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Vol. 39, Nº 69 (Julio - Diciembre) 2021, 689-706
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 14/04/2021 Aceptado el 02/06/2021
Regulation of advocacy profession:
global trends
DOI: https://doi.org/10.46398/cuestpol.3969.43
Tetiana Vilchyk *
Alla Sokolova **
Tetiana Demchyna ***
Abstract
The objective of the article is to analyze the regulation of the
legal profession and its global trends. There are many dierent
types of regulators globally, and many dierent sources and
methods of regulation. There is no simple approach to setting
goals for regulating the legal profession in dierent legal systems.
Although self-regulation of the legal profession is considered the
basis for adhering to the standard of its independence, at the
same time, academics recognize the existence of the theory of the
management of the legal profession. To study these problems,
the authors conducted a comparative study of the regulatory models of
the legal profession in the world in terms of compliance with international
standards of legal independence in dierent legal jurisdictions and made
some suggestions to improve the legal regulation of the legal profession
in Ukraine. Empirical sources for scientic research were international
documents, court decisions, national legislation of Great Britain, Canada,
the United States, Ireland, Scotland, Australia and others, and the work of
scientists. The article uses general scientic methods - dialectic, analysis,
synthesis, analogy, etc., and special methods, particularly legal, historical,
and formal comparative law.
Keywords: association of defenders; regulation of the defense;
independence of defense; autonomous associations of
defenders; regulation of the legal profession.
* Doctor of Law, Professor. Yaroslav Mudryi National Law University. Ukraine. ORCID ID: https://
orcid.org/0000-0002-0759-4935. Email: global@ores.su
** Doctor of Law, Associate Professor. Yaroslav Mudryi National Law University. Ukraine. ORCID ID:
https://orcid.org/0000-0002-1033-9396. Email: global@prescopus.com
*** Graduate student of the Department of Advocacy. Yaroslav Mudryi National Law University. Ukraine.
ORCID ID: https://orcid.org/0000-0002-2081-1201. Email: info@prescopus.com
690
Tetiana Vilchyk, Alla Sokolova y Tetiana Demchyna
Regulation of advocacy profession: global trends
Regulación de la profesión de abogacía:
tendencias globales
Resumen
El objetivo del articulo consiste en analizar la regulación de la profesión
de abogado y sus tendencias globales. Hay muchos tipos diferentes de
reguladores a nivel mundial, y muchas fuentes y métodos diferentes de
regulación. No existe un enfoque sencillo para establecer metas para
regular la profesión de abogacía en diferentes sistemas legales. Aunque
la autorregulación de la profesión de abogacía se considera la base para
adherirse al estándar de su independencia, al mismo tiempo, los académicos
reconocen la existencia de la teoría de la gestión de la abogacía. Para estudiar
estos problemas, los autores realizaron un estudio comparativo de los
modelos de regulación de la profesión de abogacía en el mundo en términos
del cumplimiento de los estándares internacionales de independencia
de la abogacía en diferentes jurisdicciones legales e hicieron algunas
sugerencias para mejorar la regulación legal de la abogacía en Ucrania.
Las fuentes empíricas para la investigación cientíca fueron documentos
internacionales, decisiones judiciales, legislación nacional de Gran Bretaña,
Canadá, Estados Unidos, Irlanda, Escocia, Australia y otros, y el trabajo
de cientícos. El artículo utiliza métodos cientícos generales - dialéctica,
análisis, síntesis, analogía, etc., y métodos especiales, particularmente el
derecho comparado legal, histórico legal y formal.
Palabras clave: asociación de defensores; regulación de la defensa;
independencia de la defensa; asociaciones autónomas
de defensores; regulación de la abogacía.
