What the Qualification and Disciplinary Bar Commission should look for when assessing disciplinary violations

When, as part of the disciplinary procedure, the QDBC of the region chooses the type of punishment, the members of the chamber must take into account the circumstances of the misconduct, its consequences, the identity of the lawyer and other circumstances of the case.

On the features of the practical implementation of this provision of the second paragraph of Part 1 of Art. 41 of the Law “On Advocacy” was addressed by the Head of the HQDBC Sergey Vilkov during a roundtable “The Procedure of Applying Qualifications and Disciplinary Practices”, which took place on October 18 in Chernihiv, reports ZiB.

As reported by the HQDBC, S. Vilkov gave two examples from the High Commission ‘s complaints handling practice. In similar cases, the offending attorneys were subject to various sanctions. It was a question of incorrect registration of a warrant, which is a violation of the requirement of Article 24 of the Law on Advocacy. On the basis of the warrants, they tried to obtain documents on the request of a lawyer.

In both cases, the local QDBC suspended the right of offenders to practice law for a certain period, since the lawyer has no right in his professional activity to resort to the means and methods that contradict the current legislation or the PAE (Part 3 of Article 7 of the PAE).

While reviewing these complaints, the HQDBC found fundamental differences in the circumstances and consequences of the offenses.

In the first case, the lawyer who wrote the warrant himself, however, acted in the best interests of the principal during the legal assistance and eventually the client received a positive result.

In the second, a “client” was an ex-wife who did not even know about the existence of a legal aid agreement with her husband. In doing so, her “defender” thus collected information against the ex-wife for litigation on the division of property.

Taking into account the circumstances of the misconduct, the absence of negative consequences and the person of the lawyer, in the first case, the HQDBC decided to annul the decision of the QDBC and apply a disciplinary sanction to the lawyer in the form of a warning. In the second, the HQDBC members extended their termination from two months to one year.

“Everyone is mistaken: prosecutors, judges, lawyers… And some mistakes may contain signs of a disciplinary offense,” said the head of the HQDBC. “In assessing such attorneys’ mistakes, the QDBC must distinguish ordinary negligence from abuse of professional rights.”

The participants also discussed other current problems of the practice of the QDBC in the context of disciplinary and qualification proceedings. The issue of amending the QDBC regulations and regulations regarding the optimization of existing disciplinary procedures has raised lively discussion.

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