At today’s stage, development of the Bar in Ukraine is characterized by the advocates’ monopoly introduced in respect of certain types of legal services, in particular, representation of another individual in court and protection against criminal charges. And while there are no doubts and objections regarding the latter, representation of another individual in court exclusively by an attorney-at-law provokes a lively discussion among scholars as well as among practitioners, and this discussion has intensified after legislative attempts of constitutional changes aimed at abolishing the advocates’ monopoly on representation of another individual in court.

The purpose of the article is to analyze the legal framework of the advocates’ monopoly which exists in Ukraine as to representation of another individual in court at the current stage of development of the Bar, and also to highlight the grounds and the trends of the legislative framework for the advocates’ monopoly regarding such legal services, as well as to present the author’s own vision of the prospects concerning the legal framework which could restrict this monopoly as a means through which the State may regulate the right of access to court according to the needs and resources of society and individuals.

It is established that at the current stage, the advocates’ monopoly introduced in Ukraine is characterized by a discourse focused on the issue of representation of another individual in court exclusively by an attorney-at-law, and also by legislative activities, and this indicates that there is no clear legislative vision of the difference between legal and professional lawyer’s aid; and also that the principle of legal certainty, equality and justice is not taken into account in the context of exercise of the right to impose, restrict and abolish the advocates’ monopoly on representation of another individual in court, and likewise there is no due regard for the State's capabilities to legally ensure the right of access to court. The author has ascertained that current trends pertaining to the issues under study are reduced to legislative developments aimed at abolishing the advocates’ monopoly and increasing the possibilities of self-representation available to legal entities, so as to avoid the exercise of constitutional rule on representation of legal entities in court solely by an attorney.

It is proved that there are grounds for a prospective preservation of the constitutional provision prescribing representation of another individual in court exclusively by an attorney-at-law as one of the guarantees ensuring the right of every person to professional lawyer’s aid, as guaranteed by the Constitution of Ukraine. It is proposed to consolidate the constitutional possibility of determining, by virtue of law, of the exceptions to exclusive representation of another person in court by an attorney as a projection of how the State regulates the right of access to court as a response to the needs and resources of society and individuals, as well as how the potential of public prosecution may be used beyond criminal justice when deciding on the issue of the State’s interests representation in court in case a public authority or a local self-government body fails to exercise its powers of protection of the State’s interests as a consequence of inability to provide representation of such interests in court by an attorney-at-law.

Bibliography

Edited books

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Journal articles

4. Bakaianova N, ‘Slovo na pidtrymku advokatury’ [‘A Word in Support of the Advocacy’] (2019) 2-3 Visnyk Odeskoi advokatury 9 (in Ukrainian).

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Dissertations

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