Introduction
The independence and self-regulation of advocates are essential in
ensuring the rule of law in any jurisdiction. Although advocacy in the
modern world is based on the principle of self-organization of advocates
and bar associations, there are few countries in the world where
advocates are entirely self-regulated without any supervision, guidance,
or restrictions from other sources, such as the executive, legislature, or
judiciary (Bakaianova et al., 2019). In recent years, there has been increased
interest in regulating the advocacy profession. The motivation of scholars
and practitioners to discuss the independence of the bar and its ability to
self-regulation is, to some extent is the result of regulatory changes in the
legislation of countries such as England, Wales, Australia, New Zealand,
in which governments have increased the involvement of non-lawyers in
the regulation of advocacy profession and have adopted signicant changes
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aimed at consumers of legal services (Djaburia, 2019; Gregory and Austin,
2019). Thus, at this time, it has become commonplace to talk about the
relatively recent trend of transition from self-regulation of the advocacy
profession to co-regulation. Based on the above, it is important to conduct
a comparative legal study of the legislation governing the activities of bar
associations in the world, as well as to make specic proposals to improve
the legislation governing the activities of these bodies in Ukraine, which is
the purpose of this work.
1. The main functions of professional associations of advocates
Bar associations are a unique form of public organization, ocially
recognized by law as a structure of civil society involved in law enforcement
(Moiseeva, 2017). In most countries, governments have delegated
reasonably broad powers to self-governing bar associations. They can
control access to the profession (for example, by stipulating such access by
membership in the organization, as well as by imposing requirements on
such membership); have quasi-judicial powers (for example, disciplinary
proceedings against their members); establish rules that sometimes have
to be applied not only by their members but also by the courts and the
public (e.g., professors of law in Croatia, provide legal advice and write
legal opinions and are not allowed to become members of the Bar if they do
not leave teaching and will not start a private practice). The most essential
functions of a professional association include «corporate court» over
those members of the community who have violated professional ethics.
Many professions have a formal code of ethics, but relatively few have real
mechanisms for tracking violations and applying sanctions. Thus, to some
extent, advocacy association may have legislative, executive, and judicial
prerogatives — and the more they exist, the more accountable they must
be to society for the proper use of such prerogatives. The professional
community of advocates’ main functions includes social control (ethical
norms and disciplinary practice) and socialization (exams and training) of
members (Bakaianova et al., 2019; Zaborovskyy et al., 2020).
The solidarity between members of the profession is possible only in the
presence of an association that provides, sometimes forcibly, commitment
to the ideals of the profession. Any professional association, to have the
right to speak on behalf of the whole profession, must get into its ranks
all potential members who meet the criteria for admission to it. Not every
association succeeds, but it must at least strive for completeness (Djaburia,
2019). The term “completeness” Merton means the ratio of current and
potential members of the association. This indicator determines the
authority of the association in a particular area of activity. If we turn to
the advocacy profession in Ukraine, the whole history of its development
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Regulation of advocacy profession: global trends
is characterized by the struggle to achieve the full completeness of the
professional association. For a long time, advocates did not have a single
corporate organization. Although pre-revolutionary and Soviet times had
councils of juries and Bar associations, they operated only at the regional
level, were more formal, and were under state control. Only with the creation
of bar self-government bodies in 2012, with the mandatory membership of
each advocate, it became possible to talk about the introduction of a full-
edged professional association. However, advocates did not get a complete
victory in the struggle for completeness because there were and continue to
be groups of lawyers who are potentially able to enter the Bar but do not
want to do so.
2. Self-regulation of the advocacy profession based on the
principle of independence
The term “independence” of the advocacy profession is quite adequately
dened in Recommendation (2000) 21 as “the freedom to pursue a
profession without undue interference”. Bar associations must have
institutional independence, both legal and practical, from all external
parties, including the government, other executive bodies, parliaments and
external private interests. In particular, “the executive body of professional
associations of advocates must be elected by its members and perform its
functions without external interference” (principle 24). An advocate must
be free — politically, economically, and intellectually — in their counseling
and representation activities (Guess et al., 2018). It means that a lawyer
must be independent of state and other government interests; he must
not allow his independence to be undermined due to undue pressure from
business partners (Moiseeva, 2017).
In its decision, the Supreme Court of Canada recognized the
constitutional importance of the bar’s independence for the functioning
of the legal system and the protection of the rule of law. The court stated
that “the bar’s independence from the state in all its comprehensive
manifestations is one of the characteristic features of the free profession.”
“Advocates should be free to represent citizens without fear or advantage in
protecting their personal rights and civil freedoms from interference from
any source, including public authorities.”
