Analysis Of The Professional Role-Location Of Lawyers And Their Duties

The lawyer came into being along with society's development, the society is the deep soil of its growth. the roles of the lawyer originates from the society, which is the result from the demand, the anticipation and the appraisal of the society. Under different social environment, the role localization of the lawyer is also different. Moreover, in the different historical stage, the lawyer will also present the different roles. Most of the western nations often locate the lawyer as a free professional person, which emphasizes the independence of the lawyer. However, our country for the lawyer's localization, not only has not given the independence of the lawyer, moreover, its potential judicial auxiliary function and the inborn political function has not obtained enough attention on the legislate or system construction and other aspects. The lawyer is just the tool of the client which provides the legal service, and the green bag is also the intermediary organ which merely take profit-making as the goal. Therefore, it's extemely urgent to locate the roles of the lawyer reasonably and accurately. Not only is it the most important question to resolve for the development of the lawyer and the green bag, but also it is badly needed for the building of the law-construction and harmonious society.Because the historical development of Chinese lawyers is very short, the understanding of the professional roles of the lawyer is also limited, there is also great dispute to lawyer's professional role's localization in the current legal profession and the academic circle. Some scholars analyze the lawyers' professional role omni-directionally in the Chinese linguistic environment, proposing that "the lawyer plays the unique role in the legal professional community who has the good faith, the automaticity, the folk character, the marginality, the serviceability, the independence, the multiplicity and the risk." Some scholars, from the angle of the law-sociology, with law-sociology's methods, "restore the lawyer into the legal person, the political person, the economic man, the cultural man, the moral person ". In addition, some attorney "locates the social role of lawyers as the judicial officials in the folk." Various scholars and lawyers have locateed the professional roles of the lawyer from the different angles, which have their own basis respectively, but I think that "the role" is related to the behavior, which is dynamic, so we should manifest it in certain social relations. Meanwhile, the professional roles-localization of the lawyer should be also analyzed through the all kinds of relations betweeen the lawyer and the society. Therefore, this article locates the roles of the lawyer and analyzes its responsibility through sorting out the lawyer-client relation, the lawyer-judicial official relation and the lawyer-politics relation which uses the historical method, the comparison method and the method of integrating theory with practice.In most of western nations the lawyer is located as free professional, which emphasizes the independence of the lawyer, but in our country the role-location of the lawyer has experienced the legislative change many times along with the development of the politics, the economy, society and the culture, which is from "the legal officer of our country" to "the specialized legal professional for the social service", and then to "the practitioner who provides the legal service for the society", until "the practitioner who provides the legal service for clients". Although the awareness to the professional role of the lawyer has been raised unceasingly, some inherent flaws have not been solved in the fundamental way. Not only has the complete independence not been still entrusted with the lawyer, but also the political mission has not been entrusted that the lawyer participates and discusses in polictics actively and so on.To analyze the professional roles of the lawyer, first of all, we should begin with the analysis of the lawyer-client relation, among which there is the most primitive and the most fundamental role of the lawyer. The lawyer accepts the commission of the client, and then exercises the agency power within the limit of power authorised by his clients to defend the client's legitimate rights and interests with every effort. In the principal-agent relation between the lawyer and the client, the lawyer plays the independent role of the entursted agent essentially. The lawyer is completely independent from the client, which is not only because it's the condition that the lawyer and the occupation can emerge and exist, and the safeguard that the lawyer can realize the legal function, but also it's the premise that the lawyer can obtain the respect, approval and support of the social populace widely. However, some lawyers keep consistent excessively with the interests of their clients and cannot scrupulously keep independent, which require we should not only improve the lawyer's professional quality and ethics level, practice the self-regulation system of the profession to the occupation and the community of the lawyer, but also should revise Act of Lawyer as soon as possible to stipulate the lawyer as the independent and free legal practitioner explicitly. The principal-agent relation between the lawyer and the client also requests the lawyer to scrupulously follow the duty of confidentiality. Moreover, when the duty of confidentiality of the lawyer has conflict with the duty of being honest to the court, the principle should be insisted that the duty of confidentiality of the lawyer is prior to the duty of being honest to the court, meanwhile, to seek he balance of both of the duties. Although the society loses the benefit of some case because of keeping the confidentiality, simultaneously, more benefits will also be obtained.Although the lawyer is different from the public prosecutor and the judge on the aspects of social division of labor and the function of lawsuit, they all belong to the legal professional community. They have the common educational background, the common occupational consciousness and the professional idea and the common professional ethics which enable them to have the common legal occupational belief. In fact, the ultimate goal of their occupation is also consistent that they make their effort to maintain the legitimate rights and interests, ensure correct implementation of the laws and realize the fairness and justice of the society, in which the lawyer plays the role as the judicial auxiliary staffs. However, some problems on the systems of our country, the quality of judicial officials, the lawsuit pattern, the lawsuit culture and the excessive pursuit of the substantive just and so on, cause the imbalance of their powers or rights among the lawyer, the judge and the public prosecutor in the legal system frame, moreover, the responsibility they undertake is aslo imbalance in the entire judicial responsibility system, which causes the role function as the judicial auxiliary staffs hasn't been displayed fully. Therefore, Not only should we construct the legal professional community as soon as possible and cultivate their common occupational belief, but also we should entrust the lawyer with enough lawsuit rights to get the balance of the powers or rights between attorney and public prosecutor, meanwhile, strengthen the surveillance and the restraint of the lawyer to the judge. Only in this way can the lawyer play the important role as the judicial assistant to maintain the correct implementation of national laws and the fair and the justice of the society.In the western law flourshing developed countries, the lawyer has the important position in the politics. The lawyer is skilled in the law, has a more profound understanding to the demand of various social strata's benefits and they advocate the democratic government by law, which make the lawyer have the natural unique superiority to play the role as the political person. Therefore, the lawyer should participate and disscuss in politics positively and actively to promote the democracy and the law-construction. However, in our country, the role of the lawyer as the political person is still one kind of expectation role. Not only is the consciousness of the lawyer to participate and discuss in politics not strong, but also the opportunities to participate in politics are very scarce, and the legislation also lacks the role-localization. Therefore, except for enhancing self-consciousness of the lawyer to participate in politics and advancing the political reform positively, the Act of The lawyer should be revised as soon as possible to locate the role of the lawyer as the political person, and to entrust the lawyer with the political mission to participate in government positively, discuss politics and promote democracy and law-construction.The well-known jurist and lawyer Mr. He Weifang has said that "In the countries that are ruled by advanced legal system, the functions of the lawyer are not only limited to the judicial domain, they play the important role on the the more widespread management of social affair". The particularity of the occupation of the lawyer decides that the lawyer plays rich roles in the social life. They play the role not only as the independent agent to defend the legitimate rights and interests of clients, but also as the judicial auxiliary stuffs to ensure the correct implementation of the laws and maintain the fair and the just of the society. In addition, the time summons the political awareness of the lawyer awaken, expecting they play more important role in the political stage to make more contribution to our democracy and law-construction through participating in government positively and discusses politics actively.