The concept of advocacy and advocacy. The concept of the legal profession and advocacy Purposes and types of advocacy

1. The concepts of "lawyer" and "advocacy". Types of advocacy.

Advocate

The term "advocate" comes from the Latin word "advocare" - to call for help.
The definition of "lawyer" (lat. Advocatus) has always been understood as a lawyer who provides professional legal assistance through consultations, defense of the accused in court, etc.
The concept of "lawyer" consists of two parts: the first defines his legal (status) side, the second - functional, ie. the appointment of a lawyer.
Status- a lawyer is a person who has received the status of a lawyer and the right to practice law. At the same time, the procedure for obtaining the status of a lawyer must comply with the Law.
Functional side- a lawyer is an independent professional legal advisor. This is the second part of the definition, in the name of which, in essence, it is necessary to comply with the special requirements for acquiring the status of a lawyer.
Thus, only in unity with the legality of acquiring the status of a lawyer and with the independence of a lawyer as a professional advisor to his client on legal issues can the figure of a modern lawyer be considered.
The law prohibits a lawyer, in addition to being a lawyer, to enter into labor relations as an employee. At the same time, a lawyer, as an exception to the prohibition, is allowed to engage in scientific, teaching or other creative activities.
A lawyer is also not entitled to hold state and municipal positions.
A lawyer only has the right to combine advocacy with work as the head of a lawyer education (chairman of the bar association, managing partner of a law office, head of legal advice, etc.).
A lawyer has the right to combine advocacy with work in any elective position in the bar association of a constituent entity of the Russian Federation, the Federal Chamber of Lawyers, all-Russian and international public associations of lawyers.
Representation of organizations, bodies state power, bodies local government in civil and administrative proceedings, legal proceedings in cases of administrative offenses is recognized as lawful only when it is carried out by a lawyer. As an exception to this limitation of the performance of representative functions, the law allows participation in the representation of employees on the staff of the organization, state authorities and local self-government.
The exclusive rights of lawyers to represent themselves in court are valid "unless otherwise provided by federal law." For example, the current Code of Civil Procedure of the Russian Federation admits persons other than lawyers as representatives of citizens in court (Article 44 of the Code of Civil Procedure of the Russian Federation). Moreover, the powers of such representatives can be expressed in an oral statement of the principal in the court, recorded in the minutes of the court session. According to Art. 59 of the APC RF (as amended by Federal law dated March 31, 2005 N 25-FZ) representatives of citizens, including individual entrepreneurs, and organizations can act in arbitration court lawyers and other persons providing legal assistance.
The law provides for restrictions on the participation of foreign lawyers in advocacy in the territory Russian Federation... Such involvement of lawyers foreign country is allowed only to provide legal assistance on the law of a given foreign state. However, even in this case, if such participation is associated with a state secret of the Russian Federation, a lawyer of a foreign state cannot provide legal assistance on the territory of our country.

Lawyer activity

A lawyer can provide his client with consulting assistance, prepare various documents of a legal nature, and also act as a representative or defender of the client.
The law outlines the representative functions of a lawyer only in a general form. Specific rights and the duties of a lawyer as a representative of a legal or natural person are fairly fully regulated by the relevant branches of legislation. It should be borne in mind that the institution of representation and the powers of representatives are detailed in each industry and require specification depending on the legal relationship that has arisen.
In accordance with Art. 53 of the Federal Constitutional Law of July 21, 1994 N 1-FKZ "On the Constitutional Court of the Russian Federation" a lawyer may be a representative of a party in constitutional proceedings. The attorney's powers are "confirmed by the relevant documents."
In civil proceedings, citizens can conduct their cases in court through representatives. A lawyer can be such a representative on the basis of the provisions of the Code of Civil Procedure of the Russian Federation. The attorney's credentials are certified by a warrant.
Article 45 of the Code of Criminal Procedure of the Russian Federation provides that lawyers may be representatives of the victim, civil plaintiff and private prosecutor. Article 49 of the Criminal Procedure Code of the Russian Federation also provides for the admission of a lawyer as a defender. A defender is a person who, in accordance with the procedure established by the Code of Criminal Procedure of the Russian Federation, protects the rights and interests of suspects and accused and provides them with legal assistance in criminal proceedings.
To provide legal assistance to a person in respect of whom proceedings are underway in a case on an administrative offense, a defense lawyer may participate in proceedings on a case on an administrative offense, and a representative may participate in the provision of legal assistance to a victim. According to Art. 25.5 of the Code of the Russian Federation on administrative offenses a lawyer is allowed to participate in the proceedings on an administrative offense as a defense lawyer or representative. The attorney's credentials are certified by a warrant issued by the legal advice office.
The participation of a lawyer in an arbitration court as a representative is governed by Ch. 6 APC RF.
Article 26 of the Tax Code of the Russian Federation grants the taxpayer the right to participate in relations regulated by the legislation on taxes and fees through an authorized representative, unless otherwise provided by the Tax Code of the Russian Federation. The authorized representative of the taxpayer-organization exercises his powers on the basis of a power of attorney issued in the manner prescribed civil law... An authorized representative of a taxpayer who is an individual exercises his / her powers on the basis of a notarized power of attorney or a power of attorney equated to a notarized one in accordance with civil law.
The list of forms of legal assistance is open, therefore a lawyer has the right to provide any legal assistance, if it is not prohibited by federal law.
In practice, other legal assistance of lawyers consists in assisting citizens in the exercise of their rights in labor, housing, administrative, tax and other legal relations, and legal entities- assistance on various legal issues economic activity, including legal support of the activities of organizations, advice on legal support entrepreneurial activity, development and examination of contracts and other documents, participation in negotiations, representation of principals in civil circulation, including in their relations with third parties. It can also be various "legal opinions of a lawyer based on the results of a legal analysis of the situation or presented to the lawyer for studying documents", participation (with the consent of the client and observing the lawyer's secrecy) in public coverage legal issues in a specific case, any other activity not prohibited by law.
In accordance with clause 13 of the Basic Principles on the Role of Lawyers (adopted in Havana by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders in 1990), lawyers perform the following functions in relation to their clients:

a) advising clients on their legal rights and the duties and operation of the legal system insofar as it relates to the legal rights and obligations of clients;

b) assisting clients by any means available and adopting legislative measures to protect their or their interests;

c) providing assistance to clients, if necessary, before courts, tribunals or administrative bodies.

Accordingly, the execution of orders of clients by lawyers related to the management of commercial enterprises, including foreign ones (opening accounts in credit and banking institutions, managing company accounts, signing sales contracts, presentation of bills for redemption) does not contradict the Law and the norms of professional ethics. The implementation of these actions by lawyers is a generally accepted international practice. So, for example, sect. 3 of the General Code of Rules for Lawyers of the European Community (1998) directly regulates the procedure for lawyers to carry out transactions for the disposal of the client's funds.
At the same time, it is incompatible with professional ethical standards for a lawyer to provide a client, along with legal assistance, intermediary and (or) commission services, i.e. carrying out activities aimed at self-deriving benefits by the lawyer in addition to the remuneration received from the client for the legal assistance provided.
The Federal Law of May 31, 2002 N 63-F3 specifies exhaustive cases, in which the representation of organizations, public authorities, local authorities in civil and administrative proceedings, legal proceedings in cases of administrative offenses is recognized as lawful. Such representation will only be legal if it is carried out by a lawyer. As an exception to this limitation of the performance of representative functions, the law allows participation in the representation of employees on the staff of the organization, state authorities and local self-government.
Thus, with this provision, the legislator sharply limited participation in the representation of interests these organizations and bodies of other persons involved in the provision of legal assistance (law firms, so-called "private lawyers" - persons who are not members of lawyers' associations, but are privately involved in the practice of law, etc.). And at the same time, with this norm, the legislator even more protected the interests of organizations applying for legal assistance, providing them with the opportunity to defend themselves or represent their interests on a more professional basis, which is assumed only for the Bar (due to the special procedure for acquiring the status of a lawyer, the independence of this specialist , a rather complex system of corporatism in advocacy (compliance with advocate ethics, the procedure for suspension and deprivation of advocate status), etc.).
However, it should be noted that the exclusive rights of lawyers to represent themselves in court are valid "unless otherwise provided by federal law."
For example, the current Code of Civil Procedure of the Russian Federation admits persons other than lawyers as representatives of citizens in court (Article 44 of the Code of Civil Procedure of the Russian Federation). Moreover, the powers of such representatives can be expressed in an oral statement of the principal in the court, recorded in the minutes of the court session. According to Art. 59 of the Arbitration Procedure Code of the Russian Federation (as amended by Federal Law No. 25-FZ of March 31, 2005), lawyers and other persons providing legal assistance may act as representatives of citizens, including individual entrepreneurs, and organizations in an arbitration court.
Earlier part 5 of Art. 59 of the Arbitration Procedure Code of the Russian Federation, an exhaustive list of representatives of organizations in the arbitration court was established: heads of organizations acting within the limits of their powers; persons on the staff of organizations (including those working part-time); lawyers. Based on this list, other persons providing legal assistance could not act as representatives of organizations in the arbitration court.
However, by decree The Constitutional Court RF of July 16, 2004 N 15-P, part 5 of Art. 59 of the Arbitration Procedure Code of the Russian Federation was recognized as inconsistent with the Constitution of the Russian Federation to the extent that it is systematically related to paragraph 4 of Art. 2 of the Law on the Bar excludes legal aid providers selected by organizations from being able to act in arbitration as representatives if they are not attorneys or staff members of these organizations. The relevant provisions, declared unconstitutional, have become invalid by the Federal Law of March 31, 2005 N 25-FZ, part 5 and 5.1 of Art. 59 of the Arbitration Procedure Code of the Russian Federation were also declared invalid.

Page 2 of 2

The Russian Federation has established the priority of fundamental human and civil rights and freedoms, which include the right of citizens to judicial protection and the right to receive qualified legal assistance.

Accordingly, each person should be ensured equal opportunities in the possession and enjoyment of these rights. The Russian legal profession plays an important role in their implementation.

The term "attorney" comes from latin word"Advocare" - to call for help. According to S. I. Ozhegov and N. Yu. Shvedova, a lawyer is a lawyer who is entrusted with providing legal assistance to a citizen and an organization, including protecting someone's interests in court, a defender.

The Law on the Bar in paragraph 1 of Art. 2 gives its own definition of a lawyer. A lawyer is a person who, in accordance with the procedure established by law, has received the status of a lawyer and the right to practice law.

For the first time, the concept of "advocacy" was applied in the Federal Law on Advocacy and the Bar (hereinafter - the Law on the Bar); legal education and received the status of a lawyer in the manner prescribed by law.

Lawyer activity is not an entrepreneurial one. This means that its purpose cannot be to extract profit. All income of a lawyers' association or an individual lawyer is, by its legal nature, not the result of commercial or other business activity, but remuneration paid by the client.

A lawyer should not be registered as an individual entrepreneur. Accordingly, the law is not subject to the norms of civil, tax and other types of legislation concerning the entrepreneurial activity of a citizen.

Lawyer's activity must be distinguished from other types of legal aid, which do not relate to lawyer's activity. It yuridicheckaya help okazyvaemaya employees yuridicheckih Date with organizations, employees bodies gocudarctvennoy vlacti and mectnogo camoupravleniya, Participating States, and workers yuridicheckih firms, individual predprinimatelyami, Notary Public and patentnymi poverennymi (for icklyucheniem cluchaev when kachectve patentnogo poverennogo vyctupaet attorney) and others, kotorye law are specially authorized to conduct their professional activities.

Legislative allocation of advocacy makes it possible to ensure, by a special Federal Law, the implementation of constitutional requirements on guarantees of the right of every citizen of the Russian Federation to receive qualified legal aid from the Constitution of the Russian Federation. Also, the delimitation of the types of legal assistance has a practical significance in the fact that the state does not identify this assistance as a whole with advocacy, but “distributes” it between various entities. In the practice of law, such a form of advocacy is widespread as the provision of services to a legal or natural person, in the process of which the lawyer acts as an official adviser to the head of a firm or a specific individual. A lawyer is allowed to engage in this form of advocacy, if it is not a paid full-time (i.e. if such activity and the person performing it is not included in the staff of an organization or an individual and does not require a separate legal or civil contract) provide other legal assistance not prohibited by law.

During the Soviet period, in the activity of individual lawyers there was a place of work in organizations on specific, established by staff records or other internal documents of title: deputy, vice-manager of an arbitration company, and so on. Such activity cannot be considered as a lawyer's activity, since it is associated with the performance of administrative, organizational, administrative and other functions in the organization and is not only a consulting one.