Speaking about the self-regulation of the advocacy profession based
on the principle of independence, one of the provisions underlying the
rule of law is the right of advocates to be free from any inuence that may
interfere them from fullling their duties. Thus, according to the author,
the rule of law is the basis of the independence of advocates (Moiseeva,
2017). Advocates’ independence should include more than just freedom
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from state intervention. The formulation of the independence of the
bar, in her opinion, is based on a special concept of ethical and legal
unique duties of an advocate, which are quite contradictory. The dispute
between pro-independence advocates and critics of such independence
is essentially a dispute about the nature of advocates’ professional and
ethical responsibilities and not about the independence of bar associations
(Zaborovskyy et al., 2020).
Since lawyers perform a public-law function of providing professional
legal assistance, there is a need to ensure some control (i.e., change or
cancellation of the result of an act) over advocates’ activities and bodies
of the bar and bar associations, which does not undermine the principle
of independence of the bar (Gregory and Austin, 2019). The narrowing of
state dictation sphere is a clear and undoubted trend in the development
of democratic public institutions, including the bar. However, this trend
cannot be unlimited. Even during the judicial reform in Russia in 1893, the
state, by transferring disciplinary power to the state itself and not retaining
the right to control its activities, would have no guarantee that advocates’
misconduct would be prosecuted with due energy and impartiality; on the
other hand, individuals entrusted with the protection of their rights to
advocates will not be sure of the objectivity of the assessment of the abuse
of the latter by their comrades (Zaborovskyy et al., 2020).
Furthermore, the advocates will nd themselves in a dicult situation
because their fate will be in colleagues’ hands, burdened with personal likes
and dislikes. A scholar proposes to recognize the existence of the theory
of advocacy management, with which one cannot disagree. Thus, studying
the problems of interaction between the bar and the state determines the
dual nature of such management - corporate (self-government) and state.
It should be added that the volume of implementation of such an element
of the principle of independence of the bar as independence from the state
increases proportionally to the expansion of self-government of the bar
(Bakaianova et al., 2019).
3. Regulation of the advocacy profession: concept
The requirement of independence places responsibility not only on the
bar association itself, but also on the executive and the legislature, which
must respect that independence, refrain from inappropriate interference,
adopt appropriate legislative and institutional guarantees and not violate
them in practice (Gregory and Austin, 2019).
The concept of “regulation” (from the Latin regulo - rule) means ordering,
adjusting, bringing something in line with something. To regulate is to
determine the behavior of people and their teams, to direct its functioning
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Regulation of advocacy profession: global trends
and development, to give it certain limits, to purposefully organize it. The
term “regulate” means to set boundaries, the scale of people’s behavior, to
bring stability, system, order to social relations and thus direct them in a
certain direction. An important aspect in the formation of understanding of
the essence of regulation are the traditions of a particular state, as well as
scientic and theoretical traditions that set boundaries and determine the
direction of legal regulation (Guess et al., 2018).
The regulatory process as a purposeful process that has one or more
goals designed to change activities or behaviors ... often by limiting such
behavior, encouraging its participants, or facilitating their activities from
time to time, without which this activity or behavior would be impossible.
As for the regulation of bar associations, it can be carried out not only in
a general way (for example, by adopting legislation on their organization
and activities), but also by resort to more detailed regulated actions, such
as interaction of advocates with the clients, the court, the legal system.
And while some of these actions may be regulated by additional normative
provisions, which must also be followed, they must be assessed by the
regulator also in terms of compliance with the law (Bakaianova et al., 2019).
4. Methods of regulating the advocacy profession
Provisions on advocates’ legal regulations are contained in many dierent
types of regulations. Examining this issue from a global perspective, some
scholars classify these acts as follows: 1) legislation that may be specic
to a particular profession (e.g., the legislation on advocacy in Canada,
Australia or Germany legislation that is more widely used, (for example,
the provisions of the US Bankruptcy Act applicable to advocates advising
debtors, the British rules on money laundering, similar laws adopted in
other jurisdictions 3) regulations adopted by bar associations (For example,
in Germany the bar association has adopted mandatory regulations
(Berufsordnung) concerning the advocacy profession (Rechstanwälte) on
the basis of powers granted to it by federal law) (Dubal, 2017; Hatcher,
2019). It is necessary to add rules of conduct for advocates, which are called
ethical rules or rules of professional conduct (Rules of conduct in U.S.
states).
