Well- established demand
"In Ukraine, the huge need for attorneys has been artificially created," says Oleg Malinevskiy, an EQUITY partner.
What impact on the legal services market has been made by the introduction of an exclusive right of attorneys to provide judicial representation?
There was a dramatic intervention of the bar into the legal services market for business. During some period of time those market segments coexisted: it relates to "criminal" attorneys, who weremore identified with the classical bar, and lawyers specializing mainly in pro-Western transactional practices. Now, there there has taken place a significant convergence of practices: virtually any transaction or loan can be the subject of a court consideration, and it is possible that with the criminal element. Therefore, many companies with strong corporate practices are forced to develop dispute resolution, to study what the bar is and how to work with it and how to co-exist.
With the introduction of the exclusive right of attorneys to the judicial representation, the so-called monopoly of the bar, there has been artificially created a huge need for attorneys. This, in turn, created difficulties in admition to the profession. However, I would not say that it is difficult to pass the bar exam. The problem is another – how to get to the exam. In some regions, queues have been created for more than a year in advance.
Perhaps, understanding our realities, the state must concede to the business and provide "one stop shop" access to the bar, including an internship and an examination, which is suitable to high-class legal advisers who have significant experience in judicial representation and who have not been admitted to the bar due to various reasons. Probably, this course of action on the part of the state would correspond to the way in which the profession of a litigator develops in Ukraine.
Are lawyers, or more precisely - law firms, ready to the increase in the volume of work?
The question is complex, and one should not unequivocally speak about any one-sided influence and linear dependence. There has taken placea significant increase in demand for services of attorneys, but this is not to say that the demand is qualified – in fact, it is more technical. If we are talking about top-market segments, there are, indeed, no more of complex cases, and the market structure will not change significantly. The work has become more abundant in the middle and lower segments. Probably, some part of this work will be assumed by large law firms, but only in terms of maintaining loyalty to the established customers and resolving their technical litigation issues. In the context of the personnel, this entails a certain increase in the demand for attorneys, but during a year or two the situation will get balanced.
Even reverse situation is possible - an excess of attorneys. One should not forget that simultaneously there have been launched the processes that affect the number of court cases. By the way, decrease in the number of court cases is a global trend. The development of ADR methods, rising costs of the process, unification of judicial practice will in the long run contribute to drcrease in the number of recourses to courts.
Has the remuneration policy changed in the market?
At this time period there is a tendency to increase the size of attorney’s fees. With increasing demand, the price of the offer has also risen - the laws of the market. But again, we do not know what will happen in two or three years, when the agiotage will abate and the results of the judicial reform will appear in the form of loghter work burden on the courts.
What is happening to the success fee given the position of the Supreme Court (SC)?
Let me disagree with the position of the SC that has cast doubt on the legality of the success fee. Indeed, there is no direct ban in the law and we must take into account our market realities. There are plenty of examples where a project can not be implemented without the success fee. A classic example is cooperation with the Deposit Guarantee Fund for individuals. Largerly, the non-use of the success fee creates barriers to access to justice where the client does not have means to cover court costs. It is the success fee that gives clients the opportunity to get high-quality, most effective legal assistance. This should be a legitimate option that a client has the right to choose with the consent of the attorney.
To what extent are the existing rules of legal ethics adapted to the legal services market?
Questions of professional ethics can be viewed from two sides: normative and practical. Normatively, everything is regulated quite well here. Legal ethics rules provide answers to many questions that may arise in the relationship between attorneys from one side and clients, third parties, and government agencies from the other. The latest version of the Rules regulates even the behavior of the lawyer in social networks.
On the subject of the practical component, the market is quite turbulent, the fight for clients is fierce and not always civilized. The existing instruments of disciplinary liability of lawyers do not always allow for effective response to violations. Moreover, lawyers are in no hurry to take garbage out of the house, there is a certain internal solidarity and a tendency to resolve conflicts without subjecting them to publicity.
Despite all the social significance of the bar, for many it is primarily a business. Unfortunately, the rules of doing business, the rules applied by clients are often applicable to law firms.
Can the new procedural law be called pro-bar?
Since they implement the constitutional norm on the exclusive right to judicial representation, the new codes can certainly be considered absolutely pro-bar. On the other hand, the rights and guarantees of the legal practice have not undergone significant changes. There is no sense to speak about a revolution in this matter. There were also certain "pitfalls". For example, the attorney’s access to the proceedings - in spite of a clear list of documents that an attorney must provide, some judges in this matter show sophistication worth better use. This is a formalism that contradicts the goals of the introduction of the monopoly of the bar: not only the provision of high qualitaty legal aid, but also the imposition of the duty of proof of some formal points on the bar.
On the other hand, attorneys have no more opportunity to manipulate their procedural status, they can no longer act as a "agent under PoA". Accordingly, any procedural action of an attorney is under the control of the disciplinary authorities.
In general, the introduction of the monopoly can be seen as a pro-bar step , but this is not to say that those changes are pro-bar. However, it seems that there was no such goal.
The professional community is actively discussing the initiatives regarding changes to the specialized law on the bar and legal practice. What is your position?
By its definition a reform must bring about something fundamentally new, and must not be limited to solving some kind of private problems of the bar.
In my opinion, the first stage of the reform of the bar was the self-government, which we have already received, the second stage - the monopoly, we have also received it. The third stage could be getting a qualitatively new status of an attorney in the criminal process and certain procedural instruments that do not make attorneys equal to the prosecution side though extend their possibilities in protection of interests of clients. But this is possible within the framework of the reform of the criminal process.
It is very likely that the proposed legislation for the reform of the lawyers now proposed to the authors of the relevant legislative initiative is more necessary for the formal completion of the judicial reform and the pre-term resetting of all the organs of the advocate's self-government.Most of the novelties that are positive and necessary to attorneys and that are at the forefront of the PR campaign can be implemented by making minimal changes to the existing law and the Rules of Legal Ethics without threat of escalation of another round of confrontation within the bar community.