In the conditions of martial law and general mobilization, legal assistance has become more in demand than ever. ElitExpert met with the well-known Odesa lawyer Yevhenii Ivanchenko to discuss how legal practice has changed recently and what problems Odesa residents most often face.
The conversation turned out to be thorough - our interlocutor shared his view on how to choose the right lawyer/advocate, talked about why it is always important to fight for your rights, even if the situation seems hopeless, and why TCC employees have an increased interest in lawyers.
— How did lawyers' approach to work change during the war? What new cases have arisen, and what problems do people contact most often?
— I will start with the last question: in the conditions of war, of course, matters related to the state of war come first, and first of all, of course, it is the issue of mobilization. People are wondering how they can get a deferment from mobilization, or if they are already mobilized and have become military personnel, how to legally become a civilian again. There are questions about the violation of the rights of military personnel.
By the way, I want to note that, unfortunately, a very small percentage of people think ahead and come to a lawyer to find out if they have a legitimate chance of a deferment or dismissal from service. And as a rule, they apply when everything has already happened - and most often the relatives of the mobilized person start calling with a request for help.
I also want to say that many people, after watching videos on YouTube or listening to some "experts-advocates-lawyers", begin to "pump" their rights at roadblocks or conflict with representatives of the TCC. And, you know, it often doesn't end very well - on that side, there are also people who have returned from the front, and there can be difficulties with the psyche.
— How did the war change the rules in jurisprudence, and what difficulties do lawyers face now?
— The war greatly affected the rules of the game in our profession. For example, the way law enforcement agencies put pressure on lawyers has changed. The realities are such that now, when investigative actions are carried out - searches, interrogations - and if the lawyer "does not agree" with the investigation, asks too many questions, shows persistence, then in 99% of cases representatives of the TCC will be waiting for the lawyer at the exit, who will be intensely interested in his military - accounting documents and will make every effort to forcibly deliver such a lawyer to the TCC for further work with them.
Previously, there was no such pressure on the legal profession due to the TCC. Therefore, now each lawyer decides for himself how much he is ready to go into conflict with investigators, police, and it often depends on whether he has a deferment from mobilization, whether he is ready or not ready to serve in the army.
— Yes, no one is safe from mobilization now, that is why you have to think in advance and make decisions that are only true for yourself...
— Yes, even business. Business, especially construction, now has a huge problem with personnel. Almost all workers were mobilized. Recently in Odesa, TCC buses drove directly to construction sites and picked up all employees indiscriminately. Therefore, workers from other countries - from Moldova, Romania, anywhere - have started to be brought to the construction sites.
The war led to the fact that employers are not interested in our people, because at any moment they can be mobilized, and work will stop. In this regard, our people in their country were to some extent infringed upon.
— And what changes in legal practice took place during the war?
— Now, if a person is in trouble with the law and wants to avoid detention (provided the judge allows it), then he will have to make a donation to the Armed Forces. It can even be spelled out in the agreement — for example, a person is given a conditional term, on the condition that he will not break the law, and he, in turn, undertakes to make a contribution to the Armed Forces. Or if it is about money that was obtained in a not quite legal way, then it is agreed that these funds also go to help the army. I cannot, of course, claim that this money really reaches the armed forces, but at least declaratively, this is how it happens.
— Today, it seems, all border and conflict issues have intensified. How did the war affect the level of corruption in the country?
- Probably, now many more people are trying to use pressure levers, who suddenly decided that they can do it. And this, of course, is a problem.
But here it is important to understand: if you believe that your rights have been violated, you should go to a lawyer, and not try to solve the issue through a bribe, thereby further complicating corruption in the country. Corruption always begets corruption. Many people are sure that it will not be possible to achieve the desired result legally, because sooner or later they will encounter an official who will slow down the whole process. Therefore, they believe that it is better to pay immediately. But this is a road to nowhere.
— In general, now everyone is talking about widespread corruption, but it often sounds like baseless accusations. Do you think the situation has really worsened or, on the contrary, are there signs of a certain openness? How do courts make decisions today — strictly according to the law, or are there attempts to take into account, so to speak, the "weighty arguments" of one of the parties?
— I cannot speak for all courts in general, but based on my personal practice, I see that the situation has changed. Now the chances of defending one's position in court have become higher. And the stronger you will defend it, relying on a solid evidence base, the more likely it is that the court, even if it inclines to a different position, will understand: the case will still fall apart on appeal. That is, in a certain sense, she will be doomed.
Therefore, it seems to me that if you have a firm, clear legal position, the courts will side with the law. A strong legal position is the key to success in court.
