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31.01.2022

Should a lawyer work outside working hours – clarification of the RAU

A lawyer's work, like a doctor's, is often 24/7. But, like any person, a rights defender needs time to rest, which will allow him to regain his strength and health.

Law and Business reports that the rules for the duration of a lawyer's working hours in the court premises outside of his work schedule were clarified by the Bar Council of Ukraine in a separate decision No. 138 dated 15.12.2021, the text of which recently appeared on the NAAU website.
The document was approved on the basis of legal opinions prepared by RAU member Larisa Velichko and head of the NAAU Committee on BPD Oleksandr Drozdov.
In particular, it is noted that the end of the working hours (working day) in the relevant court determines the end of the lawyer's working hours for providing professional legal assistance to his client in this court, subject to the relevant consent of the latter, taking into account the dominance of the client's interests.
It is also emphasized that the lawyer is not required to be in the courtroom and other premises during non-working hours of the court (including at night).
In this regard, it is noted that leaving the courtroom after the end of working hours (end of the working day) in the relevant court in agreement with the client and after notifying the court about it, and filing a motion to postpone the hearing (break) to another agreed time, does not contain signs of an offense (including a disciplinary offense). In particular, this is not a violation of order in the courtroom and cannot be qualified as contempt of court, and therefore cannot be a reason for holding the lawyer to any kind of legal responsibility.
An exception, taking into account the circumstances of a specific case, may be the consideration by the courts of preventive measures in criminal proceedings and cases related to elections.
Here is the full text of the explanation.
Addition
to the decision of the RAU
dated 15.12.2021 N 138
Regarding the working hours of the lawyer
The Council of Bars of Ukraine received an appeal from the Chairman of the Committee for the Protection of Lawyers' Rights and Guarantees of Lawyers' Activity of NAAU, lawyer V.V. Klochkov. on providing an explanation of the norm of the duration of a lawyer's working hours in the court premises outside the limits of his work schedule (entry No. 4465/0/1-21 dated December 7, 2021).
The Bar Council of Ukraine, having considered the above-mentioned appeal, taking into account the documents prepared by the representative of lawyers of the Kharkiv region as part of the Bar Council of Ukraine, Velichko L.Yu. and O.M. Drozdov, Chairman of the Committee on Free Legal Aid, which operates as part of NAAU. legal conclusions on the outlined issue, as well as suggestions, comments and additions of the members of the Bar Council of Ukraine, guided by the Law of Ukraine "On Advocacy and Advocacy", the Regulation on the Bar Council of Ukraine, within the scope of competence notes the following.
According to paragraph 1.36 of the Regulations on the Bar Council of Ukraine, approved by the Constituent Congress of Bars of Ukraine on November 17, 2012, with subsequent amendments, the powers of the Bar Council of Ukraine in accordance with the tasks assigned to it include providing clarification on issues related to advocacy .
A lawyer may practice law individually or in the organizational and legal forms of a law firm or law association (Part 3 of Article 4, Articles 13, 14, 15 of the Law of Ukraine "On Advocacy and Advocacy", hereinafter – the Law).
The resolution of the issue of establishing and regulating the working hours for lawyers – employees of bar associations is carried out in accordance with the labor legislation of Ukraine.
The lawyer is the founder of the law office and is its head, whose legal status is regulated by the civil and labor legislation of Ukraine. In accordance with clause 4.6. According to the model statute of the bar association, members of the association – lawyers are persons who have the right to practice law under the laws of Ukraine, are employed in the association as a lawyer under the terms of an employment contract in accordance with labor legislation, or perform work under the terms civil law contract with the association. Thus, the managing partner and each of the lawyers – members (partners) of the bar association is its member, whose rights and guarantees of their implementation are established by the civil and/or labor legislation of Ukraine.
In order to ensure the citizen's rights to health and social protection, which are guaranteed by the Constitution of Ukraine, every employee is guaranteed by the labor legislation to observe the norm of the duration of working hours, which according to Art. 50 KZpP of Ukraine is 40 hours per week.
