"The first place of the Bar reform should be occupied by the interests of those the lawyers are called to defend"

The Bar monopoly - the market feels the changes that led to this phenomenon. How would you say such a significant change led us to the development or stagnation of the institution?

We are now talking not just about a separate phenomenon, but about the continuous intervention that took place as a result of the launch of this process in business, and not just in the national business but also in the legal business, because by its function the monopoly has brought the classical advocacy closer to the market of legal services. There is significant increase in the demand for legal services and, in fact, demand for attorneys themselves. The boom of open vacancies and the sophisticated search for "their" candidates in many law firms is still underway. We are not sure whether this is a good or a bad indicator, but I still can not agree with the very concept of monopoly.

On the one hand, if we are talking about professional services in relation to judicial representation, the monopoly is unquestionably positive both for the judiciary (better quality documents and evidence) and for justice as a whole (better quality of court decisions, more speedy consideration of cases, etc.) However, it should not be forgotten that both the bar and the court, as well as the prosecutor's office, are institutions that were created to protect rights of individuals and legal entities. Therefore, the main thing for any reform and monopoly is not the institute of the Bar and interests of the court, but the interests of those social institutions that the Bar is called to defend. Here there are questions.

Here is an example. For some reason, in this jurisdiction a legal entity may be represented by its officials, who often have neither procedural experience nor legal education. At the same time, there is a problem with representation of such a legal entity by an in-house lawyer who has worked at the enterprise for about twenty years, successfully represents business interests in courts and understands all the issues of a particular industry. For the time being, it is just not possible, and it seems to me that there is some inconsistency in this. 

My subjective opinion - the mandatory monopoly at the level of the court of first instance should not have been introduced. Everyone must have the right to come to court and explain their position, personally protect their interests. If, however, it is not possible to achieve justice, there should be possibility to involve a high-quality court counsel and to appeal a court decision to an appellate or cassation instance.

But what about the principle of procedural economy?

It may suffer somewhat in the context of time spent on litigation. But if we are talking about access to justice (and this is the basic principle that the European Court of Human Rights often emphasizes), the introduction of the exclusive right of attorneys to represent in the first instance court seems to me to be in violation of the principle. On the other hand, at the stages of appeal and cassation there must be provided one-hundred percent professional representation, but the possibility of representation of a legal entity by its governing bodies violates this concept. If we retain corporate representation, it should be extended to labor relations, but then the very essence of the  monopoly of attorneys is lost.

What is your attitude to the American model of single admission to the profession? Can the problem of in-house lawyers be solved that way?

Speaking about foreign experience, we must analyze, rather than copy this or that model. We already have our own experience of more than 25 years of the Ukrainian Bar. In essence, the first stage of the reform (and this should not be forgotten) was the creation of a bar self-governance. It seems to me that we underestimate what happened in 2012. Earlier, the status of the Higher Qualification Commission for Advocacy (HQCA) and the Qualification-Disciplinary Commission for Advocacy (QDCA) was unclear. As you might remember, they included both judges and representatives of state bodies. It might be correct to some extent, because we are talking about the fact that the state authorized the bar to perform the constitutional function - to provide legal aid. Why do I talk about this? Because even now the bar has tools to determine who may be admitted to the profession and what criteria and qualification requirements must be met. And these processes must go on in the evolutionary way, without the need to copy the experience of the US or other states.

In our country the approach is rather liberal. I can not say that it is so hard to pass the bar exam. The difficulty is not in this, it is in how to get to the exam. In some regions, the queue has been formed for more than a year. Personally, I also have questions about the exam - who is asking and what is he or she asking. It may well be that those who give the exam may have insufficient knowledge of highly specialized issues, such as environmental law. There is a logical question: must a lawyer show for the second time his level of knowledge in a field in which he does not intend to practice. Do not forget that the pre-requisite for admission to the exam is higher legal education. That is, once the candidate has already passed the exam and confirmed his knowledge in the relevant field of law.

Our system of higher education is the subject matter of a separate big discussion.

I would ask the question not about the quality of legal education, but about the quality of the test and knowledge verification system. It is entirely justified to introduce external independent assessment of knowledge at high school and during admission to master's programs, nor do I see the need to review the results of university examinations, during the internship required for obtaining the status of an attorney, people make choice of specialization, and why should one ask them about something else. For the lawyer, the main thing is not the knowledge of the laws, but the understanding of their logic, the ability to apply legal norms, and understanding of life situations. Questions of admission to the profession can be considered differently: for example, to provide maximum loyal access and, possibly, even to reduce existing filters, at least for the transitional period. This would eliminate the agiotage. At the same time, all individual cases can be resolved at the level of the disciplinary commissions. If we go along the path of qualifying admission, many questions arise to those who give the exam. Understanding our realities, the state must go towards business and provide access to the bar on a one-stop basis, including internships and examinations. Probably, it would be consistent with the way of development of the profession of the litigator in Ukraine.

What tasks should the bar reform aim to perform?

For the state, the bar is not a self-sufficient institution. There is no need to reform the bar for the sake of the bar. The bar must be reformed in the complex, ensuring an investment climate, access to justice, trust in justice, guaranteeing the right to protection in court and legal assistance. And in this context, the important thing is not what the self-government will be like, but what it is now and whether it works in the interests of attorneys. In my memory, there was no disciplinary case against an attorney because he had one way or another opposed the law enforcement agencies. On the contrary, very often disciplinary commissions try to protect an attorney, solve his problem, and sanctions are applied only if a person is really not worthy to be part of the bar. The second issue, which is important in the bar reform, is the guarantees of legal practice, the attorney’s rights especially in the criminal process. In this respect, we see the only approach in all bills submitted to the parliament. Both attorneys and their clients are keen to have more such rights. But here is the same problem as with the monopoly, which was established not by the law on the bar, but enshrined in the Constitution of Ukraine, with further implementation in the procedural codes within the framework of judicial reform. Guarantees of legal practice will be enshrined in the reform of the criminal procedure, there are several working groups that are involved in preparing the reform of the criminal procedure.

Today, the initiatives are being actively discussed to change the core law on the bar and legal practice. What is your position?

By definition, a reform must bring about something fundamentally new, and not be limited to solving some of the 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 - the monopoly, and we also have received it. The third stage could be obtainment of a qualitatively new status of the attorney in the criminal process, appropriate procedural tools that, though do not equate lawyers with the side of prosecution, extend our ability to protect interests of clients. However, this should be discussed within the framework of the reform of the criminal procedure. It seems that all proposed now under the slogan of the reform of the lawyers by the authors of the relevant legislative initiative is, to a greater extent, necessary for the formal completion of the judicial reform and the pre-term reset of all organs of the bar self-government. Most of the positive and necessary innovations, that are at the forefront of the PR campaign for the promotion of the bill, can be implemented by making point changes to the existing law and Rules of Legal Ethics without the threat of escalating another confrontation within the bar community. First of all we need to reach consensus inside the bar, and then ask the parliament to resolve one or another problematic issue.