And by the way, this should be said separately. There are cases when people, a little "zombified" by social networks, forums, neighbors' advice, come to me and say that they have everything in order with the documents - for example, when receiving permission documents, evil officials block the process, because apparently they want a bribe We begin to understand, and it turns out that the client's documents are actually not quite in order. But he is so sure that he was turned down solely because he did not want to pay a bribe that he does not even consider other options. And this, of course, is not always the case.
In general, I will say that you always have to fight for your rights. To those clients who want to give up, I say: no, you must go to the end. Even if we lose in this process due to a weak position, next time your opponents will think twice before trying to pressure and fabricate things again. They will understand that you are ready to go to court, that you will write complaints, that you are persistent, that you will not back down. All the same, because of such cases, a resonance is raised, someone will be called "on the carpet", and someone will have an extra headache. Therefore, most likely, they will not want to contact you again.
— That is, in order to win the case, you need to approach the choice of a lawyer very responsibly... And by what criteria should you choose him in order not to make a mistake?
— This is a difficult question, because I need to evaluate myself as well... I will tell you how it happens in Odessa. Of course, there is advertising, but mostly our lawyers are chosen on the advice of acquaintances or friends, through word of mouth. That is, if the lawyer loses all cases, no advertising on billboards will help him.
The first thing that is important when a client comes to a lawyer is to establish mutual understanding so that they hear and listen to each other. The "connection" between the lawyer and the client is the basis of successful cooperation.
- And who should be the main one - the client or the lawyer? I know from my experience that many clients believe that they themselves know how to do better and force their lawyers to follow their strategy, which is very often doomed to failure and is based solely on the principle and anger of the client towards the opponent, this or that situation. How do you behave in such situations?
— In my practice, I have encountered a wide variety of clients. Some come and say: "I've already looked at everything on the Internet, I don't need your advice, in principle. Just take my case, it's simple, write a statement of claim and that's it." Moreover, it happens that this monologue falls out even before you have time to introduce yourself and hear the name of the potential client. It is necessary to explain to the person that in order to assess the chances of winning, it is necessary to carefully analyze the entire situation, documents, legislation. But sometimes they insist: "No, you don't understand, I already know everything, I collected all the documents on the advice of friends. You just need to take up the case, write a statement of claim and win it.''
With such customers, I believe, it is necessary to say goodbye politely. After all, if something goes wrong - and in such cases, the probability of this is very high - the lawyer will always be guilty. Therefore, it is important that the client trusts the professional and is ready to listen to his advice.
— And if a person comes to you, and you see that he has a weak legal position, what do you do?
— In such cases, I believe that it is necessary to honestly tell the client: "I do not see good prospects in your case." And here people are usually divided into two categories. Some say: "Let's try anyway, we'll get lucky." And others decide: "Well, then it's not worth starting the case, I'll try to negotiate in a different way." In any case, my task is to convey to the client a real assessment of his chances, so that he understands all the risks and consequences.
— And many people do not understand why a lawyer's consultation is needed and why it is necessary to pay for it...
— Yes, many believe that a lawyer conducts a paid consultation just for the sake of earning. But it is not so. The main purpose of the consultation is for the lawyer to be able to understand whether the case has prospects, whether he can win it or not. This is an important stage that helps to remove from the client his "pink glasses", which many people come with after reading forums and listening to the advice of friends and neighbors.
— And if, for example, a person comes to you who has committed a crime, and it has been proven. Do you take on such matters?
— Of course, ethical norms are always present. The question of whether or not to defend, say, a rapist or a murderer, is always difficult. At the same time, according to the law, any person, regardless of what crime he committed, has the right to protection.
I always approach things selectively: either I want to do this business, or I don't - it may not suit me precisely according to moral and ethical standards. If the client insists, and I don't want to deal with his case, you can simply set such a fee that the person will refuse my services.
And besides, although according to all norms, a lawyer cannot be associated with his client, but, unfortunately, this happens everywhere in Ukraine. Therefore, reputational risks always arise in such cases.
— What do you think, from a lawyer's point of view, should something be changed in the existing legislation?
— I think that if our already existing legislation was strictly followed, there would be no need to change anything. But laws are often not enforced or interpreted arbitrarily. This especially applies to criminal law, where many points can be interpreted in two ways. For example, the code states that a lawyer has the right to film a search of his client, and another article of the same code states that permission to film can only be obtained from an investigator. And it turns out that both sides are kind of right, but it creates a conflict. In such situations, it is necessary either to reduce the degree of confrontation, or, on the contrary, to exacerbate the conflict. The law is one, but it can be interpreted in different ways.
— In conclusion, what upsets or disappoints you in the profession?
— I am a little saddened by the level of professionalism in the modern bar - it seems to me that it has decreased recently. For me, advocacy has always been something like the holy grail, to which you need to strive, to earn this right. And now, unfortunately, everything has changed, and this high standard is not so common anymore.
Interviewed by Olena Ovchinnikova.
