The nature of the power of attorney and the role of ethical considerations

Abstract

Background: Jurisprudence is a science whose basis is moral and the word of any legal institution, especially the power of attorney is based on representation and permission of a person is based on morality. It is shown in the history of civilization, history and the evolution of peoples and nations that there have always been people have taken on the task of defending and realizing the right for another and in another name, where the person did not have the help and ability. Therefore, in according to this ethical issue, attorney representation is considered irreplaceable and permissible.

Conclusion: The attorney representation is usually known through two faces, which both of them are based on ethics and its continuity is also based on ethics. Its main face is the "attorney representation" that is the subject of the civil law, whose general rules are defined in terms of definition and conditions of its conclusion and its effects in this law. The other face is "judicial representation of attorney" which is mainly viewed with the same principles of civil advocacy. Advocacy, as well as close to civil advocacy contains a special nature of independent contractual representation influenced by the help of the people and the defense of the oppressed as a matter of ethics under the guise of observing the interests of the client.

Keywords: Litigation, Ethical considerations, Civil advocacy, representation, Professional ethics.

Introduction

The nature of advocacy has been discussed under the title of representation due to impact of its moral aspect, and investigated in the Iranian legal system as like French law on advocacy. Article 656 of the Civil law does not have the capacity to fully include judicial representation. Although in accordance with Article 664 of the Civil law and analyzed the advocacy with this article of the law. However, it is necessary that the advocacy under the domination of traditional Iranian law is reinvestigated. Regardless of the title of advocacy in the judiciary based on the people assistance as an ethical aspect, in principle, what other legal institution comply with this institution? For this reason, before stating the legal nature of the advocacy, the characteristics is stating and analyzing in order to determine the legal nature of this representation and the obtained results from it.

Structure and analysis of litigation

There is no definition for this type of attorney in the Advocacy Law. So, it is necessary to refer to the Civil law as a general law in order to review and analyze this representation. Article 646 of the Civil law on the representation of the judiciary states: "The lawyer in the trial is not the lawyer in the receipt unless the evidence indicates it, and also the lawyer in obtaining the right will not be the lawyer in the lawsuit." According to the power of attorney contract, the lawyer is obliged to perform the actions of the client's rights on the client's account as a substitute, according to the authority granted by the client according to Article 656 (1). The lawyer is also committed to the client's interests in all its aspects based on ethical aspects, including fidelity, confidentiality and loyalty. On the other hand, in accordance with the rule of respect for the actions of individuals as a moral matter pay the lawyer^, s wage. However, the basis of advocacy is based on assistance as a moral matter that the wage is not considered as a principles of the advocacy representation.

Implicit ethical conditions in the advocacy representation

In the attorney representation, we talked about the independence of the lawyer within the limits of the granted advocacy. But in the context of the advocacy and the representation on implicit conditions, its ethical content is very much manifested, which is nowadays called "professional ethics". Its source is the moral obligation of the lawyer as an oath, which contains the observance of ethics such as honesty and trustworthiness, non-revenge and defense of the right. The ethical aspects related to our subject refer to the relationship between the lawyer and the client and the lawyer with the litigant and the lawyer with the society, which is the most important aspect of professional ethics related to the relationship between the lawyer and the client.

Considering the client's interest as an ethical aspect of advocacy

A lawyer is not only obliged to comply with legal rules, but also has to comply with the moral requirements in performing his professional duties and even in his personal affairs. The lawyer is the deputy and trustee of the client and therefore must observe the client's interest in performing the power of attorney. Article 667 BC states this duty of the lawyer with the following words: ‌ "The lawyer must observe the interest of the client in his possessions and actions ..." The basis of the power of attorney is the client's assistance and assistance, the effect of which is to create a duty and obligation on the trust. And is an associate lawyer who, due to the client's trust in the lawyer, is given permission to take over the client's affairs, which requires observing the client's interests, and this is limited to the lawyer not considering his interests and decisions based on the client's economy. Limits and powers granted (2).

