Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 75
2022
Recibido el 09/09/22 Aceptado el 15/11/22
ISSN 0798-1406 ~ Depósito legal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
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Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 75 (2022), 603-614
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Systems of Advocates’ Self-Governance
Bodies in European Union Countries
DOI: https://doi.org/10.46398/cuestpol.4075.36
Svitlana Kovtun *
Ilya Shutak **
Solomiya Denys ***
Yurii Semchuk ****
Abstract
The purpose of the article was to study the experience of self-
governance of lawyers in the countries of the European Union EU.
On the basis of this material recommendations aimed at improving
the advocacy system are provided. Achieving the set goal involved
the resolution of the following tasks: a) to reveal the mechanism of
functioning of the system of self-government of lawyers in the EU
countries and identify its universal features, and; b) to determine
the main models of the system of self-government of lawyers in the EU
countries. The scope of the study was constituted by public rules, regulated
by law, arising in the provision of legal services in the application of the
legal profession and the implementation by representatives of its bodies
of the right to self-government. The methodological basis of the study
consists of general and specic research methods. It is concluded that,
the manifestation of the principle of independence of the legal profession
and the guarantee of full functioning of the self-governing bodies of bar
associations in the EU countries consists in ensuring the freedom of their
activities within the legality and its implementation in practice.
Keywords:
self-governance activity; advocacy bodies; EU Member
States; self-governance model; lawyers’ monopoly.
* Lecturer of the Department of judiciary, prosecution and advocacy Higher education institution «Lviv
University of Business and Law» Department of judiciary, prosecution and advocacy 79021, Ukraine,
Lviv, Kulparkivska street, 99, phone: (097) 097 60 01; (032) 292-87-08. ORCID ID: https://orcid.
org/0000-0002-8214-1952
** Phd in Law, Associate Professor of the Department of Criminal Law and Criminology, Faculty of Law,
Ivan Franko National University of Lviv, Professor Institution of higher education «King Danylo
University» Ivano-Frankivsk City, Ukraine. ORCID ID: https://orcid.org/0000-0002-2539-5526
*** PhD (Law), Lecturer, Ivan Franko National Univetsity of Lviv, 19 Sichovykh Striltsiv Str., Lviv, 79007,
Ukraine. ORCID ID: https://orcid.org/0000-0001-6079-2300
**** Candidate of Legal Sciences, Associate Professor of the Department of Judiciary, Prosecution and
Advocacy, Lviv University of Business and Law. ORCID ID: https://orcid.org/0000-0002-2829-0834
604
Svitlana Kovtun, Ilya Shutak, Solomiya Denys y Yurii Semchuk
Systems of Advocates’ Self-Governance Bodies in European Union Countries
Sistemas de órganos de autogestión de los abogados
en los países de la Unión Europea
Resumen
El propósito del artículo fue estudiar la experiencia de autogobierno de
los abogados en los países de la Unión Europea EU. Sobre la base de este
material se proporcionan recomendaciones destinadas a mejorar el sistema
de defensa. La consecución del objetivo jados implicó la resolución de las
siguientes tareas: a) revelar el mecanismo de funcionamiento del sistema
de autogobierno de los abogados en los países de la UE e identicar sus
características universales, y; b) determinar los principales modelos del
sistema de autogobierno de los abogados en los países de la UE. El ámbito
del estudio lo constituyeron las normas públicas, reguladas por la ley,
que surgen en la prestación de servicios jurídicos en la aplicación de la
abogacía y la aplicación por los representantes de sus órganos del derecho
al autogobierno. La base metodológica del estudio consiste en métodos de
investigación generales y especícos. Se concluye que, la manifestación del
principio de independencia de la profesión de abogado y la garantía del
pleno funcionamiento de los órganos de autogobierno de los colegios de
abogados en los países de la UE, consiste en garantizar la libertad de sus
actividades dentro de la legalidad y su aplicación en la práctica.
Palabras clave: actividad de autogobierno; órganos de defensa;
Estados miembros de la UE; modelo de autogobierno;
monopolio de abogados.
Introduction
The relevance of the study is beyond doubt in connection with Ukraine’s
obtaining the status of a candidate for EU membership and the need to
develop such a system of bar self-government in our country in accordance
with European standards, which would ensure further development of
democracy and guarantee the rule of law.
