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Lecture notes, cheat sheets
Advocacy and notary office. Origins of the Bar (lecture notes)
Directory / Lecture notes, cheat sheets Table of contents (expand) LECTURE No. 2. The origin of the legal profession 1. Organization and functions of the legal profession in countries of the Anglo-Saxon legal system In England The human rights profession is divided into two separate groups: barristers (advocates) and solicitors (attorneys). Each of them has its own responsibilities, although they also have some common functions. Initially, barristers were casual assistants to litigants who, on their own initiative, advised them and were gradually recognized by the courts as persons who could be “of counsel” with litigants. However, over time, the right to “call to the bar,” that is, to invest candidates with the title of barrister, is exercised by four powerful corporations (guild schools), which are collectively known as “Inns of Court.” These include Lincoln's Inn, Middle Temple, Inner Temple and Gray's Inn. These corporations, headed by elected elders, enjoy complete self-government, and there is now virtually no Act of Parliament which subjects them to any control. Today, a barrister has virtually no other legal case than that which the solicitor gives him, unless he is involved in his cases by the Crown or some corporation. A successful practicing barrister can improve his status. To do this, he must contact the Lord Chancellor with a request to petition the Queen to raise him to the rank of Queen's Advocate. Queen's Counsel are the elite barristers from whom judges of the High Court and County Courts are selected. A QC must have practiced as a barrister for at least 10 years. Solicitors appeared in the 16th century. in connection with the courts of justice and began to deal with petitions (to solisit - to petition) in cases of litigants who had to wait for a long time in the reception rooms of the heads of the Chancery Court. Historically, the profession of solicitor arose from the merger of attorneys in the common law courts, solicitors in the Court of Chancery, proctors of the old ecclesiastical courts and clerks. Today, a solicitor is an independent lawyer, personally or in collaboration with other solicitors, advising his clients on legal issues. He handles their estate affairs, drafts contracts and wills, takes charge of estates and advises on tax, insurance, competition and business matters. In addition, solicitors are empowered to take the necessary steps to commence legal proceedings. The Royal Commission of Law, which spent several years studying the pros and cons of merging the two legal professions, came to the final conclusion that the existing system should be maintained. The Commission also examined numerous rules in the “codes of conduct” of barristers and solicitors that limit competition between them, and found that they were in full accordance with the public interest. USA. England had the strongest influence on the development of the American judicial system. Some US states (New York, New Jersey, Massachusetts, Virginia), following the example of dividing English lawyers into barristers and solicitors, introduced ranks and classes of lawyers vaguely reminiscent of the English system. However, in the middle of the 19th century. these differences were leveled out, and in the United States there was only one category of human rights defenders left - lawyers. Harvard was the first American university with a separate faculty of law, and the first teachers at Harvard Law School were lawyers and judges. J. Story, member of the US Supreme Court, rector of Harvard Law School, who introduced the term “private international law” into legal circulation, radically changed the procedure for selecting teachers and, first of all, began to focus on legal theorists. J. Storey practiced the precedent method in teaching students. By the 20th century Harvard's case-based method of training law students became widespread. Law schools gradually replaced the practical training system leading to the legal profession. In 1981, the American Bar Association authorized 181 law schools to train lawyers. There are currently more than 200 law schools. Although they have different names, their curricula are very similar and they have the same entry requirements: graduating from college and passing a law school test are required to get into law school. This test has been in effect since the 1950s. Top nationwide American law schools: Harvard, Yale, Chicago, Stanford, Berkeley. The American Bar did not have a strict and consistent organization until 1870. The first modern legal organization was the New York Bar Association. Somewhat later, in 1878, a national community was formed - the American Bar Association. 