Many existing law bureaus, firms and other similar structures, among the main types of their activities, had various forms of business service. In that regard, they were also engaged in work that is not characteristic of the legal profession in its pure form (audit, notary, arbitration management, consulting, medium in commercial transactions). All this received the name "comprehensive support of projects and transactions" or "comprehensive legal services", which included not only legal support, but also the provision of complete information about partners, the production of cargo delivery etc.

Such a combination of functions for lawyers is not allowed. In connection with this, in practice, various forms of activity are used, in particular, the division of functions for the provision of lawyer and consulting services. At the same time, the law office provides systematic legal support for the business activities of its clients - business entities. Specialists of consulting firms, created in parallel with law offices, carry out audit, marketing, consulting of business projects. Thus, the general structure of complex economic and legal support not only of large commercial projects, but also of the entire economic activity of the main part of the business is preserved.

In practice, the question may arise whether the activity of a lawyer who has received the status of a lawyer, but is not a member of any of the lawyers' formations, is a lawyer's activity. The fact is that the norms of the Law on Advocacy, establishing the procedure for acquiring the status of a lawyer, nowhere mention the obligatory membership of a lawyer to a particular lawyer structure (lawyer's office, law office, bar association, legal advice).

However, the activity of a lawyer who is not a member of any lawyer education cannot be recognized as a lawyer's activity. In accordance with Art. 20 of the Law on Advocacy, the list of forms of lawyer formations is closed. If a lawyer has refused to participate in any of the collegiate lawyer formations, he has the right to carry out advocacy individually. In this case, he can only establish a lawyer's office. Thus, a lawyer is not entitled to carry out advocacy in other forms that are not prescribed by law.

In addition, a lawyer provides legal assistance only on the basis of an agreement with the client. And the essential condition of the agreement, along with others, is an indication of the attorney's membership in the lawyer's education. In case of failure to specify such an essential condition in the agreement, the agreement with the client will be considered invalid, which means that it does not give rise to any mutual rights and obligations. Obviously, for a lawyer there will be no main criterion that characterizes advocacy: legal assistance itself.

At the same time, the legal literature raises the problem of the quality of professional legal assistance provided by lawyers. Questions about the "standards" of the legal profession, the conditions for providing "qualified legal assistance" are brought up for discussion, attempts are being made to formalize the requirements for legal services etc.

Analysis of problems on the issues raised allows us to put forward the following conditions for the provision of qualified legal aid, provided by lawyers: selection of applicants for the status of a lawyer, taking into account the criteria established in Art. 9 FZ "On advocacy and advocacy in the Russian Federation"; conducting a qualifying exam; independence of the profession; the terms of the agreement on the provision of a specific type of legal assistance; the duty of a lawyer to comply with the principles of professional activity and the norms of lawyer ethics; corporate control and the responsibility of a lawyer. The improvement of the quality of the professional activity of a lawyer is facilitated by specialization in the legal profession and retraining programs focused on new types of activity.

Literature

Constitution of the Russian Federation. // Ros. gas. - 1993.– No. 237.
Civil Code of the Russian Federation (part two): ФЗ dated 26.01.1996, No. 14-ФЗ (as amended on 21.07.2014) // SZ RF. - 1996. - No. 5. - Art. 410.
Labor Code of the Russian Federation: ФЗ dated 30.11. 2001 No. 197-FZ (as amended on December 31, 2014) // SZ RF. - 2002. - No. 1 (part 1). - Art. 3.
On advocacy and advocacy in the Russian Federation: FZ of 10.06.2002, No. 63-FZ (as amended on 02.07.2013) // SZ RF. - 2002. - No. 23. - Art. 2102.
Boykov A. D. Lawyer status: content, qualification requirements and principles of advocacy. / A. D. Boykov // Problems of the legal profession in legal science. Materials of the meeting of the Scientific Advisory Council of the Federal Chamber of Lawyers of the Russian Federation. - 2011. - S. 58-60.
Bondar O. N... Qualified legal assistance is a constitutional guarantee of judicial protection of the rights and freedoms of man and citizen in the Russian Federation: Avtoref. dis. ... Cand. jurid. sciences. - Rostov n / a, 2008 .-- 30 p.
Karpikova T. A... The status of advocacy: current scientific approaches. / T. A. Karpikova // Lawyer practice. - 2009. - No. 1. - S. 10-13.
Korobov O. A... On some issues of providing qualified legal assistance. // Russian justice. - 2011. - No. 7. - P. 56.
Panchenko V. Yu... On "free" and "monopoly" models of legal assistance in the context of information openness of professional activity of lawyers. // Legal world. - 2013. - No. 2. - S. 60-63.
Pyatin E. And... Legal regulation of relations for the provision of legal assistance (services) in Russia. // Education and Law. - 2013. - No. 3 (43). - S. 66-69.
Solovieva Yu. I. Actual problems the legal status of a lawyer in the Russian Federation at the present stage. / Yu. I. Solovieva // Actual problems of the implementation of constitutional legal regulations in the administration of justice in the Russian Federation. Materials of an interdisciplinary round table dedicated to the 20th anniversary of the adoption of the Constitution of the Russian Federation (Vologda, May 31, 2013). - 2013 .-- S. 155-160.

Panchenko V.Yu. On "free" and "monopoly" models of legal aid in the context of information openness of professional activity of lawyers // Legal World. - 2013. - No. 2. - P. 60.

Civil Code of the Russian Federation (part two): Federal Law of January 26, 1996, No. 14-FZ (as amended on July 21, 2014) // SZ RF. - 1996. - No. 5. - Art. 410.

Pyatin E. I. Legal regulation of relations for the provision of legal assistance (services) in Russia. // Education and Law. - 2013. - No. 3 (43). - P. 66.

Karpikova T.A.Status of advocacy: actual scientific approaches. // Law practice. - 2009. - No. 1. - P. 10 .; Boykov A. D. Status of a lawyer: content, qualification requirements and principles of advocacy. // Problems of the legal profession in legal science. Materials of the meeting of the Scientific Advisory Council of the Federal Chamber of Lawyers of the Russian Federation. - 2011. - S. 58 .; Solovieva Yu. I. Actual problems of the legal status of a lawyer in the Russian Federation at the present stage / Yu. I. Solovieva // Actual problems of the implementation of constitutional and legal norms in the administration of justice in the Russian Federation. Materials of an interdisciplinary round table dedicated to the 20th anniversary of the adoption of the Constitution of the Russian Federation (Vologda, May 31, 2013). - 2013 .-- S. 155.

The Bar is a professional community of lawyers and is an institution civil society... The legal profession is called upon to protect the rights, freedoms and interests of citizens and legal entities, as well as to ensure access to justice. The level of development of the legal profession is an indicator of the state of democracy in society, one of the signs of the protection of human rights.

The legal profession is a professional community of lawyers and, as an institution of civil society, is not included in the system of state authorities and local self-government bodies (Article 3 of the Law on advocacy).

Bar- a non-governmental and non-profit voluntary professional association of qualified lawyers with the status of a lawyer, created to provide legal assistance to individuals and legal entities in order to protect their rights and legitimate interests(Article 3 of the said Law).

Thus, the essence of the Bar is that it is:

Non-state structure. It is not included in the system of state authorities and local self-government bodies, is not created by the state and is not funded by the state;

Voluntary association of lawyers - professionals with the status of a lawyer, organized on the basis of the law, in order to provide legal assistance to all who need it;

Non-profit organization. The legal profession does not pursue the goal of making a profit. The remuneration of lawyers is not profit, but the remuneration of their labor. In addition, in cases provided by law, legal assistance by lawyers is provided free of charge;

Civil Society Institute.

The legal profession is called upon to represent and defend not the state, but the private interest. It performs its functions by providing qualified legal assistance to individuals and legal entities in order to protect their rights and freedoms.

The legal profession is organized and operates on the basis of the following principles: legality, independence, self-government, corporatism, as well as the principle of equality of lawyers.

The principle of legality means that the organization and activities of the Bar must comply with applicable law. The bodies of the Bar and the forms of lawyers' formations are created in strict accordance with the Law on Advocate Activity.

Lawyers are obliged to comply with and comply with laws and decisions of the governing bodies of the legal profession (the Federal Chamber of Lawyers, the Bar Association of a constituent entity of the Russian Federation), including and, above all, the Code of Professional Ethics of Lawyers.

The rules of conduct that are binding on every lawyer have been established The Code of Professional Ethics of a Lawyer , which was adopted by the First All-Russian Congress of Lawyers on 01/31/2003 (with amendments and additions approved by the IV All-Russian Congress of Lawyers on 04/22/2013).

In accordance with Art. 1 of this Code, the General Code of Rules for Lawyers of the European Community, adopted at the plenary session in Strasbourg in October 1998, refers to the legal basis for the activities of the Bar.

The rules he established apply to Russian lawyers insofar as they do not contradict the current Russian legislation on the legal profession.

April 15, 2014 Resolution of the Government of the Russian Federation No. 312 approved Government program"Justice" The State Program provides for the following tasks of subprogram No. 1: “Tasks of the subprogram - streamlining the system of providing qualified legal assistance and reforming the institution of the legal profession; increasing the status of lawyers in the professional legal community by creating a mechanism for regular professional development and qualification confirmation, as well as introducing an effective mechanism for exclusion from the profession; development and maintenance of competition in the market of professional legal services by restricting market access for unscrupulous participants. "

The state program provides that in 2015 the Ministry of Justice of Russia should prepare a draft federal law on professional legal assistance in the Russian Federation, "aimed at optimizing the procedure for admission to the profession of a lawyer and standardizing the market for professional legal assistance." In addition to the basic law of the Federal Law "On advocacy and the legal profession in the Russian Federation", another federal law may appear, one way or another regulating advocacy.

A lawyer is obliged to defend and represent his client only by legal means, to seek the restoration of the violated right of the client by legal means.

For the Bar, one of the criteria of legality is professionalism, which means the duty of a lawyer to honestly, reasonably, conscientiously, professionally, in principle and actively protect the rights, freedoms and legitimate interests of clients, guided by the Constitution, laws and the Code of Professional Ethics of Lawyers.

The principle of independence the legal profession is expressed, first of all, in the fact that state bodies (including the Ministry of Justice of Russia, the Prosecutor's Office of the Russian Federation, the Ministry of Internal Affairs of Russia, the court) have no right to interfere in the organization and functioning of lawyers' formations.

This principle has an international legal basis.

So, in paragraph 2.1 of the General Code of Rules for lawyers of the countries of the European Community, it is determined that: “the tasks performed by a lawyer in the process of professional activity require his absolute independence and the absence of any influence on him, connected, first of all, with his personal interest or outside pressure ... A lawyer should avoid any infringement on his own independence and not compromise the principles of professional duty for the sake of the interests of the client, the court or others. "

The size, staff, estimates of income and expenses are the competence of the self-government bodies of the Bar. Lawyer formations and self-governing bodies of the Bar are organized not at the courts, but on a territorial basis.

Lawyers' formations and self-governing bodies of the bar also cannot interfere in the proceedings on a specific case. The lawyer is an independent professional legal advisor. He independently makes decisions and carries out actions that are within the scope of his professional powers.

In order to ensure the availability of legal assistance for the population and to promote advocacy, public authorities provide guarantees for the independence of the legal profession, finance the activities of advocates who provide legal assistance to citizens of the Russian Federation free of charge in cases stipulated by the legislation of the Russian Federation, and also, if necessary, allocate office premises to lawyers' associations and means of communication.

Self-government principle the legal profession is expressed in the fact that the legal community manages its affairs independently, through its self-government bodies (congresses, conferences, meetings, councils of bar chambers, audit commissions, qualification commissions, presidents).

The most important issues of advocacy are discussed at the All-Russian Congress of advocates, conferences (meetings) of advocates of the chambers of lawyers of the constituent entities of the Russian Federation, the decisions of which are binding on the advocacy community.The self-government bodies of the advocacy are formed by advocates independently, without outside interference.

Lawyer education by virtue of Art. 32 of the Federal Law of 12.01.1996 No. 7-FZ "On Non-Commercial Organizations" are obliged to provide information on their activities to the state statistics bodies and tax authorities, and to the Ministry of Justice of Russia annually submit a document containing a report on the activities of lawyer education, on the personnel of the governing bodies, as well as documents on the expenditure Money and about the use of other property. However, the fulfillment of this obligation must be carried out taking into account the requirements of the law to ensure the regime for the preservation of advocate secrets. The principle of self-government is also manifested in the right of a lawyer to independently choose the place of his work, i.e. forms of lawyer education (lawyer's office, bar association or law office).

