Saturday, April 25, 2015

Law of Ukraine “On the Bar and Legal Practice”


Date of entry into force:
August 15, 2012

(Abstarct)

The Law determines the legal principles of the organization and functioning of the Bar and of legal practice in Ukraine.

Article 1 of the Law provides definitions of terms used in it. For example, legal practice is independent professional activity of an attorney to defend, represent and provide other types of legal assistance to the client. According to Article 1 of the Law, defense is a type of legal practice that entails ensuring the protection of rights, freedoms and legitimate interests of a suspect, accused, defendant, convict, acquitted person, a person subject to or, in the course of criminal proceedings, considered for compulsory medical treatment or measures of educational influence, a person considered for extradition, or a person brought to administrative liability in the course of proceedings in an administrative case. Representation is a type of legal practice that entails ensuring exercising of the rights and obligations of a client in the course of civil, economic, administrative and constitutional judicial proceedings, in other state bodies, to other natural persons and legal entities; ensuring exercising of the rights and obligations of the complainant in the course of administrative proceedings; and ensuring exercising of the rights and obligations of the injured person, civil plaintiff and civil defendant in the course of criminal proceedings.


According to Article 2 of the Law, the Bar is a non-governmental self-governed institution that ensures professional provision of defense, representation and other types of legal assistance, and independently addresses the organizational and functional issues of the Bar according to the procedure established by the Law. The Bar consists of all Ukrainian attorneys authorized for legal practice. In order to ensure appropriate legal practice, maintain the guarantees of the legal profession, protect the professional rights of attorneys, ensure a high professional level of attorneys, and address the issues of disciplinary liability of attorneys, attorney self-government is in place in Ukraine.

The principles and foundations of legal practice are determined in Article 4 of the Law. Part 2, Article 4 of the Law envisages that a Ukrainian attorney carries out legal practice throughout the entire territory of Ukraine and outside of it, unless otherwise envisaged by an international agreement ratified by the Verkhovna Rada of Ukraine or the legislation of a foreign state.

The Bar is independent from the bodies of state power and local self-government, as well as their officials and civil servants. The state creates the necessary working conditions for the Bar and ensures that the guarantees of the legal practice are maintained (Article 5 of the Law).

According to Article 6 of the Law, a natural person can be an attorney if they have complete higher legal education, can speak the official language, have a minimum of two years experience in the legal field, passed the qualification test, completed probationary training, took the oath of the Ukrainian attorney, and received a certificate authorizing them for legal practice. A person cannot be an attorney if they:
·         have outstanding or unexpunged convictions for grave or especially grave crimes, or crimes of medium gravity punished by deprivation of freedom;
·         are deemed by court to be legally incapable or to have limited legal capacity;
·         were deprived of the right of legal practice – during two years after the resolution to deprive them of the right of legal practice;
·         were dismissed from the post of a judge, prosecutor, investigator, notary, from civil service or from service in the bodies of local self-government because of oath-breaking or corruption-related crimes – during three years after such dismissal.

Requirements on incompatibility are established by Article 7 of the Law.

A person that expresses a wish to become an attorney and satisfies the above requirements has the right to address the local qualification and disciplinary commission of the Bar in the place of their residence with an application requesting to take the qualification test (Article 8 of the Law). The application to take the qualification test shall be considered within thirty days after its receipt. After reviewing the application and the documents attached to it, the qualification and disciplinary commission of the Bar makes the decision to:
·         allow the person to take the qualification test; or
·         refuse the person the qualification test.

According to Article 9 of the Law, the qualification test is the appraisal of a person that expressed a wish to become an attorney. The qualification test entails assessing the applicant’s theoretical and practical knowledge in the field of law, history of the legal profession, and legal ethics. Qualification tests are organized and held by the qualification chamber of the qualification and disciplinary commission of the Bar. Qualification tests are held at least once in three months. Within ten days after taking the qualification test, the applicant is issued a qualification test certificate; the certificate is issued by the qualification and disciplinary commission of the Bar, free of charge. The qualification test certificate is valid within three years after the day of the test. An applicant who failed the qualification test may be allowed to take the test again no earlier than after six months. An applicant who failed the second qualification test may be allowed to take the test again no earlier than after one year.

Article 10 of the Law envisages that probationary training entails checking whether the person who received a qualification test certificate is ready for independent legal practice. Probationary training is carried out during six months, under supervision of an attorney appointed by the regional bar council. A person who holds a valid qualification certificate as of the first day of probationary training can be probationary attorney. The probationary training results are assessed by the regional bar council within thirty days after receiving the report. Based on the assessment of the results, the regional bar council makes a decision to:
·         issue a certificate of legal practice;
·         extend probationary training for a term of one to three months.

