§ 1. Concepts "lawyer" and «lawyer activity» of the right of the European Union

The role and value of legal profession increases in modern conditions as institute of the civil society capable seriously to affect processes of democratisation and formation originally of a lawful state.

One of the main reference points of development of any modern state is the recognition of a priority of the human person, its rights and freedom. However formal declaration of the rights and personal freedoms has no essential practical value without presence of an effective legal mechanism of maintenance of these rights and freedom which part is the legal profession. Presence in the state of the persons, capable is competent and kvalifitsirovanno to render a legal aid - lawyers [11], is pledge of harmonious existence and society and state development.

The word the lawyer has occurred from Latin «advocare, advocatus», that means «to call, called» [12].

In Russian there are no doubts in interpretation of this concept. Lawyers associates in ordinary consciousness with the persons which trade is connected with rendering of a professional legal aid, in particular, representation of interests of clients in court and in public authorities, consultation on legal questions, drawing up of documents of legal character, etc.

But in the European languages with this term not all so is unequivocal. The variety of names of a trade is underlined in article 1 of item 2 of the Instruction 98/5/ЕС the European Parliament and Council of the European Union from February, 16th

1998 about procedure simplification on a constant basis of a lawyer trade in other member state rather than where qualification and others according to which the term "lawyer" is understood as the person who is the citizen of one of member states who is authorised to carry out the professional work under one of the specified ranks has been got: in Austria: Rechtsanwalt; in Belgium

Avocat/Advocaat/Rechtsanwalt; in Great Britain Advocate/Barrister/Solicitor; in Germany: Rechtsanwalt; in Greece: AiKnYopog; in Denmark: Advocate Ireland: Barrister/Solicitor ^ Spain: Abogado/Advocat/Avogado/Abokatu; in Italy: Avvocato; in Luxembourg - Avocat; in Нидерландах:Advocaat; in Portugal: Advogado; in Finland: Asianajaja/Advokat ^ Sweden: Advocat; in France: Avocat [13].

Depending on the maintenance of powers in many European EU member states there is a differentiation of the lawyers, professionally engaged in conducting another's lawsuits on two categories - "lawyers" and "representatives".

Such order of things was developed by a centuries-old historical life of the most civilised states of Europe. In France, England, Belgium, Italy and Spain along with a class of lawyers (avocat, barrister, avvocato, abogado) the institute of court agents (procurer, avenue, solicitor attorney, procuratore, procurador) [14] operated.

The given tendency originates in days of Ancient Rome. After patronage disintegration, jurisprudence development in republican Rome has gone two ways. One lawyers who were not possessing gift of eloquence, were engaged exclusively in a summer residence of legal aids, others represented the parties in litigation. The first were called as legal advisers or
Jurists. Others - till the end of existence of the Roman republic were called as cartridges.

As lawyers at that time were called relatives and friends tjazhushchegosja which compeared together with it and gave to its advice or is simple the presence it supported. Eventually the term "lawyer" began to extend on persons who helped tjazhushchemusja with process, collected documents, covered costs, defined protection frames and informed on them to cartridges. However it is absolutely clear, that all these versions of a legal trade cannot be to the full carried to a trade of the lawyer, and only cartridges were lawyers literally this word [15].


Romans, after a gain of Gallia, an ancestral home of modern France, have transferred to it all official bodies, including the legal profession which has found here a fertile field for development. But after falling of Roman empire the legal profession of France comes to a decadent condition [16].

Only in 1270 there were Louis Svjatogo's which has limited application of judicial combats and by that the well-known Establishments, having given bolshy open space for activity of lawyers. In XIV century there are first rudiments of the class organisation of legal profession. The award of lawyers - L'ordre des avocat is created.

Division of the French lawyers into two classes: lawyers and public prosecutors has developed after acceptance of IV Ordinance of 1344 by Phillip. Performance with speech in the court, the second - conducting process from a name tjazhushchegosja was the main function of the first. Though the given differentiation was not strict.

Such position has existed prior to the beginning of Great French revolution. In 1789 the Parliament, and together with it and its "appendage" - legal profession has been liquidated. Public prosecutors and lawyers have been transformed in
Judicial attorneys (avoues), competent to represent the parties in court and to act there with speech.

