Ukraine

What’s at Stake for the Ukrainian National Bar Association

By George E. Bogden
Monday, April 10, 2023, 8:16 AM

Charles Dickens once observed, “If there were no bad people, there would be no good lawyers.” At a time of war, the skills of legal advocates might, at first glance, appear wholly unsuited to the struggle at hand. And yet, facing the evil of an unrelenting aggressor, the origin story of the Ukrainian National Bar Association (UNBA) suggests the opposite. Its long, 30-year road of reform remains a fascinating case study in building an independent, resilient institution. 

Last February, I had the privilege of interviewing the vice president of the UNBA, Valentyn Gvozdiy, to better understand how this unique body came to be. As discussions about postwar reconstruction continue, some of his comments could inform a road map for postwar reconstruction. He also discussed the implications of the war on the bar’s future and what Americans, in particular, can do to help. Most of all, his comments provided an important counterexample to glib narratives that paint Ukraine’s struggle against corruption as all-encompassing.

Legal professional organizations have, occasionally, entered the fray surrounding Russia’s most recent incursions in Ukraine. In a statement now removed from its website, the Association of Lawyers of Russia adamantly affirmed “the legality of the decisions taken by the President of the Russian Federation,” adding that they “follow from the applicable international law.” 

In response, the International Bar Association (IBA) issued a strong rebuke of what it cast as a “pro war statement.” Mark Ellis, IBA executive director, said that “any association of lawyers is duty bound to uphold international law,” adding that “Russia’s invasion of Ukraine and now its indiscriminate attacks on civilians during this war are egregious violations. All bar associations must condemn these acts.”

Beyond these rhetorical clashes, the risks of deterioration facing the UNBA indicate that whole institutions—their traditions, their records, and their regulatory strength—are at stake. Years of gradual, incremental change, implemented through legislation and the development of governing bodies that meet the requirements of international best practices could be lost during the course of the conflict.

Why Is Ukraine So Often Criticized for Corruption?

Ukraine’s recent history underscores just how implausible an independent Ukrainian National Bar Association would have appeared 30 years ago. Like many societies that emerged from the dissolution of the Soviet Union, Ukraine has faced enormous burdens related to corruption. Nearly all sectors of its society—from health care to education—had been controlled by the communist state. Corruption had become embedded and routine in government structures, and officials sought to use their positions of authority as means to obtain wealth. 

Independence promised a break from this past. Yet Ukraine has stumbled on its path to reform over the past three decades. “Getting to Denmark”—how Francis Fukuyama describes an ideal end point for developing societies—has remained out of reach for Europe’s largest country by land mass. The phrase captures the formidable expectations placed on Ukraine’s government (and its peers), because, as Fukuyama observes, “Denmark is a mythical place,” a paragon that is “stable, democratic, peaceful, prosperous, inclusive, and has extremely low levels of political corruption.” The gargantuan task of remaking so many of Ukraine’s institutions at once has allowed many old systems of patronage and influence to linger

When Russia first invaded in 2014, Transparency International ranked Ukraine 144th out of 177 countries in its annual Corruption Perceptions Index. Misappropriation and misuse of state funds, embezzlement, bribery, and fraud in the public sector became personified by certain politicians in Kyiv who did not bother to hide evidence of their conspicuous, ill-gotten wealth. Following the 2014 Revolution of Dignity, a new institution, the National Anti-Corruption Bureau of Ukraine, sought to increase accountability. In the wake of promised increases in prosecutions, then-Vice President Joe Biden decried “the pervasive poison of cronyism, corruption, and kleptocracy,” when he met with parliamentarians in 2015. In the intervening years, Ukraine’s progress, in many areas of public corruption, has stalled. The 2021 Transparency International index ranked Ukraine 122nd out of 180 countries for perceived levels of corruption. For many years, a few quarters of the legal system proved to be no exception to these disconcerting trends.

A particular trenchant barrier to meaningful reform remains Ukraine’s court system. Under its worst governments, Anders Åslund, a noted specialist, claimed there was a healthy trade in judgeships.” Magistrates themselves rely on weak governing bodies that perpetuate impunity. Institutions in charge of overseeing judicial conduct regularly fail in their mission to fire judges or to bring appropriate disciplinary cases. President Volodymyr  Zelenskyy famously pushed through legislation denying lawmakers immunity from prosecution they had longed enjoyed, unwinding the network of kickbacks and favors that produce corrupt judicial elites. Nonetheless, politicians who profit from corruption have struck back with constitutional challenges to the anti-corruption bureau established in 2014. Progress rarely occurs without countervailing setbacks. When Ukraine’s parliament abolished an infamously corrupt, scandal-ridden district court, it provided means for its members to influence the country’s constitutional court through external political pressure.

