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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