Almost a year ago, at a joint meeting of the Council of Judges of Ukraine, the Council of Prosecutors of Ukraine, the National Association of Advocates of Ukraine, and and the Commissioner for the European Court of Human Rights, noted that media and political considerations had begun to take precedence over the rule of law in high-profile cases. She was referring to politicians and public figures who publicly comment on court decisions and criminal proceedings. According to Ms. Izovitova, this contradicts national legislation (in particular, the presumption of innocence) and the practice of the European Court of Human Rights. She also emphasized that public comments of this nature should be avoided. It’s hard to disagree, as this is a valid point. However, I would also like to address this to lawyers, who sometimes make similar statements about courts, judges, and law enforcement officials.

Once, over a cup of coffee, a respected lawyer told me that his colleagues (especially those who work with difficult clients), when commenting to journalists on the course of proceedings, purely for ethical reasons, instead of using a thousand words to criticize their opponents’ unprofessionalism, it would be preferable to calmly state that the court did not find sufficient evidence of the defendant’s guilt. It is worth noting that in 2008, the European Court of Human Rights (ECHR), in the case of “Čeferin v. Slovenia,” issued a ruling recognizing that a lawyer has the right to criticize experts and the prosecutor during a court hearing.

According to the Center for Democracy and the Rule of Law, which analyzed the case, the defense attorney called the experts’ conclusions “fabricated constructs,” “professionally weak,” “meaningless,” claimed that the psychologist had used “outdated methods from the Stone Age of psychology,” accused the prosecutor of concealing evidence, and called the entire trial a farce. “The court deemed such statements to be offensive value judgments and fined Čeferin for contempt of court. In addition, the defendant was penalized for criticizing the prosecutor. At the same time, the attorney argued that his criticism was directed at the unprofessionalism and incompetence of the experts’ work and did not insult the court, and that the sole purpose of such statements was to provide the best possible defense for his client, who could have faced up to 30 years in prison. However, the national courts rejected Ceferin’s appeal,” the article states.

In contrast, the ECHR ruled in favor of the lawyer. “As the judges noted, the statements were made in the context of legal proceedings and were heard only in the courtroom (as opposed to, for example, public criticism in the media). Moreover, undermining confidence in existing experts was the only way to obtain new expert opinions regarding the defendant. Since the limits of permissible criticism of public officials may be broader, this includes criticism of both the prosecutor and the experts, who are public officials,” the analysis states.

So, do many lawyers consider that, given their public statements, society is evaluating not so much the individual lawyer as the entire legal community? The issue here is not who you defend, but how you conduct yourself in public. Where is the line beyond which your professional activity ends and what the head of the Ukrainian National Bar Association referred to begins—the dominance of the media and politics over the rule of law?

In general, the question of why a lawyer needs media exposure or public visibility is multifaceted. However, let’s try to find an answer.

Media Presence as a Tool

Oleksiy Shevchuk, a partner at Barristers Law Firm and a lawyer, asserts that in this matter, much depends precisely on the lawyer and the field in which they practice: “Generally, media presence and the information landscape should be used as one of the tools to achieve the desired result. A lawyer can, either independently or by engaging certain specialists, prepare a well-reasoned legal position and present it to the public. Media exposure makes a lawyer recognizable; he or she becomes an ‘opinion leader.’ At the same time, a lawyer can use their media presence to draw attention to a particular issue and break the deadlock.”

However, a slightly different question arises: “Under what circumstances does a lawyer enter the public sphere?” Oleksiy Shevchuk sees the answer to this question from a historical perspective. He believes that this is not only necessary for a lawyer but also fair from the standpoint of the principle of equality of the parties. “For a certain period of time, lawyers were afraid to enter the public sphere. It was only a few years ago, when there were quite a few high-profile cases (in 2014–2015), that lawyers began to enter the media space and articulate their legal positions. If law enforcement agencies today have their own press offices and people who communicate information to the public, then why can’t a lawyer appear in the public sphere? “They are obligated to do so and to articulate the position with which they will oppose the state apparatus,” the lawyer rightly notes.

The Media Popularity Syndrome

Oleksiy Shevchuk is also convinced that public visibility does not always play a positive role, and that the driving force behind this is not so much the media as certain activists. “I think this trend was started by the newly created anti-corruption agencies. Today, it is not media attention or publicity, but the street itself that is supplanting the law. Currently, there are many activists who shout things in the public sphere (on camera, via livestream) and consider themselves major ‘newsmakers.’ They are supplanting the law, because through their challenges they are trying to shape a certain position that can hardly be called legal. It’s a kind of public opinion. They are trying to impose this public opinion on law enforcement officers, judges, lawyers—everyone,” Mr. Shevchuk noted. According to him, today people are trying to use media attention and publicity to supplant the law. At the same time, there are some lawyers who do not know how to use legal tools, so they try to use some form of publicity to supplant what should have been drafted and presented as a legal position.

Responsibility

Mr. Shevchuk noted that being a lawyer means being a psychologist, a mediator, an investigator, an auditor, and anything else all rolled into one. However, the behavior of any one colleague poses reputational risks for the profession as a whole. For example, if a lawyer gets drunk in a restaurant, starts a fight, or uses profanity during a court hearing, everyone knows that he is a lawyer, and this poses risks for each of us, since such behavior affects the profession’s reputation.