The Position of the UAA on the Concept of Reforming the Bar in Ukraine

The full-scale armed aggression against Ukraine has led to unprecedented challenges in all spheres of state and public life, including the Bar.

As the country's legal system is under constant pressure and the society requires protection of rights and freedoms, the role of the Bar as a pillar of the rule of law is becoming critically important.

In addition, this leads to an urgent need for a comprehensive and well-reasoned reform of the legal profession, aimed not only at adapting to the current realities of martial law, but also at preparation for the challenges of post-war reconstruction and Ukraine's European integration aspirations in the future.

It is important to emphasise that any transformations in the Bar should be carried out exclusively by the bodies that have relevant powers, thereby ensuring the legitimacy and legal validity of the reform processes.

Moreover, it is unethical to discuss reforms without participation of the representatives of the bar self-government bodies in Ukraine  (BGBs), regardless of the attitude to the results of their work; their involvement in the dialogue is mandatory for achieving constructive solutions.

Finally, all discussions on reforms should be held in an open format, with maximum publicity and transparency, in order to prevent any closed and non-transparent discussions and help to build public trust in the change process. Achieving these goals is only possible with a systematic approach, in-depth arguments for each step, consideration of national peculiarities and best international practices, as well as open dialogue and joint efforts of all interested parties.

The need for systemic reforms in the Bar is obvious and is driven by several factors that have been exacerbated by the hostilities. The modern Bar is experiencing unprecedented negative impact. Firstly, it is the unjustified pressure on members of the Bar via procedural methods, in particular, the delivery of summonses to military commissariats while performing their official duties, which creates serious obstacles to the practice of legal profession.

This approach does not violates the basic guarantees of the independence of the attorney only, but also can actually paralyse the process of providing legal assistance, since in many cases attorneys work with the clients’ documents in original that contain personal information (passports, certificates, title documents).

Mobilisation of attorneys without appropriate legal grounds in such situations encroaches not only on the personal rights of the attorney, but also on the key right of citizens to receive professional legal assistance guaranteed by the Constitution of Ukraine.

Secondly, an extremely threatening trend is the opening of criminal cases against attorneys that deliberately covered in the media with accusatory overtones. Even if such cases turn out to be groundless, the very fact of their initiation has serious negative consequences: it means loss of reputation, psychological pressure and restrictions on the ability to perform their professional functions effectively.

This undermines not only the credibility of a particular attorney, but also the authority of the Bar as a system in general in the eyes of the public and international partners.

Thus, in view of the above, it becomes clear that there is an urgent need for a fundamental review and restructuring of the relationship between the State and the Bar, as well as the active participation of the latter in the transformation processes.

In order to ensure the effective functioning of the Bar in Ukraine during the war time and its further development in the post-war period, it is necessary to focus on the following key areas:

Introduction and strengthening of liability for violation of the rights and guarantees of attorneys.

Justification: Successful implementation of an effective mechanism of liability for violation of professional rights and guarantees to attorneys in their activities is a fundamental basis for the independence of the Bar and a key component of fair trial. An attorney who is forced to face pressure, restrictions on his or her activities or unjustified prosecution loses the ability to perform his or her function as a defender as provided by the Constitution of Ukraine.

If there are no effective algorithms for bringing perpetrators (including officials, law enforcement officers, judges and others) to justice, the guarantees of independence the member of the Bar will remain formal and meaningless. In turn, this could potentially lead to an atmosphere of impunity, which is unacceptable for a state governed by the rule of law.

The existence of such strict and clear rules of liability will help to increase the level of protection of attorneys, guarantee them the ability to perform their professional duties without hindrance, and contribute to strengthening public confidence in the justice system in general.

This is also a significant step towards integration with European standards, which stipulate that guarantees of protection of the professional rights of attorneys are a fundamental principle.

The introduction of such liability in Ukraine under Martial Law is of particular importance. In many cases, attorneys work in high-risk areas, face unfounded accusations or interference with their activities by state bodies and officials.

Ensuring their protection becomes critical for the continuous provision of legal assistance to the people affected by the aggression. No less important is the effective collection of evidence and investigation of war crimes, in which the role of an attorney cannot be overestimated.

The introduction of an effective mechanism of legal liability for the harassment of attorneys is not only the subject of their professional security, but it is a national stability and legal protection of citizens.

