ORGANIZATION OF LEGAL ASSISTANCE BY A LAWYER
Legal counseling by agreement
Basically, advocacy is carried out on the basis of an agreement between a lawyer and a principal, which is a person who has concluded an agreement with a lawyer to provide legal assistance. The representation of a lawyer by designation is an exception to this rule.
The agreement is a civil law contract, concluded in a simple written form between the principal and the lawyer, to provide legal assistance to the trustee or the person appointed by him. In the event that the principal concludes an agreement to provide legal assistance with a lawyer in the interests of a third party, the person in whose favor the agreement is entered into must be named in the agreement itself.
Depending on the type of legal assistance, the norms contained in Ch. 1 are applicable to the agreement concluded between the attorney and the principal. 49 of the Civil Code on the contract of assignment or in Ch. 39 Civil Code on paid services. The advocate acts as a representative of the principal in constitutional, civil, administrative proceedings, as a representative or advocate of the principal in criminal proceedings and proceedings in cases of administrative violations, and represents the interests of the principal in public authorities and local government, in relations with physical limes only on the basis of the contract of commission. According to Art. 971 CC under the contract of commission, one party (attorney) undertakes to perform certain legal actions on behalf and at the expense of the other party (principal). At the same time, rights and obligations as a result of transactions made by an attorney arise directly from the principal.
The lawyer renders other kinds of legal aid on the basis of the contract of paid rendering of services. Under the contract of paid provision of services, the contractor undertakes to render services (perform certain actions or carry out certain activities) on the instructions of the customer, and the customer undertakes to pay for these services (Article 779 of the Civil Code). Other kinds of legal aid can include counseling on legal issues, drawing up a legal opinion or other legal document, participating in negotiations, etc.
The parties to the agreement on legal assistance in the lawyer's office and in the bar are the attorney and the principal. At the same time, in an advocate's bureau, an agreement on rendering legal assistance with a principal is concluded by the managing partner or other partner on behalf of all partners on the basis of powers of attorney issued by them, indicating an attorney-performer. It is the lawyer, not the lawyer's education, who enters into a trust relationship with the principal and is responsible for the execution of his commission. The agreement can be concluded with several lawyers at the same time, who are jointly and severally liable for executing the assignment of the principal.
The term of the agreement depends on the type of legal aid and on the agreement of the parties. If the term of validity is not determined by the agreement, then it ceases to be effective from the moment the attorney performs all the obligations stipulated in the agreement and the remuneration is paid in full by the principal.
Issues of termination of the agreement on legal assistance are regulated by the Civil Code with exceptions provided for in the Law on Advocacy and Advocacy, one of which is the provision that the lawyer has no right to refuse to accept the defense. Thus, a lawyer who provides legal assistance in a criminal case as a defense counselor is not entitled to terminate the agreement on his own initiative.
In Art. 25 of the Law on Advocacy and Advocacy established a list of essential terms of the agreement, which are:
1) an indication of the lawyer (lawyers) who accepted (accepted) the execution of the assignment as an attorney (attorney), as well as his (their) belonging to the lawyer's education and the bar;
2) the subject of the order;
3) terms of payment by the principal for remuneration for legal aid;
4) the procedure and amount of compensation for the costs of the lawyer (lawyers) associated with the execution of the assignment;
5) the size and nature of the responsibility of the lawyer (attorneys) who accepted (accepted) the execution of the assignment.
In order to avoid possible claims of the client to a lawyer in connection with the execution of the agreement, the subject of the agreement must be clearly defined and agreed with the principal: the stages of implementation, what kinds of legal aid should be provided, to what extent.
Agreement on the provision of advocacy refers to contracts for paid provision of services. An important condition for an attorney's agreement with a principal is the terms of payment by the principal for remuneration for legal aid or, as they are called, fees, as well as reimbursement of expenses incurred by the lawyer and expenses related to the execution of the assignment. The lawyer's right to remuneration and compensation of expenses related to the execution of the assignment can not be assigned to third parties without the special consent of the principal.
The remuneration paid to the attorney by the principal and the compensation to the lawyer of the costs associated with the execution of the assignment are not directly placed at the disposal of the lawyer, but are subject to compulsory introduction to the cashier of the appropriate lawyer education or transfer to the settlement account of lawyer education in the manner and terms stipulated in the agreement . When remuneration is paid to the cashier of the relevant lawyer education, a receipt is issued to the principal.
Due to the remuneration received, the attorney performs professional expenses:
1) for the general needs of the Chamber of Attorneys in the amount and order, which are determined by the meeting (conference) of lawyers;
2) on the maintenance of the relevant lawyer education;
3) other costs associated with the implementation of advocacy.
The current legislation does not provide for specific rates or tariffs for determining the amount of remuneration and the procedure for its payment. Therefore, the amount of remuneration is determined by agreement of the parties, taking into account the scope and complexity of the work, the length of time necessary for its implementation, the experience and qualifications of the lawyer, the timing, the urgency of the work, the financial capacity of the person who applied to the lawyer for legal assistance, and other circumstances .
The lawyer should be coordinated with the client in advance, and then detail in the agreement the procedure for paying remuneration. There are several forms of payment of fees, the main of which are: a fixed payment for the work performed, a monthly or hourly payment, which sets the hourly rate of payment for the lawyer. As a rule, in order to minimize the risk of the client's refusal to pay for the lawyer's services, the lawyer in the agreement prescribes receipt of the commission in advance.
The subject of the agreement concluded between the lawyer and the principal is not the result (for example, a positive court decision in the case), but the activity itself to provide qualified legal assistance, i.e. non-material services. Therefore, according to the Code of Professional Ethics of a lawyer, a lawyer should refrain from including in the agreement conditions under which payment of remuneration is made dependent on the result of the case. Exceptions are cases of assistance provided by a lawyer for property disputes, according to which compensation can be determined proportionally to the price of the claim in case of successful completion of the case, the so-called success fee. Under the fee of success is understood the condition of the agreement, according to which the client undertakes in the event of making a decision in his favor to pay the lawyer a fee in the form of interest specified in the agreement from the won money amount.
The lawyer is prohibited from accepting from the principal any property to secure a fee agreement, with the exception of the sums of money being paid into the cashier's office as an advance payment.
The agreement on the provision of legal assistance by a lawyer is confidential and the principle of advocate secrecy applies to its content. No one can demand his presentation for the purpose of certifying the powers of an attorney.
Due to the fact that the lawyer has the right to carry out professional activities on the entire territory of the United States, irrespective of the regional register which includes information on the lawyer, he has the right to conclude an agreement with the principal irrespective of the place of residence or location of the latter. >
After concluding an agreement on legal assistance, a lawyer must honestly, reasonably and conscientiously defend the rights and legitimate interests of the principal in accordance with the international principles and norms in force in the United States, US law and the Code of Professional Ethics of the lawyer.
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