In 2013, the Law of Ukraine “On Advocacy and Advocacy Activity”
was adopted, which regulates the basic principles of organization and
functioning of the advocacy system in Ukraine, the rights and obligations
of its representatives (Law of Ukraine “On Advocacy and Advocacy
Activity”, 2013). In 2017, the Rules of Advocate’s Ethics were approved,
which establish binding rules of professional conduct for advocates based
on the traditions and customs of the national bar, as well as international
standards and rules of the legal profession (Rules of lawyer ethics, 2017).
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However, it is necessary to note the fact that, despite the positive
changes in the system of advocacy in Ukraine in recent decades, the level
of provision of legal services by its representatives remains average and
not eective enough, which is recognized as the citizens of our country, the
direct consumers of such services. This problem is relevant to guaranteeing
the quality of legal services and the state authorities, and the legal
community itself. This problem is relevant with regard to guaranteeing
citizens their right to defense, provided by the Constitution of Ukraine,
in addition, military aggression against Ukraine and other negative socio-
economic phenomena in our country, such as the spread of coronavirus
infection and the pandemic has forced us to notice deepening inequalities
and has generated troubling questions oits causas, and who and what can
be sacriced in a pandemic (O’Donovan, 2020).
The further improvement and development of advocacy self-governing
bodies is also aected by the fact that in the past year there is an unsustainable
interest in studying the results of identication, but a limited attitude will
work in the role of public opinion (Rasmussen et al., 2017), which does not
give a real picture of the functioning of the advocacy system in Ukraine in
general, highlighting its shortcomings and x them.
The main problem in the sphere of lawyers’ self-governance is that in
Ukraine one can observe the double standard of this type of legal profession.
We are talking about the fact that some of the lawyers practicing and being
lawyers are dependent on corporate legislation when it comes to lawyers’
associations, while the other part of the lawyers’ community are self-
employed persons, working individually and, accordingly, free from the
requirements of the said legislation.
Given this fact and the fact that market services provided by lawyers
in Ukraine is decentralized and is not subject to control either by the state
or by advocates’ corporate governance (Vilchyk et al., 2021), lawyers’ self-
governing bodies in Ukraine need to comply with the standards of European
Community regulations, in particular the Common Code of Conduct for
European Lawyers (Code of Conduct for European Lawyers, 1988).
There is also an obvious need to update national legislation in accordance
with modern international patterns of advocacy, as well as the participation
of representatives of the legal community in the post-war reconstruction
of Ukraine after the end of the armed aggression against it, in a particular
implementation of their provision of quality and eective legal assistance to
the population of our state to protect their rights and freedoms, guaranteed
by Art. 55 of the Constitution of Ukraine (Constitution of Ukraine,
1996), cause the need and relevance of the study of the organization and
functioning of lawyers self-government in the EU, whose member countries
have provided the institution of lawyers new content at the present stage
and turned it into a universal instrument of legal assistance to consumers
of such legal services.
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Systems of Advocates’ Self-Governance Bodies in European Union Countries
1. Theoretical Framework or Literature Review
It should be noted that a number of scientic works of domestic and
foreign scholars and legal practitioners are devoted to the study of the
issues of advocates’ self-government. The study of the issues of the outlined
problems is relevant, in particular, to clarify the new legal realities in
which the advocacy is carried out in the EU countries, as well as to analyze
the achievements in the eld of the right to self-government, which is
implemented by its bodies and representatives.
For example, N.I. Bochulyak, taking into account the requirements of
the modern social world and the rapid development of information and
communication technologies, the need to adapt the profession of a lawyer
to the new realities of his work, has studied the ethical and deontological
aspects of the behavior of a lawyer in social networks.
In the scientic work, the lawyer-practitioner concludes that it is
necessary to amend the Rules of lawyer ethics and the Law of Ukraine
“On Advocacy and Advocacy Activity”, namely, the exclusion of norms
in the said legal acts, which may lead to a broad interpretation of lawyer
conduct in disciplinary practice when a lawyer uses social networks in
carrying out his professional activities and outside of it (Bochulyak, 2019).
У. Beck devoted her scientic work to the study of the problems of lawyers’
self-government, noting that it is a state-guaranteed right of the legal
profession to independently decide the organization and activities of the
legal profession in accordance with the Law of Ukraine on Advocacy and
Advocacy Activity (Beck, 2022).
