FZ No. 63 defines the main aspects of the activities of lawyers. The normative act establishes the procedure for obtaining the appropriate status, the duties and rights of defenders, the rules for sending requests, and also regulates other issues related to the work of these persons. The general powers of a lawyer are defined in Article 6. Consider them.
Features of activity
Lawyers provide qualified legal assistance on a professional basis. To carry out such activities, a person must obtain the appropriate status. The procedure for its provision is established in Federal Law No. 63. The main objectives of the activities of these entities are to ensure the protection of the rights, interests and freedoms of individuals and organizations, ensuring their access to justice. Defenders, in accordance with Federal Law No. 63, are not entrepreneurs.
Nuances
The powers of a lawyer in court are established by codes depending on the type of proceeding. In cases stipulated by the norms, a person must have a warrant issued by the relevant entity. The form of this document is approvedbody of justice. In other cases, the powers of a lawyer are certified by a notarized paper. It is not allowed to demand from the defender and the persons to whom he provides assistance, the presentation of an agreement concluded between them.
General Attorney Powers
The Defender has the right to collect information necessary for the provision of legal assistance. He can, among other things, request characteristics, certificates, other documents from local / state authorities, public and other organizations. The procedure for sending requests is established by Art. 6.1 of the Federal Law No. 63. These structures are required to provide the defender with the required documents or their copies. It is the attorney's authority to question persons who are believed to have information relevant to the dispute in which he is providing legal assistance. In this case, the consent of these subjects must be obtained. The lawyer has the right to collect and present documents and objects that the court may recognize as material and other evidence, in the manner prescribed by the norms. The Defender may engage specialists on a contractual basis to clarify issues related to the provision of legal assistance. The lawyer has the right to freely meet with the principal in private, without limiting the number and duration of meetings. At the same time, conditions must be created to ensure confidentiality. The lawyer's powers include fixing the information contained in the materials of the proceedings, including with the use of technical means. At the same time, the defender is obliged to comply with the state or other protectedsecret. The powers of a lawyer may include other actions that do not contradict legal norms.
Paper Dispense
The procedure for formalizing the powers of a lawyer is determined in Article 55 of the Civil Code. According to the norm, documents provided to citizens are certified by a notary or in an organization in which the subject receiving assistance is studying or working, by the housing and maintenance site at the place of his residence, by the leadership of the social protection institution, the inpatient medical institution in which he stays, by the head (commander) of the military parts. In places of detention, papers establishing the powers of a lawyer can also be certified. Powers of attorney in such cases are approved by the head of the correctional facility. A paper on behalf of the organization is issued signed by its head or another entity with the appropriate competence, according to the constituent documentation.
Extra
In the 6th article of the Federal Law No. 63, it is established that the powers of a lawyer are confirmed by a special order. It is issued by the relevant human rights organization. For direct participation in the case, therefore, a lawyer must have a warrant and a power of attorney from the entity that invited him for consideration. The competence of a defender may also be determined by an oral or written statement. The first must be recorded in the minutes of the hearing.
Document specifics
The definition of a power of attorney is present in Article 185 of the Civil Code. It is recognized as a document that establishes the limits of competence inwithin specific legal relationships. The duration of the paper is no more than 3 years. If the validity period is not defined in the document, then by default it is considered equal to one year from the date of issue. A power of attorney, which does not contain an indication of the date of its execution, is recognized as void. In accordance with the norms, the subject who has the document is obliged to personally carry out the actions provided for in the paper. However, in certain cases, he may delegate their implementation to another person. To do this, the corresponding right must be established in the document or the procedure is caused by the need to protect the interests of the citizen who issued the paper. In the event of transfer of authority, the person must notify the principal about this, as well as provide the necessary information about the new lawyer. If this requirement is not met, the responsibility for the actions of the new entity lies with the one who was given legal opportunities initially. The period of validity of a document provided by way of sub-authorization cannot be longer than the period established for the power of attorney on the basis of which it was issued.
