Melnichenko R. G. A choice of the form of lawyer formation(education): economic - legal bases // the Right and economy. N 3. 2006. Translator Schcepetnova N. S.
According to the law, the lawyer is obliged to carry out the activity in any organizational form. The lawyer is free in the choice, but thus it should remember, that has the right to consist only in one of four forms of lawyer formations. More precisely, the choice of the lawyer is possible between three organizational forms: a lawyer study, a lawyer bureau, Bar. The fourth form - legal consultation - is establishment and consequently can not be independently elected the lawyer. Let's consider first three of the listed forms, having opened the positive and negative parties of a choice of this or that kind of lawyer firm. Lawyer study
For experts who are involved with individual work, the law stipulates an opportunity of creation of a lawyer study. As against other forms of lawyer formations, the lawyer study does not get the status of the legal person. The legal status of a lawyer study is vaguely similar to such institute of civil law, as " the individual businessman without formation of the legal person ". It is necessary to note, that for the Russian legislation use of the individual form of lawyer formation is not an innovation - similar practice existed in pre-revolutionary Russia. For the first time the lawyer study placed in premises, was open in St. Petersburg in 1868. Their formation was stipulated by judicial charters of 1864. Examples of outwork of representatives of some trades were kept and after revolution. The establishment of a lawyer study occurs in the notifying order. It is possible to allocate the following stages of creation of a lawyer study.
1. Decision making about creation of a lawyer study. Make such decision exclusively one lawyer can. Work of two and more lawyers in a lawyer study is not supposed.
2. Observance of conditions for creation of a lawyer study. The unique requirement for creation of the given organizational form of work of the lawyer is presence of a premise(room) in which the lawyer further will carry out the activity. The lawyer has the right to use premises belonging to it for accommodation of a lawyer study. If premises belong to members of his family or the lawyer borrows them under the contract of hiring they can be used by the lawyer for accommodation of a lawyer study only from the consent . Thus the consent of all full age persons living together with the lawyer is required.
The specified requirement serves for achievement of two purposes. First, for maintenance of a place of a meeting of the lawyer with the client. It is necessary to note, that presence of office at the lawyer is important, but not a vital condition of his work. The office is necessary for an opportunity of consultation, the conclusion of the agreement and as "tool" of the lawyer. The basic meetings of the lawyer and the client nevertheless occur in court and other law enforcement bodies. Second, the basic purpose of the requirement about presence of the location of a lawyer study is the opportunity of maintenance of communication between the lawyer and lawyer chamber of the subject of the Russian Federation.
3. A direction of the notice on creation of a lawyer study. The decision on creation of a lawyer study directs the lawyer to advice of lawyer chamber the certified mail as the notice. In it data on the lawyer, the location of a lawyer study, the procedure of telephone, cable, post and other communication between advice of lawyer chamber and the lawyer are specified. From the moment of a direction of the notice the lawyer study is considered created.
Advice of lawyer chamber has no right to give up to the lawyer in creation of a lawyer study. However advice can specify to the lawyer the possible infringements admitted by him at creation of a lawyer study: absence of a premise, participation of the lawyer in other form of lawyer formation etc. In turn, the lawyer is obliged to remove the infringements admitted by him.
4. Creation of attributes of a lawyer study. The lawyer can order a seal, a stamp and firm forms with the address and the name of a lawyer study. All of them should contain: a name of the founder, a word " a lawyer study " and the instruction of the subject of the Russian Federation in which territory it is founded. For example, " I.I.Ivanov. A lawyer study. The Volgograd area ".
For realization of the financial activity the lawyer which has founded a lawyer study, has the right to open accounts in banks on behalf of a lawyer study. Work of a lawyer study. The lawyer works in a lawyer study independently. Besides it can employ employees, assistants and trainees.
Agreements on rendering of a legal aid consist in a lawyer study between the lawyer and the principal and are registered in the documentation of a lawyer study. The lawyer should conduct the financial reporting of a lawyer study.
