- What is legal representation
- Requirements for representatives
- Who cannot represent the interests of the parties?
- Representation types
- What powers does a legal representative has
- What is a power of attorney
The representation in court is much wider than simply executing assignments on behalf of the plaintiff or defendant. First of all that is a protection of the interests and rights of the client in front of the opponent. The result of the case directly depends on the quality of the presented arguments. The powers of a representative in civil and administrative cases are mostly similar, but each type of legal procedure has its own specifics.
What is legal representation
According to the Code of Civil Procedure, the representation in court – is a procedural action that one person does in favor of another. The procedure of involvement of third parties to participate in case is stated by the Code of Civil Procedure and the Arbitration Procedure Code of the Russian Federation.
It is a right, not an obligation, of a person to use the assistance of a qualified specialist in a civil case. This requirement usually based on lack of experience and knowledge for self-defense of own interests.
Sometimes persons ask for the services of attorneys if they are not able to attend hearings in person. The presence of a representative does not exclude the right of the client to defend his own interests solely.
In case of civil proceedings, the same lawyer, while participating in the court trial, can also perform some functions “outside the court”, for example, communicating with government agencies, concluding deals, etc.
Requirements for representatives
The law states requirements for involvement of third parties as representatives in civil disputes. Acting on behalf of the plaintiff or the defendant in court may be capable persons whose powers to act in the case are duly stated and confirmed.
By representatives in court, with the exception of cases resolved by justices of the peace and district courts, may act lawyers and other persons providing legal assistance who have a higher legal education or an academic degree in law.
When an employee acts on behalf of an organization (employer), his status does not need to be confirmed. If representative is from the outside, then he will be allowed to participate in the hearings only after documents confirming education are presented (part 3 of article 59 of the APC RF).
Who cannot represent the interests of the parties?
As representative cannot act:
- a judge and other officials of the judicial system,
- the prosecutor,
An exception is the procedure required by law, for example, defense of own child, or participating in hearings on behalf of the state body in which the person works.
On March 1, 2021, a new regulation came into effect. Now an attorney is not allowed to defend a client if his status was cancelled before due to the fact that :
- found guilty of an intentional crime;
- evaded performance or performed improperly professional duties to the principals;
- violated the norms of professional legal ethics;
- unlawfully used or disclosed information received from the principal in the moment of completing his professional activities.
The types of representation in court differ depending on the type of proceedings and the grounds for initiating a case.
According to law
Representatives of minors, incapacitated or partially capable citizens are called legal: parents, guardians, guardianship and guardianship authorities. These people can, in turn, transfer their rights to a third party. It should be noted that the consent of the person presented to protect his interests is not required.
If the guardianship establishes discrepancies in the real interests of children and parents, it deprives the latter of the opportunity to participate in the process. In this case, the protection of the interests of the minor is carried out by an employee of the guardianship and guardianship authorities.
A lawyer can also be appointed by law in relation to people who have been officially recognized as missing. In this case, the property of a citizen whose whereabouts is currently unknown is transferred to the authorized person.
This type is relevant for all types of proceedings: administrative, civil, criminal. The only process where “representatives by law” are very rare is arbitration. This authority considers cases in which, due to the specifics , socially unprotected categories of citizens cannot participate.
Voluntary contractual representation is a procedure agreed between the defender and the principal. The agreement can be in writing and orally, as long as the agreement is mutual.
There are two types of voluntary representation in civil litigation:
- Indepedndent. The defended party does not attend the hearing, but advocates, lawyers, etc. , act on its behalf .
- Dependent. When both the specialist and the principal take part in the case at the same time.
In order to involve a lawyer into the civil process, it is not necessary to issue a power of attorney with a notary. It is enough to present an appropriate petition to the justice of peace or, before the start of the hearing, orally, under the minutes, declare the involvement of a particular citizen.
You can set a contractual relationship by concluding an employment contract or an agency contract.
On the basis of 27 Federal Law of the Russian Federation “Of Public Associations” , public organizations can participate as defenders and representatives , which have the right to protect the interests of not only members of their organization, but also other citizens. Provided that the possibility of carrying out these procedural actions is stated in the charter of the public association.
A person acting on behalf of a public organization has all the same powers as a voluntary representative with some exceptions: only those violated rights and interests are allowed to be protected that correspond to the objectives of this public association.
Public defenders also entering the process after obtaining consent from the principal and confirming their status.
There are exceptional cases when the right of representation in a civil court is appointed by a judge independently (Article 50 of the Code of Civil Procedure of the Russian Federation).
Thus, the state has the right to involve the defendant in protecting the interests if nothing is known about the location of this citizen, and attempts to define his residence address have not been successful. In administrative cases, attorneys or lawyers are not stating to the absent party.
In addition, this procedure is arising in case of liquidation or bankruptcy of organizations. In the first case, the function of the representative is assumed by the liquidation commission, in the second – by the arbitration manager.
What powers does a legal representative has
Representatives have all the rights and obligations of the persons on whose behalf they act. But there are a number of exclusive powers, the transfer of which must be stated in the power of attorney.
These are such procedural actions as:
- sign and file a claim;
- solely decide on the referral of the dispute;
- submit counterclaims;
- abandon the stated claims in full or in part, change the size of the claims;
- delegate powers;
- appeal against decisions;
- present writs of execution to executive bodies and independently receive sums of money from the defendant.
A detailed list of powers that must be indicated in the power of attorney is contained in part 2 of article 54 of the Code of Civil Procedure of the Russian Federation and part 2 of article 62 of the Arbitration Procedure Code of the Russian Federation.
What is a power of attorney
A power of attorney is an official document of the transfer of rights from a protected person to a legally competent person. Registration of representation in the court must be carried out by a notary or officials with similar powers. The executive body of the legal entity (director) can issue a power of attorney for its employee and certify it independently.
To confirm the authority, persons who represent the civil procedure in court must submit the following documents:
- citizen or individual entrepreneur – passport and certified power of attorney;
- legal representative – passport, document confirming family ties with the client or guardianship over him;
- attorney – a warrant, a attorney’s certificate, a power of attorney for the exercise of exclusive powers (if necessary);
- company employee – passport and power of attorney signed by the director;
- director of the organization – a constituent document, which indicates his powers, an order on his appointment to a managerial position, a passport;
- civil servant – power of attorney.
If a party which need an assistance does not want to issue documents for representation in court with a notary, then a lawyer can be brought in upon application. This rule is only relevant for civil and administrative processes. If an arbitration case is being considered, an official trust cannot be dispensed with.
In order for a defense attorney who does not have a document confirming authority in his hands to receive admission to participate in a civil or administrative proceeding, the party must personally apply for this. A person admitted to representation in a court of general jurisdiction automatically has powers, except for exclusive ones. If the lawyer and the principal attend the hearing together, a power of attorney is not required to exercise exclusive rights. The client himself can implement them.
Representation in the civil court is a difficult process that requires not only theoretical law knowledge, but also a lot of experience. The adversarial principle in civil proceedings is very developed, the burden of proving their positions lies on them. In 99% cases will not be successful without the high professional level of protection. A qualified lawyer will always be able to competently and most effectively build a line of defense:
- he will conduct a thorough analysis of the current situation and find the best ways to solve the problem;
- will do everything possible for the pre-trial settlement of the dispute;
- will collect a complete evidence base and draw up a claim;
- will present arguments from the advantageous side of the client.
Turning to specialists for a help, you can save a lot of time and nerves, as well to reduce possible risks to zero.