The corporate principle the Bar is that the Bar represents a single social institution, based on a voluntary alliance of persons united by common interests, tasks and aim to provide professional protection of principals.

The General Code of Rules for Lawyers of the European Community states: "The spirit of corporate unity of representatives of this profession presupposes a relationship of trust and cooperation, maintained by lawyers among themselves, both for the sake of the interests of clients and for the sake of avoiding unnecessary disputes."

The corporate character of the advocacy community is ensured by the voluntariness of acquiring and terminating the status of a lawyer, corporate discipline and professional ethics, the concern of lawyers for their honor and dignity, as well as the authority of the legal profession.

All persons engaged in advocacy are members of a professional unified corporation. Each lawyer is a member of one bar of a constituent entity of the Russian Federation, and the bar of a constituent entity of the Russian Federation is a member of the Federal Chamber of Lawyers of the Russian Federation.

Lawyers are obliged to comply with the rules established by the lawyers' corporation (the Code of Professional Ethics of the Lawyer, approved by the First All-Russian Congress of Lawyers, the charter and decisions of the legal profession).

Corporateness as a principle of the organization and activities of the Bar protects it from possible outside interference, provides lawyers with confidence and security of their activities.

The principle of equality of lawyers is expressed in the fact that a person who has received the status of a lawyer in the manner prescribed by law, and who has chosen the form of lawyer education, becomes a full member of a professional corporation.

A lawyer has the right to provide any type of legal assistance provided for by law, to represent the client in any government bodies, courts, local governments throughout the Russian Federation.

At the same time, the scope of a lawyer's powers does not depend on his length of service in the legal profession, the duration of his practice as a lawyer. A lawyer has the right, at his discretion, to choose any form of lawyer education provided by law.

In the internal life of the lawyer community, the equality of lawyers is manifested at congresses (conferences), where each lawyer has equal opportunities in discussing and resolving organizational and managerial issues.

Lawyers occupying positions in the management system of the legal profession (member of the Council of the Bar Chamber, head of legal education) have additional powers necessary to carry out managerial functions.

Among the exceptions to the principle of equality of lawyers is the provision that only a lawyer who has at least five years of experience has the right to hire an intern on a contractual basis to carry out certain assignments.

Lawyer activity is qualified legal assistance provided on a professional basis by persons who have received the status of a lawyer in the manner prescribed by the Law on advocacy, individuals and legal entities in order to protect their rights, freedoms and interests, as well as ensure access to justice (paragraph 1 of article 1 Law on advocacy).

Advocacy includes various types of legal assistance:

Giving advice and information on legal issues, both verbally and in writing;

Drawing up statements, complaints, petitions and other documents of a legal nature;

Representing the interests of the client in constitutional proceedings;

Participation as a representative of the principal in civil and administrative proceedings;

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

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

Representing the interests of the client in government bodies, local governments, public associations and other organizations;

Representation of the interests of the principal in public authorities, courts and law enforcement agencies and no strange states, international the judiciary, non-state bodies of foreign states, unless otherwise established by the legislation of foreign states, charters, documents of international judicial bodies and other international organizations or international treaties Russian Federation;

Participation as a representative of the principal in enforcement proceedings, as well as in the execution of criminal punishment;

Participation as a representative of the principal in tax legal relations.

A lawyer has the right to provide other legal assistance not prohibited by federal law.

Lawyers of foreign states can provide legal assistance on the territory of the Russian Federation only on issues of law of this foreign state.

To engage in advocacy, lawyers of foreign states must be registered with the federal government body in the field of justice in a special register. The regulation on maintaining the register of lawyers of foreign states carrying out advocacy on the territory of the Russian Federation was approved by the Government of the Russian Federation of September 19, 2003 No. 584.

Is not legal assistance rendered by:

Employees of legal services of legal entities (organizations), as well as employees of public authorities and local governments;

Members and employees of organizations providing legal services, as well as individual entrepreneurs;

Notaries, patent attorneys, except for cases when a lawyer acts as a patent attorney, or other persons who are specially authorized by law to conduct their professional activities (clause 1 of article 1 of the Law on advocacy).

The said Law also does not apply to bodies and persons who carry out representation by virtue of the law.

In this case, they are guided by the sectoral legislation of the Russian Federation - the Code of Civil Procedure of the Russian Federation, the Code of Criminal Procedure of the Russian Federation, etc.

Advocate activity is carried out on the basis of an agreement between the attorney and the client. The agreement is civil contract, concluded in a simple written form between the client and the lawyer (lawyers), to provide legal assistance to the client himself or to a person appointed by him.

The remuneration paid to the attorney by the principal and the compensation to the attorney of the expenses associated with the execution of the order are subject to obligatory payment to the cashier of the relevant lawyer education or transfer to the current account of the lawyer education in the manner and terms that are stipulated by the agreement.

Remuneration for the work of a lawyer participating as a defense attorney in criminal proceedings as appointed by the bodies of inquiry, bodies preliminary investigation or the court, is established by the Government of the Russian Federation, in particular, by the decrees of the Government of the Russian Federation of July 4, 2003 No. 400 "On the amount of remuneration of a lawyer participating as a defense attorney in criminal proceedings on the appointment of the bodies of inquiry, preliminary investigation bodies, the prosecutor or the court", and from July 23, 2005 No. 445 "On the procedure for the provision of legal assistance by lawyers to servicemen undergoing military service on conscription, but on issues related to military service, as well as on other grounds established by federal laws. "

Lawyers can be participants state system free legal aid and provide free legal aid citizens who have the right to receive such assistance (Articles 15, 20 of the Law on Free Legal Aid.

When rendering free legal aid to citizens, lawyers are guided by the above-mentioned Law and the Law on advocacy.

The organization of the participation of lawyers in the activities of the state system of free legal aid in the constituent entity of the Russian Federation is carried out by the bar association of the constituent entity of the Russian Federation.

The Bar Association of a constituent entity of the Russian Federation annually, no later than November 15, sends to the authorized executive body of the constituent entity of the Russian Federation a list of lawyers participating in the activities of the state system of free legal aid, indicating the registration numbers of lawyers in the register of lawyers of the constituent entity of the Russian Federation, as well as lawyers' associations in which lawyers carry out their professional activities.

Authorized executive body of the constituent entity of the Russian Federation concludes an agreement with the bar association of a constituent entity of the Russian Federation on the provision of free legal aid by lawyers who are members of the state system of free legal aid.

Lawyers who are members of the state system of free legal aid provide citizens with free legal aid on the basis of an agreement concluded in accordance with Art. 25 of the Law on advocacy.

The size, procedure for remuneration of lawyers who provide citizens with free legal aid within the framework of the state system of free legal aid, and compensation for their expenses for providing such assistance are determined by laws and other regulatory legal acts of the constituent entities of the Russian Federation (for example, the Law of Moscow of October 4, 2006 No. No. 49 "On the provision of free legal aid by lawyers to citizens of the Russian Federation in Moscow"; Resolution of the Moscow Government dated December 4, 2007 No. 1040-PP "On measures to implement the Law of the City of Moscow" On the provision of free legal aid by lawyers to citizens of the Russian Federation in Moscow ").

The Council of the Bar Association of a constituent entity of the Russian Federation determines the amount of additional remuneration paid at the expense of the funds of the Bar Association to a lawyer who provides legal assistance to citizens of the Russian Federation free of charge within the framework of the state system of free legal aid and (or) participates as a defense lawyer in criminal proceedings by appointment of the inquiry bodies, organon preliminary investigation or court, or as a representative in civil proceedings at the appointment of the court, and the procedure for the payment of such additional remuneration (clause 6 of part 3 of article 31 of the Law on Free Legal Aid).

Kochetov M.A. A cheat sheet on the legal profession. E.A. Erikova, V. Bulat; under total. ed. M.A. Kochetova - Tula, 2018. + additions 2019

The essence and purpose of the Bar

The concept of advocacy and advocacy

Bar- a non-governmental non-profit professional society of qualified lawyers-advocates, created to provide legal assistance to individuals and legal entities in order to protect their rights and interests, as well as ensure access to justice.

Bar- the institution of the legal system of the Russian Federation and civil society, which ensures the protection of the rights, freedoms and legitimate interests of PL and LE, as well as access to justice.

Advocate- a person who has received the status of a lawyer and the right to practice law in accordance with the procedure established by law.

The legal profession is not included in the system of state authorities or local self-government bodies, while maintaining a balance between state interests and interests individual citizens and organizations. Such independence guarantees any person real protection of his rights, freedoms and interests in court, in particular when challenging the actions and decisions of officials and government agencies.

The main source that regulates the activities of the legal profession is the Federal Law "On advocacy and the legal profession". Under advocacy means qualified legal assistance provided on a professional basis by persons who have received the status of a lawyer to individuals and legal entities in order to protect their rights, freedoms and interests, as well as access to justice.

In this way goals of advocacy are:

Protection of the rights, freedoms and legitimate interests of principals;
Ensuring access to justice.

Advocacy is quite diverse and is carried out in various types, For example:

Consulting and issuing certificates on legal issues;
Drafting of documents of a legal nature (complaints, statements, petitions);
Participation as a representative of the principal in constitutional, criminal, administrative, civil proceedings, in arbitration courts, in international commercial arbitration;
Participation as a defense attorney in criminal proceedings and proceedings in cases of administrative offenses;
Representing the interests of the principal in the authorities and other organizations, for example, enforcement proceedings.

This list is not exhaustive. Lawyers have the right to provide any other legal assistance not prohibited by federal law.

Is not a lawyer's activity legal assistance provided:

Employees of legal services of legal entities, state authorities and local self-government;
Participants and employees legal organizations providing legal services, as well as individual entrepreneurs;
Notaries and patent attorneys (except when the patent attorney is an attorney).

However, advocacy is not entrepreneurial. The fees received by the lawyer education for the provision of legal assistance are used to pay for the work of lawyers, the maintenance of the technical apparatus, business expenses, insurance and pension payments and to pay other expenses. Lawyers are not allowed to engage in other paid activities, with the exception of scientific, teaching and other creative activities. Also, they cannot hold state and municipal offices.

Principles of organization and activity of the Bar

The principle of legality- it is manifested in the fact that the creation and other organizational issues of the legal profession, including the regulation of the membership of lawyers, their rights and obligations must be carried out in strict accordance with the law.

Compliance with this principle, of course, extends not only to the professional society of lawyers as a whole, but also to its individual members. Lawyers are also required to comply with the law to use only legal means... In his activities, he is primarily guided by the Constitution, the law and the Code of Professional Ethics of the Lawyer.

The principle of independence- includes the independence of the community as a whole and the independence of each lawyer. Independence is manifested, firstly, in the fact that the activities of the Bar are regulated by law, and, secondly, by the fact that the Bar is not part of the structure of state bodies and local self-government bodies and is not subordinate either to the federal or local level bodies of legislative, executive or judiciary or other bodies and organizations.

Independence guarantees are enshrined in the law and are as follows:

Prohibition on interference or obstruction of advocacy;
A lawyer cannot be held liable for the expression of his opinion in the course of his advocacy, unless a court decision establishes that the lawyer is guilty.
It is not allowed to request information from lawyers related to the provision of legal assistance
Lawyers, members of his family and their property are protected by the state
A special procedure has been established for attracting a lawyer to criminal liability, implementation of measures of criminal prosecution and operational-search activities against him

Self-government principle- lies in the fact that the issues of the organization and activities of the legal profession are decided by the legal community. State bodies carry out only a control function in the form of maintaining registers of lawyers and the work of qualification commissions.

The corporate principle- the principle according to which the legal profession is organized and operates as a voluntary association of persons with common interests and goals. Every attorney must abide by the rules of the community, treat colleagues with respect and be accountable for the quality and integrity of their work.

The principle of equality of lawyers- lies in the fact that all lawyers have a single status, equal rights and obligations in the implementation of their professional activities and in resolving issues of the internal life of the lawyer society.

The emergence and development of the legal profession in Russia

The emergence of the legal profession in Russia is associated with the Judicial Reform of 1864, although the representation still existed before its implementation.

Development history the Bar can be conditionally divided into the following periods:

Advocacy in the period before the Judicial Reform of 1864;
The Bar of Russia in the period from 1864 -1917;
Bar Soviet period 1917-1991;
The modern period of the legal profession.