The responsibility of a lawyer study for default of the obligations. The lawyer - founder of a lawyer study bears the responsibility for default of obligations all property. The property responsibility is not removed from the lawyer even if it has passed in other organizational form or in general has lost the status of the lawyer. The termination of activity of a lawyer study. The lawyer study stops the existence in a case:
Cancellation of the status of the lawyer which has founded a lawyer study; Elections by the lawyer of other organizational form of the activity.
It is necessary to allocate the following positive economic - legal aspects of opening of a lawyer study:
Popularization of a name of the lawyer;
Minimization of charges on establishment of a lawyer study;
Minimization of charges on the maintenance of a lawyer study;
Minimization of the taxation, mobility.
Popularization of a name of the lawyer. The lawyer which founded a lawyer study and has named his name, actually leaves on a new level and quality of work. All subsequent steps directed aside of popularization of a lawyer study, will serve simultaneously as РR-campaign for his founder.
Minimization of charges on establishment of a lawyer study. Simplicity of establishment of a lawyer study (absence of necessity of his state registration) reduces initial financial expenses of the lawyer - founder to a minimum. For the beginning works of a lawyer study on the part of the lawyer - founder it is not required expenses for rent or purchase of a premise under lawyer office. According to the Federal law from May, 31, 2002 N 63-FZ " About lawyer activity and legal profession in the Russian Federation " the opportunity of accommodation of a lawyer study in premises which proprietor is the lawyer or members of his family is provided. In this connection other expenses are reduced also: purchase of office furniture, hiring of the attendants etc.
Minimization of charges on the maintenance of a lawyer study. If the lawyer study is founded in a premise on a residence, (a rent for office premise, payment of the electric power under the raised tariff etc.) it is possible to avoid additional charges. Besides the lawyer, as a rule, makes all accounting postings independently, therefore charges on payment of services of the bookkeeper too can be excluded. Minimization of the taxation. The lawyer which has founded a lawyer study in a place of the residence, has the right to reduce taxable base by the sum of the charges under the maintenance of a lawyer study. To these charges can be referred: repair of an apartment in which the lawyer office is placed, purchase of furniture, charges on a communication facility etc.
Mobility. The lawyer does not waste time on reaching the office. Accordingly, material and time resources are saved.
Negative parties of a choice of the organizational - legal form of lawyer formation " lawyer study ":
Inconveniences in reception of clients;
Individualization of burden of charges;
Impossibility of replacement of the lawyer;
Restriction of an opportunity of reception of professional experience;
Impossibility of sale of lawyer firm.
Inconveniences in reception of clients. Feature of a lawyer study is overlapping working space with a residential zone that can create a serious psychological barrier in dialogue of the lawyer with the client.
Relative reach. The lawyer study located on a residence, operatively does not allow potential clients to address to the lawyer, as in cases if such reference was carried out by means of visiting office.
Individualization of burden of charges under the maintenance(contents) of a lawyer study. Some charges connected to activity of lawyer firm, are too burdensome for one lawyer. To such charges it is possible to attribute: rent of separate office, realization of an advertising campaign, realization of РR-campaigns, presentations etc.
Impossibility of replacement of the lawyer. In case of absence of the lawyer (holiday, illness, business trip) manufacture on his affairs in connection with impossibility of replacement will be compelled is suspended. In this case the lawyer will be compelled or to terminate the agreement with the client or, causing fair displeasure of the last to tighten process of rendering of a legal aid.
Restriction of an opportunity of reception of professional experience. If to consider a lawyer study as a platform for reception of an operational experience for beginning lawyer such form of formation is represented not absolutely acceptable. Beginning lawyer at realization of independent activity should collide with some questions and difficulties and to ask somebody ways of their sanction it is not obviously possible.
Impossibility of sale of lawyer firm. All intellectual and material resources enclosed in a lawyer study, are irrevocable charges. The lawyer which has founded a lawyer study, can not sell the lawyer business since his firm is inextricably related with his person.