In some jurisdictions, primary regulators, such as the US Supreme
Court, adopt these rules. In other cases, several regulation levels may be
involved before these documents reach the organization that adopts the
rules of conduct of the advocate. For example, the UK Legal Services Act
2007 established the Legal Services Council, which approved the Solicitors
Regulatory Authority (SRA) as the primary regulator for advocates in
England and Wales Professional and ethical standards for advocates in
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British Columbia, for instance, contained in the Law on Advocacy, the Rules
of the Law Society and the Code of Professional Conduct, which determine
the behavior of lawyers not only in legal practice but also in other areas,
and also in court decisions and disciplinary decisions of the advocates
association (Terry, 1997).
5. Joint or supervisory regulation
The simple equation that we would like to present is as follows: the less
power the bar has, the higher its chances of being “independent”; the more
prerogative and power it possesses, the stronger the need to apply specic
external control mechanisms (i.e., supervision by state bodies - courts,
ministries of justice) (Dodek and Alderson, 2017). Some alternative to self-
regulation is joint regulation or supervisory regulation. The co-regulatory
model provides that the right to complain about lawyers’ actions may be
shared between dierent regulators. In contrast, the oversight model may
allow decisions taken by corporate bodies of bar associations to be appealed
to an independent body. (Australia, England and Wales are examples of
joint regulation of the advocacy profession, where two or more bodies share
lawyers’ supervision). This provision is not in conict with international
standards, which stipulate that bar associations may not act as a nal
instance in resolving certain issues of their activities. For example, decisions
on disciplinary action against its members, the granting of permission to
advocacy practice, “should be reviewed by an independent and impartial
judicial body”. In any case, such a doctrine of “subsidiarity” remains a
potential obstacle to claims to the ideal “independence” and “autonomy” of
corporate bodies of professional bar associations.
6. Regulating the advocates profession in dierent jurisdictions
The UK Legal Services Act of 2007 radically changed some aspects of
advocacy regulation in this country. The most signicant aspect of the
structural changes is related to the creation of a regulatory body - the Legal
Services Council, which is responsible for managing all legal entities that
regulate the activities of English lawyers, providers, including barristers
and solicitors (Cone III, 2007). The Legal Services Council has approved
the Solicitors Regulatory Authority (SRA) as the primary regulator for
advocates in England and Wales, the Bar Council and the Ombudsman’s
Legal Service. The Legal Services Council sets standards that govern the
conduct of advocates, carries out “targeted regulation” that involves not
only responding to specic breaches of advocates’ professional obligations
but also trying to avoid, detect, and correct circumstances that create a high
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risk of professional breaches. In particular, the Legal Services Council has
the power to set requirements for approved regulators: to set targets for
them and to take specic measures if such indicators are not met, and to act
if the “act or omission” of an approved regulator has a negative impact on
the achievement of the goals of the regulator (Dodek and Alderson, 2017).
At present, the Legal Services Council’s eorts are focused on protecting
the rights of consumers of these services. For example, in its annual report,
the Legal Services Council includes a separate section “Regulation in the
consumers’ interest”. Describing the activities of the regulatory authorities
of England and Wales, it should be noted that the Board of the Bar Council
includes not only advocates but also lawyers who are appointed rather than
elected. At the same time, the number of non-lawyers tends to increase
(Hatcher, 2019).
Although the American system protects the profession’s independence,
in the United States, constitutional requirements for the separation of
powers have allowed state courts to establish inalienable power over
professional regulation. The independent character of the Irish Bar is
a fundamental value underlying the profession and has served the cause
of justice for hundreds of years. The only limitation on the barrister’s
ability to act independently is The Code of Conduct for the Bar of Ireland.
However, under the Legal Services Regulation Act 2015 in Ireland, the
Legal Services Regulatory Authority consists of eleven members appointed
by the Government of Ireland, and, following Part 2 of the Act, most of
them should be non-professionals. (The exception is, in particular, that one
candidate is appointed by the Bar Council and two by the Bar Association
of Ireland). The body regulates the provision of legal services by practicing
lawyers and provides support and improvement of standards for the
provision of such services in the state. Its powers include, in particular, the
consideration of complaints about the actions of advocates, the adoption
of professional codes, the movement of practicing lawyers between the
professions of solicitor and barrister (Hatcher, 2019).