Advocacy in the period before the Judicial Reform of 1864;

The first mentions of the prototype of a lawyer, namely an attorney, in writing are contained in legislative acts (in the Pskov and Novgorod loan letters) of the 15th century.

The judicial representatives were divided into 2 types:

Natural representatives, that is, relatives of the person;
Hired attorneys, who could be all legally capable citizens, with the exception of those who were in the public service.

According to the Pskov Charter, only women, children, monks, old people and the deaf could use the services of attorneys, and according to Novgorodskaya anyone could use it.

The word lawyer, as a term, first appeared in Russia in the Military Regulations of Peter I in 1716. One of the chapters was titled "On Lawyers and Plenipotentiaries" and defined their powers and tasks. From that moment until 1864, measures were taken to streamline the activities of lawyers.

The requirements for a lawyer were as follows: a lawyer must be a natural nobleman; have an estate; not to be noticed in any vice; know the laws; fulfill this oath. Young people who devoted themselves to the legal profession were called applicants (students) and were preparing for the title of lawyer under the direct supervision of their elders, experienced lawyers.

The advocacy of Russia in the period from 1864 -1917.

After the abolition of serfdom in Russia, a number of reforms were carried out, including the judicial one. As a result of its implementation, a full-fledged institution of the legal profession was created. All the main provisions were enshrined in legislative act"Establishment of judicial rulings".

The Institute was created as a special corporation attached to the courts. Despite the existence judicial control, the Bar was a self-governing organization. The requirements for lawyers (attorneys at law) actually coincided with the requirements for judges (higher education, work experience, etc.).

Who could be a sworn attorney:

Who have had university degrees or other higher education institutions about the completion of the course legal sciences or about passed exams in these sciences (external studies);
Those who have served at least 5 years in the judicial department in positions that allow them to acquire practical skills in the production of court cases.

Women, foreigners, persons under 25, bankrupt citizens, citizens under investigation and some other persons could not be attorneys at law. Attorneys at law also could not be civil servants.

After the October Revolution of 1917, fundamental changes were made to the institute of the Bar. The defenders or attorneys could be all non-defiled citizens of both sexes who enjoyed civil rights. That is, persons who do not have a legal education were admitted.

Collegia of human rights defenders were formed at the revolutionary tribunals. Anyone who wants assistance to justice and who provided a characteristic from the Soviets of Workers', Soldiers' and Peasants' Deputies could join them. The members of the collegium could carry out both accusation and defense, but in fact they did not provide any legal assistance.

The law prohibited seeking legal advice directly from a lawyer. The necessary motions were to be sent to the court.

Later, there were some changes, for example, a prerequisite was the presence of a higher legal education, the presence of work experience. Also, the bodies exercising control over the bar association were constantly replaced.

Legal foundations of the modern legal profession

Modern legislation on advocacy and the legal profession includes:

The Constitution of the Russian Federation is the basic law that has the highest legal force and direct action on the territory of the entire state;
Federal Law "On advocacy and the legal profession in the Russian Federation" No. 63-FZ of 2002 is the main normative legal act governing legal relations arising both with the legal profession and within it;
Other federal laws. A variety of Federal laws are codes. For the legal profession, domestic procedural codes(Code of Criminal Procedure of the Russian Federation, Code of Civil Procedure of the Russian Federation, Arbitration Procedure Code of the Russian Federation, as well as the section of the Code of Administrative Offenses of the Russian Federation dedicated to administrative process), which enshrine the rights and obligations of a lawyer with his participation in criminal, civil, arbitration and administrative proceedings;
Regulatory legal acts RF government and federal bodies executive power.
Laws and other regulatory legal acts of the constituent entities of the Russian Federation;
Code of Professional Ethics for Lawyers, others regulations, approved by the FPA.

A special role is played by international acts concerning lawyers:

Basic Provisions of the United Nations on the Role of Lawyers;
Council of Europe recommendations to member states on the legal profession.

Organization of the legal profession and types of advocacy

Acquisition, suspension and termination of the status of lawyers

Lawyer status in RF has the right to acquire a person:

Has a higher education in law or a degree in law;
With at least two years of work experience in the legal profession, or completed an internship in law education within the time frame established by the Federal Law "On advocacy and the legal profession" (1-2 years).

The length of service in the legal profession required to acquire the status of a lawyer includes the following work:

as a judge;
on state and state institutions requiring higher legal education municipal offices;
in positions requiring higher legal education in the state bodies of the USSR, RSFSR, located on the territory of the Russian Federation;
in positions requiring higher legal education in legal services of organizations;
in positions requiring higher legal education in research institutions;
as a teacher of legal disciplines in professional educational organizations, educational organizations higher education and scientific organizations;
as an assistant attorney;
as a notary;
and etc.

Not eligible to apply for the status of a lawyer and the implementation of the advocacy of a person:

recognized as incapacitated or partially incapacitated in accordance with the procedure established by the legislation of the Russian Federation;
having an outstanding or unexpunged conviction for committing willful crime.

The decision to grant the status of a lawyer is made by the qualification commission of the bar association of a constituent entity of the Russian Federation after the person applying for the status of a lawyer has passed the qualification exam.

A lawyer has the right to carry out advocacy throughout the Russian Federation without any additional permission.

Foreign citizens and stateless persons who have received the status of a lawyer in the manner prescribed by this Federal Law are allowed to carry out advocacy throughout the territory of the Russian Federation, unless otherwise provided by federal law.

If the applicant for the status of a lawyer meets specified requirements, then he has the right to apply to the qualification commission of the bar association of a constituent entity of the Russian Federation with an application for granting him the status of a lawyer. In addition to the application, he must provide following documents:

A copy of the identity document;
A questionnaire containing biographical information;
A copy work book or another document confirming work experience in the legal profession;
A copy of the document confirming higher legal education.

After completing the verification of these documents, the qualification commission decides on admission to the qualification exam, which is held in 2 stages (written questions or testing and interview. An applicant who does not pass the exam is allowed to pass it again no earlier than one year later.

The qualification commission, within 3 months from the date of submission of the application by the applicant, takes into account the results of the passed exam and makes a decision on the assignment of the status of a lawyer or on the refusal to assign the status. The entry into force of the decision of the qualification commission comes into force from the day the applicant takes the oath.

A lawyer, within three months from the date of assignment of the status of a lawyer, is obliged to notify the council of the bar association about the form of lawyer education he has chosen. If there is no information in the chamber of lawyers for four months about the choice of the lawyer's education form by the lawyer, the status of a lawyer may be terminated by decision of the council of the chamber of lawyers of a constituent entity of the Russian Federation, in the regional register of which information about the lawyer is entered.

Grounds for suspending the status of a lawyer:

election of a lawyer to a government or local government body;
inability of a lawyer to perform his professional duties for more than six months;
conscription of a lawyer for military service;
recognition of a lawyer as missing in accordance with the procedure established by federal law.

Suspension of the status of a lawyer entails the suspension of the guarantees provided by the Federal Law in respect of this lawyer, with the exception of the guarantee of the independence of the lawyer.

A person whose status as a lawyer has been suspended is not entitled to engage in advocacy, as well as to hold elective positions in the bodies of the Bar Association or the Federal Chamber of Lawyers. Violation of the provisions of this clause entails termination of the status of a lawyer.

The decision to suspend the status of a lawyer is made by the council of the bar association of the constituent entity of the Russian Federation, in the regional register of which information about this lawyer is entered.

After the termination of the grounds provided for in paragraphs 1 and 2 of this article, the status of a lawyer is renewed by the decision of the council, which made a decision to suspend the status of a lawyer, on the basis of a personal statement of the lawyer, whose status was suspended.

The decision of the council of the bar association to suspend the status of a lawyer or to refuse to renew the status of a lawyer may be appealed against in court.

The Council of the Chamber of Advocates, within ten days from the date of its decision to suspend or renew the status of an advocate, notifies the territorial body of justice in writing to enter the relevant information into the regional register.

Territorial authority Justice, within 10 days from the date of receipt of the specified notification, enters information on the suspension or renewal of the status of a lawyer in the regional register.

Grounds for terminating the status of a lawyer:

the lawyer's submission of an application for termination of the lawyer's status to the council of the bar association;
entry into legal force of a court decision on recognizing a lawyer as incapacitated or partially incapacitated;
the death of a lawyer or the entry into force of a court decision declaring him dead;
entry into legal force of a court verdict recognizing a lawyer guilty of committing an intentional crime;
identification of circumstances due to which a person was not entitled to acquire the status of a lawyer
and etc.

The status of a lawyer is terminated by the council of the bar association of the constituent entity of the Russian Federation, in the regional register of which information about the lawyer is entered:

The status of a lawyer may be terminated by decision of the council of the bar association of a constituent entity of the Russian Federation, in the regional register of which information about the lawyer is entered, on the basis of the conclusion of the qualification commission when:

non-fulfillment or improper fulfillment by the lawyer of his professional duties to the client;
violation by a lawyer of the norms of the code of professional ethics of a lawyer;
illegal use and (or) disclosure of information related to the provision of qualified legal assistance by a lawyer;
non-execution or improper execution by a lawyer of decisions of the bodies of the chamber of law, taken within their competence;
establishing the inaccuracy of the information submitted to the qualification commission when passing the qualifying exam;
and etc.

The decision of the council of the bar association, taken on these grounds, can be appealed to the court.

The territorial body of justice, which has information about the circumstances that constitute the grounds for terminating the status of a lawyer, sends a submission to terminate the status of a lawyer to the bar association. If the council of the bar association has not considered it within three months from the date of receipt of such a submission, the territorial body of justice has the right to apply to the court with an application to terminate the status of a lawyer.

Rights and obligations of a lawyer

A lawyer has the right:

collect information necessary for the provision of legal assistance, including requesting certificates, characteristics and other documents from public authorities, local authorities;
to interrogate, with their consent, persons who presumably possess information related to the case in which the lawyer is providing legal assistance;
collect and submit items and documents that can be recognized as material and other evidence;
engage specialists on a contractual basis to clarify issues related to the provision of legal assistance;
to freely meet with your client in private, in conditions that ensure confidentiality (including during the period of his detention), without limiting the number of visits and their duration;
fix (including using technical means) information contained in the materials of the case, in which the lawyer provides legal assistance, while respecting state and other secrets protected by law;
perform other actions that do not contradict the legislation of the Russian Federation.

Lawyer inquiry

A lawyer also has the right to send to state authorities, local self-government bodies, public associations and other organizations an official appeal on issues within the competence of these bodies to provide:

certificates;
characteristics;
other documents required for the provision of qualified legal assistance.

State authorities, local self-government bodies, public associations and other organizations to which a lawyer's request is sent must give an answer to it in writing within thirty days from the date of its receipt. In cases requiring additional time to collect and provide the requested information, the specified period may be extended, but not more than thirty days, while the lawyer who sent the lawyer's request is notified of the extension of the period for considering the lawyer's request.

The provision of the requested information to the lawyer may be refused if:

the subject that received the lawyer's request does not have the requested information;
the requirements for the form, procedure for processing and sending a lawyer's request, defined in established order;
the requested information is classified by law as information with limited access.

A lawyer is not entitled to:

to accept from the person who applied to him for the provision of legal assistance, the order if it is obviously illegal in nature;
accept from the person who applied to him for legal assistance, the order in cases where he:
a) has an independent interest in the subject of the agreement with the principal, different from the interest of this person;
b) participated in the case as a judge, arbitrator or arbitrator, mediator, prosecutor, investigator, interrogator, expert, specialist, translator, is a victim or witness in this case, as well as if he was an official in whose competence the decision was made in the interests of this person;
c) is related or family relationships with an official who took or is taking part in the investigation or consideration of the case of this person;
d) provides legal assistance to the principal, whose interests contradict the interests of this person;
to take a position on the case against the will of the principal, except for cases when the lawyer is convinced of the presence of a self-incrimination of the principal;
make public statements about the proof of the guilt of the principal, if he denies it;
disclose information provided to him by the principal in connection with the provision of legal assistance to the latter, without the consent of the principal;
abandon the protection assumed.

Covert cooperation of a lawyer with bodies carrying out operational-search activities is prohibited.

