Lawyer’s monopoly in Ukraine: a modern overview of the problem
Students Name: Maksymkiv Olesia
Qualification Level: magister
Speciality: Law
Institute: Institute of Jurisprudence and Psychology
Mode of Study: part
Academic Year: 2020-2021 н.р.
Language of Defence: ukrainian
Abstract: Maksymkiv O. S., Bayik O. I.(supervisor). The advocacy monopoly in Ukraine: modern view on the problem. Master’s thesis. – Lviv Polytechnic National University, Lviv, 2020. Extended abstract. Active development of advocacy in Ukraine require new and quality changes in legislation, which regulate advocacy. Implementation of the advocacy monopoly is an important step in defining of vector of advocacy and judicial system development. In 2016 to the Constitution of Ukraine changes had been made, which fixed exclusive right to lawyers to represent persons in a court and to protect against criminal prosecution, that can be regarded as introduction of the advocacy monopoly. Study object - is social relations which influence and regulate the activities, organization and development of the bar in Ukraine, including constitutional reform in 2016, which actually introduced an advocacy monopoly in Ukraine. Scope of research - is modern view of the problem of the advocacy monopoly in Ukraine. Goal of research: is to analyze the advocacy monopoly, including analysis of constitutional provisions about exclusive right of lawyers to represent people in court; defining the benefits, disadvantages and features of the advocacy monopoly, and its influence on the advocacy and judicial system. Briefly put the research results. In master’s work Results were achieved by analysis of the definition “the advocacy monopoly”, studying the legislative foundations of monopoly, analysis of foreign countries experience, clarification of the influence of the lawyer’s monopoly on advocacy in Ukraine, searching for possible ways of advocacy development in Ukraine, in particular, through the introduction of the advocacy monopoly. Wherefore, legislative changes and modern social relations, which influence and regulate the activities, organization and development of advocacy in Ukraine, including constitutional reform in 2016, which actually introduced a advocacy monopoly in Ukraine, contributed to the fact that in Ukraine constitutionally enshrined the exclusive right of advocacy to represent persons in court [1]. The legal basis of the lawyer’s activity in the judicial process are norms of the Constitution of Ukraine, the Law of Ukraine "On Advocacy and Advocacy practice", procedural codes, international legal acts, decrees of the President, acts of advocacy self-government, rules of advocacy ethics. Advocacy monopoly is an exclusive right of a group of people who have the right to practice advocacy, i.e. lawyers, to provide certain services. In the presence of an advocacy monopoly, all countries can be divided into three groups: 1) countries with absolute monopoly; 2) countries with limited monopoly; 3) countries with deregulated market of legal services. [2]. In turn, absolute monopoly is characterized by exclusive right of advocacy to provide all types of legal assistance. The deregulated market of legal services is characterized by the possibility of providing legal services to any person. The model of limited legal monopoly is endowed with the following features: a) a lawyer does not have an exclusive right to provide legal services; b) only lawyers can carry out judicial representation (most often in criminal proceedings); c) together with lawyers other people (more often, lawyers) can give advice on legal issues and be a representative in civil proceedings ; d) the quality of legal aid depends on the professionalism of the person providing legal services [3]. Such signs are typical for the organization of advocacy in Ukraine, that indicates the existence of a limited advocacy monopoly. The introduction of the exclusive right of advocacy to exercise judicial representation has sparked considerable debate among the legal community. Until now, some lawyers believe that the advocacy monopoly will complicate access to justice and preserve the problems of advocacy [4]. Others argue, that, if not immediately, but over the years, the single out of the professional stratum of lawyers will certainly increase the quality of representative services [5]. Such ambiguous perception indicates that this problem is not sufficiently lerned, so it requires a thorough analysis, followed by the determination of the most useful ways for Ukraine to modernize the legislation regulating advocacy. It is especially important to borrow the experience of foreign countries, because the unification of the legal services market is quite common in Europe. There are many advantages of the advocacy monopoly. First of all, advocacy has a number of advantages, compared to the general lawyer, in particular, advocate has specialized education and experience, client and advocate relationships are protected by law, advocate is endowed with special rights that reveal wide possibilities to protect the interests of the client, etc. [6]. In addition, with the monopoly of advocacy, there will be an allocation of a separate professional stratum of lawyers, and representation will be carried out by sub-entities for which this function is the main task of professional activity, which will stimulate the development of advocacy and improve the quality of legal aid. At the same time, the monopolization of the legal services market in Ukraine has a number of imperfections. First of all, the exclusive right of advocacy to judicial representation is enshrined in the Constitution [7]. Also, the arguments against are: restricting access to justice; loss of advocates’ independence, strengthening control of the state for advocacy; complexity and more expensive representation of legal entities; reducing competition; exceptions of the advocacy monopoly for representation in court. Undoubtedly, the introduction of an advocacy monopoly in Ukraine has many advantages, but it should be noted that solving the existing shortcomings, together with borrowing the experience of other states, is necessary for the qualitative and successful development of advocacy. Key words: advocacy practice, advocacy monopoly, advocacy, exclusive right to representation, judicial representation, participation of a lawyer in court proceedings. References. 1. Constitution of Ukraine: Law of Ukraine of June 28, 1996 № 254k / 96-VR / Verkhovna Rada of Ukraine. Information of the Verkhovna Rada of Ukraine. 1996. № 30. Art. 141. 2. Dekhanov, S. A. (2011). Advocacy in Western Europe: experience and current status: dis. ... Dr. Jurid. Science: 12.00.11. Moscow. 383 p. 3. Pereveza, I. M. (2016). General theoretical approaches to modeling advocacy: dis. ... cand. jurid. Science: 12.00.01. Odessa. 240 p. 4. Pisarenko, D. Monopoly of the Bar, as a tool to eliminate its independence and as a violation of the rights to defense. VoxUkraine. URL: https://voxukraine.org/uk/monipiliya-advokatury-ua/ (accessed 29.11.2020). 5. Solodko, E. Pros and cons of a lawyer’s monopoly. Legal newspaper. URL: https://yur-gazeta.com/golovna/plyusi-ta-minusi-advokatskoyi-monopoliyi-pro-shcho-govoryat-advokati.html (accessed 29.11.2020). 6. Bereza, N. (2016). Monopoly of the bar to represent in court. Scientific journal of the National Academy of the Prosecutor’s Office of Ukraine. № 4 (12). P. 10–17. URL: http://www.chasopysnapu.gp.gov.ua/ua/pdf/12-2016/bereza.pdf/ (access date 29.11.2020). 7. Plum, L. (2016). Advocacy on the threshold of change: for and against the lawyer’s monopoly. Contemporary Challenges of Ukrainian Law in the Context of European Integration: Abstracts of Reports of Participants in a Permanent Scientific Seminar (Kyiv, capital of Ukraine, April 29, 2016). Kiev. P. 105?109.