During Napoleon's reforms initial division of lawyers into the attorneys representing in court, and lawyers has been restored, whose problem was limited basically to speech pronouncing. It remained up to 1971 when during "small" reform this distinction [17] has been abolished.

The subsequent Law from December, 31st, 1990 realised the big reform legal trades thanks to which the uniform legal status of the lawyer has extended and on advisers for legal issues (со^еік juridiques) [18], and in the further ambassador of an adoption of law № 2011-94 from January, 25th, 2011 - and on the lawyers authorised on business management in appeal courts (avoues pres les Cours d'appel) [19].

This association became one more step towards lawyer monopoly for the judicial representation, extending basically on Courts of the big instance, appeal courts and the Court of review (item 750,755,899,975,982 of the Civil code of practice of France) [20]. Though it is impossible to speak about existence in France to full monopoly of lawyers for rendering of legal services: from a principle of monopoly for judicial representation essential withdrawals are provided also. Intermediary of the lawyer not necessarily by consideration of civil cases with the amount in controversy to 10 000 euros, the so-called Vessels of small instance carried to the competence, of commercial vessels, in vessels under the permission of labour disputes and in vessels on affairs in connection with rent of farmlands [21].

It is necessary to notice, that lawyers in France always used bolshej freedom in comparison with other countries of Europe. The accessory to structure of lawyers was considered and it is considered prestigious and is esteemed by respect in a society. Beginning already from the end of XIX century has strongly entered into a life and the principle of independence of lawyers has affirmed. Their opinion on those or other questions, important for a country life, is rather appreciated in a public life of France [22].

At the moment on the basis of the analysis of the basic legal acts regulating activity of the lawyer in France to which it is possible to carry the Law from the December, 31st, 1971, the subsequent Law from December, 31st, 1990, the Decree from November, 27th, 1991 about the organisations of a trade of the lawyer [23], the Civil code of practice [24] lawyer in France admits the person who has received according to regulatory legal acts of France the status of the lawyer which duties include protection of interests and the rights of the parties in court, including performances with speech session of the court, and also granting of other professional legal services which have been not connected with conducting of business in court [25].

In articles of the first and third Law from December, 31st, 1971 N 71-1130 it is underlined, that the trade of the lawyer admits free and independent, and lawyers are assistants to justice [26].


From the most ancient times (from VI century) pravozastupnichestvo and judicial representation in Germany have been divided: pravozastupnichestvo
Belonged to lawyers (at that time for a designation of lawyers different terms were used: causidici, advocati, procuratores, patrocinantes, Fursprecher, Vorsprecher, Redner, Furleger, Sprecher, etc.), and representation - the attorney (the given category of lawyers carried following names: mandatarii, assertores, nuncii, missi, advocati, etc.).

From the end of the Middle Ages at separate vessels so-called "general" began to be appointed (gemeine) lawyers. They were selected in certain number, made oath, had a monopoly on realisation of judicial protection at the given court, came under to disciplinary supervision from vessels and even sometimes received the annual salary.

In parallel with the legal profession organisation there was an organisation of institute of attorneys. Along with lawyers at vessels attorneys began to be appointed. Principles of that and another were identical.

Functions of both classes of persons were strictly differentiated in the beginning. But since XVIII century of legal profession and attorneys have started to merge, so to the end of the century almost in all German states pravozastupnichestvo it has been already combined with judicial representation in the name of one class of persons. And already during reform of 1878 by the Charter was the monotonous organisation is established


Legal professions for all states which are a part of the German empire [27].

Unlike France and England in Germany there was no piety before a trade of the lawyer. Historically so has developed, that combination pravozastupnichestva with judicial representation has given to legal profession character not to a noble trade, and usual craft activity.

The German lawyers never played some a considerable role in a political life of the fatherland, have not exposed any European -
The well-known orator also did not use special respect from public opinion [28].

The XX-th century has brought to German legal profession a number of beneficial changes. At the moment the lawyer rather dear trade to Germany, in whose prerogative powers enters representation of interests of clients before court and extrajudicial consultation.

Though it is necessary to recognise, that in Germany monopoly of lawyers conditional: on civil cases with the sum in dispute to 5 000 euros it is possible to go to court and without the lawyer [29]. According to § 79 Civil remedial ulozhenija Germany the parties can run business or through any person possessing capacity to sue, as the authorised person [30]. On all other affairs, in particular, considered in vessels of the earth and in all vessels of higher instances, according to § 78 Civil remedial ulozhenija Germany, the parties should run the businesses through lawyers,


Admitted to the court leading process [31].