Termination of legal relations
Procedural powers of a lawyer cannot be exercised when:
- Expiration of the document establishing them.
- Revocation of the power of attorney by the entity that issued it.
- Refusal of the person to whom the document is provided.
- Liquidation of the organization on behalf of which the paper was issued.
- Death of the principal, recognizing him as fully/partially incapacitated, andalso missing.
- Liquidation of the organization to which the power of attorney was issued.
- Defender's death.
Document classification
The powers of the lawyer are certified:
- Disposable paper. Such a document is issued to a person to participate in one proceeding in one instance.
- Common paper. Such a document allows representing the interests of a person in all disputes and in all instances.
- Special paper. This power of attorney is provided to the subject to participate in one proceeding in all instances.
Restrictions
A lawyer (representative), whose powers, according to the 54th article of the Code of Civil Procedure, are fixed in the relevant paper, performs all the actions established in it. However, the rules provide for certain requirements. In particular, some powers of a lawyer are confirmed by special clauses in the document. These include:
- Right to sign a lawsuit.
- Submitting a claim to the authority.
- Referral of the dispute to arbitration.
- Filing a counter-claim.
- Abandonment of claims (partial/full) or reduction of their size.
- Changing the cause or subject matter of the claim.
- Recognition of requirements.
- Signing a settlement agreement.
- Delegation of powers to another person.
- Appeal against a decision or other ruling on a dispute.
- Presentation of a writ of execution.
- Receive money or other property awarded in a lawsuit.
CPC norms
They determine the order in whichin accordance with which the powers of a lawyer in civil proceedings are exercised. In the norms, special attention is paid to the regulation of the duties and rights of defenders. The powers of a lawyer in a civil case are exercised by a person who meets a number of requirements. In particular, subject:
- Performs relevant activities as a professional lawyer. He must have sufficient knowledge and experience.
- Clearly understands his functions in a particular case and in the process as a whole.
- Has a wide arsenal of measures, methods and means established by the norms to fulfill its tasks and responsibilities.
- Knows well about the size and types of responsibility for the efficiency, timeliness and quality of his work on behalf of the participant or third parties in production.
According to Article 35 of the Code of Civil Procedure (clause 1), the powers of a lawyer must be exercised in good faith.
APC provisions
They regulate the powers of a lawyer in the arbitration process, as well as the procedure for their implementation and the responsibility of the subject. It should be noted that the activity of a person in proceedings concerning the consideration of economic disputes has its own specifics. It is due to the relatively recent adoption of a new version of the APC and the introduction of additions to the Federal Law No. 63. These regulations have not fundamentally changed the powers of a lawyer. The law brought them as close as possible to the competence that the defense counsel has in the framework of the proceedings regulated by the Code of Civil Procedure. This circumstancegives rise to one important point. The powers of a lawyer are derived from the duties and rights of the subject in whose interests he acts. Accordingly, he cannot go beyond the competence designated by the defendant. At the same time, the implementation of the powers of a lawyer in the framework of the arbitration process is based on a number of principles. These include, first of all, competitiveness and equality of the participants in the dispute. The implementation of these principles provides the opportunity for the defenders of both parties to enter proceedings on the same grounds. This is especially important when presenting arguments and substantiating them in the interests of principals.
Subject composition
The norms of the APC provide for several categories of persons who have the right to act on behalf of the interests of various subjects in the arbitration process. This issue is explained, for example, in the 59th article. According to its provisions, lawyers and other persons providing legal assistance can act as representatives of individuals, including individual entrepreneurs. Other rules are provided for disputes in which organizations are involved. Their representatives may be bodies functioning in accordance with the rule of law, constituent documents, as well as lawyers. Thus, defenders act as one of the categories of subjects en titled to act in the interests of the organization in a dispute.