With regard to the duration of work (fulfilment of duties within the framework of the concluded contract on the provision of legal assistance), lawyers who carry out their activities individually, as self-employed persons and those who are involved in the performance of works/services on the basis of civil law contracts, are formally not subject to the effect of labor legislation and the regime of their work are determined independently. However, they are covered by constitutional guarantees of human and citizen rights.
It is considered that the independent establishment of one's own working regime should be done by a lawyer based on the objective needs of professional activity and other objective circumstances. A lawyer should not make decisions regarding the regime of providing legal aid under the influence of coercion from other participants in the process, state bodies or officials. The Bar Council of Ukraine draws attention to the fact that, despite the fact that the legal profession is not directly regulated by the Code of Criminal Procedure of Ukraine, it should be recognized that a lawyer is a busy person, that in the process of providing legal assistance, like any other person, he gets tired and loses his ability to work, which is characteristic for loss of health. So, like any person, a lawyer needs time to rest, which will allow him to regain his strength and health.
The Constitution of Ukraine guarantees everyone the right to proper, safe and healthy working conditions, to wages not lower than those determined by law (Article 43). Everyone who works has the right to rest. The maximum duration of working hours, the minimum duration of rest and paid annual leave, weekends and holidays, as well as other conditions for exercising this right are determined by law (Article 45).
In view of the above, as well as being guided by the norms of civil legislation, a lawyer is not obliged to formally establish a work regime for himself, instead, when determining his duties, he should proceed from the general principles and meaning of civil legislation, the requirements of good faith, reasonableness and justice.
The Bar Council of Ukraine emphasizes that the norms of labor legislation, which regulate the general principles of protection, safety and occupational hygiene, and belong to the institutes of labor law and adopted by the Parliament to ensure the constitutional rights of man and citizen, may well be applied as standards for individuals (citizens) , who are in civil-law relations with each other.
In addition, the Geneva Convention No. 30 "On the Regulation of Working Hours in Trade and Institutions", adopted by the International Labor Organization on June 28, 1930, established the basis for determining the length of working hours of employees at 8 hours of the working day and 40 hours of the working week. According to Art. 1 of this Convention, advocacy is not excluded from the scope of its application.
The decision of the Council of Judges of Ukraine No. 54 dated November 25, 2021 "On the peculiarities of accounting for the working time of judges" indicates the observance of the mentioned standard. In particular, the decision states that in view of the guarantee of the judge's independence and the peculiarities of the regulation of the payment of the judge's remuneration, the accounting of the judge's working hours should be done automatically, based on the five-day 40-hour work week established in the judicial system.
At the same time, it should be noted that the establishment of a five-day, 40-hour work week at the international level is not only the result of a political and economic consensus, but also takes into account the physiological capabilities of a person to effectively perform his work function within a specified time.
In the doctrine of labor law, it is established that life, health, and working capacity of a person are the most valuable capital. It must be protected, all conditions must be created for preservation and protection for a long time. Only if this duty is fulfilled, the state can be recognized as social and legal. Therefore, one of the main institutions of labor law, the norms of which are closely related to the protection of the employee's rights to life and health, are the institutions of working time and rest time.
Analysis of the legal nature of the institution of working time, including the working time of a lawyer, makes it possible to assert that its semantic pluralism is due to a number of the following factors.
Regulation of working hours is one of the legal guarantees of citizens' rights to rest. Therefore, the norms of working time are inextricably linked with the norms of rest time. In turn, the right to rest is one of the basic human labor rights, including those who practice law. The relationship between this right and the right to life and health is perhaps the closest.
