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09.02.2022

Violation by a lawyer of the basic principles of lawyer ethics as a basis for disciplinary action

The Higher School of Advocacy held an event on professional development, at which the lecturer was Asya Tarasova, a lawyer, a member of the Higher Qualification and Disciplinary Commission of the Bar, a member of the Committee on Advocacy Ethics of NAAU. The topic of the event: "Violation by a lawyer of the basic principles of lawyer ethics as a basis for bringing to disciplinary responsibility."

The lecturer spoke about the basic principles of lawyer ethics, conflict of interests, general principles of applying disciplinary responsibility for violation of PAE.
The Law of Ukraine "On Advocacy and Advocacy" provides for compliance with the Rules of Advocate Ethics as one of the main professional duties of a lawyer.
The rules serve as a mandatory system of reference points for balancing and practical coordination of one's multifaceted, sometimes contradictory rights and obligations in accordance with the status, main tasks of the legal profession and the principles of its activity, defined by the Constitution, the Law of Ukraine "On Advocacy and Advocacy" and others legislative acts also establish a unified system of criteria for evaluating the ethical aspects of a lawyer
In accordance with part 1 of Article 33 of the Law of Ukraine "On Advocacy and Advocacy", a lawyer may be held disciplinary in accordance with disciplinary proceedings on the grounds provided for by the Law.
Article 34 "On Advocacy and Advocacy" defines the types of disciplinary offenses of a lawyer, among which is a violation of the rules of lawyer ethics by a lawyer.
And the reason for bringing a lawyer to disciplinary responsibility is his commission of a disciplinary offense.
There is a growing trend that about 70% of the parties have their own representatives. Sometimes the number of representatives reaches 4 people.
In accordance with Part 1 of Article 38 of the Law "On Advocacy and Advocacy", the complainant applies to the Qualification and Disciplinary Commission of the Bar at the address of the lawyer's place of work, which is located in the ЕРАУ.
A lawyer's receipt of a negative decision on a case cannot be the basis for filing a complaint.
The burden of proof of the arguments given in the complaint rests with the complainant.
Part 2 of Article 38 of the Law "On Advocacy and Advocacy" provides an opportunity for a member of the disciplinary chamber, who conducts information verification, to submit requests to institutions and organizations to obtain certain information.
The member of the disciplinary chamber, having received the complaint with all attachments, sends it to the lawyer and offers to provide his explanations.
With regard to the principle of lawyer confidentiality, the time limits for bringing a lawyer to disciplinary responsibility do not apply.
General principles of applying disciplinary responsibility for violation of PAE:
  • disciplinary sanctions only for culpable violations
  • a lawyer is considered innocent of committing a disciplinary offense and cannot be subject to disciplinary sanctions until his guilt is proven in a legal manner and established by a decision of the KDKA or the VKDKA
  • the lawyer is not obliged to prove his innocence in committing a disciplinary offense
  • the lawyer's accusations cannot be based on assumptions. All doubts regarding the proof of the lawyer's guilt are interpreted in his favor.
A lawyer may be subject to disciplinary liability within a year from the date of committing a disciplinary offense.
Basic principles of lawyer ethics
1. Independence and freedom of a lawyer in the practice of law
  • Lawyer activity is carried out on the principles of rule of law, legality, independence, confidentiality and avoidance of conflict of interests.
  • The bar is independent of state authorities, local self-government bodies, their officials and officials.
2. Observance of legality
  • In his professional activity, a lawyer has no right to resort to means and methods that contradict the current legislation on the PAE.
  • A lawyer may not give advice to a client knowingly aimed at facilitating offenses, or otherwise intentionally facilitate their commission by his client or other persons.
3. Priority of the client's interests
  • Independence of the lawyer from the client.
  • Predominance of the client's interests within the limits of compliance with the principle of legality.
  • Efforts in pre-trial and out-of-court procedures to settle disputes between clients and other persons.
  • Respect for the client's freedom of choice of counsel and non-interference.
4. Inadmissibility of conflict of interests
  • Conflict of interests is a contradiction between the lawyer's personal interests and his professional rights and obligations to the client, the presence of which can affect the objectivity or impartiality of the lawyer in the performance of his professional duties, as well as the performance or non-performance of actions by him during the performance lawyer's activity.
In the event of a conflict of interests, the rules of lawyer ethics also provide for certain actions that lawyers must take at certain stages.
5. Confidentiality as a subject of lawyer's ethics is a necessary and the most important prerequisite for a trust relationship between a lawyer and a client.
  • The circle of persons to whom the lawyer's secret applies is a lawyer, a lawyer's office, a lawyer's association, a lawyer's assistant, an intern and another person who is in labor relations with a lawyer (bureau, association) in connection with the provision of professional legal assistance or a person's appeal for legal assistance.
  • The lawyer's duty to inform and warn about compliance with the principle of confidentiality
The lawyer is obliged to inform the persons who have access to the lawyer's secret and to warn them about the impossibility of disseminating the information. Such a statement must be made in writing.
Lawyer's secret is:
  • the fact of a person applying for legal assistance
  • any information that became known in connection with the provision of professional legal (legal) assistance or a person's request for legal assistance
  • the content of any communication, correspondence and other communications (including using means of communication)
  • the content of advice, consultations, clarifications, documents, information, materials, things, information, prepared, collected, received or received from the client within the framework of professional legal (legal) assistance.
The lawyer is not responsible for the refusal of any persons, bodies and institutions to disclose the lawyer's secret and to provide access to it with the permission of the client or the person who applied for professional (legal) help to disclose the lawyer's secret.
In this case, the lawyer may, but is not obliged to disclose the lawyer's secret.
6. Competence and good faith
  • High level of professional training, professional development
  • Thorough knowledge of current legislation and the practice of its application
  • Mastering the tactics, methods and techniques of advocacy, public speaking
Careful preparation of documents and high requirements for assistants, interns and technical staff are recommended.
Why? Because a large number of lawyers work in such a way that their assistants prepare documents for them.
8. Respect for advocacy
9. Honesty and good reputation
10. Requirements for advertising advocacy activities
Advertising materials about advocacy (and any other materials such as forms, business cards, etc.)
1. May not contain:
  • evaluation characteristics relative to the lawyer
  • criticism by lawyers of other lawyers
  • a statement about the probability of successful execution of orders and other statements that may cause unreasonable hopes among clients
  • instructions that can form the idea that the activity of this particular lawyer is characterized by features and indicators inherent, in reality, to advocacy as such
2. Must be objective, reliable, meet aesthetic requirements.
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