Disciplinary proceedings brought by the court against a defence lawyer in criminal proceedings

The court hearing is in progress; the defence lawyer insists on compliance with procedure, tables a motion which the court finds inconvenient, and receives in response a ruling to refer the matter of his liability to the High Council of Justice. Formally, nothing has changed; the lawyer is still involved in the proceedings, and no one has stripped him of his powers. But something has emerged in the case that was not there before. The client already knows that his defence counsel may face disciplinary action. Meanwhile, the defence counsel himself continues to appear before the very same panel of judges that has just raised this issue.

Next, as a rule, the accused may file a motion to withdraw the defence counsel. And at this stage, a crossroads arises. The court may regard such a motion as an attempt to derail or delay the proceedings, or it may see it as a perfectly logical reaction from someone who has just learnt that their defence counsel is effectively being accused of professional misconduct. The quality of the defence the defendant actually receives depends on which of these assessments the court adopts.
Disciplinary proceedings are designed to investigate allegations of a potential disciplinary offence by a lawyer and to determine whether they are liable to disciplinary action. However, it can imperceptibly turn into a tool for exerting pressure on an inconvenient defence lawyer. Conversely, a perfectly lawful reaction by the court to genuinely improper conduct by a lawyer risks appearing to be pressure on the legal profession where none exists. The Supreme Court recently drew a line between these two scenarios, and it is precisely this line that is the subject of this article.

The Code of Criminal Procedure of Ukraine provides for several independent mechanisms for responding to a defence lawyer’s misconduct. Article 329 of the Code of Criminal Procedure imposes on participants in court proceedings a duty to maintain order during court hearings and to comply with the presiding judge’s instructions. Under Article 330 of the Code of Criminal Procedure, if a defence counsel fails to comply with the presiding judge’s instructions, they are issued with a warning regarding liability for contempt of court; in the event of a repeat offence, they may be held liable in accordance with the law. Separately, Article 324 of the Code of Criminal Procedure provides that, in the event of a defence counsel’s failure to appear without valid reasons, the court shall raise the issue of his liability with the authorities empowered to bring the lawyer to disciplinary responsibility.

This distinction is of fundamental importance. By setting out in the grounds of its ruling the specific facts of the lawyer’s conduct – failure to appear without valid reasons, disregard for the presiding judge’s instructions – the court acts within its competence to record the course of the proceedings. However, the court is not authorised to classify these facts in advance as a disciplinary offence. This falls exclusively within the remit of the Bar’s Qualification and Disciplinary Commission, which, in accordance with Articles 37–41 of the Law of Ukraine ‘On the Bar and the Practice of Law’, verifies information, decides whether to initiate or refuse to initiate disciplinary proceedings, examines the case and determines whether a disciplinary offence has been committed.

A court’s referral to the Qualification and Disciplinary Commission of the Bar (QDCB) constitutes grounds for initiating the disciplinary procedure provided for by law, but is not the outcome of that procedure. It does not establish the lawyer’s guilt, has no prejudicial effect for the Disciplinary Bar Council, and does not automatically trigger the initiation of disciplinary proceedings. The Disciplinary Bar Council independently verifies the information provided and decides whether to initiate or refuse to initiate disciplinary proceedings.
The problem is that, in practice, the court’s finding of facts and their disciplinary classification are often combined in a single document. If the court’s ruling is phrased as ‘the lawyer committed a disciplinary offence’ rather than ‘the court draws the attention of the Disciplinary Bar Council to the following facts regarding the lawyer’s conduct’, the court effectively takes the place of the disciplinary body even before the investigation begins. The very wording used by the court is an indicator of whether the court has remained within the bounds of establishing the facts, or has already gone beyond them.

The complexity of the issue lies in the fact that a significant proportion of the actions that make a defence effective simultaneously make the lawyer a nuisance to the court. Moving for the recusal of judges, filing motions to exclude evidence, objecting to the manner in which evidence is examined, requesting time for confidential communication with the client, resubmitting a motion in the event of new arguments or a change in the procedural situation, as well as legally substantiated criticism of procedural decisions, may constitute ordinary and lawful instruments of active defence.

The rules of legal ethics explicitly require a lawyer to prioritise the client’s interests and act with integrity whilst conducting the defence, whilst at the same time demanding respect for the court and prohibiting the abuse of procedural rights. These are not contradictory but complementary requirements: respect for the court does not mean a lack of tenacity, and adherence to principles does not justify insults or the deliberate prolongation of proceedings. The distinction between an active defence and abuse is determined by the nature of the specific actions, their purpose, frequency and consequences.