As for the regulation of the legal profession in other countries, for
example, in two Canadian provinces - British Columbia and Quebec, the
activities of the bar - a provincial law organization - are controlled by certain
government agencies and ocials. For example, in British Columbia,
the Oce of the Ombudsman has the right to receive and deal with
complaints regarding advocates, to deal with regulatory issues, and to issue
recommendations “to address injustices.” In Quebec, the legal profession’s
governing body is the Tribunal, which can review the decisions of provincial
bar associations. However, this oversight is limited and does not include
guidance on the internal management or policies of such organizations
(Maharramli, 2020).
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At the same time, there are countries in the world that have generally
departed from legal society’s self-government model. For example, Australia
did this in the late ‘90s. The Australian Bar Association is the national
representative body of Australian lawyers. It does not take any part in the
admission of advocates or their professional practice. And the bodies that
allow admission to the profession are the admissions oces of lawyers (for
example, in New Wales, Northern Territory), the Council of Legal Practice
of Western Australia, other admissions bodies in the state or territory in
which the candidate intends to practice (Parker, 2002).
Analyzing the dierences between the regulation of advocates’ activities
in England and Wales and in Canada, it can be identied the following:
1) the regulatory bodies governing lawyers in England and Wales, that
subordinate to the Legal Services Council, while in Quebec and British
Columbia in most jurisdictions the bar is subject to oversight only through
judicial review or amendment of legislation; 2) The Board of the Bar Council
in England and Wales includes not only advocates but also non-lawyers who
are appointed rather than elected. Furthermore, the number of non-lawyers
is increasing. In Canada, the governing bodies of advocates association are
elected and overwhelmingly consist of lawyers; 3) The Code of Conduct for
Lawyers in England and Wales emphasizes customer service as a priority
for an advocate’s responsibilities. Although there have been a number of
regulatory changes in Canada, the general emphasis has remained on the
set of ethical obligations of the advocate rather than on consumer issues
(Bromwich, 2018; Maharramli, 2020).
Besides, the misconduct of advocates in England and Wales is dealt
with and authorized by a separate, well-paid regulatory body appointed
by a judge of the Court of Appeal. In Canada, disciplinary cases are heard
by advocacy associations in unpaid colleges in most provinces. In both
jurisdictions, the regulatory structure is not subject to direct executive or
legislative control, and the basics of regulation in these countries are based
on similar principles.
7. Objectives of the advocacy profession regulating
The concept of “regulatory goals” has a growing interest in the theory of
regulation. As for the Bar, this trend has emerged against the backdrop of
global government interest in regulatory theory. Regulatory goals serve as a
guide both for those who regulate the legal profession and those subject to a
specic rule, goal. For example, the UK Legal Services Council is committed
to achieving a variety of regulatory objectives, including: protecting and
promoting the public interest, upholding the constitutional principle of the
rule of law, improving access to justice, protecting and promoting consumer
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Regulation of advocacy profession: global trends
interests, and promoting competition in legal services, encouraging an
independent, strong, diverse and eective advocacy profession, promotion,
adherence and support of professional principles (Domberger and Sherr,
1989). These professional principles are dened as:
• independence and integrity of the advocate,
• maintaining appropriate standards of work,
• adequate protection of the client’s interests,
• independence in the interests of justice,
• condentiality.
The United Kingdom is not the only jurisdiction that has dened
regulatory objectives. A number of jurisdictions have adopted regulatory
targets for lawyers, and interest in this issue is growing: regulatory targets
have been proposed among other countries for Australia, Ireland and
India. Normative legal acts regulating the advocacy in the world usually
do not dene or clearly formulate this regulation’s purposes. Although
the lack of clear regulatory objectives is recognized as a global rule, there
are some exceptions. For example, in several Canadian provinces, some
provisions can be equated with regulatory objectives. In Ireland, the Legal
Services Regulatory Authority must take into account the objectives of: (a)
protecting and promoting the public interest, (b) supporting the proper
and eective administration of justice, (c) protecting and promoting the
interests of consumers concerning the provision of justice, (d) promoting
competition in the provision of legal services in the state, (e) promoting
an independent, strong and ecient legal profession, (f) adherence to
professional principles. In 2010, Scotland passed a new law that includes
regulatory objectives (Terry, 2013; Bodrunova, 2021). Canada is another
example of a jurisdiction that has clearly articulated the goals of regulating
advocacy. Interestingly, the British Columbia Law Society must protect the
public interests, not the lawyers’ interests it regulates.