Therefore, the client leaves the manner of performing the power of attorney to the trustee, professionalism and care, and in a way to observe the client's interest, which is in his favor (3). But the purpose of expediency is to gain benefit and repel loss in the opinion of most, in other words, whatever is good and good, benefit and comfort of the client, and the criterion for determining the client's expediency is to observe the ethical aspect of the client's trust in obeying the client's general instructions. In order to be in its favor. Therefore, the principles and principles of religion, ethics, national traditions, social etiquette and decency and training related to the profession of advocacy, its moral and social aspect and the observance of the rules and duties and advocacy systems constitute its legal and nature aspect (4).

Observance of honesty duty as an ethical aspect of advocacy

The legal nature of power of attorney is also a trust contract and as a result, the foundations of its conclusion are trust and confidence between the lawyer and the client. In this regard, the civil law makes the lawyer the deputy client, which is a very high honor and the lawyer's action is the client's action. A heavy duty called fiduciary duty is entrusted to the lawyer as an ethical aspect of the power of attorney that affects its nature, the absence of which can shake the foundations of the power of attorney. Responsibility for loss and any violation and defect is that the fault goes back to the same non-observance of fiduciary duty, so fiduciary duty as a moral aspect has a fundamental role in the nature of litigation and from this point of view all judicial documents are notified to the lawyer by judicial courts. Its philosophy is the client's trust in the lawyer. On the other hand, according to the Code of Civil Procedure, a lawyer is prohibited from accepting a lawyer in a case that overshadows the aspect of loyalty and trustworthiness (5).

Protecting the client's secrets as an ethical aspect of advocacy

Although this aspect of the power of attorney may not be considered in concluding the power of attorney, but as its moral aspect, it is considered in the form of implicit conditions and thus the lawyer must keep the client's secrets, which is doubly important in the power of attorney, because The client raises some of his personal issues that his closest family members may not be aware of, and the requirement of advocacy is based on the same ethical basis, and the lack of sufficient information on the part of the client also disrupts the practice of advocacy. It is undesirable in the process and performance of power of attorney, as Article 30 of the Law on Power of Attorney, approved in 1315, stipulates that the lawyer must keep secrets that are known through the client's power of attorney, as well as secrets related to the client's dignity and credit. According to Article 81 of the By-Laws of the Independence of the Bar Association approved in 1334, in case of non-preservation of secrets in a way that overshadows the honor, dignity and credibility of the client, regardless of the relevant damages, is subject to disciplinary sanctions and criminal liability. According to Article 648 of the Penal Code, it is opened, and in fact the validity of the power of attorney This raises the question of the basis of advocacy as an ethical aspect that affects the nature of advocacy.

Representation of justice and lease of persons

First, we examine whether the contract of a lawyer can be an example of a lease for individuals? Then we explain the consequences of this perception of the legal nature of the contract of representation.

Civil power of attorney contract and litigation contract

There is a theory of unity of civil representation and litigation with the same traditional view, without a doubt, the motivation of individuals in choosing a lawyer is to defend their interests, and since defense is not part of the rights of personality and the possibility of full transfer of this right to others. Part of it to another without the possibility of restoring that freedom is in defense and is not considered a personal matter is right, therefore the right to freedom to dismiss the lawyer in the power of attorney is one of its main figures and on this basis the litigation contract is the same as the civil contract (16).

Article 664 BC refers to the lawyer in the trial, derived from traditional jurisprudence and view, and legal writings also implicitly consider the power of attorney to be subject to the rules of power of attorney in the general sense and the rules of civil law, although certain figures are considered. Has been. The power of attorney is one in many respects, and in appearance and origin it is the same as representation and permission (17), but at the same time they are different in some cases, some of which can be mentioned:

1- The relationship of a lawyer in a civil power of attorney contract is a private relationship between a lawyer and a client and is in the realm of private law, but the power of attorney while having a private relationship has a general legal basis and has many rules and the relationship between a lawyer and a client and the court. Third parties, which are examples of case law and are based on general principles and principles of procedure.