By paragraphs from the fifth under the eighth Law on extrajudicial legal services from December, 12th, 2007 it is fixed, that the legal services which have been not connected with conducting of business in court, can be given not only lawyers: consultation about right bases in a context of other activity, for example, connected with work of the insurance agent, the seller of cars, the broker under the real estate is supposed; various public associations,

Welfare funds, trade unions, and also on a gratuitous basis in a circle of a family and among relatives [32].

Thus, the German legislator expands possibilities on rendering of legal aids, supposing in the specified sphere of persons, not


Belonging to the lawyer case [33].

Speaking about the functional party of a trade, it is possible to allocate following directions of activity:

Consultation on legal issues;

Representation of the clients who are representing itself as the parties in

Civil procedure;

■ protection convicted or the defendant on criminal case in court and-or investigation agencies bodies. Within the limits of criminal trial the lawyer can act and as the representative of interests of the victim.

Besides specified, the lawyer has the right to conclude dogovory with the client on management of property and under the special contract, to carry out functions of the legal adviser.

The rights of the lawyer can be limited only by the federal act, without dependence from the degree of jurisdiction in which it represents the


Clients [34].

In Germany possibility to establish by the lawyer the specialisation is provided. According to paragraph 43 Federal ulozhenija about legal profession from August, 1st 1959г. The lawyer, having knowledge and experience in certain branch, under the decision of board of chamber of lawyers can receive the status of the specialised lawyer in sphere administrative, tax, labour, social, family, criminal law, the right about the economic


Inconsistencies [35].

Thus, the lawyer assists tribunals as the professional independent adviser and the representative for all legal questions. Activity of the lawyer does not carry commercial character.

The resulted concept of the lawyer contains regarding the first Federal ulozhenija about legal profession from August, 1st, 1959 [36]. To other basic legislative sources regulating a legal status of the lawyer, it is possible to carry Civil remedial ulozhenie from January, 30th, 1877 [37], the Professional code of lawyers from December, 10th, 1996 [38], Position about lawyer specialisation from March, 11th, 1997 [39], the Law on fees of lawyers from May, 5th, 2004 [40], the Law on activity of the European lawyers in Germany from March, 9th, 2000 [41].


In England, the classical country of a common law, the legal profession, like many other things to establishments, has developed almost without any assistance of legislature. Its organisation is not defined till now 42

The law, and is based on the developed traditions [42].

The first news about English lawyers (they were called as defenders - forspeca, mundbora, advocatus) it is found in laws of Anglo-Saxon kings of X century.

The first rudiments of the organisation of legal profession have appeared in England at the same time and under the same circumstances, as well as in France: the Royal courts which were in the beginning razezdnymi, have received in XIII century a constant residence in
Westminster. Thanks to it, lawyers who accompanied courts in their travelling, too have settled in London and have started to incorporate and rally among themselves. Then there is the first law mentioning legal profession [43].

Occurrence of the first of four full courts concerns the period of board of Edward I - Linkolnsky board (Lincoln's Inn), representing itself as the establishment preparing skilled lawyers - judges and lawyers. Subsequently there were three more boards: Grejsky (Gray's Inn), an internal temple (Inner Temple) and an average temple (Middle Temple). Besides full courts there were nine more writing boards which were engaged in preparation of believed (solicitors) [44].

The persons who were engaged during this period in legal activity, depending on qualification and character of performed work had various titles: the senior lawyers (serjeants at law), barristers (barristers),

аттoрнеи (attomeys), сoлиситoры (solicitors), прoктoры (proctors).

The subsequent development went in a direction of specialisation and more accurate differentiation of legal trades. By XII century with expansion of the competence of Court of a royal bench value of barristers which were engaged in conducting litigations and ever less extrajudicial work more and more has increased.

The eighteenth century is characterised by rapprochement of the status of attorneys and solicitors and increase of their role in a legal life of England. In 1875 there is an association of attorneys, solicitors, proktorov and pismovoditelej. All of them began to be called as solicitors.

As a result in England there are two groups of lawyers - solicitors and barristers. Initially each of groups has been organised in own way, normative acts, customs, the traditions regulating their activity, did not coincide, functions carried out in civil legal proceedings [45] were various.

