Exc.1 Compare professional titles in Great Britain, America and Russia.

 

 

THE LEGAL PROFESSION IN GREAT BRITAIN

The legal profession in England is divided into two main groups, barris­ters and solicitors. A popular definition of the distinction between solicitors and barristers is that barristers do the court work and solicitors do the office work. In practice, the major volume of court work is done by solicitors and barristers do much "office" work. At present no solicitor, however experi­enced, may represent a client at a full hearing in any of the higher courts. On the other hand, a barrister, however inexperienced, may represent clients in the House of Lords.

Being a solicitor does not simply involve acquiring a knowledge of the theory and practice of the law. It also requires high standards of conduct and an onerous obligation to the courts. The full title of a solicitor is "Solicitor of the Supreme Court". All solicitors are automatically officers of the court. They have duties to the court which sometimes override the duties to their clients. For instance, solicitors must not knowingly allow their client to tell lies in the witness box. If a client confesses their guilt to a solicitor, the so­licitor would be committing an offence if he or she then called the client to give evidence that they were innocent.

Many barristers, especially junior barristers, spend much of their time on paperwork, giving opinions, drafting pleadings and other documents related to court proceedings, but also drafting contracts, trust deeds and other formal legal documents which are not immediately connected with litigation.

A person seeking to qualify as a solicitor can become a trainee solicitor after three years of university legal education and one extra year doing the legal practice course. As a trainee solicitor it is possible to obtain a paid po­sition even before qualifying.

The young would-be barrister has much less chance of earning anything before he qualifies, must then obtain a seat in chambers from which he can try to build up a practice, knowing that, times will probably be hard for a few years. He has to meet his own expenses, cover his own holidays and buy his own (very expensive) sick-pay insurance. In return he gets the sat­isfaction of wearing a wig, and of being self-employed. Doubtless also, being a barrister still sounds a much more glamorous occupation than being a solicitor.

 

THE AMERICAN LEGAL PROFESSION

The American legal profession, like American law, has it roots in England, but with significant differences. In England, the legal profession is divided between office lawyers, known as solicitors, and courtroom lawyers, known as barristers.

In the United States, there is no division of the profession, and a lawyer frequently does both office work and courtroom work. There is, however, a great deal of variety in the types of work done by lawyers. Attorney

Depending upon the circumstances and the needs of the client, the lawyer may be a counselor, a negotiator, and/or a litigator. In each of these roles, the lawyer will need to engage in factual investigation.

With respect to each of these roles, the lawyer will do the following:

Counselor: Attorney will help advise the client how to order the client's

affairs.

Negotiator: Lawyer will work with opposing counsel to try to get a fa­vorable resolution for the client. The art of negotiation involves many tech­niques individual to particular attorneys and the circumstances. The client always retains the right to accept or reject a settlement negotiated or of­fered by the opposing party.

Litigator: In litigating, the attorney will help pick a jury and participate in pre-trial motions.

Fact Investigator: All of the lawyer's roles require the investigation of relevant facts, including locating and interviewing witnesses.

A lawyer is to be a zealous advocate of the client, in this respect the lawyer must advocate on the client's behalf and avoid conflicts of interest. The lawyer is also an officer of the court and is required to deal fairly and honestly with the court and with its other officers, including the lawyer's opponents.

Judge

The judge is the final arbiter of the law. The judge is charged with the duty to state, as a positive matter, what the law is. In addition, the judge is to maintain order in the courtroom.

Judges in federal courts are appointed by the President with the "advice and consent" of the Senate. Many state court judges are elected by popular vote.

 

 

TYPES OF LEGAL PROFESSIONS IN RUSSIA

Lawyers in private practice in Russia work mostly within colleges of ad­vocates — self-managed cooperative-type organizations. There are about nineteen thousand advocates in more than one hundred colleges. The highest body of advocates' self-management is the general meeting of a college. The presidium headed by the chairperson is the executive board of each college. The presidium is elected by the general meeting for a term of three years.

Colleges of advocates are formed in accordance with territorial subdivi­sions - in the cities, regions (oblasts), republics or autonomous entities. In its territory any college is represented by law firms or legal aid offices, which render all regular legal assistance to citizens: advocates counsel people, draft legal documents, represent plaintiffs or defendants in civil litigation, and provide defense in criminal proceedings.

There are now more and more American-type law firms in Russia func­tioning separately from colleges of advocates and especially involved in representing private businesses.

Many lawyers are employed by the law offices of enterprises, ministries and agencies as in-house counsel (jurisconsult). These lawyers have all powers of an attorney, but they represent their single and permanent "client" -their respective organization. There are about twenty thousand of them in Russia, and in view of the economic reform this body is growing.

Of course, many in the legal profession teach or do academic research work. In Russia there are forty institutions of higher education in law (either a law school attached to a university or a separate entity called a "juridical institute"). New private law schools are popping up. There are also separate research centers in law, the most prominent of which is the Institute of State and Law under the Academy of Sciences of Russia.

 

PART 11

 

Law of contracts

 

The law of contracts considers such questions as whether a contract exists, what the meaning of it is, whether a contract has been broken, and what compensation is due the injured party. In theory, contractual obligations should be concluded Between parties of substantially equal awareness and bargaining power and for purposes fully approved by society.

In the simplest definition, contract is a promise enforceable by law. The promise may be to do something or to refrain from doing something. The law reflects this Utopian idea in the sense that it tends to conceive of contract as an arrangement freely negotiated between two or more parties of relatively equal bargaining power. The making of a contract requires the mutual assent of two or more persons, one of them ordinarily making an offer and another accepting. If one of the parties fails to keep the promise, the other is entitled to legal recourse. The manifestations of intention required to form a contract are accordingly thought of as indicating real willingness, although in fact they may simply represent acquiescence. Contract law in such cases provides only what can be called the legal relationship.

Exc.1 Give Russian equivalents to the words given in bold type.

 

DEFINITION OF A CONTRACT

A contract may be defined as a legally binding agreement between indi­viduals or between a state and an individual. Binding agreements between states are treaties.

This means that the agreement generates rights and obligations that may be enforced in the courts. The normal method of enforcement is an action for damages for breach of contract, though in some cases the court may compel performance by the party in default.

Contracts are classified into "contracts by deed" and "simple contracts". The contract by deed must be in writing and must be signed, witnessed, and delivered. Promises made by deed do not need to be supported by consid­eration in order to be enforceable.

All other contracts may be classified as simple contracts, whether they are made in writing, orally or by conduct. Another way of classifying con­tracts is according to whether they are "bilateral" or "unilateral".

In case of a bilateral contract a promise by one party is exchanged for a promise by the other. The exchange of the promises is enough to make them both enforceable. In case of a unilateral contract one party promises to do something in return for an act of the other, as opposed to a promise. There are three basic elements in the formation of a valid contract. First, the par­ties must have reached agreement (offer and acceptance); secondly, they must intend to be legally bound; and thirdly, both parties must have pro­vided valuable consideration.

A contract consists of various terms, both expressed and implied. A term may be inserted into the contract to exclude or restrict one party's liability.

A contract may be invalidated by a mistake, or by illegality, and where the contract has been induced by misrepresentation, duress or undue influ­ence, the innocent party may have the right to set it aside.

Many people assume that a contract is only legally enforceable if it is in writing and signed by the parties to the contract. This is a mistaken belief: most of us during our daily lives enter into unwritten contracts which are as legally enforceable as the most complex written documents. Simple trans­actions such as the purchase of a bus ticket or a packet of frozen peas from a supermarket are enforceable agreements and governed by the rules of the law of contract.