Advocacy and notary office. Lawyer and his professional activities (lecture notes)

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Advocacy and notary office. Lawyer and his professional activities (lecture notes)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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LECTURE No. 3. Lawyer and his professional activities

1. Status of a lawyer

Lawyer - this is a person who has received the status of a lawyer and the right to practice advocacy. At the same time, the procedure for obtaining the status of a lawyer must comply with the Federal Law "On Advocacy and the Bar".

The status of a lawyer in Russia is entitled to be acquired by a person who has a higher legal education obtained at a state-accredited educational institution of higher professional education, or a degree in a legal specialty. The applicant must also have at least 2 years of work experience in the legal profession or have completed an internship in any lawyer education. In addition, the specified person must submit the relevant documents to the qualification commission for admission to the qualification exam. The status of a lawyer is assigned after passing the exam at the request of the applicant, which must be submitted within three months.

The qualification commission, within seven days from the date of the adoption of the relevant decision, notifies the territorial body of justice that the applicant has been granted the status of a lawyer, which, within a month from the date of receipt of the notification, enters information about the lawyer into the regional register and issues the corresponding certificate to the lawyer. The general procedure for entering information about a lawyer into the register is regulated by Art. 15 of the Law on Advocacy.

A lawyer has very broad powers in the exercise of his duties related to the protection and representation of citizens and organizations. Some of these powers are directly specified in the Federal Law on the Bar. Others are contained in the norms of constitutional, civil, arbitration, administrative and criminal proceedings.

The document certifying the powers of an attorney to execute an assignment in cases established by law is an order issued by the bar association in which the attorney carries out his activities. Unless a warrant is required by the relevant law, a lawyer may represent a principal only on the basis of a power of attorney.

The duties of a lawyer in a general form are set out in Art. 7 of the Law on Advocacy. In particular, a lawyer is obliged to honestly, reasonably and in good faith defend the rights and legitimate interests of the principal by all means not prohibited by the legislation of Russia.

Lawyers, in assisting their clients, have a duty to seek respect for human rights and fundamental freedoms recognized by national and international law. They must at all times act freely and assertively in accordance with the law and recognized professional standards and ethical norms, always being loyal to the best interests of their client.

The law specifically highlights the obligation of a lawyer to mandatory participation as a defense counsel in criminal proceedings by appointment, as well as the provision of legal assistance to citizens provided for by law free of charge.

Lawyers are obliged to comply with the Code of Professional Ethics and implement the decisions of the bodies of lawyers' self-government - the Chamber of Lawyers of the subject of the Russian Federation, of which they are mandatory members, as well as the Federal Chamber of Lawyers. In addition, it is determined that a lawyer is obliged to make deductions from his remuneration for the general needs of the bar association and for the maintenance of the bar association in which he carries out his activities.

On January 1, 2007, the provision on mandatory insurance by a lawyer of the risk of his professional property liability came into force (Article 7 of the Law on the Bar).

Professional liability insurance is a rather specific branch of insurance, associated with special risks.

For non-fulfillment or improper fulfillment of his/her professional duties, a lawyer shall be liable under the Law on the Bar, up to and including termination of the status of a lawyer. The Council of the Chamber of Advocates considers complaints about the actions or inaction of an advocate, taking into account the conclusion of the qualification commission. One of the tasks of the latter is to consider these complaints and give opinions on the presence or absence in the actions (inaction) of a lawyer of a violation of the norms of the code of professional ethics of a lawyer, on non-fulfillment or improper fulfillment of his duties.

A lawyer does not have the right to disclose any information communicated to him by a client in connection with the provision of legal assistance without the consent of the latter (lawyer secrecy). In this regard, the lawyer is not subject to summons and interrogation as a witness about the circumstances that became known to him in connection with the appeal to him for legal assistance or its provision. It is prohibited to carry out operational-search activities that jeopardize the preservation of attorney-client secrecy, if there is no corresponding court decision.

2. Advocacy

Advocacy is recognized as qualified legal assistance provided on a professional basis by persons who have received the status of a lawyer in the manner prescribed by the Federal Law "On Advocacy and Advocacy" in the Russian Federation, individuals and legal entities (principals) in order to protect their rights, freedoms and interests, as well as ensuring access to justice.

The concept of "advocacy" first appeared in the Federal Law "On Advocacy and Advocacy in the Russian Federation". In the earlier Regulations on the Bar of the RSFSR, such a concept was not given, which led to a rather broad interpretation of lawyers' participation in the life of society.

The main features of advocacy include the following:

1) provision of qualified legal assistance to individuals and legal entities (principals);

2) provision of such assistance by persons working on a professional basis;

3) persons providing legal assistance must have the status of a lawyer, which is obtained in the manner prescribed by the Federal Law "On Advocacy and the Bar"; the objectives of this activity should be:

a) protection of the rights, freedoms and interests of principals;

b) ensuring access to justice.

Only the presence in the activity of a combination of all four of the above signs gives grounds for recognizing it as a lawyer.

Advocacy that is not related to qualified legal assistance cannot be recognized. It is not an advocacy activity, although related to the provision of qualified legal assistance, but provided by persons who do not have the status of a lawyer obtained in the manner prescribed by law. It is also not advocacy if it is carried out by a person, although he has the status of a lawyer, but is not related to the protection of the rights, freedoms and interests of the applicants, as well as ensuring access to justice. For example, advocacy related to private detective work, protection of one's principal, making commercial inquiries about the client's partner, and performing other functions in the interests of the principal cannot be recognized. A lawyer is not entitled to perform such duties on a paid basis.

Advocacy is not entrepreneurial. This means that its purpose cannot be profit making. All income of a lawyer association or an individual lawyer is, by its legal nature, not the result of commercial or other entrepreneurial activity, but remuneration paid by the client. In the structure of the balance sheet of a lawyer, there should be no indication of profit.

Advocacy is diverse and carried out in various forms, which can be classified as follows:

1) consulting assistance to the principal;

2) drafting documents of a legal nature;

3) acting as a representative or defender of the principal.

Providing legal assistance, a lawyer:

1) gives advice and information on legal issues both orally and in writing;

2) draws up applications, complaints, petitions and other documents of a legal nature;

3) represents the interests of the principal in constitutional proceedings;

4) participate as a representative of the principal in civil and administrative proceedings;

5) participates as a representative or defender of the principal in criminal proceedings and proceedings in cases of administrative offenses;

6) participates as a representative of the principal in the proceedings in the arbitration court, international commercial arbitration (court) and other conflict resolution bodies;

7) represents the interests of the principal in public authorities, local governments, public associations and other organizations;

8) represents the interests of the principal in public authorities, courts and law enforcement agencies of foreign states, international judicial bodies, non-state bodies of foreign states, unless otherwise provided by the legislation of foreign states, statutory documents of international judicial bodies and other international organizations or international treaties of the Russian Federation;

9) participates as a representative of the principal in enforcement proceedings, as well as in the execution of criminal punishment;

10) acts as a representative of the principal in tax legal relations.

The representative functions of a lawyer are listed in general form in the Law on the Bar. At the same time, the institution of representation and the powers of representatives are detailed in each industry and require specification depending on the legal relations that have arisen.

Author: Nevskaya M.A.

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