Solicitors - advisers for the legal issues, giving wide enough spectrum of services of the right character [46]. Solicitors carry out pre-judicial preparation of dispute: they prepare texts of statements on behalf of clients, carry on negotiations between contending parties, make other necessary actions before commencing a suit. Further solicitors can initiate manufacture, provide preparation of business for proceeding, and also as the lawyer


To participate at disposal of legal proceeding [47].

Duties of solicitors also include business management about the ground real estate, drawing up of contracts and wills, management of the succession. Also they give recommendations about the legal issues connected with the taxation, insurance, a competition and business.

The status of solicitors is defined by the Law on solicitors from July, 31st, 1974 [48], the Code of behaviour of the solicitors, the developed Management on regulation of activity of solicitors 2011 [49].

As to barristers their basic difference from solicitors consists what activity of barristers is traditionally connected with legal proceedings. In spite of the fact that after 1990 solicitors also have acquired the right to address to the judge after delivery of corresponding examinations, practice has developed in such a manner that solicitors seldom have the rights given to it.

Though in England there is no that strict compulsion of lawyer representation in civil legal proceedings which is characteristic for France and Germany and citizens have the right to begin and run business independently (in person). An exception of this rule constitute cases,
If the physical person is recognised by incapacitated or as the party in process the legal body who should be presented the solicitor [50] acts. Nevertheless, at absence in the course of the lawyer that circumstance that there is an actual necessity for tjazhushchihsja has much more serious and far-reaching consequences to address to services of lawyers-professionals. To it elementary and rather real threat of loss of the case because of ignorance of rules of law forces. Complexity of procedure of a legal investigation, a complexity and a fragmentariness of standard positions, wide use as legal sources of judicial precedents lead persons of necessity participating in business to address to services of the lawyers-professionals understanding all subtleties of legal proceedings and pravoprimenitelnoj of practice [51].

The circle of powers of barristers includes preparation of written legal documents as extrajudicial (for example, the certificate of establishment of the direct trust, ogovor about association, the difficult will, fulfilment of transactions with the direct trust), and connected with litigation, a summer residence of written and oral consultations on legal questions taking into account prospects of judicial manufacture, participation in session of the court.

Besides, barristers are not forbidden to render also service of legal character to the persons, not being potential or real participants of litigation, but wishing to receive the competent expert witness under matters of law and legal proceedings. It can be, for example, workers of financial sphere, banks, etc.

Initially there was an interdiction for barristers to enter direct contact with tjazhushchimisja the parties: the last should operate only through the solicitor. The work scheme was following: to the barrister the solicitor who gives to the barrister "brif" - the written commission addresses. In the given commission the solicitor is short states more often an essence of the matter, probably, gives own estimations and formulates a question to
To the barrister. To brifu the materials reflecting objective position of affairs (interrogations of witnesses, reports) are put also.

Last two decades regulation of legal relations with participation of English lawyers have undergone to considerable changes.

In 1990 c the adoption of law about vessels and legal services [52] had been undertook attempt to liquidate distinction between barristers and solicitors, in particular, according a right to solicitors on business management in the Supreme Court, and to barristers - to conclude the contract directly with the client. So, in spite of the fact that formal division has been kept, the status of those and others has been pull essentially together [53].

As a result of reforming of the English civil law of procedure in December, 1998 Rules of civil legal proceedings which have started to be applied since April, 26th, 1999 have been accepted. Acceptance of Rules of civil legal proceedings (Civil Procedure Rules) became considerable event in a legal life of England also because they have been named by "the new code of practice» that is absolutely atypical

54 for the country in which never codes [54] earlier were accepted.

On October, 30th, 2007 the Law on legal services of the [55] complicated questions which have settled a significant amount connected with the market of legal services in the country has been passed. Since 2013 New standard treaty provisions of granting of legal services by lawyers to principals [56] have become effective, becoming the appendix in the Code of behaviour of barristers of England and the Wales [57].

According to article 1.2. New standard treaty provisions of granting of legal services by lawyers to principals at the moment the barrister is the person practising as a member of board of barristers of England and the Wales, possessing corresponding powers and qualification in the field of granting of the services rendered within the limits of conducting of business in court, operating according to instructions and on behalf of the client [58].

