Prosecuting Charges for the Accomplishment of Certain Legal Activities. Protection, Guarantees and Limits in the Practice of the Lawyer Profession

Author:Andrei Zarafiu
Position:Associate Professor, PhD, Faculty of Law, University of Bucharest (e-mail: andrei.zarafiu@drept.unibuc.ro, andrei.zarafiu@mnpartners.ro).
Pages:121-140
SUMMARY

In any democratic society the lawyer plays an essential role in defending the rights and freedoms recognized by law. The actual accomplishment of his mission can expose the lawyer to some risks and pressures exerted by the same judicial authorities called to ensure compliance with the law. The current article aims to analyse the possible implications of prosecuting charges against a lawyer for... (see full summary)

 
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LESIJ NO. XXVI, VOL. 2/2019
PROSECUTING CHARGES FOR THE ACCOMPLIS HMENT OF CERTAIN
LEGAL ACTIVITIES. PROTEC TION, GUARANTEES AND LIMITS IN THE
PRACTICE OF THE LAWYER P ROFESSION
Andrei ZARAFIU
Abstract
In any democratic society the lawyer plays an essential role in defending the rights and freedoms
recognized by law. The actual accomplishment of his mission can expose the lawyer to some risks and
pressures exerted by the same judicial authorities called to ensure compliance with the law.
The current article aims to analyse the possible implications of prosecuting charges against a
lawyer for facts that represent nothing but concrete ways to perform some legal activities. The limits
within which such accusations can be formulated, the potential consequences of the criminal judicial
activity from the perspective of the basis of the accusations brought and the possible forms of protection
available to the lawyer will be considered.
Keywords: lawyer, protection, risks, guarantees, charges.
Introduction:
The study has as a starting point the
concrete situation of a Romanian lawyer
who has been the subject of a criminal
investigation for the way in which he
fulfilled his professional obligations. The
peculiarity of the case is given by the fact
that the lawyer did not act in his own name,
but as a member of a top law firm. Starting
from this factual premise, the analysis aims
to identify and test the effectiveness of the
legal protection that any lawyer should
benefit from when practising the profession
as well as the effective guarantees through
which this protection should be realized. The
article will follow not only the national
forms of the legal protection of the lawyer,
but, in particular, the supranational legal
instruments, capable of providing an
effective set of guarantees.
Associate Professor, PhD, Faculty of Law, University of Bucharest (e-mail: andrei.zarafiu@drept.unibuc.ro,
andrei.zarafiu@mnpartners.ro).
1. Preliminary aspects regarding the
pluralism of the notion of lawyer in the
Romanian judicial system.
Despite the apparent semantic
evidence, given by the widespread use of the
term, the technical meaning of the notion of
lawyer was no longer easy to establish with
the entry into force of the New Romanian
Code of Criminal Procedure. For the legal
practitioners, the semantic area of the
concept has always had a complex
dimension given that it was expressed in two
different registers that often interfere. Thus,
the quality of lawyer has a substantial but
also a procedural component. As the lawyer
capacity is expressed dynamically, the two
dimensions involved by his judicial
manifestation often overlap and create
confusion about the content and limits of
each of them. This was the reason for which,
in the former regulation, the two dimensions
122 Lex ET Scientia International Journal
LESIJ NO. XXVI, VOL. 2/2019
of the term were expressed by different
names: lawyer, for the substantial one and
defender, for the procedural one.
From a substantial perspective, the
lawyer is the only person who is able to
practice the profession of lawyer, free and
independent profession with autonomous
organization and functioning. This
dimension of the notion of lawyer evokes a
professional category consisting of persons
who have acquired, under the law, the right
to practice the profession in one of the forms
and by one of the modalities provided by
law. Even if in this sense a genre see ms to be
rather expressed, only the vocation for the
practice of the profession is of general order,
the effective quality being always exclusive.
In this respect, according to the provisions of
article 1 paragraph (2) of Law no. 51/1995
on the organization and practice of the
profession of lawyer, in Romania the
profession of lawyer can be practiced only
by lawyers registered with the table of
lawyers of the bar to which they belong, bar
member of the National Association of the
Romanian Bars (UNBR), being forbitten to
have bars established and functioning
outside UNBR. The interdiction to establish
other bars is absolute, the acts of constitution
and registration of these entities being null
and void. Thus, the substantial quality of
lawyer necessarily precedes the procedural
one, being its essential premise, and is
acquired as a result of meeting the material
conditions (regarding the admission to the
profession and acquiring tenure, seniority,
incompatibilities, etc.) provided in the Law
and in the By-laws of the lawyer profession
- Decision no. 64/2011 (published in the
Official Gazette no.898 of December 19,
2011).The quality of lawyer, once acquired,
1 TC Briciu, The main changes to the Law no. 51/1995 for the organization and the practice of the lawyer’s
profession, www.juridice.ro. The author states that the purpose of the lawyer's activity is to promote and defend
the rights, freedoms and legitimate interests of the individuals. This purpose may, in some cases, conflict with the
interests of the state or public authorities. The client could ask for help against an abuse committed by the authorities
themselves.
gives the holder the vocation to practice one
of the activities through which specific
activities may be performed, according to
the law, activities that are always listed
almost exhaustively. Considering the
substantial dimension of the quality of
lawyer, the lawyer is protected by law, but
only in the practice of the profession and in
relation to it.
In principle, the need for protection
and the tools through which it is provided by
the national authorities, are set out in article
7 of the By-laws of the lawyer profession
which transposes provisions provided for in
the European Union's Code of Conduct the
Decision no. 1486/2007. These provisions
state that in a society based on the values of
democracy and the rule of law, the lawyer
plays an essential role. The lawyer is
indispensable to the justice and the litigants
and has the task of defend ing their rights and
interests, acting both as adviser and defender
of his client. In the practice of the profession,
the lawyer may not be subjected to any
restrictions, pressures, constraints or
intimidation from the public authorities or
institutions or other natural or legal persons.
The freedom and independence of the
lawyer are guaranteed by law. The analysis
of these provisions showed that
independence is the essence of the
profession of lawyer, being a fundamental
principle of the organization and the
practice of the profession1.
The independence of the lawyer
cannot harm the interests of his client. The
lawyer is obliged to give the client legal
advice corresponding to the law and to act
only within the limits of the law, the current
by-laws and the code of conduct, according
to his professional belief. In Romania, the

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