Practical problems of using the lawyer's request

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Practical problems of using the lawyer's request

Uzunova O.V., Plechun M.A.

One of the most important for a lawyer as a representative of a person is attorney's request, without which is complicate or even impossible to provide qualified legal assistance. Formation of proper and acceptable evidence is a major factor to obtain a positive result in case, with use of attorney's request.

The problem of providing professional legal aid by lawyers, in particular for the realization of the right to request is relevant and always has been the subject of many studies of modern scientists. Among the scientists who have studied some aspects of this problem are V.B. Aver'yanov, A.V. Ivantsova, V.M. Khabibulin, L.A. Podosynnikova, I.M. Sopilko, J.A. Tikhomirov and others. Thus, the problems studied in the works of these scientists show only some drawbacks of our legal system. However, unfortunately, the whole complex of gaps and problems faced by lawyers in practice connected with usage of attorney's request is not sufficiently investigated.

The above leads to the purpose of article - through the analysis of legislative and scientific literature define the legal nature of attorney's request, explore practical aspects of usage of this right, including the filing of the procedure, terms of receiving a response to a request and analyze the conditions, gaps and problems that complicate the realization of their legal right.

Advocacy is based on the certificate of advocacy, issuing the qualification commission of advocates. The License to Practice Law gives the right to exercise individual or collective law practice by combining in associations or bar associations. lawyer advocacy legislation

One of the most important for a lawyer as a representative of a person is the right of attorney's request, without which greatly hampered or even impossible to provide qualified legal assistance.

According to the Law “On the Bar and Legal Practice” Advocacy is an independent professional activity advocate for the implementation of security missions and to provide other types of legal aid clients [1].

These types of advocacy relating to all of Advocates of Ukraine, however, organizational forms of advocacy under the new law “On Advocacy and advocacy” in accordance with art. 4 is an individual advocate activity or organizational and legal forms or law offices of the Bar Association [1].

According to art.14, 15 of the Law “On the Bar and Legal Practice” law office and bar association is a legal entity operating under the statute. In addition, state registration law offices and lawyers' association carried out in the manner prescribed by the Law of Ukraine “On State Registration of Legal Entities and individuals - entrepreneurs” with the specifications provided by the Law.

The features of the registration law offices and lawyers' association are:

founder of the Law Office is a lawyer;

the founders of the Bar Association has two or more lawyers;

the name of the law office must contain the name of the founder lawyer;

the establishment, reorganization or liquidation of the bar association of lawyers counsel informs the region.

According to art.24 of the Law of Ukraine “On the Bar and Legal Practice”, lawyer request - written appeal counsel to the state government, local government, their officers and employees of enterprises, institutions and organizations regardless of ownership and subordination, associations for provision information, copies of necessary documents for the lawyer to provide legal assistance to clients [1].

Positive moment in the Law of Ukraine “On the Bar and Legal Practice” is the fact of establishing the term to give necessary information. Thus, the public authority or private entities should within five working days of receipt of the request to provide relevant information to the lawyer, copies of documents, in addition except information with restricted access and copies of documents that contain information with restricted access.

However, in practice lawyer often confront with violations of his right to receive information with use of attorney's request. Major violations engaged in providing individual responses to the lawyers' request is:

requesting a copy of the contract for legal assistance;

respond that the information is confidential;

violation of the terms to respond;

give information that doesn't apply to the request;

ignoring the request;

respond that information can't be given with reference to the protection of personal information;

receive an answer with caution that it's pay information.

For the purpose of understanding the practical problems associated with these disorders is necessary to use method of analysis. So, when lawyer submits attorney's request he can receive written demand to add a copy of the contract for legal assistance. These is a direct violation of the requirements of the Law “On the Bar and Legal Practice” because lawyer should add certified copies of the certificate of right to advocacy, counsel warrant or trust of agency (agencies) authorized to provide free legal aid to his attorney's request. Require other documents prohibited [1].

The most of scientists and lawyers had thoughts about the hollowness of such claims and the inability to provide copies of such agreements [2, p. 163]. Provide copies of such lawyer “would be a direct violation of the rules of protection of confidentiality on his part” [3, p. 41].

Another aspect that complicates the realization of lawyers right of attorney's request is establishing in law restrictions on the provision of information with restricted access and copies of documents that contain information with restricted access (include confidential information). According to art.21 of the Law of Ukraine “On information” [4] information with restricted access is confidential, secret and proprietary information.

Ignoring and violating the terms of the consideration of requests is a major practical problem faced by lawyers. Compliance with the consideration of the request is important because it allows lawyer to get the necessary information at the right time. However, ignoring and abuse of the terms of consideration of attorney's request negatively affect on the resolution of the case, which causes negative consequences primarily for client. However, eliminating this problem is existence of administrative and criminal responsibility for these actions.

Give information that doesn't apply to the request is a significant problem in lawyer's practical activity. Thus, given the requirements of the law that the violation doesn't entail liability due lawyer received a response to your request within the prescribed period. However, it would introduce liability for information not related to the request as received information contains practical use for a lawyer.

Recently became popular reference to the fact that getting information is a paid service. This response disagree with Law of Ukraine “On the Bar and Legal Practice Law of Ukraine” in which written that information is free of charge. In addition, the only exception is fact that amount of information is more than 10 pages, in which case the lawyer should offset the costs of making copies. There is although administrative and criminal responsibility for these actions.

