Before talking about the peculiarities of the existence and development of business advocacy in the USA, Germany and Ukraine, we propose to answer the question: “What are the main differences between the American, French, German, Ukrainian advocacy in general?”. Despite the fact that there are actually many differences, the attitude towards the court can be called the main factor of differentiation. Actually, this is quite common – the angle of incidence is equal to the angle of reflection.
In the West, judges, prosecutors, and lawyers are people of the same circle, of the same, so to speak, social position.
If, however, to determine the attitude before how a lawyer should build his behavior in court, what his public statements about the activities of this or that judge, the court in general, then we need only one word – WORTHY. The behavior of a lawyer in relation to a judge must always be impeccable and meet special, much higher standards than those put forward to other persons.
A lawyer must behave with dignity both when he won the case and when he lost it.
In the most general form, the basic rule for building a relationship between a lawyer and the court should be as follows: with all his actions, statements, public speeches, a lawyer must contribute to the formation in society of a respectful attitude towards the judicial system as a whole and towards its individual representatives.
WHAT YOU NEED TO KNOW AS A ATTOURNEY IN WORK
It should be recognized that for a lawyer, for example, it is completely unacceptable in a conversation with a client to explain the defeat in court by saying that “the judge is a fool”, that “the judge was bought”, and to allow any unfounded or superficial, unmotivated allegations of corruption, etc. A lawyer must be careful not to undermine or weaken the confidence of his clients and society as a whole in the reliability of judicial institutions by his behavior and statements.
At the same time, a lawyer has the right, in a conversation with a client, during a conversation with journalists, to express his point of view on a court decision that has entered into legal force. But the lawyer’s disagreement with the position of the court can be motivated only by references to the incorrect application of the law, but not by groundless, unproven facts.
Criticism of the court is quite possible on the part of a lawyer, but it must be motivated and constructive. A lawyer, like any member of society, has the right to criticize the procedural actions and decisions of the court. At the same time, a lawyer, as a member of the legal community, is subject to additional restrictions regarding criticism of the activities of the judiciary and law enforcement agencies.
A lawyer, when communicating with the court, must not show arrogance (and as its worst form is rudeness), but at the same time, voluntarily occupy a humiliating position (“ingratiating” tone, constant “may the high court forgive me”, etc.) lawyer also not required. But, unfortunately, most lawyers tend to either the first or the second model of behavior. We must not forget that a lawyer is not a judicial officer who is subordinate to the court, but at the same time, he is not a leader over a judge, and not a “boyar”!
Dignified behavior in relation to the court also implies the inadmissibility of any hint of “connection” with a higher court, which also sometimes takes place in a conversation between a lawyer and a judge or, worst of all, a lawyer with a client. In both the first and second cases, the lawyer earns himself cheap prestige, and moreover, he creates the impression for the judge that he is being subjected to certain pressure (which, as a rule, ends badly for the client), and for the client, such statements give the impression of dependence judgment from something other than the Law.
BUSINESS ADVOCACY IN GERMANY
The German Bar is very different from, for example, the American Bar. And this fact is very important for us, since today we are faced with a choice – which of the two models for building the advocacy system is the best, on the one hand, and which one is more suitable for us, on the other hand.
In Germany, in contrast to the United States, there is a special legislation governing the activities and construction of the legal profession.
First of all, these are the Federal Law on the Bar, adopted on August 1, 1959, and the Federal Regulation on the payment of lawyers, adopted on July 26, 1957. According to the State Treaty on Economic, Monetary and Social Union, signed between the FRG and the GDR, which entered into force on 1 July 1990, the laws of the Federal Republic of Germany began to apply on the territory of the former GDR. Accordingly, in our time, these two regulations are valid throughout the territory of the united Germany.
The number of lawyers per capita in Germany is less than in the US. However, the reason for this phenomenon is not at all in the “underestimation” of the importance of this profession. If in the USA almost all lawyers are classified as lawyers, then in Germany they are lawyers in our understanding of this term. In 1993, with a population of 91 million, there were just under 60,000 lawyers in Germany.
The law gives a lawyer the right to conclude an agreement with a client for the management of the latter’s property. A lawyer can also perform legal advisory functions, but again, only under a special agreement. Unlike the United States, German lawyers are prohibited from working as full-time legal advisers anywhere – neither in state, nor in public, nor in commercial organizations. The theoretical aspect of such a ban is the provision of the Federal Law, where the bar is defined as “an independent body of justice”.
Unlike a judge, a lawyer has the right to engage in political and literary activities, and cannot be sanctioned by the court for expressing his views, political opinions and positions regarding other participants in the process.