Regarding the scientic works of foreign scholars, it should be noted
that they have studied the lawyers’ self-government in a fragmented way,
certain aspects of this system while studying general issues of lawyer’s
professional activities.
Thus, J. Courvoisier (2017) studied the procedure of interrogation of
suspects in Switzerland, the scientist also notes the role of a lawyer, his
compliance with professional ethics, and moral and ethical standards
during this procedure. Ganner (2015) devoted his research work to the
study of the changes that took place in the legislation of Austria, which
concerned the issues of limiting the lawyer’s monopoly, he notes that this
reform left intact the privileges of lawyers, which were provided by the local
system of lawyer self-government.
Boni-Le Go (2020), who in her study on the gender characteristics of
the legal profession is a relevant research topic because, as the research
indicates, “serial mediation analysis demonstrated that, compared
with other-advocating women, other-advocating men were calculated
to dainty activities that were based on the lack of competence of what is
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extremely great to big penalties” (Bosak et al., 2018: 159), also examines
also the reasons for the change in the profession by lawyers in France and
Switzerland, stresses the importance of matching the moral personality of
the lawyer according to the position he or she holds.
2. Methodology
The methodological basis of the study consisted of general and special legal
methods. To achieve the goals and objectives of the study the methods of analysis,
synthesis, generalization, induction, deduction was used. Also, the comparative
legal method was used. Combination of methods of research allowed to achieve
its goals and objectives.
3. Results
With the creation of a new, supranational formation of the European
Union, the formation of a new type of state, the innovative institute of
advocacy in its member states begins to form. On the one hand, it preserves
its traditional function, is an integral part of the civil society of the European
community, a means of ensuring state guarantees for the realization of
constitutional rights to legal assistance, on the other hand, it is a peculiar,
specic element of the EU legal system, given its organizational structure
and distribution of competences between it and its member states.
The modern period of development of the legal profession in the EU
countries can be characterized by a great diversity of its institutions (in
particular, models of lawyers’ self-governance, organizational and legal
forms of practicing law, as well as the attitude of the state and society
towards lawyers’ monopoly) existing at the same time with the universality
of its characteristics for all EU member states (for example, the presence in
their legislation of Codes of Professional Ethics of Lawyers).
The EU countries, which have a long history of the development of
the Bar, well-established professional traditions in this area, as well as a
developed democratic regime (France and Germany) can be dened as a
classical model of advocates’ self-governance.
The territorial model of advocates’ self-governance is characteristic for
Austria, which has its own specic administrative-territorial structure,
resulting in peculiarities of the activities and functioning of advocates’
bodies in this country. This model of advocates’ self-governance is similar to
the Ukrainian model, which also has a specic territorial aspect, involving
representatives from the advocates’ community.
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Svitlana Kovtun, Ilya Shutak, Solomiya Denys y Yurii Semchuk
Systems of Advocates’ Self-Governance Bodies in European Union Countries
The union model of lawyers’ self-governance, without compulsory
membership, envisaged by the Swiss legislation, which is implemented
through the creation of associations of representatives of the lawyers’
community.
Bodies of lawyers’ self-government in the EU member states are as
independent as possible from the state authorities, have sucient freedom
in the implementation of their activities, which allows to eectively
implement the provision of the constitutional right to receive qualied
legal assistance. For example, in Germany this mechanism is implemented
through the existence of the institute of the trustee, in Italy - through
the legislated right to defense and legal representation, a similar right to
defense is enjoyed by citizens of Switzerland, in Spain, this mechanism is
implemented through the legislated right of citizens to appeal to a lawyer in
case of restriction of their freedom in any form.
The Bar in the EU member-states is a public-law institution in its
legal nature, and by adopting the corresponding special legislation the
countries set certain criteria for its functioning, provide conditions, which
facilitate lawyers’ professional activity, and provide them with legal services
eectively and properly. In the rst place, rst of all, through a ramied,
correctly structured organizational network of advocates’ self-governing
bodies in these countries.
The legislation of the majority of EU member-states denes the Bar as
a professional association of persons carrying out a legal profession. At the
same time, the notion “legal profession” has substantive content covering
all persons recognized and registered as lawyers in accordance with
the procedure established by the laws of this or that state, as well as the
organization of lawyers, which has its own principles of activity, competence,
requirements to knowledge, skills, and abilities, as well as relevant moral
and ethical qualities of representatives of the legal profession.