A lawyer is obliged:

honestly, reasonably and conscientiously defend the rights and legitimate interests of the principal by all means not prohibited by the legislation of the Russian Federation;
comply with the requirements of the law on the mandatory participation of a lawyer as a defense attorney in criminal proceedings;
constantly improve their knowledge on their own and improve their professional skills;
comply with the code of professional ethics of a lawyer and comply with the decisions of the bodies of the bar association of a constituent entity of the Russian Federation, the Federal Chamber of Lawyers of the Russian Federation, adopted within their competence;
monthly allocate funds for the general needs of the Bar Association;
to insure the risk of their professional property liability.

Attorney secrecy

Also, a lawyer is obliged to maintain attorney secrecy. An advocate secret is any information related to the provision of legal assistance by a lawyer to his client.

A lawyer cannot be summoned and questioned as a witness about the circumstances that became known to him in connection with the appeal to him for legal assistance or in connection with its provision.

Conducting operational-search measures and investigative actions in relation to a lawyer (including in residential and office space used by him to carry out advocacy) is allowed only on the basis of judgment.

Information, objects and documents obtained in the course of operational-search measures or investigative actions (including after the suspension or termination of the status of a lawyer) may be used as evidence of the prosecution only in cases where they are not included in the proceedings of the lawyer in the cases of his principals. These restrictions do not apply to the instruments of crime, as well as to items that are prohibited from circulation or whose circulation is limited in accordance with the legislation of the Russian Federation.

Professional associations of lawyers (lawyer formations)

A lawyer has the right to carry out activities only in one legal education, moreover, a lawyer who is not in one of the forms of advocacy has no right to engage in advocacy. Upon assignment, renewal of the status, if the lawyer does not choose one of the forms within 4 months, then the status is terminated.

Forms law formations are:

lawyer's office;
Collegium of Advocates;
Law Office;
legal consultation.

A lawyer shall have the right, in accordance with this Federal Law, to independently choose the form of lawyer education and the place of practice of law. The lawyer is obliged to notify the council of the chambers of law about the chosen form of lawyer education and the place of practice.

Lawyer's office

AK is a form of lawyer education, established by a lawyer with at least 5 years of experience as a lawyer, who has decided to carry out his legal practice individually... The lawyer sends to the council of the bar association by registered mail a notice of the establishment of the office, which indicates information about the lawyer, the location of the office, the procedure for telephone, telegraph, postal, and other communication between the council and the lawyer. It should be noted that the cabinet is not a legal entity. The lawyer who established the office is obliged to open bank accounts in accordance with the current legislation of the Russian Federation, has a seal, stamp and letterheads with the address and name of the office, containing an indication of the constituent entity of Russia on the territory of which the office is established.

The work of two or more lawyers in one AC is not allowed, the founder of the cabinet has the right to hire employees (assistants, trainees).

An agreement on the provision of legal assistance in such an office is concluded between the lawyer and the client and is registered in the office's documentation.

To accommodate an office, a lawyer can use living quarters owned by the lawyer himself or his family members (when using the living quarters of family members, their consent is required). If the living quarters are occupied by a lawyer and his family members under a lease agreement, then these rooms can be used by the lawyer to accommodate an office with the consent of the landlord and all adults living with the lawyer.

Collegium of Advocates

The Bar Association is a collective form of lawyer education, which is non-profit an organization founded by two or more lawyers, based on membership and acting on the basis of the charter approved by its founders and the constituent agreement concluded by them.

It is necessary to pay attention to the fact that the founders and members of the collegium can be lawyers, information about which is included in only one regional register. The collegium is considered established from the moment of its state registration... The founders of the collegium send a notice of its establishment to the council of the chamber of lawyers by registered mail, in which they indicate information about the founders, the location of the collegium, the procedure for telephone, telegraph, postal and other communication between the council of the chamber of law and the collegium. Notarized copies of the articles of association and articles of association are attached to the notification.

Target the creation of a CA is not a profit, but assistance to its members in the implementation of AD.

The articles of association and articles of association are constituent documents.

The charter should contain, in particular, the following information:

the name of the board;
the location of the college;
the subject and purpose of the activity of the board;
sources of formation of the property of the collegium and directions of its use;
the procedure for managing the board;
information about the branches of the board;
the procedure for reorganization and liquidation of the collegium;
the procedure for introducing amendments and additions to the charter;
other provisions that do not contradict the law.

In the constituent treaty determined:

conditions for the transfer of property to the spacecraft;
the procedure for participation in its activities;
the procedure and conditions for the admission of new members;
the rights and obligations of the founders;
procedure and conditions for leaving the spacecraft.

The requirements of the constituent documents are binding on the board itself and all of its founders and members.

CA - is:

a legal entity that has an independent balance sheet and opens bank accounts in accordance with the current legislation of Russia, which has a seal, stamps, letterheads with the address and name of the collegium, containing an indication of the subject of Russia on the territory of which the collegium is established;
tax agent lawyers who are its members in terms of income received by them in connection with the implementation of advocacy;
a representative for settlements with principals and third parties, on other issues stipulated by the founding documents of the collegium.

The Bar Association may establish branches throughout Russia and on the territory of a foreign state. The branch lawyers are members of the collegium that created the branch. Information about the lawyers of the branch of the collegium located on the territory of Russia is entered into the regional register of the constituent entity of Russia on the territory of which the branch is created.

The property contributed by the founders as contributions belongs to the collegium on the basis of ownership. The members of the collegium and the collegium are not liable for the obligations of each other.

A lawyer (member) acts on his own behalf in a relationship with a client. The assistance agreement is concluded between the attorney and the client.

The collegium in its documentation registers agreements on the provision of legal assistance concluded between lawyers and principals.

The Bar Association cannot be transformed into any commercial or non-commercial organization, other than being transformed into a law office.

Law Office

Law Office Is a form of lawyer education, which is established by two or more lawyers, concluding among themselves partnership agreement in simple writing. Partner attorneys are required to join their efforts to provide legal assistance on behalf of all partners. In the relations between the establishment and implementation of AB activities, the rules for the organization of the spacecraft are applied.

In this contract e must indicate:

contract time;
the procedure for making decisions by partner lawyers;
the procedure for electing a managing partner lawyer and his competence.

The managing attorney-partner is in charge of the general affairs of the bureau, however, otherwise may be established by the contract. The managing partner lawyer or another partner lawyer concludes with the principals on behalf of all partner lawyers on the basis of the powers of attorney issued by them, agreements on the provision of legal assistance. These powers of attorney indicate all restrictions on the competence of a partner lawyer who concludes transactions with principals and third parties (moreover, these restrictions are communicated to the principals and third parties).

Grounds for termination partnership agreement are as follows:

expiration of the contract;
termination or suspension of the status of a lawyer who is one of the partners, if the agreement does not provide for the preservation of the agreement between the other partner lawyers;
termination of the contract at the request of one of the partner lawyers, if the contract does not establish the preservation of the contract between the other partner lawyers.

From the moment of termination of the agreement, its participants shall be jointly and severally liable for unfulfilled general obligations in relation to principals and third parties. If one of the partner lawyers withdraws from the contract, then he is obliged to transfer to the managing partner lawyer the proceedings in all cases in which he provided legal assistance. The lawyer who has withdrawn from the contract is liable to the principals and third parties for the general obligations that arose during the period of his participation in the contract.

After the termination of the agreement, the lawyers conclude a new partnership agreement with each other, the absence of which within a month after the expiration of the previous agreement entails the transformation of the office into a bar association or liquidation.

During the period of time from the moment of termination of the contract and until the transformation of the office into a bar association or the conclusion of a new partnership agreement, lawyers are not entitled to conclude agreements on the provision of legal assistance. The Bureau can only be transformed into a bar association. Conversion of AB into a commercial, non-commercial organization is prohibited.

Distinguishing AB from CA: great cohesion, interdependence and interchangeability of its members in the implementation of activities. Partner attorneys work together.

Legal consultation

Legal consultation Is a form of legal education, a non-profit organization created in the form of an institution.

South Caucasus occupies a special place among the forms of formations because Law firms are created by the Council of the Chamber of Lawyers if, in the territory of a subject of one judicial region, the total number of lawyers in all lawyers' formations located on the territory of one judicial region is less than two per judge.

Target creation - ensuring the availability of qualified legal assistance to the population.

The submission of the executive authority of the subject on the creation of a legal company includes information:

about the judicial area where you want to create a law firm
on the number of judges in the region
the required number of lawyers
on the material and technical support of the activities of the law firm (premises, organizational means, sources of financing for wages).

After agreement organizational support activities, Council of the Presidential Administration:

makes decisions on the establishment of a legal company
approves the candidacies of lawyers
sends a registered letter of establishment to the executive authority of the constituent entity of the Russian Federation.

AP may provide for the payment of lawyers of the law firm, additional remuneration at their own expense. The meeting (conference) of lawyers annually determines the amount of remuneration paid by the bar association to the lawyer.

Lawyer in criminal proceedings

General Provisions

Advocate- a person who has received the status of a lawyer in accordance with the procedure established by law, as well as the right to carry out advocacy. The lawyer is an independent professional legal advisor

Defender- a person who, in accordance with the procedure established by the Code of Criminal Procedure of the Russian Federation, protects the rights and interests of suspects and accused persons and provides them with legal assistance in criminal proceedings. Mostly lawyers are involved as defenders.

Also, a lawyer can act as a representative:

Persons summoned for interrogation as a witness in a criminal case;
Injured persons;
Persons whose premises are being searched.

The defender is allowed to participate in the case from the moment:

Making a decision to bring a person as an accused;
Initiation of a criminal case against a specific person;
The actual detention of a person who is suspected of committing a crime, in cases of his detention and the application of a preventive measure to him in the form of detention;
Serving a notice of suspicion of a criminal offense;
Announcements to a person who is suspected of committing a crime, a decision on the appointment of a forensic psychiatric examination;
Initiation of other measures procedural compulsion or other procedural actions that affect the rights and freedoms of a person suspected of committing a crime;
The beginning of the implementation of procedural actions affecting the rights and freedoms of the person in respect of whom the verification of the crime report is being carried out.

The defense attorney enters into a criminal case in prescribed by law moment in time in the presence of a warrant of a specific lawyer education and a lawyer's certificate, as well as in the absence of grounds for challenge.

The Criminal Procedure Code provides cases of obligatory participation of a defense attorney in criminal proceedings. His participation is required if:

The accused, the suspect did not abandon the defense lawyer in the manner prescribed by the Criminal Procedure Code;
The accused, the suspect is a minor;
An accused, suspected due to psychological or physical disabilities cannot independently exercise his right to defense;
The trial is conducted in the absence of the defendant who is outside the Russian Federation or avoids appearing in court;
The accused, the suspect, does not speak the language in which it is taught criminal proceedings;
The person is accused of committing a crime for which a punishment of imprisonment for a term exceeding 15 years, life imprisonment or the death penalty may be imposed;
The case is subject to trial by a jury;
The suspect filed an abbreviated form of inquiry;
When the case is considered in a special order with the consent of the accused with the charge brought against him;

A lawyer in the pre-trial proceedings

A lawyer in criminal proceedings most often acts as a defender, who is one of the main figures, thanks to whom the rights and legitimate interests of the accused or suspect are protected.

In progress pre-trial proceedings a lawyer usually participates at the stage of initiating a criminal case and at the stage preliminary investigation:

Cases of the participation of a lawyer at the stage of initiating a criminal case

When checking reports of crimes, the investigator has the right to take explanations. At the same time, it is important to take into account that a citizen can refuse to give explanations, since no responsibility is provided for this. In order to find out this fact, a citizen can turn to a lawyer, which can already be interpreted as the participation of a lawyer at the stage of initiating a criminal case. If the person agrees to give explanations, then the lawyer can provide consultations during the giving of explanations;
Detention of the face. The exercise of the right to use the assistance of a defense attorney is carried out by inviting him directly to the suspect, by other persons on behalf of or with his consent. At the request of the suspect, the participation of the defense lawyer must be provided by the investigator (interrogator);
Also, a lawyer can participate in investigative actions that are carried out at the stage of initiation of a criminal case, for example, an inspection of the scene of an incident and examination in cases where its production is urgent, as well as when appointing forensic examination;
When participating in these investigative actions, a lawyer must draw the investigator's attention to violations of the rights of his client, apply for additional information to be entered into the protocols and give written comments about the completeness and correctness of the records, and also appeal the actions of the investigator.

Participation in investigative actions and other actions of a lawyer

1. Interrogation. Before the interrogation begins, the client should be consulted and, together with him, the most advantageous position on the case should be determined. The main role of a lawyer in interrogation is to ensure that it is carried out within the framework of the law, to prevent the use of rudeness, threats, psychological or physical violence, to provide consultations, etc.

