Тема 3. The legal profession (1 час)
Although many kind of people working in or studying legal affairs are referred to as lawyers, the word really describes a person who has become officially qualified to act in certain legal matters because of examinations he has taken and professional experience he has gained.
Most countries have different groups of lawyers who each takes a particular kind of examination in order to qualify to do particular jobs. In Japan, a lawyer must decide whether he wants to take the examination to become an attorney, a public prosecutor or a judge. In England, the decision is between becoming a barrister or a solicitor. Barristers specialize in arguing cases in front of a judge and have the right to be heard, the right of 'audience, even in the highest courts. They are not paid directly by clients, but are employed by solicitors. Solicitors have also a right of audience in lower courts, but in higher courts, such as the Court of Appeal, they must have a barrister to argue their client's case. In general, it can be said that a barristers spend most of his time either in a courtroom or preparing his arguments for the court and a solicitor spends most of his time in an office giving advice to clients, making investigations and preparing documents.
If a person has a legal problem, he will go and see a solicitor. In fact there are at least 50,000 solicitors in Britain, and the number is increasing.
Many problems are dealt with exclusively by a solicitor. For instance, the solicitor deals with petty crimes and some matrimonial matters in Magistrates' Courts. He prepares the case and the evidence. He actually speaks in Court for you.
In a civil action he can speak in the County Court, when the case is one of divorce or recovering some debts. In the County Court the solicitor wears a black gown over his ordinary clothes.
A solicitor also deals with matters outside Court. He does the legal work involved in buying a house, for instance. He writes legal letters for you and legal arguments outside Court. If you want to make a will the best man to advise you is a solicitor.
Barristers are different from solicitors. Barristers are experts in the interpretation of the Law. They are called in to advise on really difficult points. The barrister is also an expert on advocacy (the art of presenting cases in Court). Indeed if you desire representation in any Court except the Magistrates' Court, you must have a barrister.
Barristers are rather remote figures. If you need one, for instance, you never see him without your solicitor being with him. Barristers do not have public offices in any street. They work in what are known as chambers often in London, They belong to the institutions called Inns of Court, which are ancient organizations rather like exclusive clubs.
In the USA the Justice Department is responsible for the faithful execution of the laws under the President's authority. The main administrators of federal law enforcement are the ninety-four U.S. attorneys, who are appointed by the President with the advice and consent of the Senate.
There is a U.S. attorney in each federa ljudicial district. Their stuffs of assistant attorneys vary in size with the amount of litigation in the district. U.S. attorneys have considerable discretion, which makes them powerful political figures. Their decision to prosecute or not affects them wealth, freedom, rights, and reputation of the individuáis and organizations in the district.
In the USA lawyers perform four major functions:
First, lawyers counsel. This means that lawyers offer advice, even if it is advice their-clients would prefer not to hear. Of course, lawyers regularly counsel clients during negotiations* & litigation.
Second, lawyers negotiate.* This means that they mediate* between competing interests aiming* for results that will prove advantageous* to their clients and, if possible, their opponents.
Third, lawyers draft* documents. This is probably their most intellectually challenging function.
Fourth, they litigate.* This is the skill most people associate with lawyers. Ironically, only a small fraction of all lawyers devote much time to courtroom activities. In fact, the majority of attorneys never venture* into a courthouse except to file legal papers with a clerk.
How does someone become a lawyer?
In some countries in order to practise as a lawyer it is necessary_to_get a_ university degree in law. However, in others, a degree may be insufficient; professional examinations must be passed. In Britain, it is not in fact necessary to have a degree, although nowadays most people entering the profession do. The main requirement is to pass the Bar Final examination* (for barristers) or the Law Society Final examination* (for solicitor). Someone with university degree in a subject other than law needs first to take a preparatory. Someone without a degree at all may also prepare for the final examination, but this will take several years. In most countries, lawyers will tell you that the time they spent studying for their law finals was one of the worst periods of their life! This is because an enormous number of procedural rules covering a wide area of law must be memorized. In Japan, where there are relatively few lawyers, the examinations are supposed to be particularly hard: less than 5 percent of candidates pass. Even after passing the examination, though, a lawyer is not necessarily qualified. A solicitor in England, for example, must then spend two years as an articled_c]erk, during this time his work is closely supervised by an experienced lawyer, and he must take further courses. A barrister must spend a similar year as a pupil.
The rate at which the legal profession grows is terrific. In the 21st century the number of lawyers will probably outpace the rate of population growth.
Why is the career in law so popular? In the USA the average salary of experienced lawyers in private practice is more than $100,000.
Lawyers' salaries are substantially greater than those of many other professionals. The glamour of legal practice strengthens the attraction of its financial rewards.
