How Is the Self-Government of Lawyers Destroyed, or why Is the Time for Reform Now?

On September 18, the work of the 20th Congress of Judges of Ukraine begins. In itself, this event is important, because among the issues that the forum will consider are not only purely internal, judicial ones, which concern the judicial corps itself, the re-election of the Council of Judges of Ukraine, consideration of the new edition of the Rules of Judicial Ethics, as well as those that affect the interests of the entire Ukrainian society. Among them is the election of judges of the Constitutional Court of Ukraine and members of the Supreme Council of Justice of Ukraine (SCJU) from judges of Ukraine.

For lawyers, the election of members of the Supreme Council of Justice of Ukraine (SCJU) is especially relevant. The thing is that the Ukrainian bar has its quota in this constitutional institution, which means that two members of the Supreme Council of Justice of Ukraine (SCJU) are elected by the congress of lawyers of Ukraine. And together with other institutions (the President of Ukraine, the Verkhovna Rada of Ukraine, the Congress of Judges of Ukraine, the Congress of Scientists of Ukraine) they form this constitutional body. Membership in the Supreme Council of Justice of Ukraine (SCJU) enables the representatives of legal practice to influence the prosecution of judges, form the judicial corps, and determine the legal policy of the state.

In January 2022, two members of the Supreme Council of Justice of Ukraine (SCJU), namely lawyers Pavlo Hrechkivskyi and Oleksii Malovatskyi, as soon as the question of integrity assessment of the members of the Supreme Council of Justice of Ukraine (SCJU), to put it mildly, left this respectable society. After all, such an evaluation could not end very well for them. The field of legal practice has once again shown not the best qualities, since the appointment of these two members of the Supreme Council of Justice of Ukraine (SCJU) was extremely controversial and raises many questions. Apart from that, it is worth to note that their escape from the evaluation of integrity was humiliating. The prospect of applying for these positions a second time (even contrary to the law, which allows it only once), to maintain the high status of a member of the Supreme Council of Justice of Ukraine (SCJU) and receive significant rewards was too attractive for them. However, what happened can no longer be corrected or reversed. And under such circumstances, the Bar Council of Ukraine (BCU), which itself was formed in a far from democratic way, should have appointed a congress of lawyers within 45 days to elect two new members of the Supreme Council of Justice of Ukraine (SCJU) from the lawyers of Ukraine instead of fugitives.

But if only everything turned out that way!

The congress of lawyers, which turned out not to be necessary for the top management

The Congress of Bars of Ukraine, according to the law, must be held at least once every three years, and is the highest body of the self-government of the lawyers. The last congress of bars of Ukraine took place in February 2019. At the same time, by the way, Mr. Pavlo Hrechkivskyi and Malovatskyi were re-elected as members of the Supreme Council of Justice of Ukraine (SCJU) under rather dubious circumstances. Instead of convening a congress of lawyers of Ukraine, the Bar Council of Ukraine (BCU) in September 2022 decides not to hold a congress and conferences of lawyers in the regions due to the state of war, and to resolve the issue of holding this congress three months after the end of the last one.

This is a rather strange decision. Irresponsible and shameless, adopted by an illegitimate, in my opinion, body. The fact is that the Bar Council of Ukraine (BCU), including its leaders, currently represented by Lidiia Izovitova, Valentyn Hvozdii and Oleksii Kukhar, was formed on June 9, 2017. The five-year term of their powers, as stipulated by the Law "On the Bar and Legal Practice", expired on June 10, 2022.

Shamelessly using the martial law regime, members of the Bar Council of Ukraine (BCU), without having any legal authority to do so, instead of convening a congress of lawyers of Ukraine, illegally legitimized the activities of the regional bar councils and extended their powers for an indefinite period.

This is a very unfortunate incident in the history of Ukrainian legal practice.

The current legislation does not grant the Bar Council of Ukraine (BCU) the authority to extend the term of office either for itself, or even more so for the regional bodies of bar self-government. Not only is the Bar Council of Ukraine (BCU) sabotaging the fulfillment of its duty to convene a congress of lawyers of Ukraine to fulfill its constitutional function, namely the election of two members of the Supreme Council of Justice of Ukraine (SCJU) from the field of legal practice, but in this way, it also distorts the very essence of the self-government of lawyers. The essence of this is that all those who want to become leaders of either regional or national self-government bodies of lawyers are elected directly by lawyers and for a clearly defined term.

The law does not contain any grounds for its extension. When the term expires, we give thanks and elect new leaders. It should be stated that the Illegal granting of powers to self-governing bodies of lawyers, whose term of operation has expired, is, first of all, an undisguised attempt to subordinate these bodies to the Bar Council of Ukraine (BCU), which should not be the case. And secondly, this development of events infuriates lawyers, who are deprived of the right to elect their authorized representatives for a new term.

Why is the self-government of lawyers destroyed?

That's right, it has now been destroyed, because how else can you call the situation when, contrary to the law and the will of lawyers, the illegitimate the Bar Council of Ukraine (BCU) (BCU), headed by Lidiia Izovitova, the Higher Qualification and Disciplinary Commission of the Bar, headed by Serhii Vylkov, are operating in the state. The higher audit commission of the bar headed by Maksym Boldin, all regional councils of advocates, regional qualification and disciplinary commissions of the bar and audit commissions? These state structures have long since exhausted their term of office, and I will be honest, it becomes scary that the heads of these "bodies", like their members, hold meetings, make some decisions for themselves, stamp certificates of the right to practice law, while not paying attention to the law, which limited their powers to a period of five years.

