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.
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https://www.lawfareblog.com/whats-stake-ukrainian-national-bar-association
