Examination of an Advocate as a Representative of an Injured Legal Entity – Procedural Risks and Legal Limitations
Author: Angela Pavlenko, Attorney at Grain Law Firm
This article addresses the practical legal issue of questioning an advocate acting as a representative of a legal entity recognized as an injured party in criminal proceedings.
In judicial practice, there are increasingly frequent instances where, during the trial phase of criminal proceedings, the prosecution initiates before the court the issue of questioning the representative of a legal entity recognized as an injured party – an advocate engaged under a legal services agreement and acting on the basis of powers defined in Article 50 of the Criminal Procedure Code of Ukraine (CPC of Ukraine).
The question arises as to the legality of such questioning, the existence of procedural grounds under Ukrainian criminal procedure law, and the admissibility of any statements obtained in this manner as evidence.
According to Part 1 of Article 55 of the CPC of Ukraine, a legal entity may be recognized as an injured party if a criminal offense has caused it property damage.
Under Paragraph 8, Part 1 of Article 56 of the CPC of Ukraine, an injured party has the right to have a representative and may refuse their services at any stage of the proceedings.
Under Article 58 of the CPC of Ukraine, the representative of a legal entity that is an injured party may be its head, another person authorized by law or founding documents, an employee of the entity under a power of attorney, as well as a person entitled to act as defense counsel in criminal proceedings.
The representative enjoys the procedural rights of the injured party, except for rights that must be exercised personally by the injured party and cannot be delegated.
Throughout the criminal proceedings, the injured party has the right to give explanations, statements, or refuse to do so.
The CPC of Ukraine contains provisions of Article 353 regarding the examination of an injured party in criminal proceedings.
As follows from Article 353, the questioning of an injured party is conducted in accordance with rules referring to certain parts of Article 352 governing witness examination.
At the same time, the CPC of Ukraine does not provide a separate procedural mechanism for questioning a representative of a legal entity – injured party – who is an advocate.
This raises the question of whether advocates acting as representatives of injured legal entities may be questioned by the court and provide testimony regarding circumstances they became aware of while providing legal assistance.
Can an advocate who is not an employee, director, or duly authorized officer of the legal entity, and who did not personally perceive the facts relevant to the criminal proceedings, be questioned as a representative of the injured party?
Under the CPC of Ukraine, testimony regarding circumstances of a criminal offense is a procedural right that must be exercised directly by the injured party, not by its representative.
Therefore, when the injured party is a legal entity, questioning its representative – an advocate – does not comply with the requirements of the CPC of Ukraine.
Regardless of whether the advocate acted as a representative during the period in which the alleged damage occurred, and regardless of their awareness of relevant facts, their examination as a representative contradicts procedural law.
It is not excluded that employees of a legal entity who had direct involvement in relevant operations may be questioned as witnesses. However, advocates engaged solely under a legal services agreement for representation purposes cannot be examined as representatives of the injured party regarding such facts.
Personal perception of relevant circumstances is a key criterion for admissibility of testimony under Article 95 of the CPC of Ukraine.
According to Parts 1 and 5 of Article 95, testimony consists of information provided orally or in writing by a suspect, accused, witness, injured party, or expert concerning facts they personally perceived.
A person may testify only about facts they personally perceived, except in cases provided by law.
Thus, the law establishes criteria for persons who may be questioned, including:
- knowledge of relevant circumstances;
- procedural capacity to be questioned;
- personal perception of facts.
However, an advocate acting as a representative of an injured legal entity does not meet these criteria.
Such an advocate is not a direct witness of the events described in the indictment and is not an employee responsible for operational activities of the entity.
Their involvement is based exclusively on a legal services agreement. Any testimony obtained from them would inevitably risk disclosing information protected by attorney–client privilege.
Under Article 22 of the Law of Ukraine “On Advocacy and Legal Practice,” attorney–client privilege covers any information obtained by an advocate in connection with legal assistance.
Under Paragraph 1, Part 2 of Article 65 of the CPC of Ukraine, the following persons may not be questioned as witnesses regarding information obtained in connection with their professional duties: defense counsel and representatives of injured parties.
Given these provisions, advocates acting as representatives of injured legal entities cannot be questioned regarding information obtained while providing legal assistance.
Such information is protected by attorney–client privilege, and consent to disclosure is typically absent.
Accordingly, there are no legal or factual grounds for questioning advocates in their capacity as representatives of injured legal entities.
Moreover, such questioning is unnecessary, as relevant facts are established through witnesses, experts, and the accused during trial examination.
In practice, requests to question advocates are sometimes used strategically to avoid examining key witnesses such as company executives or employees with direct knowledge of events.
Alternative approach
An advocate representing an injured party may present explanations, submit evidence, file motions, and exercise procedural rights of the injured party.
It is more appropriate to obtain testimony from employees or officials who directly participated in relevant activities and have firsthand knowledge of the events.
Courts have in several cases recognized the impracticality of examining representatives of injured legal entities where circumstances are not disputed.
Conclusions
Questioning an advocate as a representative of an injured legal entity does not comply with criminal procedural law. It creates procedural risks and may compromise the admissibility of evidence.
Such questioning also conflicts with the principles of attorney–client privilege and professional ethics.