This happens because all the heads of these bodies have good positions, besides, most of them receive considerable remuneration for their "activity". The term of stay in these positions is counted in their insurance experience, and in this way a body of gray directors was formed in the Ukrainian field of legal practice. All this happened through an initiative made by Portnov. The current situation is created by the Law of Ukraine " On the Bar and Legal Practice". This law contains, in addition to many other important points, a norm that distorts the entire essence of self-government by lawyers, destroys what lawyers have fought for centuries, namely the right to choose the bodies of self-government of lawyers, to solve their internal needs. Now, in order to hold meetings and conferences of lawyers in the regions, the permission of the Bar Council of Ukraine (BCU) is required. The same body must approve, "give permission from higher authorities", so to speak, "from above" the regulations of the "regional conference" of lawyers. Lawyers cannot meet without such permission.

In no other legal practice in the world is there such a disorder, when in order to hold a meeting of its members in Lviv, Kyiv or Lutsk, the consent of their lordships of the leadership of the Bar Council of Ukraine (BCU) is required. I am familiar with legal practice for more than 51 years. I found another Soviet legal practice, and forgive me, I have never come across such a stupid practice as asking Kyiv, Mrs. Lidiia Izovitova, to agree to hold a meeting of lawyers in Lutsk. The current leadership of the Bar Council of Ukraine (BCU) seized this opportunity with great enthusiasm and is using it, flouting the whole essence of legal self-government.

In practice, this has led to the fact that any attempts by the regions to organize a meeting of lawyers without the approval of the Bar Council of Ukraine (BCU) are severely punished, and their decisions are annulled. Today in Ukraine, in three regions (Lviv, Odesa, Cherkasy), the Bar Councils of Ukraine (BCU) do not have authorized heads at all, instead there are acting heads of the councils. And the city of Kyiv, Kyiv and Sumy regions do not even have their own representatives in the Bar Council of Ukraine (BCU) precisely because the meetings were held in them without the consent of the BCU. For the same reasons, the lawyers of the city of Kyiv do not have their representatives in the Higher Qualification and Disciplinary Commission of the Bar.

It is not possible to evaluate such abuse by the Bar Council of Ukraine (BCU) of the self-government of the bar as destroying it, turning it into a parody, and making fun of it. Currently, all these "bodies" and their leaders have put themselves above the law and legal practice, they ignore both the prescriptions of "their" law and the traditions of legal practice, which it has lived by for centuries.

The Bar Council of Ukraine (BCU) has created eighteen different departments and management offices in its secretariat, imitating the "Ministry of Legal Practice" at the expense of lawyers' contributions. Although the law states that the National Bar Association, that is, the institution that Portnov developed, is a non-profit organization, and now everything it publishes is paid. They pay for taking exams, issuing certificates, annual fees, filing complaints against lawyers, internships, seminars, and all these funds are collected from lawyers, and not only from them, but they are also sanctified by the need for the functioning of lawyer self-government, the currently illegitimate Bar Council of Ukraine (BCU), the Higher Qualification — the disciplinary commission of the legal practice and all their regional minorities.

We are witnesses and, unfortunately, participants in the complete destruction of the self-government of lawyers in Ukraine, because we are silent about the area where we have a problem, and we should declare it out loud. This is what essentially destroys legal practice, demoralizes it, and distorts the essence of self-governance by lawyers. Three persons are to blame for this: Lidia Izovitova, Valentyn Hvozdii and Oleksii Kukhar as heads of the Bar Council of Ukraine (BCU). Of course, all members of the Bar Council of Ukraine (BCU) must also bear personal responsibility for the abuse of self-governance by lawyers, and not only moral.

I did not find in any of the protocols of the Bar Council of Ukraine (BCU) a protest by any of its members or at least a hint that it is enough to humiliate the self-government of the lawyers. In addition, I did not find in these protocols the idea that the requirements of the law on the election of its legitimate bodies should be fulfilled, after all, the requirements of the Constitution of Ukraine regarding the election of members of the Supreme Council of Justice of Ukraine (SCJU) should be fulfilled, focusing on lawyers, and not on Ms. Lidia Izovitova and those who are with her. The holding of the congress of lawyers should not depend on the whims of the heads of the Bar Council of Ukraine (BCU) and the system of self-government of the lawyers that was distorted by them. The current state of this self-government is a shame and disgrace for the entire field of legal practice.

In this way, it can be said that a legal practice that has obeyed someone is no longer a legal practice, but a prostitute, and it should not be like that. It is very unfortunate but justifying the reluctance to hold a congress of lawyers and justifying such a shameful state, the Bar Council of Ukraine (BCU) refers to the opinion of the President of the Council of Legal and Bar Societies of Europe, Mark Ellis, and the Executive Director of the Association of Lawyers, Max Hill, who allegedly noted that changing the leadership of legal practice in times of war does not benefit the state. I don't know, maybe Mr. Hill and Mr. Ellis said something like this while drinking a cup of coffee, but the key in this matter is the representation by the heads of the Bar Council of Ukraine (BCU) of themselves as "leaders of legal practice."

It turns out that it is possible to change the commander-in-chief of the army of a belligerent country, ministers, heads of the Supreme Council of Justice of Ukraine (SCJU) in times of war. But what concerns the change from the positions of the heads of legal self-government bodies — this cannot be done, because these persons are already very accustomed to their positions, they actually occupied legal self-government. With such an approach, all that remains now is to declare the current Bar Council of Ukraine (BCU) for life, and to declare the thrones of its leaders also for life. But will the lawyers agree to such a defensive line? I doubt it.

Thus, if the situation described in the article is currently not a priority for the policy of the new Minister of Justice Olha Stefanishyna, then who but the lawyers themselves should explain to the state that this cannot continue any longer? That the state, in the name of justice and prospects for Ukraine's accession to the European Union, should react and regulate the situation in the legal sphere for the benefit of citizens and justice in moments of crisis. Apart from that, the statesmen should change the laws that made this state of affairs in the legal practice possible.