The models of lawyers’ self-governance are independent and do not
coincide with the forms of lawyers’ professional activities. National
legislation of the EU member states is aimed at encouraging lawyers’
activities in various organizational-legal forms, which at the same time
provides for certain restrictions in respect of persons who are not lawyers
and do not carry out this form of legal activity, in order to weaken their
inuence on the activities of lawyers’ associations.
The main organizational and legal form of lawyers’ associations in
the EU member-states is a non-commercial partnership (an association
established in accordance with the requirements of civil law). In addition, in
France, the lawyers’ associations can be established in the organizational-
legal form of a holding company, in Denmark - a limited liability company
or a joint-stock company of lawyers. Depending on the established legal
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form of the lawyers’ associations in this or that EU country, the form in
which the advocates’ self-governing bodies will function will also dier.
The political, economic, and social integration processes, which are
taking place in the EU countries at the present stage, directly aect the
creation of a specic system of legal norms, related to the implementation
of lawyers’ activities by their representatives in the common European
space, which involves creating appropriate conditions for the functioning
of the Bar in these countries, as well as lawyers’ self-governing bodies.
We are talking, rst of all, about ensuring conditions for free provision
of legal services (freedom of provision of services provided for by the
EU legislation), about providing sucient freedom of operation of legal
institutions, elimination of protectionist documents that restrict the
freedom of movement of lawyers, which is especially important in the
eld of criminal justice with the spread in the European space of crimes of
transnational nature.
The mechanism for controlling the performance by lawyers of their
professional duties at the proper level is the lawyers’ professional ethics,
which provides for strict compliance with its provisions by those who are
subject to its inuence. Most of the national Codes of Professional Ethics
for Lawyers adopted in the EU Member States are normative rather than
legal acts, because they are adopted by lawyers’ self-governance bodies,
and not by the legislative or state-authorized bodies for adopting such legal
documents. However, there is an exception to this general rule, since a
small number of codes of professional ethics for lawyers are legal acts by
their legal nature, since they are approved either by laws of these states
or by decrees of their presidents, and some Codes supplement provisions
of legislative acts by their prescriptions, which is expressly mentioned in
them.
The fundamental basis of all the Codes of Professional Ethics adopted by
the EU Member States are the principles of independence and inadmissibility
of certain activities for lawyers (an incompatibility of a lawyer’s professional
activities with his/her status). The legislation of the EU member-states and
regulatory acts of the lawyers’ associations operating in their territory reect
the common business practice and dierent approaches to the denition of
“inadmissibility” of certain activities for lawyers, which signicantly dier
from each other, are implemented - from a total ban on any other activities
to permission to combine practicing law with certain other activities, and in
most cases only if lawyers observe the principle of independence.
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Systems of Advocates’ Self-Governance Bodies in European Union Countries
4. Discussion
“Both law and medicine rely on self-regulation and codes of
professionalism to ensure duties are performed in a competent, ethical
manner” (Hamm and Esplin, 2018: n/p). As I.I. Bochulyak (2019: n/p)
notes, “the extreme importance of the functional load of the Bar requires
lawyers to follow high ethical standards of conduct in both professional
and personal activities”. To ensure an appropriately high level of such
behavior, there is an obvious need for appropriate regulations governing
the advocacy. For example, in the EU Member States, deontological codes
of advocates have been adopted and are in force, which in their content are
a peculiar means of controlling the proper quality of performance of their
professional duties.
By its legal nature, the bar self-government body is a quasi-governmental
body, which is a subject of public law relations, which, on behalf of the state,
performs certain functions related to the optimization of the practice of law
by guaranteeing the independence of advocates, ensuring their protection
from interference in the practice of law, maintaining a high professional level
of advocates and creating an optimal mechanism for the implementation of
these tasks (Beck, 2022). In addition, at present, the process of development
of Ukraine as an independent, sovereign, democratic state governed by
the rule of law continues (Pasha, 2022). Equally important is the fact that
“in human rights advocacy, lawyers have the right to use various means
of communication with government agencies and municipal authorities...”
(Pogosian et al., 2021: n/p).
In accordance with the above, at the present stage, the issue of reforming
the methods of providing legal aid is relevant, theoretical legal knowledge
and developed practical experience on the activities of the bar system and
the professional ethics of its representatives in the EU countries are needed,
which will allow borrowing positive experience in this area.