As for the independence of the Bar, the United Kingdom speaks of
the need to ensure “an independent, strong, diverse and eective legal
profession”. The British Columbia Bar Association states on its website
that self-regulation is part of ensuring the independence of advocates.
Many other Canadian provinces are calling for “the decency and honor of
an advocate” as the basis of his independence. The purpose for which the
Danish Bar and Law Society was established is, in particular, to protect the
independence and integrity of advocates, ensuring the fulllment of their
responsibilities (Terry, 2013).
Thus, the requirement of independence of the Bar is reduced to individual
protection of advocates in the exercise of their professional functions,
and to collectively ensure that advocates have self-governing associations
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to protect their interests, which includes, inter alia, maintaining and
strengthening of professional standards and independence of advocates.
But this general rule has some exceptions.
Independence of the bar vs independence of advocates
As was noted, the bar’s regulatory powers to address the rights and
responsibilities of its members are quite signicant in most jurisdictions.
Thus, at least in some instances, the bar’s independence can be seen as
possible danger of uncontrolled and illegal decisions that may restrict or
violate its members’ rights and freedoms. In any case, even the legal decisions
of the independent bar are, in fact, a restriction on the independence of
advocates - their behavior, their personal and professional position depend
on the decisions of the professional organization. Thus, the independence
of the bar as an organization, to some extent, contradicts the independence
of advocates (at least those who are members of the association).
In our opinion, the bar’s internal norms should also be subject to review
for their constitutionality and legality. The reference to the “independence
of the bar” cannot grant immunity to the bar in case of violation of the legal
rights of its members and third parties. This position is in line with the case-
law of the European Court of Human Rights. Thus, the European Court of
Human Rights has noted that the state is responsible for the actions and
decisions of bar associations, as these entities are established by law and
have a public function of monitoring advocates’ compliance with the rules
(Mowbray, 2005).
Lastly, in jurisdictions where there is no absolute advocacy monopoly
(and most are), the functioning of corporate bar associations may aect the
independence of other legal practitioners, who may, for example, claim to
have more rights to decide matters of common interest.
Who is the main beneciary of advocates independence?
The independence of the bar is not an end. This privilege is given to
advocates to successfully perform the functions assigned to them by the
state. The question arises: “Who is the main beneciary of professional
“independence” – the bar, advocates, the legal system, or society as
a whole”? Commonly used terms - “independence of advocates” and
“independence of the bar” – may indicate that those who are primarily
entitled to “independence” are either private advocates or bar associations.
However, as in the case of judicial independence, the very reason for the
existence of such a “privilege” is the performance of a specic function.
In the case of the judiciary’s independence, such a function provides the
conditions for a fair and impartial resolution of specic cases. In the case
of the advocacy profession’s independence, such a function should be the
need to provide an environment in which everyone has the right to the best
legal representation possible in any kind of legal proceedings.
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We noted in us researches that, based on the legal nature of the bar,
the status of an advocate as a party to the proceedings and an integral
part of the administration of justice, the primary duty of an advocate is
to assist in the administration of justice. To carry out its functions, the
bar must have the same independence as the judiciary, which is vital for
the fair administration of justice, strengthening democracy, and the rule
of law. “The advocacy profession is genetically related to the judiciary and
cannot but be transformed after it”. The ultimate goal of the independence
of the bar is to achieve a system of justice that would properly promote
the observance and protection of the rights of every person. Thus, the
primary beneciary of any professional “independence” is each individual
citizen, as such “independence” is established and maintained in order to
guarantee everyone an impartial, prompt, and accessible legal protection of
appropriate quality. As stated in the Conclusions of the Multilateral Meeting
on Judicial Public Policy of the Council of Europe, independence should
not be seen as a privilege granted to judges but as a guarantee for citizens.
Thus, the independence and responsibility of judges do not contradict each
other (Greer and Williams, 2009; Maharramli, 2020). Only such criteria
can be used to assess individual situations of “dependent” or “independent”
associations of advocates, and only such changes of national legislation
make sense.
