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Professional Responsibility and Ethics in the Global Legal Market

Briksa Ksenia Russian Customs Academy Saint-Petersburg Branch named after V.B.Bobkov HAS THE ADVOCATE THE RIGHT TO REFUSE IN PROVIDING THE LEGAL AID?

According to the paragraph 6 part 4 Article 6 of the Federal law About the legal practice and the advocacy in Russian Federation the lawyer is not able to deny the legal defense of the client. The legislator uses the word defense, implying by this the impossibility of refusing to be the legal representative in criminal cases, because especially in criminal process the lawyer is called the defense counsel. But the law doesnt tell us about the impossibility of the advocates rejecting in the legal representation in civil cases So, arises the question, if we can apply the analogy of the law and prohibit the advocates to deny the legal aid in civil cases or should we give the attorney the opportunity to decline the representation of the client?

Of course, being the professional, the advocate should take up any case. But what if the lawyer understands that by helping his client he can disserve another person. For example, if the man tries to find the loopholes in the law in order to write out his wife and children from the apartment. The advocate, who agreed to help such a client, goes against conscience without doing any unlawful actions he violates the principle of justice. But should the attorney work according to this rule? If the answer is yes, why the justice is not mentioned in the Federal law About the legal practice and the advocacy in Russian Federation together with the principles of legality, independence and self-administration of the lawyers (Article 3)?

According to the Article 8 of the Code of the professional ethics of the lawyers, accepted by the first All-Russian Congress of Advocates on the 31st January in 2003, the attorney should energetically protect rights, freedoms and interests of the clients by all not prohibited by law methods. Consequently, there is only one question which can appear in the advocates mind: are the clients requests lawful? And if the answer is affirmative, the attorney is not entitled to deny the legal aid of the client without sufficient reasons.

Where is another, not less important, dilemma: what should the lawyer do, if the client confesses the dishonesty of his evidence?

For example: A couple months ago one man consulted the lawyer in the Legal Clinic of the Russian Customs Academy. He asked to appeal against the court decision. According to this decision he had to pay the alimony for his five children in fixed sum of money. But the man considered that this amount was too big and he was not able to pay it every month. As the proof of the impossibility of paying out this sum the client showed the reference, according to that his salary was 000 Rubles. But after this action he admitted that 12000 Rubles is only official wage and the real remuneration is much more.

The Legal Clinics staff had a dilemma. What to do? they thought. In the long run, they helped the man, but the voice of conscience still tells the staff of the Clinic, that they acted dishonest towards five children As for me, I dont know what I would do in such situation. I think that I would better loose a client than to be a reason of starvation of 5 children.

Glinkina Yulia Russian Customs Academy Saint-Petersburg Branch named after V.B.Bobkov LEGAL ETHICS AND RESPONSIBILITY OF THE LAWYER IN RELATIONSHIPS WITH THE COLLEAGUES As the introduction I would like to quote outstanding lawyer A.F.Kony: No other activity demands to break the conscience so often either calling to judge, or demanding directions from it, or searching for support only. And really, the work of lawyer is turned to the very specific object human being. Jurisprudence, in the first place, is the services sector and it is connected with the communication, settlement of conflicts and tight situations, so that there is no surprise that the requirements to the morality and ethics in this work are very heightened. The lawyer is responsible for his work. I support O.E.Kutafin, who confirms that observance of the legal ethics rules, first of all, is the moral responsibility to the whole society.

Legal ethics and responsibility its the sphere of relationships between lawyer and his client, first of all. But its unfairly to forget about relations with the colleges and after all just these relations can influence on the further work with a client.

One of the most important problems of the contemporary juridical world in Russia is the non-compliance of the moral and ethical rules by the lawyers in the relations with their partners. Moreover, the lack of awareness of the responsibility for breaking these rules is also the sore spot.

Cunning, arrogant, greedy and rich the image of contemporary lawyer, fixed in the conscious of Russian people for years. And there are some serious reasons for that.

Unfortunately, hard economical situation, psychological and physical overload, caused by drawbacks in administrative sector, improper technical supply, undeveloped and imperfect system of social guarantees are very typical for our country. All of that directly influence upon the manner of working, whether or no:

trying to amend financial statues (and for increasing capital) and as a consequence, turning the advocacy into entrepreneurial activity, the lawyers strive for winning round more and more clients (often well-to-do men) by criticizing colleagues in illegal and immoral way. As a result, the professional level is rapidly coming down and the unfavourable psychological and moral atmosphere is being founded in the collective (arrogance, negligence and so on). In addition, there is not nice tendency in Russia working on somebodys own, individually that causes the problems of professional deformations, noted earlier.