Whereas in the United States, the activities of lawyers are mainly supervised by bar associations themselves and less frequently by courts, in Germany the situation is fundamentally different. The right of control is granted to the justice authorities on behalf of the state. In other words, if in the US the bar is “accountable” to the judiciary, in Germany it is to the executive.
Regarding the German bar, there is a statement that the activity of a lawyer is a kind of business, entrepreneurship, and the difference from other private entrepreneurs among lawyers is that the latter do not have the right to advertise their professional activities, and also do not pay craft tax. Such statements, according to the author, are incorrect. What happens? If the taxpayer pays the state, and it pays on its own behalf a participant in the trial (prosecutor, lawyer …), then this is not entrepreneurial activity. If this taxpayer directly pays the participant in the trial, is this entrepreneurship?! Nonsense!
The attourny always performs the state function of maintaining the rule of law in public relations. And it is not so important whether he speaks in court, provides advice on legislation, helps a businessman to conclude a contract that is competent (from the point of view of the law!) And meets the requirements of a stable civil turnover, or acts as a representative of a party in the Economic Court. A completely different situation is when a lawyer becomes a businessman himself and receives remuneration for “construction”, bringing two clients together so that they can carry out this or that operation. This is no longer a lawyer’s activity, but a commercial mediation. But this activity is the sphere of consulting, intermediary, investment and any other firms, but not lawyer formations. Such activities (on payment) to lawyers are prohibited in most countries of the world.
And finally, let’s consider the same question from an “economic” point of view. In its most general form, we can say that entrepreneurship comes down to the following formula: money (investment in production, trade, etc.) – release of goods (sale of goods, services) – reinvestment of profits. And where in the activities of a lawyer can we follow the following scheme?! The more the owner sold the product, the more he bought a new one and sold it. Does the amount of legal aid provided by a lawyer really depend on the amount of legal aid provided during the “previous reporting period”?!
That is why in the United States, and in France, and in the UK, and in Germany, and in Ukraine, in a word, everywhere, advocacy is not considered as entrepreneurial, is not subject to income tax, does not allow (by virtue of law or by virtue of ethical norms) use of advertising. The author expresses the opinion that those who consider advocacy as a kind of entrepreneurship in this perspective simply do not understand either the functions, or the public purpose, or the essence of advocacy.
With regard to the practice of admission to the practice of law, in Germany such admission is different from the similar procedure used in the United States.
First of all, one should pay attention to the fact that only those who, in accordance with the requirements of the Law on the Judicial System, will be recognized as able to perform the duties of judges, are allowed to practice law. In other words, the same requirements are established for lawyers and judges; they, so to speak, represent a single “legal body”.
In practical terms, this means that an aspirant to the legal profession must attend a law course for 6 semesters at one of the universities in Germany. Then he must successfully pass 2 special exams. The first exam can be called “final” because it is taken at the educational institution where the future judge or lawyer studied. The next stage is internships (from 3.5 to 4 years) in the courts, prosecutors, notaries or the bar. Payment for the internship is at the expense of the treasury (special funds of the land authorities). After the end of the internship, it is time to take the second exam. This examination is conducted under the auspices of the Ministry (Department) of Justice of the relevant administrative territory (Land). It is the ministry (department) that develops the exam program and generates “examination tickets”, issues methodological manuals, and creates an examination commission. This is no longer an exam for knowledge, but for practical skills, for mastering a profession. The person who passed it can become a judge or a lawyer – whoever likes it. But there is only one exception to this rule – and without an internship, and without an exam, a lawyer with a doctorate in German law can become a lawyer.
BUSINESS ADVOCACY IN THE USA
If we set ourselves the task of describing the most characteristic and promising form of organizing the work of business lawyers, we should probably dwell on the analysis of such a phenomenon as law firms, which have become widespread in the United States in the last 50-60 years.
First of all, it should be noted that in the United States, with its precedent and well-developed legislation, it is simply impossible to imagine the existence of not only some more or less large-scale project, but also the conclusion of any contract, regardless of the significance of the contract, without prior consultation with a lawyer. According to some estimates, the cost of legal assistance in the United States for a medium or large business is between 5 and 10% of the profits of a case. In the US, legal services have become an economic driver of business in their own right.
Relationships in the “lawyer-client” system in the United States are characterized not only by a large fee for a lawyer, but also by his responsibility for the correctness of this consultation, the comprehensiveness of the draft contract prepared by him. And here we are talking about double responsibility: the fear of spoiling one’s reputation, and, accordingly, losing one’s clientele, and liability for damage (harm) that arose on the client’s side through the fault of a lawyer. It should be noted that both of these “insurance elements” are exclusively of a market nature.