The lawyer bureau is the form of the lawyer activity close to such organizational - legal form, as full company. However to the attitudes arising in connection with establishment, activity and liquidation of the given organizational form, the rules stipulated not for commercial, and for noncommercial legal persons, in particular by the Federal law from January, 12, 1986 N 7-FZ " About the noncommercial organizations " should be applied.
Establishment of a lawyer bureau. Found a lawyer bureau two and more lawyers can. Founders of a lawyer bureau can be lawyers, data about which are brought only in one regional register.
1. The conclusion between lawyers - partners of the contract in writing. According to the partner contract lawyers - partners undertake to unit the efforts for rendering a legal aid on behalf of all partners.
Поверенное the legislation provides the certain requirements to the maintenance of the partner contract. In the partner contract are specified:
Validity of the partner contract;
The order of acceptance by partners of decisions;
The order of election of managing partner and his competence;
The legal address of a lawyer bureau;
Other essential conditions.
2 State registration of a lawyer bureau. The following documents go to recording body:
The application for registration of a lawyer bureau;
The report of assembly of founders on creation of a lawyer bureau and the statement of the partner contract;
The partner contract;
The receipt on payment for registration of the legal person.
After consideration of the submitted documents of data on creation of a lawyer bureau are brought in the uniform state register of legal persons. Refusal in registration of a lawyer bureau can be appealed against in the judicial order.
3. A direction of the notice on creation of a lawyer bureau. The notice and notarially certified copy of the partner contract goes to advice of lawyer chamber the certified mail. The notice should contain the following data: The data on founders, the location of a lawyer bureau; the procedure of telephone, cable, post and other communication between advice of lawyer chamber and a lawyer bureau.
The lawyer bureau is considered founded from the moment of his state registration, however it can begin the work only from the moment of a direction of the notice and a copy of the partner contract.
4. Creation of attributes of a lawyer bureau. The lawyer bureau is the legal person, has own a seal, stamps and forms. The company name of a lawyer bureau should contain or names of all of his participants and words " a lawyer bureau ", or a name of one or several participants with addition of words " and the company " and " a lawyer bureau ", and also the instruction on the subject of the Russian Federation in which territory the lawyer bureau is founded. As a rule, the first in the company name puts a name of managing partner. For example, " Ivanov, Petrov. A lawyer bureau. The Volgograd area " or " Ivanov and the company. A lawyer bureau. The Volgograd area ".
For realization of the financial activity the lawyer bureau has the right to open accounts in banks and also to conduct independent balance.
Work of a lawyer bureau. Conducting common causes of a lawyer bureau is possible two ways. So, according to the first, conducting common causes is carried out by managing partner. For example, managing partner concludes the contract of rent of premises, labour contracts with workers of a lawyer bureau Is etc. agrees to the second way in the partner contract can the right of conducting common causes by several or all partners simultaneously is stipulated.
The agreement on rendering of a legal aid with the client consists on behalf of all partners. As a rule, the agreement subscribes managing partner on the basis of the partner contract. The agreement can be signed and other partners on behalf of all partners on the basis of the powers of attorney given by them which subscribe managing partner. In powers of attorney all restrictions of the competence of the partner concluding the agreements and the bargains with principals and the third parties are specified. The specified restrictions are brought to the notice principals and the third parties.
Change of participants of the partner contract. At an output from the partner contract of one of partners it is obliged to transfer managing partner manufacture of all has put, on which rendered a legal aid.
The responsibility of a lawyer bureau for default by partners of the obligations. For default of the obligations by one of lawyers - partners all lawyers - partners bear a joint liability all property before the creditor. The lawyer which has left the partner contract, answers before principals and the third parties under the general obligations which have arisen during his participation in the partner contract.