Within thirty days after the decision to issue a certificate of legal practice was made by the regional bar council, the person in whose respect the decision was made shall take the oath of a Ukrainian attorney in front of the regional bar council (Article 11 of the Law).

Article 12 of the Law envisages that a person that took the oath of a Ukrainian attorney is issued a certificate of legal practice and a identification card of a Ukrainian attorney; both documents are issued by the regional bar council, free of charge, on the day when the oath is taken. The certificate of legal practice and the identification card of a Ukrainian attorney are valid indefinitely and not restricted by the holder’s age.

An attorney carrying out independent legal practice is a self-employed individual (Article 13 of the Law).

The legal status of a law firm and an attorney association are established by Articles 14 and 15 of the Law.

An attorney can have assistants, who must have complete higher legal education. Assistant attorneys work on the basis of an employment agreement (contract) concluded with an attorney, law firm or an attorney association, while adhering to the requirements of the Law and the labor legislation. An assistant attorney carries out the attorney’s instructions on cases conducted by the attorney, except for the work that is included in the attorney’s procedural powers (rights and obligations). An assistant attorney is forbidden to combine the work done for the attorney with any activity that is incompatible with legal practice (Article 16 of the Law).

According to Article 17 of the Law, the Ukrainian Bar Council ensures keeping of the Single Register of Ukrainian Attorneys for the purposes of collecting, storing, registering and providing reliable information about the number and personal identities of Ukrainian attorneys and the attorneys of foreign states that acquired the right to legal practice in Ukraine according to the Law; as well as on the organizational forms for legal practice chosen by the attorneys. Information is entered into the Single Register of Ukrainian Attorneys by regional bar councils and the Ukrainian Bar Council.
Attorneys have the right to create local, national and international associations according to the procedure established by law (Article 18 of the Law).

According to Article 19 of the Law, the types of legal practice are:
·         providing legal information, consultations and clarification on legal issues, legal support of the work of natural persons and legal entities, bodies of state power, bodies of local self-government, and the state;
·         drawing up applications, complaints, procedural and other documents of legal nature;
·         protecting the rights, freedoms and legitimate interests of suspects, accused, defendants, convicts, acquitted persons, persons subject to or, in the course of criminal proceedings, considered for compulsory medical treatment or measures of educational influence, persons considered for extradition, or persons brought to administrative liability in the course of proceedings in an administrative case;
·         providing legal aid to witnesses in criminal proceedings;
·         representing the interests of the complainant in the course of administrative proceedings, and the rights and obligations of the injured person, civil plaintiff and civil defendant in the course of criminal proceedings;
·         representing the interests of natural persons and legal entities in the course of civil, economic, administrative and constitutional judicial proceedings, as well as in other state bodies, and to other natural persons and legal entities
·         representing the interests of natural persons and legal entities, the state, bodies of state power and bodies of local self-government in foreign and international judicial bodies, unless otherwise established by the legislation of foreign states, constituent documents of international judicial bodies and other international organizations, or international agreements ratified by the Verkhovna Rada of Ukraine;
·         providing legal assistance during the execution and serving of criminal punishments.
An attorney can also carry out other types of legal practice that are not forbidden by law.

The professional rights and obligations of an attorney are determined by Articles 20 and 21 of the Law.

Article 22 of the Law is dedicated to client-attorney secrecy.

The guarantees of legal practice are established by Article 23 of the Law.

According to Article 24 of the Law, an attorney’s request is a written address of an attorney to a body of state power, body of local self-government, their officials and civil servants, enterprises, institutions and organizations of any form of ownership and subordination, or community associations, requesting information or copies of documents required by the attorney to provide legal assistance to the client. Enclosed with the attorney’s request are attorney-certified copies of the certificate of legal practice, warrant or mandate of the body (institution) authorized by law to provide legal assistance free of charge. No other documents may be demanded for inclusion with the attorney’s request. An attorney’s request may not be related to providing consultations and clarifying provisions of the legislation. Information and copies of documents acquired in the course of criminal proceedings are provided to the attorney according to the procedure established by the criminal procedural law. The body of state power, body of local self-government, their officials and civil servants, heads of enterprises, institutions, organizations or community organizations that the attorney’s request was addressed to shall provide appropriate information and copies of documents to the attorney within five working days of receiving the request, except for restricted information and copies of documents containing restricted information. If the attorney’s request concerns provision of a considerable volume of information or requires a search for information among a significant volume of data, the term for satisfying the attorney’s request may be extended up to twenty working days; a written notification of the extension and the reasons for it shall be sent to the attorney no later than five days after the attorney’s request is received.

