Lawyer self-government as a tool for ensuring the independence of the profession under martial law: regulatory and legal analysis and practical challenges

Abstract

The study analyzes the institutional role of lawyers' self-regulation as a key mechanism for preserving the autonomy of the legal community and the professional immunities of lawyers under martial law, which creates unprecedented challenges for the rule of law and the realization of the right to legal aid. The main purpose of the research is to conduct a comprehensive regulatory and legal analysis of the current legislation regulating bar self-regulation in Ukraine, identify practical challenges and potential threats to the independence of the legal profession in the conditions of martial law, as well as develop scientifically based recommendations for optimizing the mechanisms of bar self-regulation to increase its stability and effectiveness as a guarantor of professional independence.

The methods used in the study are a complex of general scientific and special legal means of cognition. The use of the formal-dogmatic method allowed for a systematic interpretation of the Law of Ukraine “On the Bar and Advocacy” and the by-laws of the Council of Advocates of Ukraine and the National Association of Advocates of Ukraine (NAAU) in the context of special legal regimes. Using the comparative legal method, the experience of regulating advocacy and ensuring its independence in countries that were in armed conflicts or states of emergency was analyzed to identify the most effective models in the specified area. The method of system analysis was used to study the structure and functionality of advocate self-government bodies (qualification and disciplinary commissions, regional councils of advocates, NAAU) and their ability to promptly respond to destabilizing factors.

The results of the study are the justification and argumentation of the position that the self-government of lawyers under martial law has become a critically important factor that minimized the risks of disorganization of the profession and contributed to the preservation of its independence, despite the existing objective obstacles (lack of funding, difficult access to justice, relocation of lawyers). It was found that self-government bodies successfully adapted their activities by simplifying procedures, introducing electronic document management and remote work, which ensured the continuity of the provision of legal aid. At the same time, a number of urgent practical problems were identified: an increase in cases of violation of professional rights and guarantees of lawyers by subjects of government authority (in particular, in criminal proceedings), problems with the implementation of disciplinary proceedings against lawyers who are in temporarily occupied territories or are undergoing military service, as well as the need to revise standards of professional ethics in terms of the public activities of lawyers during the war. A distinction is made between de facto independence (in terms of the absence of external pressure) and institutional independence (in terms of the protection of self-government bodies). It is proven that self-government is the only effective barrier against excessive state interference in the activities of the bar.

As a result of the study, conclusions were formulated that the bar self-government demonstrated high adaptability and institutional capacity in crisis conditions and also remained a reliable tool for ensuring the independence of the profession. In addition, to further strengthen this role, the implementation of the following measures is critically needed: 1) amending the Law of Ukraine “On the Bar and Advocacy” to clearly define the powers of self-government bodies under martial law, including mechanisms for financial support and interaction with military-civilian administrations; 2) developing a single standard for responding to cases of violation of the professional rights of lawyers, which provides for the prompt involvement of representatives of self-government in protective measures; 3) strengthening international cooperation with foreign bar associations to obtain expert and logistical assistance. Further scientific research should be aimed at analyzing the impact of restorative justice on the role of the lawyer in the post-conflict period.