If the client and the defense attorney, before interrogation, doubt the correctness of the chosen position on the presentation of the circumstances of the event, then in this case it is worth refusing to testify and use the right enshrined in Art. 51 of the Constitution of the Russian Federation. Also, the accused may file a motion for re-interrogation, which the investigator has no right to refuse.

2. Search. In this case, the lawyer first of all needs to pay attention to the proper procedural registration of the investigative action. Art. 182 of the Code of Criminal Procedure of the Russian Federation states that a search is carried out on the basis of an investigator's order. A home search can only be carried out on the basis of a court decision. The absence of such may be the main reason for filing a complaint by the defense lawyer regarding the results of this investigative action.

Also, the defender must fully control the process of seizing each thing, the constant presence of attesting witnesses and other circumstances. For example, in the case when the attesting witnesses were in another room and did not observe the process of the seizure of any thing by the investigator, the lawyer can make an addition and remark in the protocol on this matter. Following the results of the search, the lawyer must examine whether all the items seized during the search are reflected in the protocol with the obligatory indication of their individual characteristics.

3. Presentation for identification. In this investigative action, the identifier, by comparing the mental image of the previously observed and the persons presented to him, draws a conclusion about their identity, similarity or difference. The defender here should pay attention to the appearance of the extras, which should be similar to the identifiable one, in particular by facial features, nationality, age, physique, height, hair color, etc. If there are inconsistencies in the similarity, the defense lawyer must make comments in the protocol of this investigative action.

4. Production of forensic examination. When conducting an examination, the role of a lawyer is to familiarize himself with the expert's opinion and subject it to verification, firstly, for the legality of actions during its appointment, and secondly, for the legality of involving this particular expert.

The defense attorney, on behalf of the suspect or the accused, has the right:

To get acquainted with the decision on the appointment of a forensic examination;
Declare a challenge to an expert or apply for a forensic examination in another expert institution;
Apply for the inclusion of additional questions to the expert in the decision on the appointment of a forensic examination;
Apply for the involvement as experts indicated by the defender and the suspected (accused) persons, or for the production of a forensic examination in a specific expert institution;
To be present with the permission of the investigator during the forensic examination, to give explanations to the expert;
To get acquainted with the expert's conclusion or the message about the impossibility to give an opinion, as well as with the protocol of the expert's interrogation.

Also, the defense attorney has the right to petition for the interrogation of an expert, for the appointment of a repeated and additional expert examination.

5. Collecting evidence. The defense attorney has the right to collect evidence by:

a) interviewing persons, if they have their consent;
b) obtaining documents, items and other information;
c) requesting characteristics, certificates, other documents from public associations and organizations, local authorities and state bodies. The specified entities in mandatory are obliged to provide the lawyer with the requested documents or their copies.
and etc.

6. Presentation for Prosecution. This procedural action consists in the fact that the investigator announces to the accused and his defense attorney a decision to be brought in as an accused. The investigator also explains to the accused the essence of the charge brought against him and his rights provided for by law. The decision is certified by the signatures of the investigator, the accused and the defense lawyer. They are obligatorily given a copy of the resolution.

The main violation in the production of this investigative action is the untimely notification of the day the charge was brought, which excludes the possibility of thoroughly preparing for it or the possibility of a defense lawyer participating in the investigative action at the appointed time. In such cases, the lawyer may petition to postpone the investigative action to another day or to another time.

First of all, the defense attorney must familiarize himself with the decision on bringing him as an accused, understand its essence, check the compliance of this procedural act in form and content with the requirements of the criminal procedure law. Having familiarized himself with the decision to prosecute as an accused, a lawyer can file a petition for re-qualification of the actions of his client, if there are grounds for this. Such a request can serve as a convincing argument for the investigating authorities when deciding on the choice of a preventive measure.

7. Familiarization with the materials of the criminal case. At this stage, without exception, all the materials of the case are provided to the accused and his defense lawyer in a filed and numbered form. All physical evidence must also be provided. At the request of the accused or his defense attorney, audio and video recordings and other attachments to the protocols of investigative actions may be submitted. If, after getting acquainted with the case, any additional investigative action, then all the materials of the case are again presented for review. If it is impossible to present material evidence, the investigator must issue a resolution on this.

The accused and his defense attorney should not be limited in time when familiarizing themselves with the case materials. But if they clearly delay the time of acquaintance, then on the basis of a court decision, a certain period is established for the performance of these actions.

Participation of a lawyer in court proceedings

When preparing for the trial, the defense lawyer should carefully read the indictment, find out from the client the circumstances that were not reflected in the collected materials of the criminal case, prepare the client for testimony, explain his rights and obligations, and psychologically adjust the client to participate in process, having specially stipulated the manner of his command at the hearing.

Submit motions and challenges;
Bring complaints about the actions of the court and participate in their consideration;
Participate in the investigation of the circumstances and materials of the case;
To express to the court his opinion on the merits of the accusation and its proof;
Express an opinion on the circumstances mitigating the punishment of the defendant or acquitting him;
Express an opinion on the measure of punishment, as well as on other issues arising during judicial trial.
Get to know the protocol court session and bring comments on him

Judicial pleadings

One of the most important stages of court proceedings is judicial pleadings, consisting of speeches of the prosecutor and the defense attorney.

The persuasiveness of a defensive speech is based primarily on the analysis of evidence and the infallibility of argumentation, and the success of a speech lies in its brevity and meaningfulness. Turning to the court in his speech, the lawyer seeks to exert psychological and legal influence on the participants in the process when presenting conclusions in favor of the client.

The defense speech consists of an introductory (descriptive) part, analysis and assessment of evidence, both individually and in combination with others, characteristics of the personality of the defendant, analysis of the reasons that contributed to the commission of the crime, as well as the conclusion.

In the absence of grounds for challenging the proof of the accusation and the qualifications of the offense, the lawyer chooses the position of mitigating the punishment. At the same time, in his defense speech, the defense attorney pays special attention to the circumstances characterizing the personality of the client, and the circumstances mitigating his liability. In the final part, the lawyer must clearly formulate the request to the court for the appointment of one or another type of punishment.

At the end of the debate of the parties, but before the court is removed to the deliberation room, the lawyer has the right to submit to the court in writing proposed by him the wording of decisions on a number of issues, resolved by the court when deciding the verdict.

Defender's failure to appear

If the defense lawyer fails to appear and it is impossible to replace him, the trial is postponed.

If the invited defense lawyer fails to appear within 5 days from the date of the application for inviting a defense lawyer, the court has the right to invite the suspect, the accused to invite another defense lawyer, and in case of his refusal to take measures to appoint a defense lawyer in the manner determined by the council of the Federal Chamber of Lawyers.

In the event that a defender is replaced, the court gives the defender, who has just entered the criminal case, time to familiarize himself with the materials of the criminal case and prepare for participation in the trial. The replacement of a defense attorney does not entail a repetition of actions that had been committed by that time in court. At the request of the defense lawyer, the court may repeat the interrogations of witnesses, victims, experts or other judicial actions.

Court decisions that have not entered into legal force, the lawyer has the right to appeal against appeal procedure.

Before starting to draw up an appeal, a lawyer must familiarize himself with the verdict or other decision of the court and the protocol of the trial. If the lawyer did not take part in the proceedings on the merits at the first instance, then he / she needs to familiarize himself with the materials of the criminal case.

Familiarization with the sentence is necessary from the point of view of its compliance with the requirements of legality, validity and fairness.

The grounds for canceling or changing the sentence are:

inconsistency of the conclusions of the court, set out in the verdict, with the factual circumstances of the criminal case, established by the court of first instance;
significant violation of the criminal procedure law;
misapplication of the criminal law;
unfairness of the sentence.

If the circumstances and evidence relevant to the defense of the convicted person were clarified during the trial, but were not reflected in the minutes of the court session, then the lawyer has the right and is obliged to bring comments on him. For a higher court, the minutes of the court session is one of the main documents that help to identify procedural errors made by the court of first instance.

The Criminal Procedure Law established the form and content of the appeal, which should contain:

name of the court appellate instance to which the complaint is submitted;
data on the person who filed the complaint, an indication of his procedural status;
the name of the court and an indication of its verdict or other contested decision;
arguments about the unjustness of the contested decision;
list of materials attached to the complaint;
signature of the linden who filed the complaint.

The complaint is filed through the court that passed the verdict or rendered another decision, to a higher instance within 10 days from the date of the verdict or other court decision. Filing an appeal suspends the enforcement of the sentence.

When participating in the consideration of a criminal case on appeal, a lawyer has the right to declare objections and motions, support the complaint filed by him or his client, submit additional evidence in support of his arguments, ask questions to other participants in the process, state his opinion on the legality, validity and fairness of the appealed to the court. judgment, participate in the debate of the parties.

The law also provides for the right of a lawyer to appeal against a verdict, rulings, and court rulings that have entered into legal force in cassation and supervisory procedures. Skipped by good reason the term can be restored by the court.

Proceedings in a criminal case in the court of cassation and supervisory instances under the current legislation are practically the same, with the exception of some peculiarities provided for in the Criminal Procedure Code.

Activities of a lawyer in court with the participation of a jury

Judicial proceedings with the participation of jurors, it is conducted only on certain types of crimes (part 2 of article 105, encroachment on the life of a state figure, etc.) and at the request of the accused.

Investigation in a jury trial begins with introductory statements by the public prosecutor and defense attorney.

The defense attorney expresses a position agreed with the defendant on the charge brought and an opinion on the procedure for examining the evidence presented by him.

At this stage, a lawyer has the right to:

Participate in the formation of the jury. In particular, the defense side is the first to conduct a survey of candidates for jurors in order to clarify the circumstances that prevent a person from participating as a juror;
Give an unmotivated challenge to a juror;
To raise questions about the existence of factual circumstances in the criminal case that exclude the responsibility of the defendant for the deed or entail his responsibility for a less serious crime;
Participate in court hearings and have other rights provided for by the Criminal Procedure Code.

Lawyer in civil proceedings

General Provisions

In civil proceedings, a lawyer acts as a representative. The basis for representing the interests of the principal in the process civil proceedings is an agreement concluded between a lawyer and a client for the provision of legal assistance to the client or a person appointed by him.

The right of a lawyer to appear in court as a representative is certified by a warrant issued by the relevant lawyer education. The powers of a representative can also be defined in oral statement entered in the minutes of the court session or in a written statement of the principal in court.

The representative has the right to perform all procedural actions on behalf of the person represented. However, the right of a representative to sign a statement of claim, submit it to a court, refer a dispute to an arbitration tribunal, file a counterclaim, full or partial refusal from claims, reducing their size, recognizing the claim, changing the subject or basis of the claim, concluding an amicable agreement, transferring authority to another person (delegating), appealing a court order, presenting executive document for recovery, the receipt of the awarded property or money must be specially stipulated in the power of attorney issued by the person represented.

Activities of a lawyer at the stage of preparing a case for trial

When an individual or legal entity turns to a lawyer for legal assistance, the lawyer needs to establish psychological contact with the person who applied, understand the essence of his claims and provide qualified legal assistance.

After making sure of the legality of the client's instructions, the lawyer takes over the lead in the court and prepares for the trial, while talking with the client, he clarifies his intentions and requirements, examines the circumstances of the case, gives a legal assessment of the problem, reveals possible ways to resolve a legal dispute, determines tactics of doing business in court.

When preparing for the trial, the lawyer-representative must explain to his client the procedure for considering the case in court, his procedural rights and obligations, give advice and recommendations on behavior, what and how to say when giving explanations and when answering questions from the court and other persons involved in the case.

To initiate legal proceedings, a lawyer must also:

Competently draw up all procedural documents;
Submit a claim.

At the stage of preparing a case for trial, a lawyer must:

Determine the legislation by which he will be guided when participating in the case;
Identify the circle of persons subject to involvement in the case;
Collect and provide the necessary evidence;
Submit petitions for the demand for evidence, for securing a claim or securing evidence;
Provide the defendant with copies of evidence substantiating the factual grounds of the claim;
And take other actions necessary for the timely resolution of the case.

The final stage in the preparation of a lawyer for the conduct of a case is a preliminary court session, which has as its purpose the procedural consolidation of the administrative actions of the parties committed in preparing the case for the trial, determination of the circumstances that are important for the correct consideration and resolution of the case, determination of the sufficiency of evidence in the case.