Establishing the minimum duration of rest time, as well as the maximum duration of working time, directly affects the quality and state of health of a person, in general, the quality of his life. The lack of normal, sufficient rest, the lawyer's overwork at work can lead to significant health disorders, irreparable damage to the vital activity of the body, even to a direct threat to his life. Under such conditions, the requirement of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms, taking into account the relevant practice of the European Court of Human Rights regarding providing a person with effective (practical and effective) professional legal assistance, becomes unattainable. After all, Article 6 § 3 (c) of the Convention on the Protection of Human Rights and Fundamental Freedoms provides that legal assistance must be "practical and effective". That is, the very appointment of a defense attorney does not mean the effectiveness of such assistance, since the ex officio defense attorney may die, become seriously ill, face long-term obstacles, or evade the performance of his duties ("Artico v. Italy", § 33; "Vamvakas v. Greece (no. 2)" (Vamvakas v. Greece (no. 2), § 36) It is obvious that this should equally apply to cases where individual judges try to use, so to speak, a physically and morally exhausted lawyer as extra during night court sessions.
Instead, resting, the lawyer restores his vitality and ability (possibility) to provide high-quality professional legal assistance. The absence or too short duration of rest can lead to unavoidable damage to health, and in the absence of good health, it is not only about providing effective legal aid, as a conventional component of everyone's right to a fair trial and the constitutional right to judicial protection, but also and about a full life in general. After all, as noted in the scientific opinion on the draft Law No. 1013 "On Amendments to the Constitution of Ukraine (Regarding the Abolition of Attorney Monopoly)" by O. Drozdov, a member of the Scientific Advisory Council of the Constitutional Court of Ukraine, the Constitution of Ukraine establishes that professional legal assistance in court is provided by the bar and it acts as the only professional institution for the protection of human rights in the state (Article 59, Article 131-2 of the Constitution of Ukraine). The constitutional right of every person to professional legal assistance in court (Article 59, Article 131-2 of the Constitution of Ukraine) within the framework of the state's fulfillment of its positive obligations (Article 1 of the Convention on the Protection of Human Rights and Fundamental Freedoms) is the main constitutional guarantee of the right to access to justice, which, in turn, is an integral component of the right to judicial protection (Article 55 of the Constitution of Ukraine). The effectiveness of the latter is largely determined by the level of legal assistance provided by lawyers and national and international guarantees of advocacy. Therefore, the establishment and observance of the lawyer's right to rest is an important and indisputable condition, a guarantee of effective professional legal assistance by the lawyer to his clients, including during court hearings. Since it is the court hearings that require almost the greatest concentration of intellectual and volitional efforts on the part of the lawyer, in the absence of adequate rest, this circumstance can lead to physical and moral exhaustion of the latter. It is impossible to observe the lawyer's right to work without observing the guarantee of his right to rest. It is known that work for a lawyer is the main form of obtaining material sources of livelihood. However, a lawyer cannot work constantly and continuously without harming his own health and feeling a negative impact on his life. Therefore, for a normal existence, he needs periodic rest during reasonable intervals of time.
Institutions of working time and rest time interact with each other according to the principle that the shorter the working time, the longer the rest time, and vice versa. Prolonged practice of advocacy without providing the rest necessary to restore the ability of a lawyer to perform productive and high-quality work has a negative impact, as already noted, not only on the quality of legal assistance to his clients, but also on the quality of justice in general. Therefore, the working time regime should consist of an even variability of work and rest, ensure the restoration of the lawyer's ability to work with full dedication without harming his health.
Moreover, not only a lawyer, but also any person needs normal and sufficient daily rest. Incidentally, we note that, for example, forcing a sick person to participate in court hearings may, under certain circumstances, indicate that the person has been subjected to inhuman and degrading treatment contrary to Article 3 of the Convention ("Korban v. Ukraine", application No. 26744/16, paragraphs 118-129).
The normal restoration of working capacity, physical and mental health of a lawyer under the condition of constant changes in the duration of work and rest, which in particular can be caused by the sudden holding of numerous long court hearings outside working hours, and even more so at night, is impossible.
