Ukraine

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8:35 AM Friday, December 15, 2017
Opinion
Raids Threaten Attorney Client Privilege
by Ievgen Gusiev
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By Ievgen Gusiev

KYIV -- It took quite an effort for the Ukrainian legal community to introduce to the practice of law a principle known as attorney-client privilege. Under the common use, it means that an attorney claims the privilege on behalf of the client in refusing to disclose to the law enforcement agencies including courts any information about his/her client's case.

In 2012 the Ukrainian law makers decided to strengthen independence of advocates by widening the scope of information which is subject to attorney-client privilege. Under Article 22 of the Law of Ukraine on Advocacy and the Advocates Activity, dated 5 July 2012, as amended, any information concerning the client including the content of attorney’s advice, documents prepared by attorney, information stored at electronic devices and any other documents obtained by an attorney in the process of it’s representation of the client must be kept strictly confidential.

In fact, the statute further makes it an advocate’s duty to create all the conditions which make it impossible access of any third party to the confidential information or its disclosure.

However, recently the Ukrainian bar witnessed a scandal which went public: a highly questionable way in which the law enforcement authorities compromised the attorney-client privilege.

In an unprecedented action, about 1,000 officers the of the Prosecutor General Office, supported by police agents, simultaneously started searches at nine law firms looking for confidential documents. On March 31 at 7:00 a.m., without any preliminary warning, which is mandatory by law, the agents broke into the offices of Asters, a well known Ukrainian law firm. The search warrant authorized searches for a certain client related documents at the desks of several Aster’s attorneys including the author of this article.

Authorities claimed that they had powers for the action notwithstanding attorney-client privilege on the basis of the only exception provided by applicable law. Under paragraph 6 of Article 22 of the Law on Advocacy, any information obtained within the framework of an investigation undertaken under the 2014 Law “On Prevention of Legalization (Laundering) of Income Obtained Via Criminal Means, Financing of Terrorism and Proliferation of Weapons of Mass Destruction,” will not be deemed a violation of attorney-client confidentialithy. The searches were initiated in connection with the criminal investigation against Tedis Ukraine LLC.

However, we counted several gross violations of law in the ways the prosecutors’ action was performed. The searches were carried out without a mandatory prior notice to the Kyiv Bar. In fact, a formal notice was received by the Bar’s office when the searches were already in progress.

Even more important, some of the Asters lawyers mentioned in the search warrant, including the author of this article, had never rendered any legal advice to the business subject to criminal investigation.

I am lost in presumptions. I am currently of counsel with Asters and advise clients such as Tedis on rare occasions. The matter of this company was known to me only from media.

Under the circumstances, I assume that my name was included into the search warrant as a law enforcement community vendetta for my contribution to the Ukrainian NGO FreedomVoice. As a member of EBRD’s expert community on effectiveness of justice in CIS, I advise from time to time FreedomVoice on corruption in Ukrainian courts.

In conclusion, it would be appropriate to provide a citation from Pavlo Grechkisky, a member of the Highest Counsel of Justice: “A new record was set…of massive searches at the offices of prominent law firms…These are the leaders of legal profession, the specialists that are deemed to be the most protected ones by their names and reputation. But for the agents, whose faces are hidden behind masks and who are breaking into the attorney’s offices, the Constitution, the Code of Criminal Procedure and other applicable law mean nothing… The most troubling thing is that these actions were undertaken under the most absurd from all possible grounds – rendering of legal advocacy services.”

These and such other practices of law enforcers must be ended.

Ievgen Gusia is a lawyer at Asters, in Kiev. A graduate of Case Western Reserve Law School, and Taras Shevchenko University School of Law, Gusiev has significant legal experience in power generation and distribution, natural resources, oil and gas, telecommunications and transport.

To contact the author, he is reachable at: Evgeny.goussev@gmail.com

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