorize representation on behalf of the bar councils of the region; hire and dismiss employees; ensure the convening and holding of meetings of the regional bar councils, organize the work of the regional bar councils; determine the date, time and place of the meeting of the regional bar councils, preside over the meetings of the regional bar council, determine the list of issues to be brought to the meeting and form the agenda; determine the duties of the deputy chairman of the regional bar council and exercise other powers.
Unlike the powers of the head of the regional bar councils, the legal powers of the members of the regional bar council are not defined by law. The regulations on regional bar councils establish the following powers of members of the regional bar councils: to vote at the meeting of the regional bar council, to ensure high-quality and timely preparation of materials on matters of the council's competence, to initiate issues on the agenda of the meeting of the regional bar councils, to review materials, to exercise other powers.
Similarly, the legislator delimits the powers of the chairman of the qualification and disciplinary commission of the bar and the members of the qualification and disciplinary commission of the bar.
Article 50 of the Law establishes that the chairman of the qualification and disciplinary commission of the bar represents the qualification and disciplinary commission of the bar in state authorities, local self-government bodies, enterprises, organizations, institutions, before citizens, ensures the convening, determines the date, time and place of the meetings of the qualification and disciplinary of the bar commission, presides over the meetings, determines the list of issues to be brought to the meeting, disposes of the funds and property of the bar qualification and disciplinary commission in accordance with the approved budget, concludes labor, civil law, economic contracts on behalf of the bar qualification and disciplinary commission, organizes and ensures keeping records of the qualification and disciplinary commission of the bar, etc.
Instead, members of the qualification and disciplinary commission of the bar are empowered to ensure high-quality and timely preparation of materials on the competence of the qualification and disciplinary commission of the bar (which are being considered); initiation of the issue of the agenda of the meeting of the qualification and disciplinary commission of the bar; getting to know the materials submitted for consideration by the qualification and disciplinary commission of the bar; providing reasons and considerations, as well as submitting additional documents on the issues under consideration, etc.
Based on the legal regulation of the powers of the chairman and members of the regional bar council, the chairman and members of the qualification and disciplinary commission of the bar, the legal status of the chairman of the regional bar council and member of the regional bar council, the chairman and members of the qualification and disciplinary commission of the bar is different, as the scope of their rights and responsibilities do not match.
In Part 2 of Article 48, Part 2 of Article 50 of the Law, the legislator used the disjunctive conjunction “or” and not the connecting conjunction “and” when establishing the requirement regarding the impossibility of being the head or member of the bar council of the region, the head or member of the qualification and disciplinary commission of the bar more than two terms in a row. Thus, the Law prohibits the election of persons with the same legal status for more than two terms in a row to the bar council of the region and the qualification and disciplinary commission of the bar, but delimits the legal status of the chairs and members of the bar council of the region, chairs and members of the qualification and disciplinary commission of the bar.
Taking into account the above, the Bar Council of Ukraine clarifies that the chairman of the regional bar council/qualification and disciplinary commission of the bar cannot be elected for more than two terms in a row, members of the bar council of the region/qualification and disciplinary commission of the bar cannot be elected for more than two terms in a row. At the same time, the election of a member of the regional bar council/qualification and disciplinary commission of the bar, who was previously elected for two consecutive terms, to the position of the chairman of the regional bar council/qualification and disciplinary commission of the bar, as well as the election of the chairman of the bar council of the region/qualification and disciplinary commission of the bar, who was previously elected for two consecutive terms as a member of the regional bar council/qualification and disciplinary commission of the bar, respectively, is possible and meets the requirements of the Law.