Conventional judicial representation by lawyer. Legal identity and characteristics

• Author: Dana Lucia Tulai
• Position: Ph.D. in Progress, Assistant Professor, 'Babes-Bolyai' University of Cluj-Napoca, Political Economy Department
• Pages: 50-53

CONVENTIONAL JUDICIAL REPRESENTATION BY LAWYER.

LEGAL IDENTITY AND CHARACTERISTICS

Dana Lucia Tulai*

Abstract

Legal doctrine r eveals the difficulties one meets in establishing the jur idical identity of the contract tha t

is being concluded between a lawyer and their client, precisely because of the co mplexity of the lawyer’s

mission, as well as because of the peculiar ities of this bond.

Keywords: judicia l representation, la wyer, mandate.

Introduction

Legal representa tion is a well-known institution both in pr ivate and procedur al la w. Judicial

representa tion causes grea t interest from the pa rt of the litigants, a s well as for the purp ose of justice

implementation. Most of the times, litiga nts do not possess the legal knowledge that is necessar y in order o

successfully confront the judicia l ba ttle. Therefore, they often resort to more qualified individua ls, who ha ve

proper lega l training, in order to a dvise them in their actions and to r epresent them in fro nt o f judicial

institutions. Efficient legal defence during a lawsuit also has major co ntribution to ensuring a lawful, solid court

decision.

There are some cases in which the right to judicial representation is li mited, litigants being compelled to

personally sta nd in trial: when req uests for divorce are being judged by the court of first instance, with some

exceptions stipulated by art. 614 of the Civil Procedure Code; also when an swering interrogation, with t he

exception provided by art. 223 of the same bill.

1

Conventional judicial representation finds its legal regulation within a group of b ills. First of all, the

Civil Code, which regulates the mandate contract (art. 2009 to 2038). The Civil Procedure Code stipulates some

special rules concerning the litigants`representation during a lawsuit (art . 67-73). Law n. 51/1995 Concerning the

Organization and Practising of the Lawyer Profession completes these legal stipulations by regulating

conventional judicial representation in those cases when it is p erformed by a lawyer. art. 3, ¶ 1(b) stipulates that

the lawyer’s activity materializes as legal assistance and representation in the court of law, in connection with

criminal pursuance bodies, with authorities that have jurisdictional attributions, with public notary offices and

judicial executors, with public administration bodies and institutions, as well as with other legal persons, withi n

the limits statued by the law. We can find a similar text of law in art. 91 of the Lawyer P rofession Statute.

As art. 3 of Law n. 51/1995 regulates, a lawyer’s activity is being accomplished by legal consultation

and claims, assistance and representation in connection with j urisdiction bodies, criminal pursuance bodies and

public notary offices. They use particular legal means to defend the rights and legitimate interests of clients in

relation with public authorities, institutions and any domestic or foreign person. They also draw up legal

documents and use any other legally permitted means in exerting the right to defense.

Thus, the lawyer carries out some material, technical operations, drafts procedural documents, but they

also offer legal advice and representation to their clients.

Legal doctrine reveals the diff iculties one meets in establishing the juridical identity of the contract that

is being concluded between a lawyer and their client, precisely because of the complexity of the lawyer’s

mission, as well as because of the peculiarities of this bond.2

An op inion expressed in doctrine is that the contract between a lawyer and their client is a complex

contract, which combines heterogeneous elements; some of them are typical of services performance contract or

of work contracted out, others characterize the mandate agreement.3

Before the release of Law n. 51/1995, authors expressed the opinion that in any of its forms, legal

assistance consists of a “to do” obligation, that is to perform lawyer services, which mea ns we are talking about a

services performance contract.4 However, an author emphasises that when the object of the contract is judicial

representation, the identity of the agreement will be that of a judicial mandate; in such a case, the rights and

bounds of the contracting parties will be ruled not only by Law n. 51/1995, but also by the Civil Code provisions

concerning the mandate, as well a by those of the Civil Procedure Code, related to judicial mandate.5 In any case,

considering the legal assistance contract to be a services performance contract contradicts the characteristics of

*Ph.D. in Progress, Assistant Professor, “Babes-Bolyai” University of Cluj-Napoca, Political Economy Department, e -

mail:dana.tulai@econ.ubbcluj.ro

1 G. Boroi, O. Spineanu Matei, Codul de procedura civila adnotat, All Beck Publishing House, Bucharest, 2005, pp. 347, 785.

2 I. Deleanu, Tratat de procedura civila, vol. I, All Beck Publishing House, Bucharest, 2005, p. 570.

3 Ibidem, p.572.

4 Fl. Teodosiu, V. D. Zlatescu, Contractul de asisten juridic, in Revista român de drept, 1986, n. 8, p. 22.

5 M. Banciu, Reprezentarea în actele juridice civile, Dacia Publishing House, Cluj-Napoca, 1995, p. 192.