Legal practice is carried out on the basis of a legal assistance agreement (Article 26 of the Law). Documents that confirm the attorney’s right to provide legal assistance can be:
·         legal assistance agreement;
·         power of attorney;
·         warrant;
·         mandate of the body (institution) authorized by law to provide legal assistance free of charge.

Articles 27-29 of the Law determine:
·         form and contents of a legal assistance agreement;
·         reasons to refuse concluding a legal assistance agreement;
·         procedure for terminating a legal assistance agreement.

A fee is a form of attorney’s compensation for defense, representation and other types of legal assistance provided to a client. The procedure for calculating the amount of the fee (flat rate, hourly rate), reasons to change the amount of the fee, the procedure for its payment, conditions for refund, etc. are determined in the legal assistance agreement. The size of the fee is established with regard to the complexity of the case, the attorney’s qualification and experience, the financial state of the client, and other essential circumstances. The fee must be reasonable and take into account the time spent by the attorney (Article 30 of the Law).

The procedure for suspending and withdrawing the right to legal practice is established by Chapter V of the Law.

According to Article 33 of the Law, disciplinary proceedings against an attorney are carried out by the local qualification and disciplinary commission of the Bar at the address of the attorney’s place of work stated in the Single Register of Ukrainian Attorneys.

The reason for bringing an attorney to disciplinary liability is disciplinary offense (Article 34 of the Law). Disciplinary offence for an attorney is:
·         violating incompatibility requirements;
·         breaking the oath of a Ukrainian attorney;
·         violating the legal ethics rules;
·         disclosing client-attorney secrets or committing acts that lead to its disclosure;
·         failing to fulfill or inappropriately fulfilling professional obligations;
·         violating other obligations of the attorney envisaged by law.
Facts that do not constitute a reason to bring an attorney to disciplinary liability are: a resolution of a court or another body made not in favor of the attorney’s client, withdrawal or amendment of a resolution of a court or another body made in a case where the attorney was providing defense, representation or other types of legal assistance, if no disciplinary offence was committed.

Article 35 of the Law envisages that one of the following disciplinary penalties can be applied to an attorney as a result of a disciplinary offense:
·         warning;
·         suspension of the right to legal practice for a term from one month to one year;
·         for Ukrainian attorneys – withdrawal of the right to legal practice, with subsequent exclusion from the Single Register of Ukrainian Attorneys; for foreign state attorneys – exclusion from the Single Register of Ukrainian Attorneys.

According to Article 37 of the Law, disciplinary proceedings consist of the following stages:
·         checking the information about the attorney’s disciplinary offense;
·         investigating the disciplinary case;
·         making a decision in the disciplinary case.

The principles and tasks of attorney self-government are established in Articles 43 and 44 of the Law.

According to Article 45 of the Law, the National Association of Attorneys of Ukraine is a non-governmental non-commercial professional organization uniting all Ukrainian attorneys and created in order to ensure accomplishment of the tasks of attorney self-government.

Organizational forms of attorney self-government are regional attorney conferences (in the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol), regional bar councils (in the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol), the Ukrainian Bar Council, and the congress of Ukrainian attorneys. Attorney self-government is carried out through the work of regional attorney conferences (in the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol), regional bar councils (in the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol), qualification and disciplinary commissions of the bar (in the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol), the Supreme Qualification and Disciplinary Commission of the Bar, regional attorney review commissions (in the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol), the Supreme Bar Review Commission, the Ukrainian Bar Council, and the congress of Ukrainian attorneys (Article 46 of the Law).

Article 57 of the Law envisages that resolutions of the congress of Ukrainian attorneys and the Ukrainian Bar Council are mandatory for all attorneys. Resolutions of regional attorney conferences and regional bar councils are mandatory for attorneys whose work place addresses are located in the respective reasons and included in the Single Register of the Ukrainian Attorneys. Resolutions of the bodies of attorney self-government become effective on the day of their passing, unless otherwise stated in the resolution.


Chapter VIII of the Law establishes the procedure for legal practice carried out in Ukraine by a foreign state attorney, and determines the specifics of a foreign state attorney status.

The Law also envisages introducing appropriate amendments to the Code of Ukraine on Administrative Offences, the Civil Procedural Code of Ukraine, the Criminal Executive Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Proceedings of Ukraine, the Customs Code of Ukraine, the Criminal Procedural Code of Ukraine, the Laws of Ukraine “On the Supreme Council of Justice”, “On Execution Procedure”, “On State Registration of Legal Entities and Natural Persons – Entrepreneurs”, “On Social Services”, “On Free Civil Legal Aid”, “On Refugees and Persons in Need of Subsidiary Protection or Asylum”; and declaring ineffective the Law of Ukraine “On the Legal Profession” N 2887-XII of December 19, 1992.



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