Strengthening institutional guarantees of independence and protection of professional rights of attorenys.

Justification. The independence of the legal profession is the main idea of every democratic state governed by the rule of law, and it is a key condition for ensuring effective justice.

At the same time, independence is not a privilege for an attorney, but an extremely important guarantee for every citizen to receive qualified legal assistance and a fair trial.

Without real, but not just formal, guarantees protecting against interference, obstruction and unlawful pressure from any government officials, an attorney cannot fully perform his or her professional function, i.e., protect the rights, freedoms and legitimate interests. Under the Martial Law in Ukraine, the actuality of this problem is growing rapidly.

The increasing threats of abuse and pressure outside the legal process can be justified by “extraordinary circumstances”, despite the fact that they destroy the foundations of the rule of law. Shortcomings in the protection of attorneys create an atmosphere of fear and uncertainty that negatively affects their ability to defend the interests of their clients independently and without hesitation, in particular in cases of war crimes, conflicts of interest, and the protection of the rights of military and civilians.

Strengthening liability for encroachment on the attorney's guarantees should become a mandatory fundamental element of the reform, that can result not only in the increase of fines for such offenses in the criminal, administrative codes and other regulatory acts, but also in the development of clear, prompt and open procedures for responding to such violations.

It is necessary to create an effective mechanism that will allow the attorney to report violations of his or her rights quickly and receive effective protection, and the perpetrators will unconditionally be brought to justice.

This includes improving the procedure for reviewing allegations of offenses against attorneys, establishing adequate response time limits and eliminating the possibility of delaying investigations.

The goal is to build a legal environment in which every attorney feels protected by the state, which, in turn, will strengthen the Bar system itself as a reliable pillar of justice and contribute to the growth of public confidence in the entire legal system.

Improving access to the profession and continuous professional development.

Justification. New challenges facing the legal profession are constantly growing due to the dynamic changes in legislation, the requirements of international law and the need to rebuild Ukraine in the future.

Reforming access to the profession should guarantee an adequate level of training for new attorneys. The system of professional development should ensure that the knowledge and skills of attorneys already practicing law are constantly updated.

At the same time, it is urgent to take into account the best international practices. For example, the British experience of training barristers and solicitors, as well as the functioning of their professional organizations, demonstrates effective approaches to ensuring high quality legal services and control mechanisms. This applies to the systems of internships, examinations and continuing professional education.

In the context of martial law, courses on international humanitarian law, protection of the rights of military personnel, documentation of war crimes, and legal support for reconstruction projects are particularly important.

The importance of this reform in today's Ukrainian realities is undeniable. Guaranteed access to the profession promotes the influx of highly qualified, morally and ethically conscientious professionals who are ready to act effectively in the face of constant change and extraordinary challenges. Continuous professional development ensures that attorneys remain competent and prepared for new legal challenges, including the specifics of wartime.

For example, an understanding of the intricacies of international humanitarian law is crucial for protecting the rights of war victims and recording war crimes, while awareness of the legal aspects of post-war reconstruction is essential for attracting investment and rebuilding infrastructure.

The introduction of innovative training programs, the use of modern approaches, and the extensive use of international experience will enable the Ukrainian legal profession to meet the highest international standards, which is the basis for restoring trust in the country's legal system and its successful integration into the European legal space.

Make the disciplinary process open and impartial.

Justification. An effective system of self-regulation of the Bar requires clear and fair disciplinary mechanisms. At present there is a need to improve the process of disciplinary proceedings in order to avoid any doubts about its objectivity and transparency.

This implies the formation of an exhaustive and unambiguous list of grounds for filing a complaint against an attorney, as well as a clear definition of the list of violations that may lead to disciplinary liability. Such detailing will eliminate the possibility of abuse, increase trust among attorneys and the public, and ensure predictability of sanctions for violations of professional ethics.

Improvement of disciplinary proceedings against attorneys is of particular importance in wartime and the subsequent post-war reconstruction of Ukraine.

During this period, the number of complex cases related to war crimes, compensation for damages, protection of the interests of military personnel and other, including vulnerable groups of the population, is increasing, requiring impeccable ethics and professional skills of attorneys. Uncertainty in disciplinary procedures can lead to biased decisions, undermine faith in Bar self-governance, and make it difficult to protect the rights of citizens effectively in difficult life situations.