As the struggle against corruption continues, Ukraine has fallen victim to its own success. Prime Minister Viktor Yushchenko, who opened up the press, also pledged to expose the cross-fertilization of backroom dealing and democracy in his country. Once previous taboos faded and legal protections became more robust, journalists reported on corruption often. What was once obscured came into public view. This has become a well-known cycle in Ukraine: As anti-corruption infrastructure improves, it sparks additional revelations about theft from public coffers. Scandal sells more papers than incremental melioration.

Ukraine’s electronic asset and interest disclosure system is a key example. Members of parliament had long attempted to block or weaken reforms that required them to log their personal holdings. When a new, online system became operational in September 2016, it forced Ukraine’s political class into a comprehensive declaration system. A tidal wave of commentary arose about how assets had been obtained.

Amid these revelations and setbacks, it is important to ask where improvements have taken place. Strides in the right direction should not be overshadowed by public-sector-wide statistics. Taking stock of institutions that may be trending toward durable reforms provides nuance. Ukraine’s troubled court system does not define Ukraine’s legal system. 

What Came Before Ukraine’s Contemporary Bar?

Following the dissolution of the Imperial Russian Bar in 1917, the Soviet Union intermittently declared through its jurists that communism entailed an entirely new set of legal norms. The law that would govern life within socialist communities would bear no resemblance to what came before. This accorded with Marxist teachings, which held that coercive elements of law enforced by the government would ultimately “wither away” and disappear. 

In the meantime, the law created by the USSR ultimately led it to develop legal professional organizations embedded within the state. Practitioners—no matter who they represented—were required to become members of legal collectives that were established by government decree and answered to government agencies. Most members of the Soviet legal profession representing clients outside the state were associated with the “Advokatura.”

Ukraine, as a constituent republic of the USSR, has an early legal history that reflected these larger dynamics. The opacity of its prior legal system is difficult to capture in terms comprehensible to lawyers practicing in Western jurisdictions. Because of the USSR’s centrally planned economy, it relied on a largely administrative legal apparatus with tens of thousands of internal regulations. Many of these were not published. Even when printed, they were provided to advocates on a limited basis and so are not generally available. In conversation with Gvozdiy, who spoke from a recently bombed neighborhood in Kyiv, he noted, “[F]or example, lawyers could make a list of laws relevant to a case, by referring to legislation that pertained to it. It could take a year to find the text of less than a majority of them.”

Ukraine’s communist-era legal professional organizations were controlled by the state, were riven with mistrust, and often acted arbitrarily. To the extent they sought to help litigants, they made it harder for them to hold their advocates accountable in instances in which they underperformed.

How Did Reform Take Place?

Building a legal institution with integrity takes time. A complete departure from decades of Soviet rule could not—and did not—happen as quickly as a wall can fall. What emerged from the rubble of Ukraine’s independence was a radically different, self-governing bar. It derives its power directly from legislation passed in 2013, providing a mechanism for citizens’ protection from encroachment by their government.

Progress toward an independent UNBA came in arduous phases beginning in 1991. Each was marked by amendments to pertinent bills and Ukraine’s constitution. As Gvozdiy told me,“The first post-Soviet law ensured transition of the Bar from being under complete control of the State, and towards quasi-self-governance.” Once that threshold had been met, the Parliamentary Assembly of the Council of Europe adopted a resolution in 1995 recommending that Ukraine establish an independent professional organization run by lawyers for their own use. 

On July 5, 2012, Ukraine’s parliament promulgated the “Law On the Bar and Practice of Law.” This comprehensive regulation provided for incorporation of the first independent professional organization of advocates. For a decade, “the Ukrainian Bar now has had to operate under a model of true self-governance,” Gvozdiy remarked.

Applauded by the IBA and the Council of Bars and Law Societies of Europe, this change in the legal framework underlying the regulation of attorneys constituted a landmark change. It contributed to the realization of Ukrainian constitutional rights by providing a mechanism for their protection, primarily from encroachments by the state. The notoriety accorded to the bar following these changes related to their careful adaptation of European standards of advocacy. The movement of the bar away from antiquated models of professional regulation provided a path toward integration with the European professional community. The responsibility to perpetuate this process of further engagement with neighboring countries rests with the membership. 

Did Association With the EU Advance or Encumber Reform of the Bar?

Ironically, the last step in the bar’s transformation occurred when Viktor Yanukovych was president of Ukraine. “Yanukovych was, of course, a leader who did not prioritize the rule of law, at all, let’s say,” Gvozdiy told me. For many, his name summons memories of the solid gold faucets and ostriches left in the cold when his private zoo was overrun amid his ouster. However, Yanukovych “was stuck with the preexisting legal onramp to the European Union and he had no choice,” Gvozdiy said. The EU had made the development of a functioning national bar a precondition for further accession talks. It placed a condition on Ukraine that prompted its government to act.