To support position about problems in relations between lawyers, I would like to give an example from my private practice.

The client L turned to the lawyer K for legal advice and further representation in a court. The lawyer K elaborated the perfect legal position, but the client didnt agree with it and turned to another lawyer S. During the consultation with the new lawyer the client L mentioned the lawyers K position and expressed his disagreement with it. After that the lawyer S started rudely criticizing this position, expressing his own opinion about its incorrectness and failure. In the legal process the lawyer S suddenly announced proofs and arguments of the lawyer K, which had been actively criticised before. As a result, the case was won, the lawyer S received his attorneys fee, the lawyer K was recalled by no one, after all.

To sum up, we can say that raised problem is a problem of today, really urgent problem.

Legal ethics and responsibility are the philosophical categories and its hard to find solutions just by fixing the ethics rules in written laws. Today Russia has the basic document on legal ethics The Code of professional ethics of lawyer dated 31.01.2003. The p.2 p.1 art.9 tells us, that the lawyer is forbidden to allow himself insulting expressions about other parties of judicial proceeding, even though they behave themselves tactless and impolitely. Art.12 of the Code claims that all objections (to the judges actions, parties) must be expressed in civil and polite form in accordance with the law. And finally, the art.15 of the Code calls upon the lawyers to base the relationships with each other on the mutual respect, recognition and observance of the professional legal rights. The breach of such duties leads to the damage not only of the reputation of single lawyer who allowed it to himself but to the crash of the whole advocatory association as well. By not respecting the colleges and involving him into the ungrounded and uncivil disputes, the lawyer undermine the integrity and the authority of the Bar, this lawyer breeds strife in the internal relations (ones will support the troublemaker, others will condemn his actions). All of that creates unhealthy atmosphere and prejudice the success of each colleague.

The art.17 of the Code is also connected with the problem of relations between colleges and forbid the usage by the lawyer criticism of the other lawyers and comparison with them. This standard is very important, because while hunting for the clients, the lawyer undoubtedly inclines to depict himself in the most favourable light in comparison with the colleagues.

Its necessary to note another article of the Code - p.2 p.2 art.15 - which obliges the lawyer to refrain from using the impolite and critical utterances about another lawyer, his actions, way of working and so on, while communicating with the client, during the consultations. So, this item reflects the immunity of honour, dignity and professional reputation of the lawyer. And although every citizen has this immunity (art.152 of Civil Code of Russian Federation dated 30.11. 51-FZ), for the lawyer its much more important. It has been already said that the profession of the lawyer is the public one, directly connected with the communication with people and conflicts. To gain the authority is possible only among people, their trust in the lawyers words and respect determine the further lawyers work. Exactly because of that, the reputation in the world of jurisprudence is the half of the success. Moreover, its really hard to strengthen prestige by criticizing others, as it can be considered as enhancing his reputation.

As to the legislative regulation of the ethics problems, there was approved a Federal law about advocacy, dated 31.05.2002 63-FZ, in Russia. The p.4 p. art.7 of this Law contains the requirement to abide by the Code of professional ethics of lawyer. The breach of the Code rules can be punished with reprimand, caution or even disbarment.

However, these measures are seemed to be insufficient and scanty.

To my mind, the following propositions could the variants of possible solutions of the problem:

1. Working together. The success of the firm, client wellbeing and sometimes, his life and further fate. So that its much more better to allocate concrete duties among the lawyers which will increase the quality of the service and favour to eradication of proprietary interests in the clients.

2. To conduct (and participate in) the trainings for improving the legal ethics skills.

3. To adopt practices and methods of foreign countries (for instance, in general principles of D.C. Bar Voluntary Standards of Civility in Professional Conduct dated 18.06.1996 (USA) the lawyers are undertaken not to bring the profession into disrepute by making unfounded accusations of impropriety or making ad hominem attacks on counsel, and, absent good cause, not to attribute bad motives or improper conduct to other counsel;

the Code of Conduct for Lawyers in the European Union (adopted on 28.10.1988) and the Code of Conduct for Lawyers, issued by the Council of the Swedish Bar Association (adopted on 09.11.1984) contain the whole chapter, devoted to the relations between lawyers).

4. To conduct training for improving skills in preparing the speech for pleading. Just on this trial stage a great number of the violations of ethical norms happen. The lawyers usually start expressing their own opinion about the opponent, his witnesses. But its necessary to note the strong sides of your arguments, not the weakness of the opponents one. Its also very important to speak grammatically, to use replication right and to learn something new from your opponent.