The termination of activity of a lawyer bureau. Activity of a lawyer bureau stops in connection with cancellation of the partner contract. The partner contract stops on the following bases:
Expiry of the term of action of the partner contract;
The termination or stay of the status of the lawyer being one of partners if the partner contract does not stipulate preservation of the contract in attitudes between other partners;
Cancellation of the partner contract on demand of one of partners if the partner contract does not stipulate preservation of the contract in attitudes(relations) between other partners.
Consequence of cancellation of the partner contract. After the termination of the partner contract lawyers are obliged to conclude the new partner contract. If the new partner contract is not made within one month from the date of cancellation of the former partner contract the lawyer bureau is subject to transformation to Bar or liquidation. The decision on liquidation goes to judicial authorities which bring record in the uniform state register of legal persons about the termination of activity of a lawyer bureau.
From the moment of the termination of the partner contract, his participants bear a joint liability under the not executed general obligations concerning principals and the third parties.
The lawyer bureau can be transformed extremely into Bar.
From the moment of the termination of the partner contract and up to the moment of transformation of a lawyer bureau in Bar or the conclusion of the new partner contract lawyers have no right to conclude the agreement on rendering of a legal aid.
Positive economic aspects of establishment of a lawyer bureau:
Attachment to a name;
Starting accumulation of means;
Partner attitudes of lawyers;
Conducting common causes of a bureau managing partner;
Joint business management, distribution of charges.
Attachment to a name. As a rule, "nucleus" of a lawyer bureau are one or several known lawyers. Their authority serves as the original authorized capital of again created lawyer bureau, guaranteeing already at the first stages of work presence stable клиентской bases.
Starting accumulation of means. The incorporated starting capital for opening a lawyer bureau allows to create more comfortable conditions for the beginning works. More dear office, fast and qualitative repair, modern office furniture become possible at association of financial efforts of lawyers - partners.
Partner attitudes of lawyers. In a lawyer bureau of the attitude are constructed on trust and a generality of interests fixed in the partner contract. It allows lawyers - partners to share with each other legal technologies, the legal subtleties directed on achievement of the uniform purpose.
Conducting common causes of a bureau is carried out by managing partner. It allows ordinary lawyers - partners to not distract on realization администраторской and other economic activities and to concentrate all efforts on conducting lawyer has put firms.
Joint business management. The agreement on rendering of a legal aid with the principal consists on behalf of all partners that allows to conduct and to represent interests of the principal collectively.
Distribution of charges. Charges and the losses suffered by a lawyer bureau, are distributed directly between all lawyers - partners. It allows to develop though also more risky, but also more profitable legal projects.
Negative marketing aspects of a choice of the form of lawyer formation " a lawyer bureau ":
Transfer has put at an output from a lawyer bureau;
Crisis of growth of lawyers - partners;
Difficulties of management.
Transfer has put at an output from a lawyer bureau. The left lawyer is obliged to transfer managing partner of manufacture in all affairs on which rendered a legal aid. The left lawyer continues to answer before principals and the third parties under the general obligations during his participation in the partner contract.
Joint liability. For default of the obligations by one of lawyers - partners all lawyers - partners bear a joint liability all property before the principal. From the moment of the termination of the partner contract his participants also bear a joint liability under the not executed general obligations concerning principals and the third parties.
Универсализация approaches. The usual partner attitudes developing under unconditional domination of managing partner, at times interfere with development of individual approaches of other lawyers - partners. Thus, the professional authority not each lawyer - partner, and all lawyer bureau as a whole and his managing partner raises.
Crisis of growth of lawyers - partners. At ordinary lawyers - partners the opportunity of promotion of the name in the market of lawyer services is limited. The majority of achievements of the lawyer will be will get in a coin box of his lawyer bureau.
Difficulties of management. The essence of a lawyer trade means individuality and psychological independence of the lawyer. With such psychological installation as independence, to lawyers - partners difficultly happens to come to the general opinion - both on questions of management of firm, and on questions of conducting concrete lawyer has put. All this results in rather often disorder of lawyer bureaues with significant negative economic consequences.
The Bar is the form of the lawyer activity close to such organizational - legal form, as a society with limited liability.