Necessity, in this case, became the mother of invention. To proceed toward integration with Europe, the government of Ukraine had to show progress. At a certain point, reform of the bar became an available change that appeared least likely to trigger abrupt or widespread political consequences. As Gvozdiy noted, “It was a somewhat unexpected change, but an important one.” Although unexpectedly consequential, other European intergovernmental organizations played a vital role. The 2012 Law of Ukraine “On the Bar and Practice of Law” was implementing the recommendations of both the Parliamentary Assembly of the Council of Europe and the Venice Commission. Those bodies recommended that the UNBA become the first and only all-Ukrainian professional organization, with mandatory membership for all advocates of Ukraine. 

Whatever role international organizations played, the initiatives leading to Ukraine’s contemporary bar would not have succeeded without lawyers on the ground. Practical implementation of the recommendations of multilateral institutions required creative thinking about how to structure an organization that could govern itself in the long term. Gvozdiy referred to this as “creating a new bar from the bottom up.” Achieving these goals required Ukraine’s legal community to come up with a system of interlocking national, regional, and local governance counsels. Strong regional bodies hold national bodies accountable, and vice versa. All leadership posts are elected positions, and each bears term limits. The bar has also advocated for national legislation that allowed for the integration of lawyers from different jurisdictions into the Ukrainian Bar. It promoted the business interests of Ukraine by creating the opportunity for foreign investors to seek legal advice from lawyers in their own state who may practice freely in Ukraine, if they comply with appropriate regulations.

As a result, Gvozdiy noted, “the bar is currently the most stable institution within the justice system in Ukraine.” Its defining features—created by an active and engaged community of advocates—bring Ukraine up to European standards, ahead of many of its post-Soviet peers.

What Are the Sources of the Bar’s Resilience?

Today, the bar has more than 70,000 members and is defined by principles of self-governance. The institution has made strides toward transparency and accountability, but its reforms are under threat. 

Since declaring martial law after Russia’s further incursions, the Ukrainian parliament has extended these emergency provisions four times. The national bar has responded by adapting its activities to prioritize the protection of human rights. Gvozdiy pointed out repeatedly that his organization insists that rights to a fair trial remain intact even under martial law. Further to this modified mission, attorneys in Ukraine have assisted the civil service since the period of emergency began. While still shouldering the personal and professional obligations of their work, they have simultaneously staffed the numerous boards performing such wartime functions as the administration of military recruitment, the stabilization of infrastructure amid attacks, as well as the management of labor relations, rationing, local defense councils, and interfaces with international aid agencies.

As one might expect, the war has deeply impacted the practice of law in Ukraine. Since Feb. 24, 2022, the country’s Council of Judges noted that approximately 11,500 court judgements have been entered, on average, every day in the Unified State Register of Court Judgements. This significant docket of decrees and proceedings contrasts sharply with prewar statistics, which indicate 30,000 court judgements was the typical daily total. Gvodziy stressed that these circumstances have not led the UNBA to abandon due process for the accused in criminal cases or for all parties in civil cases. He also stressed that these protections accrue even to Russian soldiers captured in Ukraine, whom the UNBA has taken pains to ensure are provided with fair trials. In addition, the bar has assisted with the management of new types of cases that are flooding the courts as a result of fighting. Among them are cases on adoption and transfer of guardianship of children, hastened certification of legal facts like births and deaths that occur amid hostilities, and crimes under Ukraine’s provisions against treason, sabotage, espionage, and violations of the laws of war.

Throughout his remarks, Gvozdiy analogized Ukraine’s plight and the role of its advocates to the experience of Americans in different eras. During the struggle for American independence, lawyers who made up the revolutionary committees of correspondence lent their talents to the war effort, ultimately laying the legal frameworks for the democratic principles at the heart of the Constitution. Supreme Court Justice Harlan Fiske Stone commemorated this role of the bar by stating, “They not only kindled the flame of the Revolution but they translated the Revolution into institutions under the forms of law with a passionate devotion to liberty and a skill and statesmanlike grasp which has excited the wonder and admiration of the historian.” Quoting Revolutionary War Col. William Prescott, Gvozdiy said, “Every obstacle is a stepping stone!” 

What Are the UNBA’s Prospects for Survival?

It is easy to cast a cynical eye on the bar’s future. Its leadership may seem unlikely to escape a cruel fate, something akin to the plot of “Bleak House”—in which Dickens chronicles an unending inheritance dispute that ceases only when the estate is consumed by the legal fees paid to seize it. The waste wrought by the war will first be apparent in the smoldering ruins it leaves behind. Effects on institutions are likely to be ignored in the short term.

The UNBA is a shining example of successful reform in a country described by Russian President Vladimir Putin as “not worth saving.” Its membership is an example of progress toward good governance that merits continued U.S. aid to Ukraine’s war effort during a critical juncture.

Gvozdiy reminded me what’s at stake: “The war effort is primarily aimed at ensuring the future of Ukraine’s independence, of course, but it is institutions like the bar that are at stake. They would wither and absolutely, that is for sure, disappear under Russian rule.”