Protecting lawyers’ rights and the limits of permissible covert investigations: how the law protects the profession and the right to defense

In the Ukrainian legal system, a lawyer is not only a representative in court proceedings, but also a key guarantor of the constitutional right of individuals to defense. That is why the Law of Ukraine “On the Bar and Legal Practice” establishes a set of professional rights and procedural guarantees designed to ensure the independence of lawyers and preserve the confidentiality of their interactions with clients. Article 20 of the Law defines the right of a lawyer to submit requests to state authorities, obtain documents, collect evidence, record the course of procedural actions, file motions and complaints, obtain expert opinions, and familiarize themselves with case materials. At the same time, lawyers are obliged to act exclusively in the interests of their clients, adhere to ethical standards, and not disclose information that constitutes attorney-client privilege.

A separate and key guarantee is attorney-client privilege, defined in Article 22. It covers all information obtained by a lawyer while providing legal assistance, including documents, consultations, electronic files, recordings, and the very fact that a person has consulted a lawyer. This obligation remains even after the termination of cooperation or suspension of the right to practice law. Confidentiality is inviolable, and access to it is possible only in exceptional cases expressly provided for by law.

Article 23 of the Law establishes guarantees for the professional activities of lawyers and prohibits pressure, interference, unjustified seizure of documents, and any attempts to identify lawyers with their clients. The procedure for conducting covert investigative (search) activities against lawyers requires special attention. Paragraph 3 of Part 1 of Article 23 provides that permission to conduct such activities — in particular, wiretapping, surveillance, or access to electronic media — may be granted by a court only at the request of the Prosecutor General, his deputy, or the regional prosecutor. This approach does not allow for the replacement or delegation of this initiative by other officials and establishes an additional level of control to prevent abuse.

This legal approach is confirmed in Decision No. 121 of the Bar Council of Ukraine dated October 18, 2025: a court authorization for NSRD granted on the basis of a request by an investigator, only with the approval of a prosecutor, is recognized as a violation of the guarantees of a lawyer’s independence. This provision exists not to complicate the work of law enforcement agencies, but to protect the principle of confidentiality and prevent the use of covert measures as a tool for obtaining information about clients or influencing their legal position.

The independence of the legal profession is not a privilege for specialists, but a mechanism that ensures that every person has access to qualified legal representation and can be confident that their personal data and legal strategy will not be subject to external interference. Legislative guarantees for the legal profession strike the necessary balance between the interests of justice and the rights of the individual, and compliance with them is a prerequisite for the functioning of a democratic legal system.