While the authority of governmental bodies rests upon their public powers and is supported by the entire machinery of the State, the authority of the Bar has only one support – public trust. As is commonly known, trust is hard to get and easy to lose, especially in such a conflict-ridden area as attorney’s-at-law work in court. Involvement in the settlement of legal conflicts demands that an attorney-at-law comply with certain moral and ethical requirements, which he/she should implement while exercising his/her powers.

An analysis of the results of scientific efforts focused on the Bar demonstrates that so far issues pertaining to proof of power of attorney-at-law have received merely episodic attention of scholars. However, as court practice shows, as early as at the stage of proving their powers as a representative or a defense counsel, attorneys-at-law encounter certain problems which need not only statutory certainty, but also a change in the perception of attorneys-at-law as equal participants in legal relations in courts who are guided by a comprehensive system of ethical principles of attorney-at-law activities, which means that attorneys-at-law exercise their professional rights with good faith.

The article aims at resolving the scientific task of making an analysis and systematization of the approaches used in court practice for appropriate proof of power of attorney-atlaw in court procedure in Ukraine; the purpose of the article is also to substantiate the reasonableness of the introduced presumption of good faith as regards attorney’s-at-law actions in the context of proof of power of attorney-at-law.

Part 1, Article 26 of the Law of Ukraine "On the Bar and Attorney-at-Law Activities" prescribes that an attorney’s-at-law authority to provide legal aid may be confirmed by the following documents: 1) contract for legal aid; 2) power of attorney; 3) warrant; 4) instructions by a body (institution) authorized by law to provide free-of-charge legal aid. However, there are certain differences regarding proof of power of attorney-at-law in legal proceedings of different types. Along with the list of documents to be submitted to confirm power of attorney-at-law, there is also a certain inconsistency in court practice regarding whether the documents certifying attorney’s-at-law powers in court should always be submitted as original documents. Besides, court practice regarding appropriate proof of power of attorney-at-law in court proceedings still contains a debatable issue about correct filling-in of mandatory details in the warrant subject to which legal aid is granted. Besides, it should be remembered that an attorney-at-law is directly liable for the accuracy of the data given by him/her in the warrant. At the same time, current legislation of Ukraine prescribes criminal and disciplinary liability of an attorney-at-law for providing untrue data in the warrant. In particular, Article 400-1 of the Criminal Code of Ukraine establishes criminal liability of an attorney-at-law for knowingly untrue notification of the court about his/her powers to represent another person in court, as well as in case an attorney-at-law deliberately does not mention in the warrant that there is any limitation of his/her powers established by a respective legal aid contract. Disciplinary liability for providing untrue data in the warrant is applied to an attorney-at-law in accordance with Section VI of the Law of Ukraine “On the Bar and Attorney-at-Law Activities”.

It is obvious that a court of law should apply legal provisions and perform legally significant actions with due regard for the circumstances of a particular case and at the same time should ensure efficient protection of rights, freedoms and legitimate interests. However, the formal approach with which the court exercises its powers already at the stage when a person appeals to the court may entail a violation of the right to a fair trial. It is worth noting that many problems arising when an attorney-at-law proves his/her powers as a representative or a defense counsel in various types of legal proceedings could be avoided if courts, while assessing the competence of an attorney to carry out certain procedural actions, used the presumption of good faith as to how an attorney-at-law fulfils his/her contractual obligations to provide professional lawyer’s aid. In general, an attorney whose work is guided not only by the rules of law but also by ethical principles, should adhere to certain requirements which will testify to his/her honesty, conscientiousness and responsibility as a representative or a defense counsel protecting the rights and legitimate interests of a participant to court proceedings. Observing these requirements, an attorneyatlaw will create an objective background allowing the court to presume that he/she acts in good faith.

The analysis and systematization of the approaches used in court practice to appropriately confirm power of attorney-at-law in court proceedings in Ukraine allow arriving at the following conclusions: 1) proof of power of attorney-at-law as a representative or a defense counsel in court proceedings is an important stage of his/her exercise of professional rights and obligations; 2) excessive formalism on the part of court when checking an attorney’s competence in court proceedings can entail a violation of the right of access to court, which, in turn, is an integral element of the right to a fair trial; 3) unfortunately, today there is no unity of court practice in respect of how an attorney-at-law can prove his/her powers, due to insufficient statutory regulation of such problematic issues as an exhaustive list of documents confirming an attorney’s powers, and strict regulation of the procedure according to which a warrant should be made as the main document proving an attorney’s powers; 4) with a view to ensuring the right of access to court and given that attorneys-atlaw are now liable under criminal law for untrue notification of court about their powers, there are good reasons to introduce the presumption of good faith in the situations when courts verify power of attorney-at-law as a representative or a defense attorney in court proceedings.

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