According to positions of the Code of behaviour of the solicitors developed by Management on regulation of activity of solicitors of 2011, the solicitor-it the person accepted as the solicitor in England serving the Supreme Court and the Wales, whose name is included in the register of the Legal society of England and the Wales according to rules of section 6 of the Law on solicitors of 1974, including the person from other countries-participants of EU, carrying out activity of the solicitor on the basis of the permission which have been given out in country of origin of year [59].


1. Addressing to history of occurrence of a trade of the lawyer in the Western Europe, it is necessary to notice that huge influence of the Roman Law on formation of this institute in the West European countries. Having passed various stages of development the given legal institution evolved, having got in each of the countries the specific lines.

At the moment exhaustive and universal definition of the lawyer which would reflect and revealed a position of all countries-participants of EU, in the legislation of the European Union is absent.

In this connection, proceeding from the analysis of national legislations and the right of the European Union, the following complex concept is offered: the lawyer is the professional qualified independent expert in the field of the jurisprudence, received in established by standard legal acts
EU countries-participants the corresponding status allowing it under a special professional rank to be engaged by consultation on legal questions to defend the rights of clients in any lawful way and to make legal actions for protection of their interests, and also to represent clients before degrees of jurisdiction, law enforcement bodies and bodies of public management.

2. It is necessary to notice, that the modern European legal profession finds out the tendency to refusal of absolute lawyer monopoly in favour of the conditional: representation in vessels on criminal cases remained for lawyers while representation on civil cases and consultation can be carried out by the persons who are not lawyers.

Such refusal is proved by taking place considerable rise in price of civil procedure which limited the rights to judicial protection of poor citizens and representatives of a small-scale business.

Within the limits of it in Europe institutes of the state legal profession, and also the noncommercial organisations supported by the state which free legal services including on civil cases render function. Besides, in EU countries-participants alternative ways of the resolution of disputes where services of the lawyer are not obligatory are well developed also.

3. Addressing to a problem of lawyer monopoly in the Russian Federation, it is necessary to notice, that at the moment in the Russian Federation the conditions are not created similar European, and possibilities of application of system of a free legal aid on civil cases are extremely limited. In this connection, the idea about introduction in the Russian Federation in civil and arbitral procedure seems to lawyer monopoly for representation of citizens and legal bodies rather disputable as, according to the author, in bolshej degrees is form change, without obvious change of the maintenance, in which basis uzkoprofilnye interests of a separate group of persons.

It is impossible to disagree with opinion of many visible Russian lawyers which say, that monopoly introduction is, first of all infringement of the constitutional norms providing freedom of economic activities and support of a competition which will invariably entail competition decrease in sphere of legal services and, accordingly, a rise in prices for services [60].

Also it is not necessary to forget, that, unfortunately, even now in Russia cost of services of the lawyer exceeds that sum which presumes the person with the average income and frequently the reference behind legal services to the persons, lawyers not having the status, is unique chance of realisation of the right of judicial protection on civil cases.

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A source: Djukina Veronica Raisovna. CIVIL-LAW REGULATION of RENDERING of LAWYER SERVICES In the RIGHT of the EUROPEAN UNION. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2014. 2014

More on topic § 1. Concepts "lawyer" and «lawyer activity» of the right of the European Union:

  1. CHAPTER 2. The Legal status of the lawyer and organizational forms of lawyer activity by the right of the European Union and the countries of participants of EU
  2. §3. Lawyer activity in the conditions of the general market of the European Union
  3. CHAPTER 1. Lawyer activity in the right of the European Union: concept and legal regulation sources
  4. Teoretiko-legal research of a parity of concepts «the person,« the physical person, "citizen", "person", "individual", "Everyone"
  5. § 1. Concepts "subject" and "object" of the operating criminal legislation, judiciary practice, philosophy and jurisprudence
  6. 1.4.1. The typological characteristic of a modality through a prism filologiyocheskoj germenevtiki: opposition of concepts "value" and "sense"
  7. about the legal maintenance of concepts "protection", "protection", "preservation" and «steady use»
  8. concepts "legalisation" and "washing up" of the Russian criminal law
  9. Concepts "legalisation" and "washing up" of the Russian criminal law
  10. § 1. Standard fastening of definition of concepts "interest" and"affilirovannost"