Guided by the indicated approximate length of working hours of a lawyer, regardless of the form of lawyer activity, the duration established by international and national labor legislation should be considered to be 40 hours per week. When calculating the weekly duration of a lawyer's working time, it is advisable for the latter to take into account the court schedule (where the court session takes place, in which he participates), as well as the prescriptions of the Rules of Lawyer Ethics, approved on June 9, 2017 by the Electoral Congress of Lawyers of Ukraine in 2017 (with changes) in particular in terms of the dominance of the client's interests. It is this length of working hours that will ensure proper, safe and healthy working conditions for the lawyer, guarantees the restoration of his working capacity, and will also contribute to the observance of the rights and guarantees of the lawyer's activity.
Therefore, the lawyer's right to rest corresponds to the duty of other subjects not to violate the reasonable duration of the lawyer's working hours, which should, by the way, correlate with the working hours and rest time generally established by labor legislation. And therefore holding court hearings outside the court's working hours, and even more so at night, entails negative consequences for the lawyer, since the length of his working hours actually increases, and therefore the time when he can rest and restore his physical, emotional and mental state, increase his professional level, provide professional legal assistance to other clients, prepare well for other court hearings, which undoubtedly makes it impossible for him to provide effective professional legal assistance.
Instead, an attempt to compel a lawyer to provide professional legal assistance during court hearings outside working hours, and even more so at night, will lead to adverse consequences for the interests of the client, not only from the point of view of the ineffectiveness of such assistance on the part of the lawyer, but also significantly limited physical and intellectual capabilities of the client to receive such assistance at the specified time and to communicate with his lawyer. Thus, in the decision of the European Court of Human Rights dated January 31, 2014 in the case "Tarasov v. Ukraine", it is noted that according to which the right of the accused under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms to effective participation in the judicial review of his case includes not only the right to attend, but also to hear and understand the proceedings. Inherent in the very concept of adversarial proceedings, these rights can be derived from the right of the accused, in particular, the right to "defend oneself in person" specified in paragraph 3 of Article 6 of the Convention. "Effective participation" in this context means that the accused understands the general nature of the proceedings and the extent to which the matter in dispute is important to him, including the extent of any sanctions that may be imposed. He must also be able to explain to the defense his version of events, to point out any testimony he disagrees with, and to state any facts to be adduced in his defense. It is obvious that in non-working hours (including at night) it is impossible to ensure such effective participation.
The above shows that the end of the working hours (working day) in the relevant court determines the end of the lawyer's working hours for providing professional legal assistance to his client in this court, subject to the latter's appropriate consent in view of the dominance of the client's interests. In addition, it can be concluded that the lawyer does not have an obligation to be in the courtroom and other premises of the court during non-working hours of the court (including at night).
This conclusion is also important because the lawyer, regardless of the form of legal practice, actually provides legal assistance in the relevant court within the working hours (day) established in this court, and the lawyer expects that precisely within the working hours and a court session will take place or other actions will be performed, which are connected with the lawyer's stay in court.
This conclusion corresponds to the provisions of Art. 115 of the Criminal Procedure Code of Ukraine, which states that if the relevant action is to be taken in court or in pre-trial investigation bodies, the term ends at the set time of the end of the working day in these institutions (Part 6). That is, procedural activity, among other things, is related to working hours in the specified institutions. And this is not accidental, because the lawyer provides professional legal assistance to his clients, in particular, directly in the court premises.
Thus, leaving the courtroom after the end of working hours (end of the working day) in the relevant court in agreement with the client and after notifying the court about it, and filing a motion to postpone the hearing (break) for another agreed time, does not contain signs of an offense (in including a disciplinary offense), in particular, is not a violation of the order in the courtroom and cannot be qualified as contempt of court, and therefore cannot be the basis for holding the lawyer to any kind of legal responsibility. An exception, taking into account the circumstances of a specific case, may be the consideration by the courts of preventive measures in criminal proceedings and cases related to elections.
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