The fish stinks first from the head: What is wrong with the Ukrainian Bar and how to fix it
This article was originally published in Ukrainian in Mirror of the week.
Artem Donets, attorney
Ilya Kostin, attorney
Mykhailo Zhernakov, Chair of the Board, DEJURE Foundation
The Ukrainian Bar has been plagued by problems for years. It is the only side of the justice triangle that has not been reformed since the Revolution of Dignity, and without it, the rule of law in Ukraine cannot be established. Only attorneys have the exclusive right to represent clients in court, significantly increasing their influence. Moreover, the Congress of Attorneys of Ukraine appoints two members of the High Council of Justice (the body that decides on the appointment or dismissal of judges), thereby significantly impacting the success of the country’s crucial judicial reform. Previously, attorneys appointed Viktor Medvedchuk, who is accused of treason. to the HCJ, along with Lidiya Izovitova, the current head of the Bar. The attorneys also appointed Oleksiy Malovatsky to the HCJ for a second consecutive term contrary to the Constitution and Pavlo Hrechkivsky, one of the figures implicated in the “Vovk tapes”.
International partners, including the G7 Ambassadors, have underscored the urgency of changes in the Bar. The European Commission, in particular, has identified the shortcomings in this field and stressed the need for reform: “The self-governance system and resource management of the Bar should be improved and made more transparent and accountable. The qualification and disciplinary procedures for lawyers require significant improvements in law and practice. The process for admission to the profession remains weak and prone to corruption risks, which undermines the credibility and independence of the profession.
Both attorneys and the public need a broad discussion about the challenges in the field and a debate on what the reform should be like to make the Bar professional, independent, and not corrupted. Further, we will discuss its current state and how to break out of this vicious cycle.
Monopoly on the Bar: How Izovitova’s group concentrated all power in their hands
In many Western democracies, a single Bar association with mandatory membership for all attorneys is the standard. However, the introduction of this model in Ukraine, promoted by Yanukovych’s associate Andriy Portnov, had significant peculiarities and led to dire consequences. According to the law “On the Bar and Practice of Law”, the head of the Bar Council of Ukraine (BCU) is ex officio, the head of the Ukrainian National Bar Association (UNBA). As a result, these two institutions, as well as the High Qualification and Disciplinary Commission of the Bar (HQDCB), in fact, “merged into one entity” with all power concentrated since 2012 within the group of Izovitova, a long-time associate of Medvedchuk.
The Constitutional Court is currently considering the issue of the unconstitutionality of the UNBA monopoly. Regardless of its decision, it is clear that reform of the Bar is impossible without granting attorneys the right to choose which association to join. The existence of multiple associations will ensure healthy competition among them for each attorney by providing quality services (internships and courses that tackle current issues) and protecting their professional rights and interests. Instead, the lack of choice is a method used by Russia, which the leadership of the Ukrainian Bar is currently employing.
The Russian Trace
Since the early years of Ukraine’s independence, Viktor Medvedchuk, a close associate of Vladimir Putin, has built the Bar system, which was subordinate to him. From 1990 to 2006, he was the Ukrainian Union of Attorneys’ president; from 2001, his deputy was Lidia Izovitova. In 2011, Medvedchuk ensured that Izovitova was elected as the head of the Union, a position she held until 2016. In 2012, under the watchful eye of Andriy Portnov, responsible for the judiciary in Yanukovych’s administration, a new law on the Bar was adopted. Two competing founding congresses of attorneys took place simultaneously in Kyiv. The one that elected Izovitova was recognised as legitimate by the notorious District Administrative Court of Kyiv (DACK). Consequently, Izovitova was appointed head of the Bar Council of Ukraine and the Ukrainian National Bar Association. Thus, formally, control over the Ukrainian Bar was transferred and consolidated in the hands of one person.
The leadership of the Bar showed its pro-Russian and anti-democratic position during the Revolution of Dignity: they supported the “dictatorship” laws of January 16 and did not react to numerous violations of human rights, including the beating of lawyers.
During the war, Izovitova photographed with and contacted the president of the Russian Bar Association, Yuriy Pylypenko (as of 2019), who supported Russia’s invasion of Ukraine. The UNBA has never condemned the actions of traitor-attorneys. The latter, in Medvedchuk style, participated in the torture of Ukrainian activists and prisoners, thereby legitimising the actions of the occupation authorities. At most, with the tacit consent of the Bar leaders, these persons are still in the Ukrainian attorney register. For example, the heads of the occupation Crimean Bar, Olena Kanchy and Anatoliy Zhernovy, are among them. So if, let’s say, elections to the Bar bodies take place tomorrow, they and thousands of other traitors will be able to participate.
Izovitova’s tenure as head of the Bar Council and the Bar Association ended in November 2022. According to the law, she cannot run for office anymore, so she is blocking new elections, citing the war as a pretext. What is this, if not a usurpation of power?
Stipped in corruption
There are no mechanisms in the Bar to verify the integrity of its members, so corruption thrives within the system. There exists a category of “postman-attorneys” who know whom and how much money to bring to ensure a case is decided in favour of the client. Even when an attorney is caught in bribery, no one is in a hurry to bring him to disciplinary action. Instead, Vylkov, the head of the High Qualification and Disciplinary Commission of the Bar, describes criminal proceedings against corrupt attorneys as persecution controlled by the National Agency for Prevention of Corruption (NAPC). Furthermore, Vylkov and other members of the Bar’s self-governance actively oppose submitting their asset declarations, describing it as a waste of time and resources.