An open and fair mechanism for holding accountable for misconduct will ensure high standards of professional activity, which is crucial for preserving the rule of law, building public trust in the entire legal system, and protecting the professional rights and guarantees of lawyers.

Decentralization of power, enhancing the role of regional bar self-government centres and staff renewal.

Justification: The effectiveness of the bar system depends heavily on its ability to respond quickly to the unique problems and needs that arise at the local level. That is why the decentralization of powers and a significant increase in the resources of Bar councils at the regional level is a critical step in the reform.

This approach will allow local Bar self-government bodies to be closer to the attorneys in their daily professional activities, to understand the specifics of each region more deeply and to provide more targeted support. In the context of the martial law in Ukraine and the country’s future reconstruction, the role of the regions is crucial: for example, territorial communities that were destroyed face specific legal problems.

These include documenting war crimes, ensuring the rights of displaced persons, returning property and compensation for damages, and legal support for infrastructure restoration.

Empowering regional Bar self-government centres with more powers and resources will allow them to respond more quickly to these special needs, launch local projects, and establish effective cooperation with local governments and courts. This will also contribute to a more flexible and adaptable legal aid system.

Along with decentralization, the renewal of the leadership of the Bar self-government bodies is of strategic importance. Involvement of new, energetic and progressive leaders who are ready to take responsibility, implement innovations and protect the interests of the Bar is crucial for the progressive development of the Bar.

The staff renewal in the bar self-government system at all levels will ensure the implementation of up-to-date methods of its management, which is key for the adaptation of the Bar to the challenges and processes of post-war reconstruction of Ukraine.

Increasing the influence of attorneys' interests at all levels through renewed staff ready to take decisive steps and communicate effectively will have a positive impact on the growth of the authority of self-government bodies.

This, in turn, will strengthen the trust of the public and international partners in the entire justice system, which is a prerequisite for the successful restoration of the state and its European integration course.

The renewed human resource will allow the Bar to play a leading role in reforms and at the same time guarantee the protection of human rights in Ukraine.

Coordination of the Bar reform with the transformation of the judicial system.

Justification: The legal profession and the judiciary are two fundamental elements of justice, and their effective interaction is inseparable. The inefficiency of one of the components inevitably affects the quality of the other, while at the same time the level of trust in justice in general is decreasing. Reform of the legal profession cannot exist in isolation; it requires close coordination and coherence with the transformation of the judiciary.

Attorneys who provide qualified legal assistance are key participants in the judicial process, ensure the observance of procedural rights and guarantees, as well as the principle of competition.

In the context of martial law in Ukraine, when legal challenges are becoming more acute and the judiciary is operating in an extreme mode, coordinated cooperation between attorneys and judges is of particular importance.

New categories of cases are emerging: war crimes, compensation for damages, protection of the rights of the military and internally displaced persons, which requires maximum efficiency and cooperation from representatives of both systems.

In this regard, the exchange of practical experience, the formation of a common vision of reforms and the development of regulations in these areas are extremely important.

This will prevent duplication of efforts, inconsistencies in legislation and ensure a systematic approach to the development of the rule of law. Only through coordinated and concerted efforts to improve the legal profession as well as the judiciary Ukraine will be able to create a stable and effective legal framework that meets European standards and contributes to the country's successful recovery from the war.

Reforming the Ukrainian Bar is an integral part of the overall process of strengthening the rule of law and the country's European integration. In the context of martial law and the upcoming reconstruction of the country, it is extremely important to create a system of the Bar that will not only be an effective defender of the rights and freedoms of citizens, but also a reliable ally of the state in building a just society. These goals can only be achieved through a systematic approach, in-depth reasoning of each step, consideration of national peculiarities and best international practices, as well as open dialogue and joint efforts of all stakeholders.

Successful reform of the Bar system is impossible without the active, constructive and permanent support of public associations of attorneys, such as the Ukrainian National Bar Association.

The function of the latter as a platform for uniting opinions, forming common positions and defending the interests of a broad representation of attorneys is extremely important.

Taking into account the views of the public sector and ensuring their involvement at all stages of the development and implementation of reforms is a guarantee of transparency, accountability and, most importantly, the effectiveness of future changes.

This inclusive path will guarantee the establishment of a strong, independent and responsible Bar system capable of effectively fulfilling its constitutional role in a state governed by the rule of law.