It should focus on the fact that a lawyer may be responsible in case of abuse of the right of the attorney's request or violations of law while using this right. Thus, lawyers send their requests, which contain information on the applicant are not untrue or lawyer sent requests just in his own interests, without contract for legal assistance.

According to the Law of Ukraine “On the Bar and Legal Practice” lawyer may be disciplined in order disciplinary proceedings. In turn, disciplinary proceedings is the process of consideration of a written complaint, which contains information about the presence of a lawyer's actions evidence of the offense. Disciplinary proceedings against a lawyer carried qualification commission of advocacy at the workplace attorney referred to in the Unified Register of Advocates of Ukraine [1].

In accordance with the above law right to a qualification-disciplinary committee of the Bar of the application (complaint) about a lawyer who may be grounds for disciplinary action has everyone who has known facts such behavior.

It should be noted that the Law “On Advocacy and advocacy” determines the list of reasons that lead to prosecution lawyer disciplinary measures, namely committing of the offense, which in turn indicates one of the following counsel:

violation of incompatibility;

violation of the oath of Advocates of Ukraine;

violation of the rules of legal ethics;

disclosure of confidentiality and actions that led to its disclosure;

non-performance or improper performance of their professional duties;

non-enforcement of the legal profession;

breach of other obligations counsel provided by law [1].

The current law of Ukraine administrative and criminal liability for violation of the provision information on attorney's request.

Speaking about administrative responsibility should be noted that according to the art. 212-3 of Code of Ukraine on Administrative Offenses:

Unlawful refusal to provide information, untimely or incomplete provision of information, information that is untrue, in response to the attorney's request, the request of Qualification-Disciplinary Bar Commission, member of the House or the Law of Ukraine “On the Bar and Legal Practice” entails a fine on officials from twenty-five to fifty times the income (from 450 to 850 hryvnias) [5].

Protocols on administrative violations under art.212-3 Code of Ukraine on Administrative Offenses (violation of the right to information) in the part concerning violations of the right to information under the Law of Ukraine “On the Bar and Legal Practice” head up the Bar Council of the Autonomous Republic of Crimea, Kyiv and Sevastopol and/or authorized by the respective council member of Bar.

After receipt of the application respective council examines and verifies the submitted materials. Then he decides to make protocol or decide not to report on administrative offense.

Criminal liability of the Criminal Code of Ukraine. According to art. 397 of the Criminal Code of Ukraine:

Any interference with lawful activity of a defense attorney or legal agent, or violation of legal guaranties of their activity and professional secrets, - shall be punishable by a fine of 100 to 200 tax- free minimum incomes, or correctional labor for a term up to two years, or arrest for a term up to six months, or restraint of liberty for a term up to three years.

The same actions committed by a person through abuse of office, - shall be punishable by a fine of 300 to 500 tax-free minimum incomes, or restraint of liberty for a term up to three years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years [6].

Law of Ukraine “On the Bar and Legal Practice” did not solve all the problems related to the full realization of the right to a lawyer of his request for the proper performance of the functions on lawyers to represent and protect the interests of its clients.

Analysis of legislation and scientific works allowed the authors to isolate the main practical problems associated with the realization of the right to an attorney's request the ways of improving legislation to address gaps and deficiencies and factors contributing to the violation of the law.

Bar Ukraine is an institution of civil society whose duty it is to protect the interests of all actors of civil society. However, for the effective functioning of the institution requires a clear resolution of his subjects, namely bodies that advocate government. This is evidenced by the presence of the needs of civil society in this institute, which needs to provide professional legal assistance to legal specialists, as most members of society unable to defend their interests in conflict with the state and others. Accordingly, the aspect of effective legal profession promotes activities lawyers, professionals, guaranteeing qualified to assist individuals and legal entities.

It should be noted that the above shows a clear hierarchy of the legal profession. The system of government advocates are well developed and allows you to perform tasks such bodies in accordance with the law. In addition, the law provides for binding decisions of the legal profession to fulfill all lawyers. This in turn suggests that the legal profession is not only enshrined in law, but also has effective safeguards the activity as non-enforcement of the legal profession entails legal liability, even including a denial of advocacy.

In addition, it is important to consolidate the Law “On the Bar and Legal Practice” foundations funding the legal profession and an exhaustive list of funding sources, which in turn provides sustainable operation of the entire system of government.

Advocate's request as part of a lawyer is an important part of civil society which seeks the protection of the interests of citizens. Given this improvement of legislation in this area will ensure effective implementation of the rights of lawyer.

References

1. “On the Bar and Legal Practice”: Law of Ukraine from 05.07.2012, Vidomosti Verhovnoi Rady Ukrainy, 2012, no. 27, art. 282.

2. Khabibulin, V. (2006), “Subject of confidentiality”, Pidpryjemnyctvo, gospodarstvo i pravo, no. 5, pp. 163-165.

3. Tokarev, G.V. (2005), “Problems of the right of lawyer to request information”, Advokat, no. 11, pp. 40-45.

4. “On Information”: Law of Ukraine from 02.10.1992, Vidomosti Verhovnoi Rady Ukrainy, 1992, no. 48, art. 650.

5. “Code of Ukraine on Administrative Offenses from 07.12.1984”, Vidomosti Verhovnoi Rady URSR, 1984, no. 51, art. 1122.

6. “Criminal Code of Ukraine from 05.04.2001”, Vidomosti Verhovnoi Rady Ukrainy, 2001, no. 25, art. 131.

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