8. Opportunities of advocates associations to inuence social
processes
There is an idea that the ruling elite in any society is faced with the need
to control the means of violence. Due to the specics of their professional
functions, advocates on a daily basis in specic cases oppose (often alone)
the state machine of criminal prosecution and must address the rule
of law and limit the misuse of violence by law enforcement agencies. In
authoritarian states, advocates can represent and defend the interests of
the ruling elite and, in this regard, be an extension of the law enforcement
system. However, in most cases, advocates, on the contrary, are opposing
(Kazun and Yakovlev, 2017; Bodrunova, 2021).
The ability of advocates associations in any country to inuence
social processes is directly related to the professional community’s level
of development, the presence of strong bar associations, the level of
their independence from law enforcement and government, the demand
for legal services from the public and business. According to many
studies, advocates, due to the importance of their social status and their
professional competencies related to law enforcement, are often key actors
in social reform (e.g., public administration reform in Israel, legal reform in
China, regular political initiatives in the United States. The position of the
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advocates’ community can be emphasized apolitical, but even in this case,
it is able to have a signicant impact on society through its professional
activities (for example, by helping vulnerable groups) (Greer and Williams,
2009; Maharramli, 2020).
9. Problems of bar self-government bodies functioning in
Ukraine
Turning back to the prospects for the evolution of the advocates’
community in Ukraine, it should be noted that today the Ukrainian
National Bar Association (UNBA) is the largest non-prot organization in
Ukraine, which operates on the basis of a special law and the Statute, has
an extensive regional network and a high degree of autonomy. In particular,
the UNBA Charter stipulates that UNBA is an apolitical, autonomous, and
independent organization (Hatcher, 2019; Maharramli, 2020), which has
nancial and organizational independence. The Ministry of Justice of
Ukraine has no control over UNBA, or the authority to issue certicates to
advocates, its functions in relation to UNBA are limited to issues related to
free legal aid (Kazun and Yakovlev, 2017). At the same time, Ukraine has not
yet got rid of the problem common throughout the post-Soviet space — the
existence of good laws and poor practice of their application, which usually
leads to a dysfunctional justice system and undermines reforms. Now, the
legislation on advocacy in Ukraine, although it mostly meets international
standards for the organization and activities of the bar, at the same time
widely violated (with a tendency to increase) the rights of advocates and
guarantees of their independence (Kazun and Yakovlev, 2017; Bodrunova,
2021).
The market for services provided by lawyers in Ukraine is decentralized
and is not subject to control either by the state or by advocates’ corporate
governance. This way, the state cannot guarantee everyone the right to
professional legal assistance established by Ukraine’s Constitution. In the
case of the adoption of the Law № 1013 of 29.09.2019 “On Amendments
to the Constitution of Ukraine (concerning the abolition of the lawyer’s
monopoly)” there will be a need to change a large number of laws governing
lawyers who are not advocates, in order for them to have the same status,
same standards of conduct as advocates. Although, in our opinion, such
a need exists regardless of the adoption or non-adoption of this draft
law. According to the Special Rapporteur report on the Independence of
Judges and Advocates of the United Nations, to ensure the integrity of the
whole profession and the quality of legal services, it is desirable to create
a single professional association governing the legal profession. (The
“completeness” of the advocates’ profession was discussed above) (Hatcher,
2019; Maharramli, 2020).
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In this regard, it should be added that in countries where there is no
“advocates’s monopoly” at all, there is a very eective mechanism for
exercising the right of citizens to qualied legal aid, as the latter is provided
by an appropriate set of measures related to the supervision of legal aid
by advocates or the regulation of control mechanisms over the activities of
lawyers who do not have an advocate’s license (for example, in Finland). In
Canada, there are 14 territorial and provincial law associations responsible
for overseeing more than 120,000 lawyers (as of 2019). The national
coordinating body of Canadian lawyers is the Federation of Legal Societies
of Canada (FLSC) (Federation of Law Societies of Canada), responsible for
developing national regulatory standards for the legal profession.