At the preliminary court session, attorneys-representatives have the right to:

Give explanations to the court;
Present evidence;
Give reasons;
To object to the statements and arguments of the opposing party;
Make petitions.

Compliance by the lawyer with the requirements of the law will allow him to promptly initiate proceedings on the case in court and prevent the occurrence of obstacles in the movement of the case, which means, from the very beginning, in the best possible way to represent the interests of the client.

Participation of a lawyer in court proceedings in criminal proceedings

In the preparatory part of the trial, the persons participating in the case have the right make reasoned requests on issues related to the proceedings:

On the exclusion from the process of submitted written and material evidence that is not related to the case;
On the attachment to the case of written and material evidence, audio or video recording; on the reclamation of evidence, etc.

The petitions are resolved by the court after hearing the opinions of other persons participating in the case.

Consideration of the case on the merits begins with a report by the presiding judge or one of the judges. Then the presiding judge ascertains whether the plaintiff supports his claims, whether the defendant accepts the plaintiff's claims and whether the parties do not wish to end the case by concluding an amicable agreement. The lawyer must explain to his client the meaning and legal implications rejection of the claim, recognition of the claim by the defendant and the conclusion of an amicable agreement.

After the report of the case, the court hears the explanations of the persons participating in the case. The lawyer should prepare the client for giving explanations, which should be convincing and relate only to the factual circumstances of the case, while convincing that unnecessary details and additions should be avoided in the explanations, and even more so to exclude emotional statements. An attorney-representative can also give explanations, emphasizing legally significant circumstances and expressing the position of his client in the case.

A lawyer participating in the case has the right to ask questions to the other side of the dispute, revealing contradictions and groundlessness of the position of the opposing side. The judge has the right to ask questions to the persons participating in the case, including the lawyer, at any time when they give explanations.

Then the court, taking into account the opinions of the persons participating in the case, establishes the sequence of the examination of the evidence.

When establishing the procedure for examining evidence, a lawyer should choose a certain sequence of presentation of evidence to confirm his position and the validity of the requirements of his client. The study of evidence involves familiarization with them, their analysis, the establishment of links between individual evidence, as well as an assessment of their relevance, admissibility, reliability and sufficiency.

Addressing the debate it is impossible to prepare in advance in the final form, unlike the speech in the explanations. In his speech, the lawyer must once again convey to the court the legal position on the case agreed with the client, analyze and evaluate the evidence examined by the court, indicate what circumstances of the case, in his opinion, can be considered proven, which circumstances have not been confirmed.

Also, the lawyer has the right to get acquainted with the protocol of the court session and submit comments on it, indicating the inaccuracies or incompleteness of it.

Participation of a lawyer in the proceedings for the review of court decisions

A decision made in the case that does not meet the interests of the principal, the representative lawyer, with the consent of the principal, has the right to appeal to a higher authority.

In the process of appealing court decisions, the main role of a lawyer is reduced to checking the grounds for appeal, and competently drafting a complaint. To do this, a lawyer must:

Study the materials of the case;
The minutes of the court session;
Find out whether the norms of material and procedural law whether the circumstances of the case were fully investigated;
Compare the arguments of the parties and the evidence put forward by them in support of their position in the case with their assessment by the court;
Analyze the findings of the court in relation to the factual circumstances of the case and their legal interpretation.

An appeal may be filed against decisions of all courts in the Russian Federation, taken at first instance, by the parties and other persons participating in the case. An appeal can be filed through the court that made the decision, within a month from the date of the final decision of the court, unless other terms are established by the Code of Civil Procedure.

The complaint as a procedural document must contain the name of the court to which it is addressed, the name of the person submitting it. his place of residence or location, an indication of the court decision that is being appealed, the requirements of the person filing the complaint, and the grounds on which he considers the court decision incorrect, a list of evidence attached to the complaint.

The complaint, based on the factual circumstances and materials of the case, assesses the judgment as an act of justice, sets out arguments about its legality and validity. At the same time, the requirements of the person must be clear and clear, motivated, legal and justified.

Court decisions that have entered into legal force, with the exception of court decisions of the Supreme Court of the Russian Federation, can be appealed by a lawyer with the consent of the principal in a court of cassation within six months from the date of entry into force, provided that other statutory ways of appealing a court decision have been exhausted before the day of its entry into force.

When applying to the cassation instance, a lawyer must take into account that the grounds for canceling or changing court decisions in cassation are significant violations of substantive or procedural law that influenced the outcome of the case, without which it is impossible to restore and protect violated rights, freedoms and legitimate interests, and also the protection of protected public interests.

Court orders on civil affairs that have entered into legal force may be revised due to newly discovered or new circumstances.

A lawyer in proceedings for newly discovered circumstances must remember that newly discovered circumstances are facts, and not forensic evidence in the case, designed to establish these facts.

The application can be submitted within three months from the date of establishing the circumstances that are the basis for the revision.

The circumstances that served as the basis for the revision of the decision on newly discovered or new circumstances must be proven, since the court, which authorizes the motion to revise the decision, must be convinced that there are grounds for the revision. The main role of a lawyer at this stage of the process is to prove to the court the necessity, legality of the revision.

Types of legal assistance provided by lawyers in the field of entrepreneurial activity

The most common types of legal assistance to entrepreneurs include:

Participation of a lawyer in the choice of the organizational and legal form of the created companies, partnerships, legal entities of others organizational and legal forms (consists in determining the conditions for the creation of legal entities, goals, type of activity and other conditions);
The participation of a lawyer in negotiations with the client's counterparties (when agreeing on the terms of contracts or the procedure for their execution, when developing joint projects, allows the client to avoid many legal errors);
Preparation of legal opinions (given on complex issues, contains a list of questions posed for resolution, a description of the legal situation with reference to regulations, the conclusions that follow from the analysis and the corresponding recommendations to the client);
Contractual claims work, legal services to support the execution of transactions (preparation of draft contracts and legal support of the procedure for their execution by the parties);
Representation by a lawyer of the client's interests as an "authorized representative" before the fiscal authorities (legal analysis of tax situations, giving advice on taxation issues, representing interests with tax and customs authorities, etc.);
Representing the client's interests in relations with law enforcement(conclusion of an agreement to represent the interests of the organization in relations with software, participation in audits as a representative).

Legal service agreement. Structure and content.

Depending on the nature of the accepted order, the client may conclude:

or an agreement for a comprehensive legal service,
or an agreement on the execution of a specific assignment (preparation of opinions on specific issues, representation in courts).

In the concluded agreement on the provision of legal assistance, the types of legal assistance, the procedure for its execution and payment must be clearly defined, otherwise difficulties may arise when the parties establish the volume of services provided by the lawyer.

When determining the cost of the provided legal assistance in representing the client's interests in the courts, the reference is often used to the fact that payment by agreement is made if the case is resolved in favor of the client.

At the same time, regardless of the outcome of the case, the legal assistance provided to the client must be paid, but at the same time, the amount of remuneration may increase or decrease by a certain amount, depending on the outcome of the case.

At the same time, the cost of legal assistance may be included in the cost of costs attributed to the cost of production. To confirm the validity of the costs of paying for legal assistance of lawyers, these costs of the organization must be justified and documented. The condition for attributing such costs to the cost of production is their direct connection with the management of production and production activities.

In this regard, agreements on legal assistance should not contain provisions on consulting the client's employees, providing other services, which allows us to conclude that legal assistance was not provided directly to the client, and not in connection with his production activities.

German Bar

In Germany, the activities and construction of the legal profession are regulated by special legislation. This is the Federal Law on the Bar, adopted on August 1, 1959 and Federal regulation on the payment for the services of lawyers, adopted on July 26, 1957.

Lawyers in Germany have the following functions in accordance with Federal Law:

giving advice and advice (information) on legal issues;
representation of clients acting as parties in civil proceedings (in court and in extrajudicial bodies);
defense of an accused or defendant in a criminal case (this is also considered a form of representation of a client, but already within the framework of a criminal process) in court and / or investigation bodies. Within the framework of the criminal process, a lawyer can also act as a representative of the interests of the victim.
the law grants a lawyer the right to conclude an agreement with a client for the management of the latter's property;
a lawyer can perform the functions of legal advisers, but under a special agreement, since officially he cannot work as a legal adviser in accordance with the Federal Law, which defines the Bar as an "independent justice body" (meaning justice in the broad sense of the word - law enforcement, justice).

The same educational requirements have been set for lawyers and judges. An applicant with a higher education in law must take a course in law for 6 semesters at a university in Germany. Then he must successfully pass two special exams.

The first exam can be called “final exam”, since it is taken at the educational institution in which the future judge or lawyer studied.

The next stage is an internship (from three and a half to four years) in the courts, prosecutors, notaries or the legal profession. Payment for the internship - at the expense of the treasury.

After completing the internship, it is time for the second exam. This examination is conducted under the auspices of the Ministry of Justice of the respective administrative territory (land). This is an exam of practical skills.

Bar associations are formed on a territorial basis and unite lawyers “assigned” to the courts of the same land. The Ministry (Department) of Justice of the Land may agree to the formation of a second collegium in the territory of the given district, but only if the number of lawyers practicing there exceeds 500 people. All bar associations existing in Germany are united into a single Federal Chamber lawyers.

US Bar

A graduate of a law school, along with a diploma and degree, does not automatically acquire the right to practice law. In order to obtain a patent for the practice of law, he needs to undergo additional certification.

Moreover, a patent is issued for the right to practice law not in general, everywhere in the United States, but only in the territory of the state where this candidate for law is going to practice. Conditions for admission to law practice are usually installed supreme court state, but the admission itself is decided by a special commission for admission to the bar, formed either by the state bar association, or as appointed by the court or the governor of the state. Typically, this committee is composed of practicing lawyers.

When deciding on admission to the practice of law, the commission proceeds from the moral qualities of the candidate and the results of the exam conducted by it. The exam consists of an oral interview and written work. Written work, as a rule, lasts several days, during which the applicant must answer 20-30 questions regarding knowledge, interpretation and application of the legal norms of the state in which the exam is taken. Each state has a state bar association.

Most states have compulsory association membership for all persons admitted to the practice of law. However, in some states, you do not need to be a member of a bar association to practice law. The tasks of the association include the establishment of standards of professional ethics, assistance to lawyers, the adoption of disciplinary measures, the development of standards for advocacy, assistance in the improvement of law and the administration of justice, etc.

Bar associations are purely professional associations and do not carry out any practical legal activity. Membership dues to lawyers' associations have nothing to do with the income of lawyers, nor with which legal department or firm they work.

More than half of the attorneys in the United States work alone or together with two or three attorneys. However, the major form of advocacy in the American law society is large (more than fifty lawyers) law firms. Such firms, as a rule, do not deal with criminal cases and prefer to deal with affluent clients, mainly corporations. These firms are owned by partners.

Partner - a lawyer with extensive practice, high income and the right to a share of the profits of a law firm; the second group of lawyers is an associate, a lawyer who has little or no clientele of his own. The associate receives a salary from the firm. Some of the lawyers work in the departments of "public defenders" - organizations that are on the state budget and serve free of charge defendants from among propertyless citizens.

There are also similar legal aid services for the have-nots, funded from federal budget... The parent organization of these services is the Legal Aid Corporation, established and funded by Congress.

French Bar

The conditions for access to the legal profession in France are determined by the 1972 decree.

have French citizenship
and a diploma in the specialty of higher educational institution(at least a Master of Laws).

In addition, a person wishing to become a member of a bar association must not have a criminal record, as well as penalties for serious disciplinary or administrative offenses, not be an accomplice in bankruptcy through any firm or enterprise.

A person who meets these requirements must pass an entrance exam at the Vocational Training Center (two written and oral), study there for a year, take a theoretical course and practical internship, and then pass a final exam (1 written and 3 oral).

Subject to these conditions, the lawyer is admitted to the bar association and is sworn in. After that, as a lawyer, he undergoes a two-year internship in his specialty and receives a certificate.

Lawyers of France are united in associations (orders). There is only one association in each judicial region. There are 181 regional courts and, accordingly, the same number of bar associations. Associations are different in their quantitative composition.

The liability of a lawyer is guaranteed by law in the form of compulsory professional liability insurance. In addition to civil liability, a lawyer may be subject to disciplinary sanctions by the bar association in the form of a warning, reprimand, a temporary ban to practice law for a period of no more than three years, or as a last resort - exclusion from the bar association. Moreover, a lawyer excluded from the lists of the association cannot be recruited to another bar association.