Establishment of Bar. Found Bar two and more lawyers can.
1. Creation of the charter and the conclusion of the constituent contract. Constituent documents are made in the simple written form.
2. The notice of lawyer chamber. About establishment of Bar its founders direct to advic of lawyer chamber the certified mail the notice.
3. The state registration of Bar. The Bar is considered founded from the moment of its state registration. The state registration of Bar, and also entering into the uniform state register of legal persons of record about the termination of its activity are carried out in the order established by the Federal law from August, 8, 2001 N 129-FZ " About the state registration of legal persons and individual businessmen ".
Work of Bar. The Bar is the legal person, opens accounts in banks according to the legislation of the Russian Federation, has a seal, stamps and forms with the address and the name of Bar containing the instruction of the subject of the Russian Federation in which territory the Bar is founded.
The Bar has the right to create branches in all territory of the Russian Federation, and also in territory of the foreign state if it is stipulated by the legislation of the given foreign state.
The lawyers which are carrying out lawyer activity in branch of Bar, are members of the Bar which have created the appropriate branch. Members of Bar do not answer under its obligations; the Bar does not answer for obligations the members.
The Bar, according to the legislation of the Russian Federation, is the tax agent of the lawyers being its members, under the incomes received by them in connection with realization of lawyer activity, and also their representative by calculations with principals and the third parties and to other questions stipulated by constituent documents of Bar.
Agreements on rendering of a legal aid consist in Bar between the lawyer and the principal and are registered in the documentation of Bar.
The Bar can be compared to set of lawyer studies working under one roof. As against a lawyer bureau, board collective - partner attitudes between lawyers are not peculiar.
The reputation of the lawyer will depend on the lawyer since the lawyer himself searches to itself for clients, except for cases when clients come in board and managing board distributes clients to this or that lawyer.
Let's consider the following positive marketing parties of creation and functioning of Bar as forms of lawyer formation:
Reception of experience of lawyer activity;
Division of charges under the maintenance;
Creation of a network of branches;
Individualization of the agreement with the principal;
Reach for clients, limited liability.
Reception of experience of lawyer activity. For beginning lawyers work in board will allow to get experience of practical work. Besides to beginning lawyers can pass some affairs from their senior colleagues - lawyers.
Division of charges under the maintenance. Feature of board and a lawyer bureau is that the charges connected to their maintenance (a rent, accounts department, forms, information production), are directly divided between their founders.
Creation of a network of branches. The Bar as it was spoken above, has the right to create branches in all territory of the Russian Federation, and also in territory of the foreign state if it is stipulated by the legislation of the given foreign state. In case of creation by Bar of the name in the market of lawyer services, she can "sell" it for creation by other lawyers of the branches.
Individualization of the agreement with the principal. The agreement on rendering of a legal aid consists in Bar directly between the lawyer and the principal and is registered in the documentation of Bar. It independently enables the lawyer to supervise the клиентскую base, that it is impossible, for example, in a lawyer bureau. Reach for clients. As a rule, the Bar is large enough lawyer formation, therefore presence of ramified office network allows to speak about their greater reach potential clients.
Limited liability. As it was already told, members of Bar do not answer under its obligations, and the Bar - does not answer for obligations the lawyers. All this minimizes risk of financial charges of lawyers under obligations of the colleagues.
To the negative parties of Bar as forms of lawyer formation can be attributed:
Charges on the state registration;
The bulky device of management.
Charges on the state registration. As the Bar is a legal person, financial expenses at its establishment it is much more, than at creation, for example, a lawyer study.
The bulky device of management. As well as at work of any large enterprise, in work of Bar there are problems of the expanding device of management - last, naturally, demands the increasing financial charges.
In summary we shall note, that the law provides ample opportunities for a choice the lawyer of the form of the work. It enables the lawyer, knowing the strong and weak parties of various organizational forms to choose what most of all approaches at the present stage of his lawyer activity.
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