2- It is inherent in the discussion of the license of the power of attorney to communicate with the right of defense and guarantee a fair trial based on trust in the expertise and profession of the person and it can never be irrevocable and the condition of non-termination is based on formation and conclusion This contract is in conflict.

3- Another important issue is that the lawyer is obliged to follow the client's orders, but in the representation of the judiciary, there are some rules that the lawyer is required by the government and the law to carry out those legal instructions, especially in discussions of subpoenas. It has more and in any case, many of the results of the lawyer's action will be returned to the client even without permission.

Representation of the judiciary with the nature of an independent contractual representative

According to the services that the lawyer provides to the clients in different situations, in this respect, it has a dual nature, including the lease of individuals and representation. The provision of legal services by a lawyer is called representation, but if the lawyer's service is a material matter, it is called service rent.

The services of a lawyer are thus divided into two parts, and this contract has a separate nature in each case. The services of a lawyer in the mentioned tariff are considered in two forms, each contract is formed with a separate nature and the part where the lawyer's job is legal actions or legal possessions and acts on behalf of the client and its result and effects to the client. Returns in this case, the acts are representative in nature, such as a lawyer filing a lawsuit against a person or persons on behalf of his client and by obtaining representation from him, or settles with a third party on a matter in the name and account of the client, At the same time, the effects of the said acts are returned to the client, but when the action is performed by the lawyer, written and oral defense that the lawyer performs in order to clarify the issue and prove the legitimacy of his client or in the discussion of filing a lawsuit is a material matter. And the work of a lawyer has the nature of renting services.

If the contract between the lawyer and the client is a set of legal and material services in planning, pursuing and responding to the lawsuit, the result of these relations between the lawyer and the client is subject to a lease and power of attorney contract, which is referred to as a mixed theory (18).

And each of the lawyer's actions must be matched with each of the rental and agency institutions, and the resulting effects will be considered on the basis of each of these, and this assumption will be considered as long as there is no conflict. Violation of any of the obligations according to the type of action in the form of the nature of the lease and power of attorney is required to compensate, and in case of conflict between these two legal and material relations, if it is related to public order, the provisions of the dominant contract must be implemented and distinguished. The type of action is the nature of the lease of the persons or the power of attorney is the responsibility of the court, which according to the conditions and circumstances related to each contract and custom governing it, the legal or material nature of the act is recognized.

This theory has major drawbacks. Among other things, the distinction and recognition of the dominance of a legal entity over material or vice versa does not have a specific criterion and amount, and by referring to custom, no specific criterion or amount can be found for it, so this has caused severe differences and disorders in attorney-client relations. And overshadow the nature of the judicial system.

In some legal systems, such as Belgium, according to Article 1787 of the Civil Code, the provision of services is evaluated by institutions. The similarity in this regard is the comparison of the lawyer's independence in performing his duties and the lack of the element of compliance in the relationship between the lawyer and the client.

Taking into account the special provisions in the profession of advocacy, the first legal texts concerning this profession were formally considered in the French legal profession in 1810 and 1830 (20), in itself, indicates that the provisions of the law Civil law does not cover all relations related to advocacy in lawsuits and the adoption of new regulations indicates a special nature for this legal institution. Due to the independence of the lawyer's work, some supervision and controls are exercised over the legal profession by the government. And determines the client, the will and intention of the parties is in concluding this contract and as soon as this contract is concluded, the duties of the lawyer and the client are established and each of them is obliged to fulfill their obligations according to the special rules and conditions related to litigation.

In civil representation, a trust relationship occurs when one person (lawyer) realizes the interests of another person (client) and the agent must act on behalf of the client and be supervised by the client, in the examination of power of attorney, doubts in granting representation and representation There is no litigation in the power of attorney, and of course, the client, referring to the litigation lawyer, assigns the representation of the lawsuit or defense of the lawsuits to the lawyer by granting representation in addition to the attorney's fee. It is common, for example, for the client to simply state that the lawyer should try to minimize the client's financial loss; in short, the client's instructions can be very specific; the client first informs the defense attorney; Partnership with the client's instructions creates a lawyer-client relationship, and one of the client's inherent rights is to end the relationship, even if the lawyer does not agree with the termination, so it is obvious that the client's general instructions are welcome (20).

