Melnichenko R. G. Samyj a heavy sin of the lawyer//the Lawyer. № 3. 2007. With. 18-20. The publication has translated Goryacheva Julia
The lawyer from Volgograd, the candidate of jurisprudence, senior lecturer R.G.Melnichenko calls colleagues for intolerance concerning infringers of professional precepts.
Lawyer activity as, however, and any other professional work, gives to persons, its carrying out, certain psychological qualities. They can be both positive, and negative. Negative changes of the person of the lawyer are psychological deformation. Unfortunately, in more to a measure scientists from the public prosecutor's environment are engaged in questions of professional deformation of lawyers. As an example it is possible to result the manual on struggle against lawyers "Illegal activity of the lawyer in criminal trial". Onesided illumination of this problem is of use for lawyer community not which constructive criticism, but only should bring harm. We will try to investigate some lawyer sins from a position of the representative of a lawyer trade.
It is possible to speak about concept of deformation of the lawyer only in the presence of the general concept of a condition of "norm". In this sense it is possible to understand sense of justice of a certain "ideal" lawyer, i.e. the lawyer which expects a society As norm. Deformation of the lawyer looks as a deviation from norm. Naturally, absolutely reliable criteria of definition "нормальности" are not present lawyer sense of justice. We can only Presumption existence of such ideal sense of justice
One of ways of comprehension of concept "the ideal sense of justice of the lawyer" can become the known principle put still medieval схоластами: the good is absence of harm. We will define it angrily as deformation of the lawyer. In a science it is accepted to allocate following lines of professional deformation: negativity, mass character, ability to development and dynamism, and also social harm.
Deformations of the lawyer can be divided conditionally into the general and special. It is necessary to understand the negative psychological changes peculiar to any person irrespective of a sort of its employment at contact with the right as the general. Traditionally the jurisprudence carries to such deformations: legal infantility, negativism and legal idealism. What are peculiar mainly to the persons who are engaged in lawyer activity concern special deformations. To them it is possible to carry treachery of the client, corporation treachery, envy to colleagues, a self-interest, incompetence, passivity, neglect interests of the client, effect "the provincial lawyer", etc.
Nihilism - negation of the standard values: ideals, moral standards, culture, forms of a public life. Its essence consists in the is negative-negative, disrespectful relation to the right, laws, a standard order, and from the point of view of roots, the reasons - in legal ignorance, stagnancy, backwardness, legal bad manners of some lawyers.
So, it is possible to draw a conclusion that the legal nihilism of the lawyer is the its antilegal mood shown in full ignoring of the right, the disrespectful relation to it and its role, interfaced to ethical nihilism which is expressed in moral and spiritual decline of a society. The legal nihilism pushes the lawyer to solve problems of the client not on a legal field.
Legal infantility. Infantility literally from Latin "infantilis" (children's), means preservation at adult individuals of the physical and mental lines peculiar to children's age. Legal infantility is not only sense of justice of the lawyer - were "troechnik" in high school for say that "troechnik" correct the world, but also possible professional fading. Indicators of similar sense of justice of the lawyer are absence of integrity and системности legal knowledge, the narrow horizon of professional possibilities, original workmanship in practical work, not creative character and untidiness in the decision of professional problems
Legal idealism. The legal idealism can be defined as such kind of deformation of sense of justice at which there is a revaluation of a role of the right. Legal idealism, as a rule, свойствен to beginning lawyers who sincerely consider that all in a social life should occur according to norms of the right. However social norms not always coincide with legal, and thoughtless following to rules of law can lead to negative consequences not so much for the lawyer, how many for its client.
It is necessary to give special attention to special deformations of the lawyer. The nature of lawyer activity comprises temptations of fulfilment of set of sins: absence of punctuality, a self-interest, lie, conceit, etc., but heaviest of them - treachery of the client.
In 1582 by IV (Ivan Groznogo's) Ivan's additional sentence it has been established that if the attorney "in court being worthy of it will sell, for whom stood", it should be subjected the death penalty. After all there is nothing worse treachery of the person which has entrusted the lawyer that would not entrust anybody to another. It is common truth, but, unfortunately, the main professional imperative which should be a basis of activity of each lawyer, it is continually broken.
In lawyer practice, anyway, in the Volgograd region, the treachery tendency separate lawyers of the clients accrues. Thus the last at times do not understand all weight of a lawyer sin made by them. We will result become already classical example of treachery of the client.
The client interrogate as the lawyer accused of presence. There is a change of the lawyer, and in judicial session the client refuses the indications given by it at a stage of preliminary investigation. On request of the public prosecutor the court subpoenas the first lawyer in judicial session as a witness. Being on judicial session, last testifies that - yes, really, at its presence the client has given evidences exposing. In this situation two explanations of behavior of the lawyer are possible only: or it is "the lawyer on a call" and deliberately betrays the principal to remain in good relations with "the supplier of clients", or it is so illiterate that does not know about an interdiction to interrogate the lawyer about the circumstances, which steels to it are known in connection with legal aid rendering. In both cases to such lawyer not a place in lawyer community.
The law and lawyer ethics knows only one case of possible interrogation of the lawyer on business of the client. This situation is resulted in definition of the Constitutional Court of the Russian Federation under the complaint of citizen Tsitskishvili. At a stage of preliminary investigation as defender Tsitskishvili acted lawyer I.Na of a stage of proceeding there was a replacement of the lawyer. The new lawyer has submitted the petition for a call and interrogation as the witness of former lawyer И for acknowledgement of the fact of falsification by the inspector of materials of criminal case. The court has refused this petition. The constitutional Court has specified that clearing of the lawyer of a duty to testify does not exclude its right to give corresponding evidences in cases when the lawyer and its client are interested in announcement of those or other data. That is two conditions are necessary for interrogation of the lawyer: the consent of the client and the lawyer. At absence at least one of
the resulted conditions the lawyer cannot be interrogated as the witness
How the lawyer if it subpoena as a witness on business of the client should arrive? He is obliged to hand over to the inspector or court the statement of the following maintenance: "In the course of rendering of a legal aid to citizen К, to me some circumstances became known. According to Part 3 items 56 YPK the Russian Federation ( Part 3 items 69 GPK the Russian Federation on administrative or to a civil case), Part 6 items 6 of the Code of a professional etiquette of the lawyer I are not subject to interrogation as the witness on these circumstances. I cannot be warned thereupon about responsibility for refusal of evidence". It is the unique way of behaviour of the lawyer who has appeared in a similar situation. Other variants should be regarded as cowardice and nonprofessionalism.
And it at the best. The scandalous statement of the lawyer of the following maintenance is stored in Lawyer chamber of the Volgograd region: "to the Assistant to the public prosecutor of the Volgograd region Muzraevu M. K from the lawyer And. I, the lawyer And, working in BUT ВМК, do not object, that me have interrogated as the witness on criminal case".
All threat of a current situation clearly understand both lawyers, and heads of bodies of lawyer self-management. For its permission it is necessary to enter some measures. First, a debt of each lawyer - to inform in Council of lawyer chamber on the known facts which have become to it of treachery by the lawyer of the client. Secondly, to enter into practice of councils of lawyer chambers application only one measure of professional punishment after the relation to the lawyer in case of treachery of the client - deprivation of the status of the lawyer
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