When a lawyer is accused of violating ethical rules, local authorities are obliged, according to a certain procedure, to verify such information, examine the factual circumstances and, if there are grounds, bring the lawyer to justice. But such a procedure is overly complex. Why, let’s try to figure it out.
Preliminary as basic
As the current Law of Ukraine «On Advocacy» dated July 5, 2012 № 5076-VI, and all three proposed Bills of its new edition contain a disciplinary procedure, which is reduced to four main stages:
- Verification of information (preliminary examination of the complaint)
- Violation of the disciplinary case;
- Decision making.
And although the presidential Bill № 9045, as a separate stage, proposes to highlight appeals against the decision made, it already exists today. Therefore, in fact, it is not worth expecting any changes in the future.
At the same time, the practice of applying the law by the Disciplinary Chambers of the Qualification and Disciplinary Bar Commission of Ukraine of regions and viewing the Higher Qualification and Disciplinary Bar Commission of Ukraine of their decisions makes one ponder over the question of the expediency of the existence of «preliminary» stages.
In theory, conducting an audit of information should be a kind of procedural filter, seemingly unreasonable grumbling at lawyers. Within the framework of the existing order, a member of the Disciplinary Chamber has been appointed to verify the information set forth in the application, may ask the «accused» for explanations, make inquiries and receive additional information, and then make his own conclusion about the presence or absence of signs of disciplinary offense.
The results of such a preliminary check, set out in the certificate, together with the developed primary complaint and the available materials are submitted to the disciplinary commission, which decides to initiate a disciplinary case. Or refuse it. Both decisions can be appealed both to the Supreme Bar Association – the Higher Qualification and Disciplinary Bar Commission of Ukraine, and to the court.
In the event of a violation, the main stage in the issue of disciplinary responsibility of a lawyer comes up – the consideration of the case. It provides that within a month from the moment of initiation of the case, the Disciplinary Chamber must again gather and hear a report on the results from the member of the Disciplinary Chamber who conducted the check, the explanations of the lawyer himself, the person who initiated the question of disciplinary responsibility, and the explanations of other interested parties.
But what is new about the fact-finding on the case between the two meetings of the Disciplinary Chamber of the regional Qualification and Disciplinary Bar Commission of Ukraine? Maybe, after a preliminary study of the materials, the member of the chamber, the speaker, will study the materials in depth and collect evidence? Obviously, the position that was formed during the initial assessment, and was set out in the certificate, simply flows into the draft decision on the merits, and a preliminary study of the materials during the second meeting becomes the official position of the disciplinary authority, if during the adversary process and deliberative discussion the room «collective mind» will not reach an alternative opinion.
Therefore, in fact, we have a formal duplication of work, which, among other things, creates additional grounds for delaying the process, including due to appealing the decision to initiate a case. And this, given the time allotted for bringing a lawyer to justice, does not have the best effect on restoring the rights of those involved in the proceedings.
Does not affect rights, therefore, meaningless
It is very indicative that in the context of the significance of the stage of initiation of a case that is the practice of litigation of the relevant decisions of the disciplinary bodies.
The fact of violation of a disciplinary case against a lawyer does not constitute an establishment in his actions of the fact that he committed a disciplinary offense. And only by the results of consideration of the disciplinary case on the merits, will the Disciplinary Chamber find out whether a lawyer committed a disciplinary offense. This led to the panel of judges of the Cassation Administrative Court, considering the case № 826/13442/15, regarding the annulment of the decision of the Qualification and Disciplinary Bar Commission of Ukraine of the region on violation of the disciplinary case against a lawyer.
The Supreme Court noted that such a decision contains only preliminary conclusions and does not establish the fact that a lawyer committed a particular disciplinary offense. Violation of the disciplinary case only indicates that the inspection process revealed signs of disciplinary misconduct that require more detailed research for confirmation or denial.
Given this position, the Kyiv District Administrative Court in case № 826/11022/17 concluded, that the decision to initiate a disciplinary case does not violate the right and does not entail any negative consequences for a lawyer.