If the client's orders are at the same time legal and are done in regulating the type of lawsuit and the manner of defense of the specialized guidance lawyer, these instructions are also in the form of the client's general instructions that the lawyer has independence in doing the client's work according to his professional expertise. The client also has the right to terminate and terminate the relationship with the lawyer, and at the same time the client's right to end the relationship is always evaluated and preferred. And it reserves the right to respect the relationship between the client and the lawyer so that the client terminates the relationship whenever he loses his faith in his lawyer. And by depriving the litigant of trust, a good relationship will not be established between the litigant and the client, so the client can in no way be forced to accept representation by the litigant.

According to Article 256 of the Law on Advocacy, the client is not responsible for the actions of their lawyer, which is related to a professional and professional matter, and in this regard they do not deal with the lawyer-client relationship and the courts apply the traditional concepts related to advocacy. They do not, and they treat it very conservatively.

The courts, therefore, have no inclination to apply the provisions of civil law in the traditional way, and in litigation, the lawyer's professional responsibility is to limit or sometimes completely eliminate the client's responsibility for the lawyer's actions in terms of his professional work. The American Law of Attorneys (RLGL) states; The lawyer's action is considered to be the client's action if the client has explicitly authorized this action or later approved the lawyer's action, or if this action is required by the lawyer in accordance with the law or the relevant court (20).

Therefore, the special conditions of representation in litigation are usually concluded in spite of the intention and will of the parties in concluding the representation contract and from the point of view of the Code of Civil Procedure, the lawyer is not only a representative and lawyer on behalf of the client but also in independence. Has the power of attorney and in practice, according to the law, all judicial correspondence and notifications must be notified to the lawyer and if not notified to the client and not informed by the lawyer, the hearing will not be legally recognized, all these rules indicate that the lawyer The judiciary is independent of contractual representation. The same title of representation due to the client's permission and trust in the lawyer in terms of fidelity, observance of the client's interests, protection of the client's secrets and the principle of fidelity, which are all ethical aspects of advocacy that lies in the independence of the lawyer. It is not and the basis of advocacy is influenced by its moral aspects, which play an essential role in the nature of advocacy.

Conclusion

The formation of the nature of judicial representation requires that while granting representation on behalf of the client, the lawyer has independence in performing legal actions and draws his/her organizational activity plan based on legal thinking and reasoning. Instructions are provided to the lawyer that these instructions are considered very general, so that the client may simply state that the lawyer should try to minimize the client's financial harm. In other words, these instructions can be very specific. Participating in the practice of advocacy with the client's instructions builds the client-client relationship. These client instructions may at times be specialized, but these specialized instructions for the lawyer is considered general. Therefore, the consequences of the defect in performing the representation may be the responsibility of the lawyer, because the reason for referring and granting representation in the form of litigation, and trust in the lawyer as its moral aspect and expertise in performing the subject of representation. So, the responsibility arising from the performance of attorney in terms of drawing the plan and the form of the lawsuit in the form of a petition or complaint or defending it will be the responsibility of the lawyer. The above structure makes it possible for the lawyer, while being a representative and being considered as a contractual representative, to have independence in the manner of performing the representation, such as the treatment contract between the doctor and the patient. But the observance of the client's expediency as its moral aspect exists in the independence of the lawyer.

The vast majority of the authors considered the condition without dismissal of the attorney to be correct according to Article 679 BC. Accordingly, if the condition without dismissal of the attorney is stipulated during the necessary contract, it is one of the reasons for the impossibility of terminating it by the client, assuming the unitary nature of the civil power of attorney and lawsuits in case of condition without dismissal.