5. To cultivate a strong immunity to the professional deformation while coming across with those, who outraged against public and legal morality, not to get influenced by mass fashion of impolite and immoral behaviour.

6. To share experience with the young lawyers, to help them overcome difficult situations and to popularize this help in the lawyers society.

7. To fix the new, more severe measures of responsibility in the legislative base (it could be fine or suspension of lawyers activity, for example).

The ethics its the universal value, so it must be admitted and respected by all people without any social, racial, gender and other characters. In this connection, I suppose that realization and observance of the norms of ethical behaviour are obligatory for the further progress of society in general. There is a wide variety of professions in the world and each of them has its own rules, which are, nevertheless, based on the common moral and ethical dogmas. Legal ethics and responsibility, from my point of view, are the basis of the profession as such.

The breakage of the professional ethics rules inevitably involves the crashing of all moral norms;

the disrespect to the colleagues reflects, first of all, the disrespect to the society and to yourself particularly.

Sinyavkiy A.D.

Russian Customs Academy Saint-Petersburg Branch named after V.B.Bobkov THE ESSAY Being a lawyer is one of the most important professions of modern society and state that helps them to exist and operate properly. Lawyers profession is not facile but very responsible, because his activity is related to large and complicated system of law. Firstly, a lawyer is a human, but not a machine, so he can be mistaken in his work. Therefore, professional responsibility is one of the most important characteristics of a lawyer the same as it is for the representative of any other profession, related to the legislation. Moreover, responsibility is one of the ethical concepts.

As of ethics, it is a special science of moral and ethical standards. For instance, these standards are debt, equity, responsibility, etc. Lawyers work is closely connected with the ethical concepts.

What does it mean to be an ethical lawyer? Of course, it means that a lawyer is a civilized and well-educated person, tolerant and humane;

he is the person who knows exactly what duty, honour, and justice are. He is honest and unprejudiced with you, he cannot advise you what he has any doubts about. Moreover he has a genuine desire to help you;

as it was mentioned before, being a lawyer means being a human at first place.

As to the regulation of lawyer professional responsibility, it seems to me that there currently cannot be definite answer. A lawyer is a profession for serious and responsible people who have certain life purposes and really know what they want. As I said before, the lawyer is a real human but not a robot, thats why he can be mistaken, and thats obvious. So the offer of the special regulation is not needed. However, if a person is lawyer and he dislikes it, but regardless this he goes on to perform the work;

one still stays fully responsible for all his actions. At the same time he is not honest with his clients, therefore this case should definitely be the subject to specific regulation.

The professional ethics is a kind of idealized system of concepts, as opposed to individual ethics, which has many shortcomings and problems. For instance, when a lawyer is talking to the clients, his colleague may notice some mistakes in the consultation. What should the colleague do in this case? At first, he can either interrupt the consultation or write a letter to the lawyer;

also he can speak to the clients, and so on, but would be those actions ethical? Absolutely no, and thats dilemma of professional ethics.

Here is another situation. The client is an old man, which suffers from some eye problems. Thats why he asks the lawyer to check up the contract prior to signing it. The lawyer looks through the contract and states that the one is absolutely correct. It should also be noticed here that the lawyer does not have much experience and therefore can have some doubts about the above-mentioned contract. As we see, the lawyers actions are unethical in this case.

So, when we need a lawyers help, we dont know what kind of person the specific lawyer is. He may know the laws well and navigate them to show us the problems solution. We trust the lawyer but his real aims stay unknown. He can help us today but tomorrow his help become harmful for us. Thats why the specific lawyers ethics can be estimated only by his previous work and experience.

As I mentioned before, a lawyer is one of the most important professions required for state and society functioning. People are looking for legal assistance and defence, thats why lawyers should consider each case carefully and endeavour to avoid any mistake. Another obvious thing is that lawyers are responsible to the society. The cost of their mistakes should not be underestimated, because the result can be not only professional or commercial loss, sometimes mistakes can cost even a human life.

Yurkov Roman Russian Customs Academy Saint-Petersburg Branch named after V.B.Bobkov LAWYERS LIABILITY The relationship between the client and the lawyer will always be a genuine interest for the integrated study and identify the basic rules of communication and cooperation. Despite the fact that a lawyer isnt the main person in this pair by because of his procedural position, his knowledge and experience should help to identify the ideal course of action, both with the client and other stakeholders. In these matters the lawyer must be as correct as it possible and dont cross the edge between his interests as a defender and client interests.

The activities of the lawyer and client must be built as a well-oiled machine, in which each element has its specific place and their specific tasks. But what would happen if one element of the mechanism is missing, even temporarily?