And the Sixth Administrative Court of Appeal, which also refused to reverse the decisions of the disciplinary bodies of the legal profession to initiate proceedings, in its ruling in case № 826/14540/17 recalled that according to the established practice of the European Court of Human Rights, the person must prove that she is a victim of a violation of rights. In order to qualify for the victim’s status as a victim of such a violation, the action challenged must directly harm the person (the court’s decision «Aksu v. Turkey» paragraph 50; «Burden v. the United Kingdom» paragraph 33; «Tenesa v. Moldova».
So, it is impossible to complain about certain circumstances in the abstract, without a real violation of the rights, freedoms or interests of the claimant in controversial legal relations, just because the applicant believes that certain circumstances affect his legal status. The subject of an appeal according to the rules of administrative court proceedings should have legal significance, that is, influence the range of rights, freedoms, legal interests or duties, as well as the conditions for their implementation established by law.
From these arguments it follows that, despite the possibility of appealing in court to a court to initiate a disciplinary case, such an appeal is meaningless because it does not affect the rights and legitimate interests of participants in the disciplinary procedure. All this convinces in the thought of the about the illusiveness of this stage.
The current legislation contains institutions whose rules can be used by analogy to simplify the procedure for disciplinary proceedings against lawyers.
Thus, a judge, accepting a statement of claim to the court’s proceedings and opening proceedings, checks the application and its annexes solely from the point of view of compliance with the formal requirements on its form, content and applications, while not evaluates the prospects for meeting or refusing to meet the requirements. If the judge acted in the same way as a lawyer – a representative of the disciplinary authority at the preliminary verification stage of the complaint, the proceedings in the case would be opened in the courts only for «promising» claims. However, all the circumstances of the case are clarified only at the stage of judicial consideration of the case, in which the adversarial principle finds its realization. It is relevant here to recall that the European Court of Human Rights has repeatedly (see the decision in the cases of «Albert and Le Compte v. Belgium» and «Gautrin and Others v. France») expressed the position that professional disciplinary bodies are quasi-judicial.
Also, it was not for nothing that the legislator, in his time, refused to complete the investigation of statements and reports of crimes. Today, the investigator, the prosecutor in accordance with the Criminal Procedure Code of Ukraine is obliged to enter information into the Unified Register of Pre-trial Investigations after filing an application, reporting a criminal offense (or after self-identification of circumstances that may indicate a criminal offense). Only during the investigative actions does the investigator further investigate whether there are signs of a crime by an appropriate message.
Also, each complaint (statement) about the unlawful behavior of a lawyer in the case of its compliance with certain formal requirements should cause the start of disciplinary proceedings. And such requirements are, in fact, already defined in paragraph 14 of the Regulation on the procedure for receiving and considering complaints regarding misconduct of a lawyer, which may result in his disciplinary responsibility (the UNBA decision of August 30, 2014 № 120 as amended).
Simplification without damage
Such formal requirements established by the legislator or the body of advocate self-government can determine the content of the complaint itself, the mandatory list of its details. It would be justified to draw up a standard form of a statement on the behavior of a lawyer by analogy, for example, with a complaint about bringing a judge to disciplinary responsibility. This will not only help potential applicants, who often do not have sufficient legal knowledge, but also greatly simplify and speed up the work of disciplinary bodies without compromising quality.
Of course, all this will require amending the profile law, where instead of the stages of conducting preliminary checks and initiating a case, the head of the regional the Disciplinary Chamber may be ordered to start (open) proceedings at the request of the complainant or a separate court order.
Among other things, such a procedure would remove accusations of the Disciplinary Bar Commission of Ukraine in corporate and attempts to «cover up» colleagues in the shop, because the appellant directly (without a preliminary filter) to prove the credibility of the grounds for bringing a lawyer to disciplinary responsibility before a collegial disciplinary body. And this will certainly contribute to a truly competitive consideration of any case, transparency and openness of disciplinary procedures.