2. History of the Russian Bar For the first time, judicial representation is mentioned in Russian legislative acts of the XNUMXth century. (Pskov and Novgorod judicial charters). Judicial representatives of that era can be conditionally divided into two groups: natural representatives and hired ones, from which the institution of professional attorneys gradually began to form. In the Sudebniks of 1497 and 1550, and then in the Council Code of 1649 (Chapter 10, Article 108), the institution of hired attorneys already appears as existing, but the composition of these persons was very diverse, because at that time there was still no legislative regulation of representation (cooking). The official date of formation of the bar is November 20, 1864, when the "Institutions of Judicial Regulations" were published. The institution of sworn attorneys was created as a special corporation, which was attached to the judicial chambers. However, it was not part of the court, but enjoyed self-government, although under the control of the judiciary. The introduction of the Judicial Regulations revealed a clearly insufficient number of sworn attorneys, and in 1874 a law was passed that established, along with the sworn advocacy, the institution of private attorneys. As a result of the Judicial Reform of 1864, the judicial system of Russia became the most streamlined. However, after the February Revolution, the situation changed somewhat. By Decree No. 24 on the court of November 1917, 1, the socialist revolution abolished all judicial institutions of the Russian bourgeois state, and with them the jury and private advocacy. All undefeated persons of both sexes enjoying civil rights were admitted as defenders and accusers, but no special defense organization was created. Over time, the proletarian state needed a new form of defense organization. By Decree No. 2 of March 7, 1918, on the court, a collegium of persons was formed under the Soviets of Workers', Soldiers' and Peasants' Deputies who devoted themselves to advocacy "both in the form of public prosecution and in the form of public defense." Advocacy was declared a public function, that is, it was supposed to protect the interests of the working people. In the Russian state of the post-revolutionary period, serious deviations from the rule of law increasingly took place. In certain periods, the legal profession in general, and the advocacy in particular, did not find proper application for themselves. In view of this, the IX All-Russian Congress of Soviets, in a special resolution, proclaimed the next task "to establish in all spheres of life the strict principles of revolutionary legality." From that moment on, legislative activity was aimed at creating a unified judicial system, consisting primarily of people's courts, provincial courts and the Supreme Court of the RSFSR. On October 29, 1924, the Central Executive Committee of the USSR adopted the Fundamentals of the Judicial System of the USSR and the Union Republics. Article 17 established the bar associations. The Regulations on the Judiciary of the RSFSR, adopted on November 19, 1926, indicated that they operate under the direct supervision and guidance of the regional, provincial and district courts. Since 1936 the situation began to change. And although lawyers were still recognized as a necessary evil, they understood that they could not be dispensed with. In order to establish control over the legal profession, in November a department of legal protection was formed under the People's Commissariat of Justice of the USSR. On August 16, 1939, the Council of Ministers of the USSR approved the new Regulations on the Bar. The regulation provided for the organization of the legal profession in the form of regional, regional and republican collegiums, which was maintained until the adoption on May 31, 2002 of Federal Law No. 63 FZ "On advocacy and advocacy in the Russian Federation." The first attempt to return the former independence of the bar was made in the Regulations on the bar in 1962. In the late 1970s. there was a further development of the issues of the legal justification of the bar as an institution. In Article 161 of the Constitution of the USSR of 1977, the bar was for the first time officially recognized as a constitutional body. On November 30, 1979, the All-Union Law and the Law of the RSFSR "On the Bar" were adopted, and on November 20, 1980 - the Regulations on the Bar in the RSFSR. These documents clearly defined the new rights and obligations of lawyers, although they did not introduce fundamental changes in the structure of the bar. In 1986-1988 a "corporate boom" took place in the country: cooperatives began to appear in all areas of activity. The first legal cooperatives began to emerge, which, however, were not perceived by the public as something positive. At the same time, a kind of struggle was going on between the Ministry of Justice of the Russian Federation and the bar over the draft law on the bar. The result of this almost ten-year struggle was Law No. 63 FZ "On Advocacy and Advocacy in the Russian Federation", the adoption of which on May 31, 2002 marked a new stage in the development of the Russian advocacy. Author: Nevskaya M.A. << Back: Advocacy: concept, role in society, basic principles (The Bar and its purpose in society. Basic principles of the Bar) >> Forward: Lawyer and his professional activity (Status of lawyer. Advocacy)
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