By the way, it should be noted that the word “disbar” (deprivation of the right to practice law), which is rather terrible for American lawyers, is combined in the minds of practicing business lawyers, as a rule, not with the consequences of a legal mistake they made, but with a violation of the rules of professional ethics or with committing a criminal offence. The administrative measure “disbar” is applied for violating the “rules of the game” in the “lawyer-community of lawyers” system, but in the “lawyer-client” system, the market mechanism becomes the main element that induces fear: competition, property liability.
In the attitude of American society itself towards lawyers, it is very peculiar and ambivalent: on the one hand, it is respect, and on the other, hatred. As for the latter, this is primarily due to a certain “lack of freedom” of the client, his need to contact lawyers on any issues almost every day. Secondly, this is that the help of a lawyer is marked by large material costs. These are factors that indicate hatred for lawyers, but regarding respect, the reason for such an attitude of Americans was that the lawyer performs a certain function of a guide (“guide”), he can be trusted, you can rely on him.
The American lawyer is an important figure. He knows how to do it, what is possible and what is not, he knows how to speak, to convince, he is well educated. But, for example, it is very difficult for an acting lawyer to become the President of the United States – after all, they do not like lawyers.
No one, of course, counted all the lawyers on the planet. However, it is known that among the members of the International Bar Association and other corporate associations of lawyers that keep records of their own members, 2/3 of all these “registered” lawyers live and work in the United States. Hence the first place for the United States for “the number of lawyers per capita.”
It is also known that American lawyers play an important role in the political life of the country. But we know the legal communities in America are divided into “professional-oriented groups.” And therefore, it is fair to say that compared to other lawyers, business lawyers have more political influence. Moreover, even 26 out of 42 US presidents (including President Clinton) once worked as lawyers.
So, a lawyer in the USA is more than just a lawyer. Therefore, the desire to obtain this particular profession is quite understandable.
Getting a law degree in the United States is one of the most “expensive pleasures”. After leaving school, a young person must go through a two-stage system for training professional lawyers – a college (4 years of study) and a “law school” (a highly specialized university in which almost the entire course is a law course). On average, the cost of college education reaches 10-15 thousand dollars a year, and in law school – 20,000 dollars. In general, getting the profession of a business lawyer will cost an amount equal to 100-120 thousand dollars, and the entire learning process will take at least 7 years.
It is also interesting to pay attention to how the “typical career” of a business lawyer develops in large US cities. After graduating from college, the future lawyer, as already mentioned, begins work in some law firm as a legal assistant. However, no less common is the option when a young person gets a job in a municipality or other power structure of the state. It is more typical for a Washingtonian to work on Capitol Hill in the “team” of a congressman or senator. If in the first case the chances of “fixing” a place of future work after receiving an education increase, and besides, it is relatively good to earn money to pay for tuition, then the second option also has its advantages – the young person will have connections among the “powerful ones” “and in practice to study the mechanisms of action of the corridors of power, which a business lawyer simply needs to know.
In all states, without exception, lawyers unite in their trade unions. However, differences in the significance of these unions in individual states are quite significant.
The legal basis for the activities of such professional associations is either special state laws (as an option – special decisions of the Supreme Court of the corresponding state), or their charters (in American terminology, “constitutions” or “statuses”). The legal differences between the two options are quite significant. The first group of states, called “integrated system” (or “integrated legal profession”) states, located in the west and south of the country (with some exceptions). These states have established mandatory membership in the association for all persons admitted to the practice of law. In other words, here the concept of “bar association” is adequate to our concept of “advocacy”. Most of these states. In other words, the assertion that the American bar is completely independent of state regulation is nothing more than a myth (although pleasant to the heart of any lawyer). The second group of states, much smaller in number than the first, “allows” lawyers practicing in them (states) to independently resolve all their issues. But the main thing is that in these states, as well as in large cities and cantons (counties), bar associations have the status of voluntary associations. It should be concluded that in these states it is not necessary to be a member of the relevant professional association in order to carry out one’s professional activities (however, “disbar” for professional violations, only in a slightly modified form – in the form of deprivation of a license, still remains the most serious punishment in these states).
Thus, based on all of the above, it is possible to explore the system of business advocacy in Ukraine, compare the status of business lawyers in Ukraine with the status of foreign colleagues, and also determine whether we have a statement that lawyers are engaged in entrepreneurial activities, and the phrase “ business lawyer” is inherent in our country.