Features of evidence
When representing the interests of individuals, a lawyer must take into account the requirements and rules established in the APC. Specificity of activityThe defense lawyer is connected with the procedure for collecting, presenting and evaluating evidence. This issue is discussed in detail in the 64th article of the APC. The norm states that things, documents, explanations of citizens participating in the proceedings, expert opinions, testimonies, video and audio recordings and other materials can act as evidence. The list provided in the article indicates that priority is given to written justifications. This, in turn, means that the applicant's lawyer, in the process of developing a speech plan, must support the arguments with documents. At the same time, the defense counsel must take into account that, according to the requirements of the APC, each party discloses evidence before the start of the meeting. The corresponding instruction is contained in the 65th article of the code. In practice, this requirement is implemented as follows. In preparation for the trial, the plaintiff's counsel, when sending the application to the defendant, attaches evidence to it or informs about the availability of documents in another acceptable way. The same rule applies to the lawyer of the other party. When sending a response to the claim, the defendant's counsel also attaches documents substantiating the objections, as well as papers proving the sending of their copies and attachments to the plaintiff and other entities participating in the proceedings. Article 65 also stipulates that persons may refer only to evidence that was obtained by other parties in advance.
Integrity
To lawyers who represent the interests of the partiesproceedings, other features of the proceedings should be taken into account. They must use their powers under the codes solely for the benefit of the persons on whose behalf they act. Abuse of authority can cause adverse consequences for the principal. This, in particular, applies to the application of the rules governing the securing of a claim. In the process of appealing decisions, the lawyer must consistently use all the options established by the code. At the same time, the defender is obliged to coordinate the challenge with the persons in whose interests he acts. The fact is that the lawyer is not an independent participant in the process. Accordingly, he has no right to send complaints on his own behalf.
Additional features
In the business sphere, in addition to representing the interests of individuals, a lawyer has the right to provide other types of assistance. In particular, he can:
- Conduct claim work.
- To provide assistance in the field of contract law. In particular, we are talking about transaction support (preparation of agreements, advising on their execution, registration, participation in pre-contractual disputes, as well as proceedings related to the conclusion, execution and termination of contracts).
- To provide assistance in the field of corporate law. In particular, a lawyer can accompany the process of creating an organization.
- To act on behalf of the subject in tax disputes.
- Represent the principal in local and state governments.
- Assist with personnel issues.
The activity of lawyers in the business sphere is often based on the subscription service of the represented person.
Administrative law
Lawyers act as representatives and defenders in proceedings. Status differentiation is carried out in accordance with Art. 25.5 of the Code of Administrative Offenses. According to the rule for the provision of legal assistance to an entity in respect of which administrative proceedings have been initiated, a defender may participate directly in the proceedings, and when providing services of a legal nature, a representative. Any citizen can act as such person. This means that the defense/representative may not be a lawyer.
Prohibitions
A lawyer does not have the right to receive an instruction from a subject who turned to him for help, if it is obviously illegal, and also if the defender:
- Has an independent interest in the subject of the agreement, different from the desires of the principal.
- Participated in the proceedings in the status of a judge (including an arbitrator), arbitrator, prosecutor, mediator, interrogator / investigator, translator, expert, specialist.
- Is a victim or a witness, an employee whose competence was to make a decision that satisfies the interests of the person who applied for assistance.
- He is in family, kinship relations with officials who have been or are taking part in the consideration or investigation of the case.
- Provideslegal assistance to the subject, whose interests are not consistent with the wishes of the applied citizen.
The defender is prohibited from taking a position in proceedings contrary to the will of the person on whose behalf he acts. The exception is situations when the lawyer is sure of the self-incrimination of the represented subject. The defender cannot publicly declare the proven guilt of the person in whose interests he acts, if he denies it. A lawyer is prohibited from disclosing information that was communicated to him as part of the provision of legal assistance to a client, without the consent of the latter. Secret cooperation of the defense counsel with law enforcement agencies conducting operational-search work is not allowed. A lawyer has no right to refuse the powers already assumed.