To answer this question, we turn to the Code of Conduct for a lawyer in Sweden, which describes a similar situation. It states that a lawyer cant begin the negotiations with the other party without the clients consent. However, if the settlement must take place in the shortest time, which makes impossible to obtain the consent of the client, a lawyer may, if hes authorized, to accept a proposal for settlement that it deems in the best interests of his client.

In the specific situation described a very interesting point, on the one hand, the lawyer is forbidden to start negotiations with the other party about the the dispute resolution on the other hand, in case of emergency, and if authorized, the attorney can start the process. An important aspect of this situation is that all the moral responsibility rests entirely on the lawyer. Its main duty is to maximize the effective protection of the interests of his client, in accordance with the law and professional ethics. Try to imagine that, based on these rules, the lawyer begins negotiating, considering it the best solution to the dispute, and some steps further our client returns And what can we get? Resentment, anger, misunderstanding one word. It is likely that the client will tell us that this development, he cant imagine. It is unlikely that it will be of interest to legal literacy and justification for lawyer action, because it is often personal relationship with the other party is not less important.

And here we become a witness of a very controversial moment in the lawyer client relationship, in which even the most thoughtful and balanced actions, without the consent of the client, can result in the appearance of doubt about the honesty and integrity of first, that certainly could affect the moral character, as the lawyer, and in the profession as a whole. To avoid such conflicts professional lawyer should base his negotiations with the other party not on the rules of law, which gives him the legal right to such action, but on the subtle understanding of mood and attitude of his client to his decision from an ethical point of view.

Article 8 of the Code of Ethics of the Russian lawyer said that the professional lawyers should act honestly, reasonably, in good faith, qualified, principled and timely perform their obligations, so let the fairness, reasonableness and good faith help them to make the right choice.

Ostroushko Ksenia Russian Customs Academy Saint-Petersburg Branch named after V.B. Bobkov THE ESSAY What does the term professional ethic mean? First of all, its a kind of moral code of certain profession. I must say that professional ethic spreads on that kind of occupation, which considered to be more responsible than others.

What does the term responsibility mean? Its the ethic category, which describes the person from the point of implementation of its moral demands, accordance his moral activity and moral duty.

The close connection of legal and moral norms, which regulate professional legal activities, is typical for the lawyers ethic.

Ethic and legal responsibility should include such categories like justice, conscience, honor and dignity, a sense of duty and honesty.

Talking about the ethic and responsibility of lawyer in general, I would like to pay more attention on legal activity of judge and barrister.

Begin from the justice. Its the ethic category, which dominates in legal activity. Remember the Goddess of justice. She is presented blindfolded with the scales and the sword. As you can guess it has its specific meaning. It means the judges impartiality, prudence of the decisions passed and inevitability of the punishment. Justice for legal professional is indivisible moral duty.

The correspondence of law and justice, law and moral is principle in legal activity. Its very spread in practice when decision passed in accordance with law is unfair. There is a real example describing especially formal soulless attitude to the case and humans fates. Its about judges and barristers ethic, about domination of formal under common sense in legal activity.

Everybody knows that barrister must protect interests of his client. And sometimes barrister mentions the circumstances testifying in favor of the defendant during court proceedings. Thus, during one court proceeding in the Khabarovsk Region, defense protected the accused, who had killed the only daughter of the complainant. Desperate woman told some things to the barrister in offensive way during court proceedings. The criminal case on the base of disrespect was sued.

And punishment in the form of fine 40 thousand rubles was imposed.

Its not quiet hard to imagine the feelings of that woman, but it rather harder to understand the acting of the barrister. Why it wasnt possible just to make a call-down or to eliminate the woman from the courtroom? From the point of law, the decision accepted by the court was right, but from the point of justice unfair.

But accept serving the law the lawyer should be merciful and fair to peoples fate.

But if we turn to the courts ethic of the USA well see that it is based on the exception of racist, nationalist and antifeminist views. According to Americans standards the common sense stands ahead justice.

Lets talk about conscience. Conscience prevents person from negative, vicious, and stimulate generosity and responsibility. Conscientious lawyer is able to treat his own will in a right and self-critically way. He is able to carry out his high mission and support the prestige of his profession and personality.

The next moral categories are honor and dignity categories meaning specific moral attitude of individual to himself and attitude to him of the society.

Professional lawyers honor is a sense of awareness of high mission of the profession. Dignity is based on the acceptance of value of the individual as a personality. Honor is based on that moral value of personal connected with his moral merit.

Sense of duty connected with the grasping that legal activities and decisions of the court touches the native rights and interests of the citizens. That is why the lawyer acting in accordance with law should always remember, that he serves to the society and its wellbeing.