Furthermore, if we believe in the independence of the lawyer in the matter of representation and in case of condition without dismissal in this type of attorney, the client's freedom in exercising his opinion will be overshadowed in case of lack of trust in the lawyer because on the one hand he will not have the right to express a definite opinion and direct involvement to draw a legal method in defense, and on the other hand he will lose his right to dismiss with this condition without dismissal. As for the client's presence and participation in the hearing and self-defense in the desired and personal manner, and on the other hand, the defense of the lawyer in another way based on the irrevocable power of attorney is against the principles of trial and general judicial order. On the other hand, the relationship between the lawyer and the client is in conflict with the moral aspect, and this condition without dismissal overshadows the basic moral rights of the client.

Therefore, in the opinion of the condition without dismissal in the representation of the judiciary, due to the contradiction with the essence and necessity of the nature of this type of contract with its ethical considerations is not corrected and in this respect it is different from civil representation.

Ethical considerations

Ethical issues such as plagiarism, informed consent, multiple publication, etc. have been considered in the present study.

References

1. Katozian, N, (2006). Civil Law, General Rules of Contracts, Volume One, Publishing Company in collaboration with Bahman Borna, seventh edition, Tehran. (In Persian).

2. Delshad, E, (2017). Contract of Advocacy from the Perspective of Civil Law and Regulations of Advocacy of Justice, Mizan Publications, First Edition, Tehran. (In Persian).

3. Katozian, N, (1999). Civil Law, Lessons from Certain Contracts, Ganj-e-Danesh Library, Second Edition, Tehran. (In Persian).

4. Katabi, H, Advocacy, Aban Publications, Second Edition, Tehran, 1978 (In Persian).

5. Yousefi Mahalleh, E, (2007). Professional Ethics in Relations between Lawyers, Quarterly Journal of Ethics in Science and Technology, Second Year, Nos. 3. (In Persian).

6. Katozian, N, (1999). Definite Contracts, Volume 4, Publishing Company in collaboration with Borna, Third Edition, Tehran. (In Persian).

7. Ameli, Z.D (Shahid Thani), Masalak al-Afham al-Tanqih Sharia al-Islam, Volume Five, Comprehensive jurisprudence software of Ahl al-Bayt. (In Persian).

8. Isfahani, S. M. H, margin of the book Al-Makaseb, vol. 5, research: Sheikh Abbas Mohammad Al-Sabah Al-Qatifi, first edition, Bija, 1418. (In Persian).

9. Ameli, Z.D (the second martyr), Al-Rawdha al-Bahiyya in the explanation of the people of Damascus, Volume 4, the comprehensive jurisprudence software of the Ahl al-Bayt. (In Persian).

10. Kashif al-Ghatta ', M.H, author of the magazine, comprehensive software of Ahl al-Bayt jurisprudence.

11. Bagheri, A, (2005). Civil Jurisprudence "Ownership Contract - Sale and Lease", Samat Publications, First Edition, Tehran. (In Persian)..

12. Rah Peik, H, (2008). Civil Law, Certain Contracts, Volume One, Khorsandi Publications, First Edition, Tehran. (In Persian).

13. Kashani, M, (2009). Civil Law, Special Contracts, Mizan Publishing, First Edition, Tehran. (In Persian).

14. Nasiri, M, (1985). "The Real Theory and Alter ego", Legal Journal, Office of International Legal Services of the Islamic Republic of Iran, No. 2. (In Persian).

15. Emami, S. H, (1998). Civil Law, Volume II, Islamic Publications, Tehran. (In Persian).

16. Al-Sanhouri, A, Abdul Razzaq, A, translated by Hosseini Nejad, Hossein Ali, Lawyer Publishing, Tehran Press, 1997. (In Persian).

17. Gholami, J, (2015). Lawyer's Obligations, Majd Publications, First Edition, Tehran. (In Persian).

18. Qahramani, N, (2005). Civil Liability of a Lawyer, Nasan Nikan Publications, Second Edition, Tehran. (In Persian).

19. Campbell Dennis, professional liability of Lawyers. (published under the auspices of The center for international legal studies Salzburg, Austria, London, 1995.

20- Gracem, G, (2007) Clint responsibility for lawyer conduct: examining the agency wature of the lawyer, relationship, volam 86, university of fouisville schol of law.