Therefore, the assessment of a defence counsel’s conduct must address several questions. Does the action serve a procedural purpose provided for by law, or is it aimed solely at delaying the proceedings? Is it an isolated instance of an emotional reaction, or a systematic pattern of behaviour? Does it prevent the court from establishing the facts of the case, or, conversely, does it ensure a thorough examination of the evidence? Systematic failure to appear without valid reasons, demonstrative disregard for the presiding judge’s lawful orders, and insults directed at participants in the proceedings fall into a different category, which may indeed require a response. However, the existence of such a category must not blur the line beyond which a persistent, inconvenient, or even abrasive defence remains a legitimate exercise of professional duties.

Case No. 390/26/23: when a disciplinary initiative became procedurally significant.
The ruling of the Cassation Criminal Court within the Supreme Court of 20 January 2026 in Case No. 390/26/23 (proceedings No. 51-3674km25) provides a rare example of how a court’s referral to the Qualification and Disciplinary Commission of the Bar (QDCB) acquired direct procedural significance in the very same case in which it arose.
The facts of the case relate to criminal proceedings concerning theft (Article 185(4) of the Criminal Code), which were consolidated with other proceedings into a single case No. 390/26/23. The defendant was initially represented by one court-appointed lawyer, and subsequently by another appointed by the regional centre for the provision of free secondary legal aid. By a ruling dated 8 April 2024, the District Court replaced the previous defence counsel, and the Centre for Free Secondary Legal Aid entrusted the defence to a lawyer who subsequently represented the convicted person’s interests in both the court of first instance and the court of appeal.
On 23 July 2024, the district court, by a ruling, raised the issue of this lawyer’s liability before the Qualification and Disciplinary Commission of the Bar of Kirovohrad Oblast due to improper procedural conduct whilst performing his professional dutiesin the same criminal proceedings, in particular during the period when the accused was in custody. The lawyer continued to act as defence counsel, and it was with his participation that the court of first instance handed down its judgement.

During the appeal hearing on 24 June 2025, the defendant filed a motion to dismiss this defence counsel, citing doubts as to his competence. The Court of Appeal, despite the doubts and mistrust expressed, continued the proceedings with the same lawyer, failing to give due consideration to the defendant’s arguments and failing to verify their validity. The defendant’s appeal was dismissed and the sentence remained unchanged.

In the cassation appeal, the prosecutor argued that the Court of Appeal had breached the procedure for withdrawing a defence counsel, as laid down in Article 54(2) of the Code of Criminal Procedure, and the defendant’s right to a defence; in particular, by failing to properly consider the application to replace the defence counsel, failing to issue a procedural ruling on it, and continuing the proceedings with the participation of a lawyer whose competence the defendant had called into question.

The Supreme Court upheld the cassation appeal. In its reasoning, the Court emphasised that the defendant’s doubts regarding the proper conduct of the defence were not unfounded, since the district court had already raised the issue of this same lawyer’s liability before the Qualification and Disciplinary Commission of the Bar for improper procedural conduct in the same criminal proceedings. It was precisely this circumstance, in the Court’s view, that required the court of appeal to exercise particular diligence when deciding on the request to replace the defence counsel – which it failed to do.

It is important to understand precisely the legal framework applied by the Supreme Court. The latter did not recognise the court’s referral to the QDC as sufficient grounds for the automatic replacement of the defence counsel and did not establish that such a referral proved the existence of a disciplinary offence. The legal conclusion is based on a combination of circumstances: the district court’s referral to the Disciplinary Bar Council regarding the lawyer’s conduct in the same proceedings; a clearly expressed application by the accused to withdraw the defence counsel, citing doubts as to his competence; and, most importantly, the complete lack of any response from the Court of Appeal to these arguments, and the absence of any assessment or examination of their merits. The Supreme Court recognised as material breaches of Article 54(2), Articles 22 and 412 of the Code of Criminal Procedure the violations of the principle of adversarial proceedings and the right to a defence, which led to the quashing of the appeal court’s ruling and the ordering of a new appeal hearing.

In other words, the Supreme Court did not establish a presumption of guilt on the part of the lawyer and does not order the court to remove the defence counsel following every application to the Disciplinary Bar Council. It requires a substantive examination of the defendant’s application when it arises against the backdrop of an existing disciplinary initiative by the court concerning the same defence counsel in the same case. In such circumstances, continuing the appeal proceedings with this defence counsel without properly resolving the defendant’s application constituted a significant violation of the right to a defence.

Read the full article on the UNBA website via the links below.