The lawyer should be honest. Honesty is the most important demand of moral.

It includes truthfulness, principles, assurance in the rightness of the deal, sincerity to yourself and to others.

I honestly believe that legal activity should be regulated by special responsibility norms. Firstly, itll form the area of legal activity properly. Secondly, itll be one of the preventive measures. It wont solve the problem till the end but itll give some starts for changing.

There are a plenty of blatant facts of breaking the judges ethic needed the regulation. Such thing like narcissism is widely spread in USA which leads to indignity others people honor. One of these hush offences was when on the Christmas party, where were a lot of officers of the court. The judge asked the Jewish woman prosecutor the following: At all these marriages between Jewish people, which are contract all the time, arent you scared that youll create the nation of weak-minded people? Supreme Court of California dismissed that judge because of racist attitude. Another case is also connected with judges responsibility to people or non-responsibility to say it correctly. Supreme Court of California dismissed one judge because of absence of the judges restraint to people. This Judge charged twice the defendant without any serious reason to days of imprisonment, made strict remarks about defendants appearance and talk in offensive way to the barrister.

Now turn to the existing The Judges ethic code and The Professional lawyers ethic code, where moral situations are consolidated in. Wright down rules didnt exist in Russia till the 2003, which made it difficult to regulate legal relations. However the existence of these prescriptions is not the guarantee of the observance of them. Unfortunately, a lot of these prescriptions are frequently being broken. The culture and the education of the society are the reason for that.

This omition can be eliminated by the strict legislation and ethical education, during which the person can get certain sum of knowledge, which orient him to the observance moral norms.

By the way in USA there are 10 precepts for judges adopted by the American Lawyers Association in 1990. Some of them are: be kind, be patient, lazy judge poor judge, use the common sense and so on.

Today one of the popular phenomena is the disruption of court trial. The disruption of court trial is breaking the established proceeding order of conducting the court trial.

One case is known, when 25.04.2011 the barrister G. from the republic of Tuva, having known about the conduction of the brief of disruption practice by the court made more than one call to the judges telephone. She used offensive expressions, letting down the honor and dignity of the judge. After that criminal case was sued. This case illustrates the absence of corporate ethic and respect to the colleges.

Lets speak about incompetence, immorality and lucre. During the conclusion of an agreement about the rending of legal services, some representatives of defense announce excessive prices. They hint to the client that some amount of this money is need for bribe. But the question is that the client will never know where this money was really spent. More often there is no bribe, but the client already thinks that justice is a kind of corruption practice. Moreover the lawyer frequently plays influence on the court or its own affairs there. Thus, the lawyer acting unfairly, using lack of clients information breaks the law and moral principles.

According to the Article 6 of The Professional lawyers ethic code, barristers secret provides the immunity of the client and is the guarantee of the barristers legal activity. However barristers often abuse this privilege, breaking not only the law but also the moral beginnings of the profession. Thus, the barrister M., during the examination of the office by the officers of the police, declared that the laptop, which they wanted to withdraw kept the barristers secret. And this information he placed there by himself. Then laptop was sealed up by the barrister and couldnt be used for operatively-search measures. This is one of the brightest examples which called funneling.

There is one more case when the barrister of the republic of Chuvashiya made an agreement about the rending of legal services in one copy and didnt explain the content, given reasons for that this agreement kept the barristers secret. Its absolutely clear that the rights of the client were broken.

A lot of attention is paid in The Judges ethic code to honor and reputation like measure of morality in the eyes of the society. Also attention is paid to personal and financial-business affairs of the judge. Such features like tact, politeness and tolerance are also distinguish.

Judge, being elected on this for the first time, takes oath (Article 8 of The law about Judges status): Solemnly swear to perform my duties honestly and conscientiously, act justice, obeying the law, be fair Thus, he gives the oath of serve for the base principles of justice.

First of all judge and barrister should act in accordance with the law and dont accept the diminution of clients rights. Responsibility for clients interests stands ahead in relations between lawyer and society.

The success of carrying out of the legal obligations sets in when the awareness of the social importance of the profession comes to the lawyer.

The professional barristers ethic code and the judges ethic code must have the same value for the lawyers like The Bible does for the believers. The lawyer should grasp his historical mission and understand the need in specific rules of legal demeanor and professional acting.

The proceeding legislation is called to create such order of legislation and legal acting of its participants which could provide the defense person from breaches.

Ethic ideal and moral self-perfection are the main goals of legal ethic activity.

The lawyers of all levels, to my opinion, must do their best to provide the justice, common sense and the high responsibility come true. But we should take into account that nobody can be absolutely perfect personality.

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