Lawyers have never stopped work in Ukraine, and the bar has been a catalyst in the development of democracy there, I learned today at a presentation of the Federalist Society.
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| Gvozdiy via Zoom from Kyiv today. |
The talk came on the heels of news of the firing of a slate of top Ukrainian government officials in a corruption scandal. Gvozdiy addressed that developing story, too, in response to questions.
After the independence of Ukraine from the Soviet Union in 1991, the legislature adopted a "Law on the Bar," in 1992, Gvozdiy recounted. The enactment liberated the bar from "complete state control," but instituted only "quasi self-governance."
Ukraine had long looked to join the European community of nations, and work began promptly after independence to move the country in that direction. A key plank in the platform of European standards, Gvozdiy explained, is the existence of an independent bar. A 1995 resolution in the Council of Europe provided an incentive, recommending the organization of Ukrainian lawyers. The recommendation later became a precondition of the landmark Ukraine-EU association agreement in 2014.
Formal progress was long stalled by the very conflict that animates the present war. The fledgling Ukrainian state was weak, and political leaders were susceptible to corruption by easterly interests. Like popular opinion and the commercial sector, the developing bar leaned westward. By the time Donetsk Oblast-born Viktor Yanukovych claimed the presidency in 2010, to the dismay of the United States, the Russian-leaning leader was walking a tightrope that could not hold.
The catalyst for the Yanukovych administration’s downfall was Ukraine’s stop-and-start efforts to sign an association agreement with the European Union. By late 2013, a majority of the population backed a draft agreement. But the pact to draw Ukraine closer to the EU placed Yanukovych in a tough situation. The treaty would open the way for substantial EU economic assistance and other perks, such as visa-free travel to Europe for Ukrainian citizens. But it would also mandate compliance with transparency and accountability provisions that gave Yanukovych and his associates reason to pause. In addition, Russia, the Ukrainian president’s main foreign patron, was steadfastly against seeing Ukraine take even the tiniest step toward Europe.
Amid the push and pull, Parliament coughed up landmark legislation in 2012 that established the Ukraine Bar Association as fully self-governing. Two years later, the Maidan Revolution deposed Yanukovych, Ukraine and the EU concluded the association agreement, and Russia invaded Crimea.
"'An obstacle is often a stepping stone,'" Gvozdiy said of Yanukovych, invoking a maxim usually attributed to U.S. Revolutionary War Colonel William Prescott. "The former president is not only not popular in Ukraine, he is the worst person we can imagine in our recent political history."
The recent ouster of top Ukrainian officials amid a corruption scandal has unsettled supporters of Ukraine with fear that the Zelensky Administration looks unstable. The news broke at a sensitive time, as the Biden Administration is navigating German reluctance to provide advanced tanks to Ukraine and skepticism over military investment in Ukraine from House Republicans. Meanwhile, Joanna Kakissis explained for NPR, Putin will seize on the news to bolster his characterization of Ukraine as a western puppet and threat to Russian security, incompetent in purported independence without Russian intervention.
In fact, the ouster is a good sign for Ukraine and should bolster western support, Gvozdiy said. Zelensky is signaling to Ukrainians and the world that contemporary Ukraine has "complete intolerance to the corruption."
Formerly, politicians robbed public coffers, and any court order to halt corruption was unenforceable, he said. The ouster now demonstrates Ukraine's remarkable progress in only a few years.
Yet in the present war, the bar is among democratic institutions fighting for survival, Gvozdiy said. The bar "would wither and absolutely disappear under Russian law."
Ukrainian advocates have "never stopped practicing law during the war," Gvozdiy said. Their work has included the defense of prisoners of war, if often to the chagrin of Ukrainians. (Other members of the legal community, such as prosecutors and judges, are busy too, for example, collecting evidence of war crimes. They are law-educated, but, unlike advocates, not members of the bar, as Ukraine follows a bar model in the European civil law tradition.)
Upholding the rule of law is the lawyer's constitutional obligation, Gvozdiy said. "We're not defending their crimes," he said of the POWs. "We defend their human rights."
One program attendee asked what American lawyers can do to help. Relayed by Bogden, the questioner expressed frustration that we don't have on-the-ground skills with obvious application, like other professionals have.
I often have shared this frustration. We can't charge to the rescue like healthcare workers, nor mission like clergy. Even for pro bono projects at ABA conferences in the United States, I've picked up litter and organized dogs for vaccination, but I've never been asked to use my skills as a lawyer.
Gvozdiy's response was revealing, but not gratifying. Ukrainian lawyers need not just financial support, he said, but mental health support.
"We need professionals who can help us in a professional way to understand better how we need to behave and work and combine war with the practice of law," he explained. "We need training ... which will teach us how to react and how to reflect, how to communicate, how to live in peace with yourself and with all this pressure as a professional."
I'm not sure we're well stocked in the United States with experts in practicing law in a war zone. But when the conflict finally comes to an end in Ukraine, I know where we can find some.
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