The term "advocate" (from the Latin advocatus, advoco - I invite) is understood as a person whose profession is to provide legal assistance to citizens and organizations, including the protection of their interests in court. Based on international practice, the terms “legal counsel”, “legal consultant” or “lawyer” are sometimes synonymous with the term “lawyer”. V modern Russia two terms are used in relation to the representatives of this profession: "advocate" and "advocate". In addition, the law uses the expression “an independent professional legal advisor” in relation to lawyers.

A lawyer is understood as a person who has received the status of a lawyer and the right to practice law. The first sign of this definition means that a lawyer must be entered in the regional register of lawyers. The second sign is that a person has the right to practice law only after he chooses a form of law education (law firm). In addition, the suspension of the status of a lawyer also prevents him from engaging in advocacy. A lawyer is a person entered in the regional register of lawyers, who is in any lawyer education and whose status has not been suspended.

In Russia, there are professions that are related in their functional affiliation and legal status to the profession of a lawyer. These legal professions are united not so much by their common goal - to provide qualified legal assistance, as by their independent position and independent functioning in the legal services market. These related professions include: notary, patent attorney, auditor and independently practicing lawyer.

Notary attorney. Representatives of both of these professions provide qualified legal assistance. In addition, the organization of the bar and notary bodies is built on similar principles. However, the main function of a notary is to perform notarial acts. According to his legal nature the notary is closer to a government agency. This is manifested, for example, in the fact that notarial acts are performed on behalf of the state and clients are charged government duty... A lawyer does not have the right to engage in notarial activities, and a notary, therefore, does not have the right to practice law. It should be noted that in some states, lawyers perform some of the functions of notaries.

Patent attorney. Patent activity is a type of qualified legal assistance in securing patent rights. An attorney can act as a patent attorney, however, a patent attorney cannot practice law.

The auditor is a lawyer. The production of audits is impossible without the participation of a legal auditor. During the audit, qualified legal assistance is provided in the form of a legal analysis of the documents of an economic entity.

Independently practicing lawyer, attorney. The provision of qualified legal assistance in Russia is not licensed. Any person has the right to provide legal assistance for a fee. The difference between these individuals and attorneys lies in the fact that independently practicing lawyers are not incorporated into a corporation and the fact that they cannot provide some types of legal assistance. For example, the provision of protection at the stage of preliminary investigation or the implementation of representation in a constitutional court.

In law, there are several terms that are close in meaning, but sometimes unreasonably identified with the term "lawyer".

Quite often in law, the term "lawyer" is adjacent to the term "defender". The meaning of these two terms is in many ways similar, but in many respects does not coincide: the coincidence of concepts occurs only when a lawyer is engaged in the defense of his client in any legal process: criminal, administrative, etc.

On the other hand, the discrepancy between the terms is that a lawyer is not always a defender. In addition, in administrative proceedings, a defense lawyer may not be a lawyer.

A similar situation arises with the ratio of the terms "lawyer" and "representative". A lawyer acts as a representative in a constitutional, civil or arbitration proceedings... However, another person may also act as a representative in these processes.

It is necessary to distinguish the concept of "lawyer" from the concept of "human rights defender". A lawyer is a person who provides legal assistance for a fee. This reward can come from the client or in other ways. A human rights defender is a person who provides legal assistance free of charge.

V modern science most scholars engaged in research in the field of advocacy and advocacy agree that advocacy is legal assistance provided on a professional basis to individuals and legal entities through legal advice, organization of defense or representation of interests in constitutional, civil, arbitration, administrative and criminal legal proceedings, provision of other types of legal assistance in accordance with the legislation of the Russian Federation.

The legal profession is usually understood as a set of professional lawyers united in the chambers of lawyers of the constituent entities of the Russian Federation (in the old terminology - in the collegia of advocates) and with the task of providing legal assistance to individuals and legal entities, including participation in various types of legal proceedings, clarification of legal issues, training legal documents(statements, complaints, contracts, etc.).

The functioning of the Bar is the main way to ensure the provision of Art. 48 of the Constitution of the Russian Federation, part 1 of which reads: "Everyone is guaranteed the right to receive qualified legal assistance."

Since the bar associations were practically the only form associations of persons providing professional legal assistance, the legal profession as an institution is identified with them.

May 31, 2002 Russian President V.V. Putin signed the Federal Law "On Advocacy and the Bar in the Russian Federation", which entered into force on July 1, 2002, with the exception of certain provisions that come into force on January 1, 2007.

At present, the activities of the Russian legal profession are being actively reformed in accordance with the adopted law.

This law was adopted in the course of the implementation of the judicial reform in the Russian Federation and is intended to ensure legal regulation issues of the activity of the legal profession, interaction of lawyers' self-government bodies with state bodies, officials and citizens. In addition, the law guarantees the independence of lawyers as professional, non-profit organizations(Art. 1, 3, 29, 31, etc.).

This definition emphasizes the independence of lawyers' associations, their independence from the authorities government controlled. Legal basis interaction of the legal profession with public authorities is one of the conceptual questions, the answer to which determines to a large extent legal status legal profession, its place in the system of state and public institutions.

An indication of a non-commercial nature means that the Bar does not aim to make a profit. The fees received by the collegium for the provision of legal assistance by lawyers are used to pay for their labor, maintain the technical apparatus, administrative and office expenses, as well as for contributions to insurance and pension funds.

The purpose of the adoption of the Federal Law "On advocacy and the legal profession in the Russian Federation" was the need to expand the legal and organizational capabilities of lawyers to provide qualified legal assistance to individuals and legal entities. New law took into account the realities of today, the changes that have taken place in society and the state over a long period of time that has passed since the adoption of the Regulations on the Bar of the RSFSR in 1980, which is intended to be null and void. The role of the new law is especially great in connection with the new role and functions of the advocate and the legal profession after the adoption in 2001 of the Criminal Procedure Code of the Russian Federation.

The adoption of the Federal Law "On Advocacy and the Bar in the Russian Federation" should bring the Russian legal profession to a new, more qualified and independent level.

A lawyer, using the guarantees of independence and inviolability, can safely provide legal assistance, being confident in the protection of himself and his family and inadmissibility of pressure from third parties on him.

Transition of the Bar to a new one professional level must make up for the lack of qualified legal assistance to citizens and legal entities to ensure their rights, freedoms and legitimate interests.

On the positive side, the law establishes a provision on the adoption by the All-Russian Congress of Lawyers of the Code of Professional Ethics of a Lawyer. And this has already happened. On January 31, 2003, lawyers of the Russian Federation, in development of the requirements provided for in Article 7 of the Federal Law "On advocacy and the legal profession in the Russian Federation", in order to maintain among themselves professional honor and consciousness of moral responsibility before society, developing the traditions of the Russian sworn advocacy, adopt the "Code professional ethics of a lawyer ”.

The implementation of the function of rendering legal assistance to individuals and legal entities is practically carried out not by the bar, but by specific lawyers or partners of law firms.

In accordance with the Regulations on the Bar in the RSFSR, lawyers were citizens of Russia with a higher legal education, work experience in the specialty of a lawyer for at least two years, and admitted to the bar association. It is allowed to admit to the bar association persons who do not have work experience in the specialty of a lawyer, however, with the condition of completing an internship in the bar association for a period of six months to a year. As a rule, lawyers - members of the collegium - had a permanent workplace in legal advice (bureaus, firms, law firms).

The federal law "On advocacy and the legal profession in the Russian Federation" established new order recruiting the bar by acquiring the status of a lawyer.

The decision on granting the status of a lawyer is made by the qualification commission at the bar association of a constituent entity of the Federation after the applicant has passed the qualification exam.

The status of a lawyer in the Russian Federation may be acquired by a person who has a higher legal education obtained in a state accreditation educational institution higher professional education, or a degree in law. Specified person must also have at least two years of work experience in the legal profession, or undergo an internship in law education for a period of one to two years. After a positive decision of the qualification commission, the applicant takes the oath, receives the status of a lawyer and becomes a member of the bar association. The territorial body of justice, having received information about the admitted lawyer from the qualification commission, enters them into the regional register and issues the appropriate certificate to the lawyer. The law regulates in detail the requirements for an applicant, the conditions for admitting him to the qualifying exam and the inclusion of information about a lawyer in State Register(Art. 9-14 of the Law).

A lawyer can simultaneously be a member of the bar association of only one constituent entity of the Federation and be a member of only one lawyer education. However, he has the right to carry out his activities on the territory of the entire Russian Federation without any additional permission.

Lawyers receive assignments for the provision of legal assistance directly from clients or through the head of the consultation (law office, collegium), who distributes work, controls its quality and payment, resolves conflicts that arise in the team of lawyers' education or between a lawyer and a client, if they are not by their nature require the intervention of the council of the bar association.

It is the lawyer who is the subject of defense and representation, it is he who participates in legal proceedings and procedural legal relations.

Lawyers - participants in the proof of specific criminal, civil, administrative cases; they have the right to collect and present evidence, verify and evaluate it in the procedural regime specified by law.

They are obliged to use all the means and methods of protection provided for by law, justify the thesis put forward in the interests of the client or the principal.

The law introduced a significant innovation, expanding the field of activity of lawyers, increasing the prestige of the legal profession. “Only lawyers can act as representatives of organizations of state power bodies, local self-government bodies in civil and administrative proceedings in cases of administrative offenses. Except for cases when these functions are performed by employees who are on the staff of these organizations, state authorities and local authorities, unless otherwise provided by federal law. "

Oral advice is given by lawyers, statements of claim, complaints, draft agreements and other documents of a legal nature.

Lawyers cannot be employed in state and public organizations, except for engaging in scientific, pedagogical and other creative activities.

The new legislation on legal proceedings - civil, criminal, administrative, constitutional and arbitration has significantly expanded the scope of activities of lawyers, the methods and means they use to protect the interests of the accused and the client. The effectiveness of the legal assistance provided by a lawyer is determined not only by the level of his professional training, but also by the state of the legal system, the status of the individual in the state. The Constitution of the Russian Federation of 1993 in the chapter "Rights and freedoms of man and citizen" made a significant step towards building the rule of law... Taking into account the direct effect of the Constitution and the reflection of its principles in sectoral legislation, the lawyer was able to influence the creation of conditions for the realization of human rights.

Of great importance for the successful activity of a lawyer is his independence from state bodies and bodies of the lawyer community in determining the means and methods of protecting the interests of clients, the only criteria of which are legality and moral impeccability.

The new law expanded the guarantees for the independence of a lawyer, specifying that it is prohibited to interfere with the practice of lawyers, carried out in accordance with the law, or hinder this activity in any way. It is not allowed to request information related to advocacy. The lawyer, his family members and their property are protected by the state.

The initiation of a criminal case against a lawyer is allowed only by a prosecutor on the basis of a judge's opinion district court(Art. 448 Part 1, Clause 10 of the Code of Criminal Procedure of the Russian Federation as amended by the Federal Law "On Amendments and Additions to the Code of Criminal Procedure of the Russian Federation" dated May 29, 2002).

Every lawyer is guaranteed social Security stipulated for citizens by the Constitution of the Russian Federation (Art. 3, clause 3).

The concept of "advocacy" includes the concept of "advocacy", which, in accordance with Part 1 of Art. 1 of the Federal Law of 31.05. 2002 N 63-FZ "On advocacy and the legal profession in the Russian Federation" means qualified legal assistance provided on a professional basis by persons who have received the status of an advocate in the manner prescribed by the Federal Law "On advocacy and the legal profession in the Russian Federation" to individuals and legal entities in order to protect their rights, freedoms and interests, as well as to ensure access to justice.

Thus, the activity of a lawyer is the activity of a lawyer only.

Legal practice is carried out on the basis of a written agreement for the provision of legal assistance or consultation, which is concluded between the lawyer and the client (i.e., the client) at the time of contacting the lawyer. In this case, it does not matter where the principal is geographically located. Immediately after the signing of the agreement, Art. 8 "Advocate secrecy" of the Federal Law "On advocacy and the legal profession in the Russian Federation."

A lawyer has the right to independently choose the form of lawyer education and the place of practice of law.

A lawyer who has made a decision to carry out legal practice individually shall establish a lawyer's office.

A lawyer wishing to carry out his activities in a team can join the already created bar association or law office. As a rule, in this case, the duty of a lawyer is only the regular deduction of mandatory contributions and compliance with the rules established by the lawyer's education.

If lawyers have the ability and desire to create their own lawyer education, two or more lawyers have the right to establish a bar association or a law office.