The problem of providing low-quality legal services has always been relevant in Ukraine. Therefore, to solve it a new law “On the Bar and Advocate’s Activity” was adopted on July 5, 2012 and a year before – the Law “On Free Legal Aid”. Despite this, the number of cases of unfair execution by the lawyers their duties before their clients starting from the banal case delay, incompetence and ending in outright fraud, did not decrease. Below you can find several aspects that attracted attention of Mariia Tsypiashchuk, a lawyer and coordinator of the Public Office of UHHRU in Rivne*.
History of fraud
According to her, almost every second or third customer who refers to her is complaining of bad faith and dishonesty of lawyers.
– Currently I have a client whose lawyer has been running the case on unauthorized construction since January. On the one hand, he took it on already before the appeal, in which a priori unjustified action was declared – removing barriers to use a land plot despite the plaintiff in fact is not the owner of the land. Therefore, it was difficult for him to change something. However, the case was settled in February, he did not file a cassation. The following actions were taken by him in May, and then – at the beginning of September, – Mariia Tsypiashchuk says.
When the client requested me to come with her to her lawyer, I heard him explaining such inaction by family reasons – the death of his mother. A circumstance seemed to be serious. However, according to the client, there were frequent occasions when she phoned the lawyer, but he did not lift a handset 10 – 15 times in a row. He answered her calls only when she called from the other telephone number. At the same time, he did not consider it necessary to properly inform her about the actions he committed in the case that in opinion of Mariia Tsypiashchuk looks like neglecting his responsibilities. After all the client, who has problems with eyes and cares about her disabled daughter, who is studying abroad, paid him more than UAH 1,500 but all the actions taken by the lawyer did not bring any benefit or progress in the case.
At the moment it is almost impossible to prove the sum of money that was paid for the lawyer’s services, because, according to the client, the fact of money transfer was rarely recorded. What is typical of this practice as in order to avoid close attention from the fiscal authorities the lawyers are trying not to “disclose” all their fees. “Because the cost of legal services is usually sufficient while it can be rather difficult to prove their provision, as well as their relationship with economic activity, – Volodymyr Bohatyr, the lawyer, former Minister of Justice, said. – Thus, the attorneys, and especially big law firms are potentially at risk of “getting off” their customers the costs associated with legal services obtaining”.
The consequences of such actions of fiscal authorities can be quite unpleasant for both sides. Therefore the lawyers prefer to play it safe, not publishing all their revenues – which is not for the benefit of the client, who cannot actually prove unfair provision by a lawyer of paid services. In the case of Rivne lawyer the situation is complicated by the conclusion of contract for legal services provision.
– When I first came to him with a client, then asked him to give her a copy of the contract concluded between them, because she did not have the one – Mariia Tsypiashchuk, the human rights activist, says. – He promised, however, the contract was not provided until it almost came to a conflict, because he did not like that someone makes some claims to him. Indeed, I am not a competent person to bring a lawyer any claims. Nevertheless, he did not have that contract. And the other copy of an original was attached to the file of the case, which had not yet returned to the trial court from the court of appeal. As a result, he signed the agreement retroactively. Judge yourself: are the lawyer’s services professional or not? And how can it be proved? – she asks.
Based on the current law “On the Bar and Advocate’s Activities”, the basis for bringing a lawyer to disciplinary responsibility is committing misconduct, i.e. violation of incompatibility, oaths, rules of legal ethics and disclosure of confidential information or any actions that led to such a disclosure, non-performance or improper performance of his/her professional duties, resolutions of the Attorneys’ Self-administration Authorities, and other violations of lawyers’ obligations provided for in the Article 34 of the aforementioned Law.
As for the grounds for bringing a lawyer to disciplinary action, the most common of them, according to a member of the Disciplinary Chamber of the Kyiv City Qualifications and Disciplinary Commission of the Bar (QDCB) Roman Tytykalo, are cases when lawyers enter into contracts with customers, do not provide any services and but obtain the fees in advance.
– The Disciplinary Chamber of the Kyiv City QDCB deprived one of such attorneys of the right to practice law with subsequent exclusion from the Unified Register of Advocates of Ukraine for exactly the same actions – Roman Tytykalo adds. – He got small advances in amount of two – three thousand UAH and changed the phone numbers, did not answered calls, hoping that he will not be looked for such amounts. Notably that not a single appeal of such his actions was obtained.
In general, based on disciplinary practices such cases can be divided into two types. The first: a lawyer received his remuneration but does not provide any assistance to the client and does not establish contact with him/her, and here, according to Roman Tytykalo, we can see clear features of misconduct “non-performance or improper performance of their professional duties” and thus there is reason to bring him/her to justice.
A more common situation is when the attorney received remuneration, signed a contract and began to work, but the client was dissatisfied with his/her work through the decision taken by the court wasn’t in his/her favour. In this case, according to Part 3, Art. 34 of the Law “On the Bar and Advocate’s Activity” it may appear that the customer is not right. “But if the lawyer really did not pay due attention to the case, did not give professional assistance, then his/her actions (inaction) have the features of a misconduct “non-performance or improper performance of their professional duties”, – Roman Tytykalo says.
It is quite interesting that the Disciplinary Chamber of the QDCB of the Region of Rivne have recently considered a lot of complaints against the lawyers, a substantial part of which relates to breaches of professional ethics. However, most of them were rejected, both at the local level and at the level of High QDCB.
Experience of Germany and the Previous Government
It is difficult to answer why this is happening. However, Mariia Tsypiashchuk, the lawyer and coordinator of Public Office of UHHRU in the City of Rivne believes that in cases regarding which the clients dissatisfied with lawyers’ services apply to her, it is very difficult to determine their quality even in the presence of appropriate standards. Therefore, in her view, it would be necessary to initiate amending of special legal acts regulating the lawyers’ activities, based on which it would be more effectively to carry out such an assessment.
As an example she cites the formula of proving the lawyer’s (attorney’s) unfair practices and improperly rendered legal assistance, which is applied in Germany: “There everything started with a trial in 2008, when a lawyer lost the case without considering either a legal precedent, or a legal act, about which even law students knew, as it was described in all the books of the law in Germany. Gradually they came to the 4-element formula, in which (like in our formula) is first of all considered the existence of a contract for legal services provision, violation of obligations declared in it, guilt, damage and causal link”.
The basic contractual obligations of a lawyer in Germany is a complete and comprehensive clarification of circumstances, their inspection and evaluation, confidentiality, an obligation to inform about all costs and the opportunity to get another (alternative) legal assistance and remedy at law, plus – other additional conditions.
– If we develop in Ukraine such a mechanism to confirm that a lawyer in the same manner informs his/her client on the progress of the case and criteria for completeness of fact-finding process, I think, we would significantly increase the level of accountability to their clients, and consequently – the quality of legal services. Because the case described by me is one of those regularly reporting to the Public Offices of UHHRU in the City of Rivne – Mariia Tsypiashchuk sums.
At the same time we should take care not to allow new mechanisms of bringing lawyers to disciplinary action become a good tool for the representatives of the relevant authorities to dispatch with them, as it was during the regime of President Yanukovych, when dozens of famous representatives of this extremely important for the public profession were deprived of legal licenses because they had opposite views on the formation of the Bar to those of the ruling org-men.
So, as practice shows, when dealing with such matters one should be extremely careful. Especially since all the officials of the previous government continue working on leadership positions in the legal profession.
* Public Offices of UHHRU and its members operate in 17 regions of the country. In the Public Offices you can get free legal advice on the issues of violation of your rights, as well as on legal ways to protect the rights.