“Over the past three decades, the legal profession has experienced
globalization, the rise of mega-law rms, and intensied competition”
(Boni-Le Go et al., 2020: n/p). However, despite the changes taking place
in the legal profession, there are a number of member states that have a
classic model of bar self-government with a long history. These are, rst of
all, France, Germany, Italy, Spain, and Greece, in which membership in the
Bar is directly related to belonging to the chamber (collegium) of advocates,
and the representatives of the bar community are assigned to the Supreme
Court of a certain region or oblast.
Another approach to the organization of the bar self-government exists
in Austria. The legislation regulating this activity has been amended, “in
Austria, the main reason to make a legal amendment was to safeguard the
interests of the grantor at times, grantors of an attorney can control the
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attorney, give him or her directives and revoke his or her power at any
time” (Ganner, 2015: 35), that is, in this way the attorney’s monopoly in this
country was limited. It should also be noted that Austria is characterized by
such a model of bar self-government, which can be dened by the following
characteristics: the bar chambers are distributed on a territorial basis, and
they unite all those representatives of the bar community who are registered
by the authorized body located in a certain administrative-territorial unit.
According to this division, the jurisdiction of each chamber of advocates
will extend to a certain territory for which it was introduced, as well as to all
advocates included in its register.
It should be noted that it is important not only to properly organize
the system of advocacy, whose representatives carry out their professional
duties eectively but also to comply with the norms of morality and ethics
at all stages and in all forms of its implementation. For example, the issue of
videotaped interrogations seems to be currently important in Switzerland
and most of these practitioners see this practice as potentially benecial
(Courvoisier, 2017). Switzerland, as well as Sweden, provide for a model of
advocates’ self-governance, created through the formation of associations
and unions of representatives of the legal community, and membership in
them is not mandatory.
Sucient attention in the legislation of these countries is also paid to
the issue of professional ethics of lawyers, as noted in his scientic work K.
Helgesson:
The lawyers perceived their role as front-line workers to be more complex due
to their professional norms and ethics on client privilege, and what they saw as the
proper role of lawyers, being in conict with the obligation to report clients and
their transactions (Helgesson and Mörth, 2018: 236).
Despite the dierences that exist between the main models of lawyer
self-governance in Europe, it is clear that “...on the role and impact of
lawyers outside the litigation context, followed by the inuence of the legal
system on lawyers, with a focus on lawyer distress (prevalence, causes, and
consequences)” (Reed, 2020: n/p), the role and inuence of lawyers in the
exercise of their professional duties is limited.
However, regardless of the country in which an attorney performs his/
her professional activities, he/she must possess the relevant skills and
professional competencies, for example, one of the core assumptions is
that more experienced attorneys have more in-depth knowledge of the
intricacies of the patent system and, thus, are more likely to pursue more
elaborate and successful ling strategies (Frietsch and Neuhäusler, 2019).
One of the most important tasks of the bar self-government bodies is
to control the quality of legal aid services, “on the other hand, partners
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Systems of Advocates’ Self-Governance Bodies in European Union Countries
are apt to claim that associates are not legal-beagle savvy enough to work
without strict instructions” (Eliot, 2021: 1). Legal services provided by
lawyers, control and self-control over their implementation, as well as the
provision of legal education among the population, which is being actively
implemented in the EU countries and can be used in Ukraine to improve
the eciency of the bar system, in particular.
Conclusions
Based on the study, we can conclude that:
1. The manifestation of the principle of independence of the profession
of advocate and ensuring the full functioning of the bar self-
government bodies in the EU countries is to guarantee the freedom
of their activities within the law and its implementation in practice.
2. It is possible to distinguish three main models of bar self-government
in the EU countries: classical, territorial, and union, depending on
the conditions in which lawyers carry out their activities.
3. The formation of a certain model of bar self-government in a
particular EU country depends on a set of factors, in particular,
the history of the establishment of the Bar in it, as well as the
administrative and territorial structure of the country.
4. The institution of the Bar and bar self-government is sensitive
to the economic, social, and political changes that take place in a
particular country, so its reform should meet the realities of time
and the needs of the population in need of legal aid services.
5. Reform of the Bar and bar self-government bodies in Ukraine should
take into account international professional standards introduced
in the EU countries.
6. The above testies to the relevance, importance, and timeliness of
the chosen research topic.
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Esta revista fue editada en formato digital y publicada
en diciembre de 2022, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 75