Corrupt schemes are also a feature of the Bar exam, necessary for obtaining attorney status. For instance, in a 2018 survey, 47% of surveyed attorneys admitted awareness of corrupt offers from those intending to become attorneys, and almost 38% of respondents reported corruption offers from those overseeing the Bar exam. Likely, the situation has not improved. There is even a practice where candidates travel to another region to take their qualification exam, where it is easier and cheaper to agree on a bribe, or conversely, where they can pass without needing to pay a bribe. A good illustration of the non-functional filters for admission to the legal profession is the acquisition of attorney certificates of Ilya Kyva and a group of former military prosecutors led by their former chief, Anatoliy Matios. The latter obtained their attorney certificates “in bulk” in Volyn, where they all listed their registration address as a grocery store building. In light of this, a unified, standardised, transparent and broadcasted online Bar exam, which will assess candidates’ professionalism and integrity, is imperative.
Disciplinary proceedings as a means of censoring attorneys
The Bar’s leadership has repeatedly used disciplinary proceedings to exert pressure on independent attorneys. If an attorney publicly highlights systemic problems or criticises Izovitova and her associates, a complaint is filed against him. Then, he is found guilty of violating the attorney’s oath or ethics, and his attorney’s certificate, without which legal practice is impossible, is suspended or revoked. Public “criticism of the activities, decisions, election process, or members” of the Bar is also officially defined as a violation of attorney ethics, which can lead to disbarment. In effect, this is how censorship was introduced into the Bar.
Following this pattern, Andriy Vyshnevskyi, who described the state of the Bar as deplorable, and Valeria Kolomiets, accused of “destructive management” and having a “negative attitude towards the Bar,” were stripped of their lawyer status. Both were persecuted not for their legal practice but for their stance while they were responsible for the free legal aid (FLA) system at the Ministry of Justice. As Kolomiets noted, she opposed the UNBA obtaining direct access to 800 million hryvnias of the state budget allocated for FLA.
Izovitova and her associates also seek to bring disciplinary action against attorneys who highlight their passivity regarding traitor attorneys. At the same time, disciplinary bodies refuse to consider complaints against the latter, particularly those listed in the “The Donetsk People’s Republic attorneys” registry.
Chaos reigns in the work of the Bar disciplinary bodies: contradictory decisions are made in similar cases. This indicates that the disciplinary bodies, primarily the HQDCB, whose decisions should be the benchmark, require a reboot. It is crucial that the renewed HQDCB include not only attorneys who have passed an integrity vetting by an independent selection commission but also representatives of other legal professions and the public, as it is in European countries, including the United Kingdom. The legal provisions on disciplinary procedures also have numerous shortcomings and gaps that must be addressed.
Not a professional development but a formality for earning points
Continuing professional development is one of the international principles of the legal profession. However, this core principle has been reduced to a formality by the leadership of the Bar: attorneys attend lectures to earn necessary points. The Bar Council has de facto established the UNBA High School of Attorneys’ (HSA) monopoly on attorneys’ continuing education. The HSA is the exclusive provider of educational services without the necessity of accreditation. The requirements for other educational institutions are such that they make accreditation and any competition impossible: the annual fee in 2024 is over UAH 300,000 (the head of the UNBA has the authority to change this amount at her discretion), the list of documents for accreditation is extensive, and after accreditation, each seminar must be individually approved.
Izovitova Group’s Financial Appetites
The European Commission emphasised that “resource management of the Bar should be improved and made more transparent and accountable.” The Bar bodies administer millions. The annual membership fees alone amount to approximately UAH 140 million (UAH 3,028 per attorney, with over 46,000 practising attorneys), assuming all fees are paid. There is also additional income from fees for internships, Bar exams and filing complaints, and mandatory courses at the school of attorneys.
Yet, the financial reports of the Bar for previous years lack sufficient details and haven’t undergone independent audit confirmation. A transparent budget process is not implemented, and it is not clear what the millions of hryvnias are spent on. Moreover, the UNBA desires direct access to hundreds of millions of hryvnias from the state budget for free legal aid. Therefore, they launched an aggressive information campaign to discredit the current free legal aid system. Valentin Hvozdiy, Izovitova’s deputy, hints at the opacity of state expenditures and openly states that all costs must be transferred to a fund managed by attorneys. Before discussing state expenditures, may the UNBA first publish audited financial reports for 2022 and 2023?
What’s next?
New elections to the Bar bodies under the current law will not ensure new faces. The present law has many gaps, allowing Izovitova’s group to elect “loyal” delegates from regions and ensure they choose the “right” people. After all, this has already happened — at attorneys’ congresses of 2012 and 2017.
Firstly, a law that completely resets the system is required. New “rules of the game” should create effective mechanisms so that only attorneys of high integrity get into the Bar bodies, especially at the national level. The UNBA tries to convince us that the Bar must be autonomous and independent of state interference. Judges once sang a similar “song” about their autonomy. Yet, the bitter experience of judges’ and attorneys’ self-regulation without reliable safeguards and public control has resulted in corruption and the blue wall of silence. A reformed and cleansed Bar is an essential piece of the puzzle that will ensure the rule of law in Ukraine and its further European integration.
