BCU: The HCJ’s decisions undermine the constitutional guarantees of the independence of the advocacy profession

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The Bar Council of Ukraine has concluded that, in its recent decisions, the High Council of Justice has, without legal grounds, called into question the right of bar self-governing bodies to protect the guarantees of legal practice and has, in effect, attempted to grant one of its members — who retains the status of an advocate — special immunity from the Rules of professional conduct and disciplinary responsibility.

These conclusions of the BCU are set forth in the decision «On the results of the review of the High Council of Justice’s decisions regarding violations of constitutional guarantees of the independence of the advocacy». The BCU meeting is taking place today, April 2, in Kyiv.

The focus of the Bar Council of Ukraine’s review is on Decisions No. 136/0/15-26 of the High Council of Justice dated January 29, 2026, and No. 531/0/15-26 dated March 26, 2026. According to the BCU, it is in these decisions that the lawful activities of bar self-governing bodies — considering an advocate’s appeal, filing a disciplinary complaint, opening a disciplinary case, and further participation in disciplinary proceedings — were groundlessly characterized as interference in the activities of a member of the High Council of Justice. At the same time, the Bar Council of Ukraine emphasized: as early as October 14, 2025, the High Council of Justice itself effectively acknowledged that BCU Decision No. 82 was adopted within the scope of the Bar Association’s self-governing powers and did not constitute interference in the activities of its member.

As a reminder, in Decision No. 82 of August 12, 2025, the Bar Council of Ukraine, having reviewed the statement of advocate Oleksandr Vikhrov and video recordings of the High Council of Justice’s sessions, established facts of violations of guarantees of attorney-client privilege during the evaluation of his candidacy for the position of judge. According to the BCU’s conclusion, Roman Maselko, a member of the High Council of Justice, being aware of the legal regime of attorney-client privilege, induced the advocate to disclose materials from the advocate’s file, the nature of his relationship with the client, and other information obtained in connection with the provision of legal assistance. The Council also noted the de facto identification of the advocate with his clients and their cases, as well as the use of information about the advocate’s personal and family life beyond the scope of a proper evaluation of a candidate for the position of judge.

The new decision by the BCU places particular emphasis on the fact that attorney-client privilege protects not the «internal interests of the profession», but first and foremost the human rights of the client, the principal, and other individuals whose information the advocate obtained while providing legal assistance. The BCU emphasized that an advocate is merely a professional bearer of the perpetual duty to preserve this privilege. For this reason, the Bar Council of Ukraine regarded the unjustified coercion of an advocate to disclose such information without the client’s consent not only as an interference in the advocate’s professional sphere but also as an interference in the constitutionally protected sphere of human rights.

The BCU’s decision also explicitly states: the suspension of the right to practice law in connection with election or appointment to another position does not terminate the status of an advocate, does not nullify the effect of the Oath of an Advocate of Ukraine, and does not release such a person from the obligation to comply with the Rules of professional conduct. Therefore, in the opinion of the Bar Council of Ukraine, the conclusion of the High Council of Justice that the actions of an advocate who is a member of the High Council of Justice may be assessed exclusively by the High Council of Justice itself is not grounded in law and effectively creates a functional immunity not provided for by law.

Another fundamental conclusion of the BCU concerns the role of bar self-governing bodies. The Council noted that the decision of the High Council of Justice dated March 26, 2026, effectively interfered with the activities of the Qualification and Disciplinary Commission of the Bar of Zakarpattia Oblast, as it contained a negative assessment of the disciplinary proceedings, called into question the authority of the disciplinary body of the advocacy profession, and, according to the content of the BCU’s decision, was aimed at imposing a predetermined model of conduct on independent bodies of bar self-governance.

At the same time, the Qualification and Disciplinary Commission of the Bar of Zakarpattia Oblast, having considered the complaint, concluded that there was a disciplinary offense in the actions of advocate Maselko and issued a warning to him specifically for interfering in the legal practice of advocate Vikhrov, inciting the disclosure of attorney-client privilege, identifying the advocate with clients, and using inappropriate and humiliating remarks. Under these circumstances, the BCU emphasized, instead of refuting the established facts in the manner prescribed by law, the High Council of Justice called into question the very competence of the advocacy body’s disciplinary body to assess such actions.

The Bar Council of Ukraine also stated that this legal position of the High Council of Justice contradicts Ukraine’s international obligations regarding the protection of the legal profession. The decision emphasizes that European standards for the protection of the legal profession are based on the need to ensure that professional bar associations have a real opportunity to support and defend the independence of advocates, guarantee the confidentiality of legal practice, and prevent negative consequences for an advocate arising from their association with a client or a client’s case. In the opinion of the BCU, the recent decisions of the High Council of Justice have called into question precisely this right of professional bar associations — to respond to violations of guarantees of legal practice and to initiate disciplinary proceedings against another advocate.

In conclusion, the Bar Council of Ukraine stated that in its decisions of January 29 and March 26, 2026, the High Council of Justice exceeded the powers granted to it by law, arbitrarily expanded its own jurisdiction, interfered in the activities of independent bodies of bar self-governance, and effectively created a new legal regime not provided for by either the Constitution of Ukraine or the laws of Ukraine. Such an approach, according to the BCU’s conclusion, is incompatible with the principle of the rule of law, legal certainty, and international standards for the protection of the advocate profession.

Following the review, the Bar Council of Ukraine decided to send this decision to the President of Ukraine, the Prime Minister of Ukraine, the High Council of Justice, the Council of Judges of Ukraine, the Verkhovna Rada Committee on Legal Policy, the Verkhovna Rada Committee on Law Enforcement, the Subcommittee on the Organization and Activities of the Advocacy, legal aid agencies, the Ukrainian Parliament Commissioner for Human Rights, the Ukrainian National Bar Association, as well as to the Council of Bars and Law Societies of Europe (CCBE), the International Bar Association (IBA) and other institutions.