The Organization and Structure of the Legal Profession: This study focuses primarily upon the organization and structure of the legal profession, that is, the function of providing legal aid to citizens and legal entities, and upon the status of the defense lawyer in the Republic of Kazakhstan. Furthermore, this study addresses the types of provision of legal services as a kind of free enterprise, as well as the legal status of practicing lawyer. The fundamental difference of legal aid from legal services lies in the fact that such aid is not profit-geared and due to its nature has a compensatory character (that is aimed at restoring violated rights); it is part of the mechanism to socially resolve legal conflicts involving the state and the citizen. On the other hand, enterprise is defined as “the initiative activities of citizens and legal entities which, irrespective of the form of property, aim at gaining net profit by way of satisfying the demand for goods (works, services), based either on private property (private business activities) or on the right to economically manage a state venture (state business activities). Business activities are carried out on behalf, at the risk and material responsibility of the businessman”. Based on these differences, legal practice in the Republic of Kazakhstan in the non-governmental sector can be carried out in several legal modes. 1. Lawyers can be in-house personnel of enterprises, agencies and organizations and according to their job description, work for their employer within the powers given to them by law. In this case the legal status of lawyers does not differ from the status of the hired workforce, is regulated by labour legislation and does not need to be specially addressed within the framework of this study. 2. Lawyers have the right to be engaged in private practice and provide legal services to physical and legal entities both individually and through creating legal companies and firms. Representation offices of international law corporations also work in Kazakhstan. Civil and tax legislation treat these activities as a kind of business activity. 3. Where lawyers comply with qualification requirements they can work as defence lawyers. Article 1 of the RK Law, “On advocacy” (hereinafter – “the Law”), defines it as “the work of the defence lawyer in the areas of criminal defence, representation in civil, administrative, criminal and other cases, and providing other types of legal aid in order to protect and promote the rights, freedoms and legitimate interests of citizens as well as the rights and legitimate interests of legal entities” . At the same time the Law expressly states that legal aid rendered by defence lawyers within the framework of advocacy does not constitute free enterprise. Advocacy is specified in more detail in the regulatory legal acts. In particular, Article 4 of the Law names the following types of legal aid provided by defence lawyers: 1) providing consultations, explanation, advice and written opinions on the issues requiring professional legal knowledge; 2) drawing up petitions to sue, complaints and other documents of a legal nature; 3) representation and defence of physical persons and legal entities in the bodies of inquiry, preliminary investigation, courts, public service and other bodies and organizations as well as in their relations with citizens, and other legal aid permitted by law. The afore-mentioned Article of the Law expressly states that “professional defence in criminal cases shall be carried out by defence lawyers only”. Since advocacy plays a special role in the entire mechanism of legal regulation the law details the forms of organization of professional defence lawyers and their legal status. The major element of advocacy in Kazakhstan are the Bars. In conformity with Article 20 of the Law, the Bar “is a non-commercial, independent, professional, self-managing and self-financed organization of defence lawyers created in order to provide qualified legal aid to physical persons and legal entities, to express and defend the rights and legitimate interests of defence lawyers and fulfill other functions established by this Law”. The public association of defence lawyers – the Union of Kazakhstan’s Defence Lawyers – functions in Kazakhstan at a national level. However, it does not have any executive authority with regard to the Bars and only fulfils a representational function. In principle, the Bars are autonomous as to their functioning and there is not any other organization, which would have the right to run Bars in Kazakhstan. Only one Bar can be set up and can function within an oblast, a city of national importance or the capital city in Kazakhstan. Such a Bar does not have the right to set up its structural units (subsidiaries and representations) within another oblast, a city of national importance or the capital city. The name of the Bar should include the name of the administrative territorial subdivision within which it was created (Article 20 of the Law). Membership of the Bar is mandatory. If a defence lawyer has a licence and acknowledges the Bar’s Charter, he/she cannot be refused membership of the Bar. Refusal of membership of the Bar can be appealed in court (Article 27 of the Law). Major functions of the Bar are as follows: 1) to help, to render professional assistance to and to defend the members of the Bar whilst performing their duties as defence lawyers; 2) to provide for logistics and reference/information materials necessary for the activities of the members of the Bar; 3) to organize professional supervision of defence lawyers engaged in advocacy; 4) to organize provision of free legal aid and defence as directed by preliminary investigation bodies and the court (Article 20 of the Law). The activities of the Bar are regulated by its Charter, which, according to the Law should set out the following: 1) the name, subject and goals of the Bar’s activities; 2) the rights and obligations of the Bar members; 3) the rules of admission to membership of the Bar, suspension and termination of membership; 4) the structure of the Bar, rules of establishing its bodies and their competence; 5) the rules of creating and functioning of legal advice bureau; 6) sources of generating its property and procedures for its managing; 7) the rules for paying membership fees; 8) the procedure for providing free legal aid by defence lawyers and the system of distribution of legal aid jobs as directed by the court, bodies of inquiry and preliminary investigation; 9) the rules of conducting defence lawyers’ performance reviews; 10) disciplinary responsibility of the Bar members and defence lawyers’ trainees and rules for taking disciplinary action; 11) the rules for applying for revocation of a defence lawyer’s licence; 12) the rules for restructuring and winding up of the Bar; 13) deciding the fate of the property on winding up the Bar (Article 21 of the Law). The supreme body of the Bar is the General Assembly (conference) of its members; its executive body is the Presidium and its inspection body is the Auditing Commission. In cases provided for by the Charter, other bodies can be created within the Bar, whose functioning would be based on regulations adopted by the General Assembly (conference) of the Bar members (Article 22 of the Law). The General Assembly has the right to deal with any issues concerning the activities of the Bar. It has the exclusive right: 1) to adopt the Charter of the Bar and to take decisions on introducing changes into the Charter; 2) to elect the Presidium, its Chairperson, members of the Auditing Commission and its Chairperson; 3) to elect other bodies provided for by the Charter and their heads; to approve the regulations of these bodies; 4) to listen to and approve the reports on performance of the bodies of the Bar, heads and staff of the Bar; 5) to establish the procedure of managing the property of the Bar; 6) to establish the level of membership fees; 7) to consider the defence lawyers’ complaints about decisions taken by the bodies of the Bar, and heads and staff of the Bar; 8) the pre-term recalling of heads and staff of the Bar.