In Ukraine, advocates are not always able to fully participate in the
process of discussing the legislation on advocacy. At the same time, as the
Special Rapporteur noted in his communication on the independence of
judges and lawyers addressed to the President of Ukraine, “legislation on the
advocacy should be developed directly by the advocacy representatives. If
Law establishes advocates’ self-government, it is necessary to consult with it
at all stages of the legislative process “ (Bakaianova et al., 2019; Bodrunova,
2021). Although UNBA has a well-developed institutional structure that is
functional and eective, the qualication and disciplinary process needs to
be signicantly rened to ensure that the bar, its institutions, and individual
advocates can operate in accordance with international standards on the
role of advocates. The admission process to the profession remains weak,
somewhat outdated, and, as it turns out, is not free from deep-rooted
corrupt practices, which undermines trust in the profession and weakens
its independence. Besides, the inherited internal split in 2012 within the
bar was not fully resolved (Bakaianova et al., 2019).
The problem of the advocates’ associations functioning, and, above all,
their independence is not entirely solved either in theoretical or practical
layers. There is no theoretical consensus on absolute or partial independence
of the bar and, accordingly, the development of criteria according to which
state intervention in the bar’s activities can be considered acceptable.
The bar’s principle of independence does not have an unambiguous
understanding in the Law of Ukraine “On Advocacy and Advocacy activity”
in terms of delimitation of powers to manage the bar between the state and
the bar, which creates opportunities for arbitrary application of the Law.
And lastly, since the most critical mission of advocates associations is to
protect the interests of their members, there is a need to amend the Law of
Ukraine “On Advocacy and Advocacy activity” to reect the crucial role of
corporate bar associations in achieving this goal.
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Conclusions
In most countries, states have delegated relatively broad powers to self-
governing advocates’ associations. They can have legislative, executive, and
judicial prerogatives - and the more they have, the more accountable they
must be to society for the proper use of such prerogatives. The narrowing of
the state dictation sphere is a clear and undoubted trend in the development
of democratic public institutions, including the bar. However, this trend
cannot be unlimited. Since the bar performs a public law function of
providing legal assistance, there is a need to ensure some control over its
activities, which does not undermine the bar’s principle of independence.
The concept of “regulatory goals” has a growing interest in the theory
of regulation. Regulatory objectives serve as a guide for both those who
regulate the legal profession and those covered by a particular rule. The bar
activities are “regulated” by many dierent structures and dierent sources
of law, including those that are directly related to the advocacy profession
and those that have a broader application. Both dierent methods and
dierent levels of regulation can be used. A specic alternative to self-
regulation is joint regulation or supervisory regulation.
In recent times, the governments of some countries, on the one hand,
have increased the participation of non-lawyers in the regulation of the
advocacy profession and adopted signicant changes aimed at consumers
of legal services. On the other hand, there are countries in the world that
have generally departed from the legal society’s self-government model.
The independence of the bar as an organization, to some extent,
contradicts the independence of advocates (at least those who are members
of the association). The reference to the “independence of the bar” cannot
grant immunity to the bar in case of violation of the legal rights of its
members and third parties.
The ability of advocates associations in a country to inuence social
processes is directly related to the level of development of the professional
community, the presence of strong bar associations in the country, the level
of their independence from government, the development of professional
communication. However, even in cases where the position of the legal
community is apolitical, it can have a signicant impact on society through
its professional activities.
The market for services provided by lawyers in Ukraine is decentralized
and is not subject to control either by the state or by advocates’ corporate
governance. In this way, the state cannot guarantee everyone the right to
professional legal assistance established by the Constitution of Ukraine.
Amendments proposed by the draft Law №1013 of September 29, 2019
(on the abolition of the advocate’s monopoly), aimed at repealing the
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Regulation of advocacy profession: global trends
provisions of Article 131-2 of the Constitution of Ukraine on the exclusive
representation of another person in court by an advocate will lead to a
restriction of the constitutional right to professional legal assistance and,
as a consequence, a violation of the essence of the fundamental right of
everyone to judicial protection and a fair trial.
The legislative bodies of Ukraine should not only stand down from
advocates participating in the process of discussing and adopting legislation
on advocacy and advocacy activity but also be obliged to involve advocates in
all stages of the legislative process. This provision should be implemented.
Statement of conict of interest
The authors stated that there were no potential conicts of interest
regarding the research, authorship, and publication of this article.
Financing
The authors did not receive nancial support for the research, authorship,
and publication of this article.
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Esta revista fue editada en formato digital y publicada
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Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 69
