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Senior Advocate, Master of Law, Official Judicial Expert

In The Name Of God

The role of organizational and administrative structure of bar associations in maintaining their independence and dynamism

By: Kioumars Sepehri

First Topic:

According to the critical article of Dr. Nemat Ahmadi, the esteemed lawyer of the judiciary, the correct and appropriate organizational structure of any legal entity can play an effective role in the continuation of its dynamic life. Given the role and importance of the judiciary in the implementation and generalization of justice in today's world, at least in principle and theory, both from an international perspective and from the point of view of domestic law of most countries, the independence of lawyers and the Bar Association is recognized as independent. The legitimacy of the Bar Association depends on what legal and executive solutions it provides, and how governments provide it, or how they limit this independence, and such issues have been widely discussed and many articles have been written. But it is less common to discuss the guarantee of the independence of the center and the lawyer with an intra-organizational perspective and through the dynamism of its organs and more internal supervision and control. In this regard, due to the increase in the number of centers and their members and the cultural and social developments in the country and consequently the legal community, in The new rules of advocacy require that a central organization be anticipated and designed for bar associations, and that organizations and their objectives, objectives, and tasks be designed and anticipated in a way that ensures excellence, dynamism, and health. This will certainly play an important role in maintaining the position of lawyers and their impact on the justice system. There is no doubt that one of the demands of the advocacy community is for lawyers to be represented by those in charge of the affairs of lawyers, as well as its members, both scientifically and practically, as well as morally and spiritually. This is largely due to the organizational structure and mechanisms. It is necessary in this regard in the relevant regulations. On the other hand, when the independence of the lawyer is rightly emphasized, one of its necessities is to ensure and guarantee the existence of the means and conditions of independence (such as science, experience, correctness of action, professional justice, observance of professional customs and ethics). Professional assignments and non-abuse of professional rights, etc., so how much better for the centers to guarantee these conditions themselves.

* Dear readers, please note that referring to the inadequacies or problems in this article, in no way considered a specific person or center of lawyers, but issues in general and in some cases, the goal is to foresee and prevent future problems.

Topic one:

The need to develop new regulations and create a central organization with specific tasks and powers

Population growth and the development of societies and the change of cultural, social and political conditions create new needs, the expansion of trade, economic and cultural relations and the transformation of many social issues in today's world have led society to specialize and complicate matters. One of the needs of such societies is the need for experienced and professional lawyers to solve the legal problems caused by the social problems of today's world, so the feeling of need for professionals is always increasing. These individuals, known in Iranian legal literature as "lawyers of justice," have multiplied several times in the past eight years. This increase in the population of lawyers has led to the establishment of Bar Associations in a large number of provinces (so that there are currently 20 independent Bar Associations in the country. Some provinces have trade unions). On the other hand, the general rules of advocacy have been around 50 years ago, with the view that there were no more than two or three centers in Iran, so these laws could not meet all new needs. Accordingly, there is no doubt in the approval of the regulations in accordance with the current conditions, and fortunately, this issue has been considered by the Bar Associations, the Judiciary and the Parliament (1), and plans and drafts are being prepared and compiled. But what is important is the content and provisions of these plans and drafts, which we hope will not be dealt with unilaterally or pessimistically or fanatically by all three institutions, and all the facts, requirements, needs and necessities: international, domestic, professional. And be professional in it. There is no doubt that with the increase in the number of centers (which should basically reach the number of provinces in the country in the near future) and their members, new issues and problems will arise that need to have a central organization that operates across the country and beyond the center. Provincial lawyers, it feels. 1. In this regard, please refer to the text prepared by the five-member board selected by the National Union of Bar Associations as a comprehensive law on advocacy in the summer of 2010 (which was prepared by the Kermanshah and Ilam Bar Association at the national conference in May 2010). The draft comprehensive law on advocacy was signed by 152 members of the Islamic Consultative Assembly and announced by the Presidium of the Islamic Consultative Assembly. The judiciary has also taken steps in this regard, although no details have been officially announced.

Therefore, one of the most important issues in terms of designing the new organizational structure of the Bar Association is the forecast of the Central Organization for Bar Associations, which can be under titles such as: National Bar Association or the Supreme Council of Lawyers or ... Name Be set.

In addition to the fact that bar associations are generally involved in executive work related to their duties, they may be unaware of some of the major legal issues of advocacy, or in terms of organizational and structural position and experience of administrators (whether board or other trustees). H) They are not able to do some basic and big things. On the other hand, according to the situation of different centers, there will be different differences of procedure and interpretations in performing the tasks and trying to achieve the set goals of the centers. Therefore, in important cases, it is necessary to have a reference (consisting of lawyers and centers themselves) to provide the necessary guidance. In addition, monitoring the centers is a very important issue that can provide the ground for further excellence and progress, and the only possible solution is to entrust it to the central organization of the Bar Association (National Center).

Another important issue is the need for planning and training, which requires the organization to design and implement the necessary mechanisms beyond the centers, and taking into account the macro, national and international goals.

Another issue that requires the existence of a national center is the need for an authority that can be contacted by the centers and their members (with a specific strategy and method determined by the legislature) to communicate with the three forces to advance the goals and tasks of the centers. And defend them and lawyers at the national and macro levels. Therefore, the following goals and tasks can be set for the Central Organization of Bar Associations (National Center):

A. Cooperation with the three forces of the country in the proper implementation of justice, legislation and the provision of legal, legal and defense services in international and domestic authorities.

B. Establishing and exchanging specialized and technical information with the Bar Associations of other countries and other legal and specialized institutions and creating the ground for the Centers and Lawyers to communicate with these authorities.

C. Adopting the necessary measures for the scientific and practical promotion of lawyers and legal and advocacy services through policy-making, publishing books and magazines (including electronic, etc.), compiling training courses, retraining, gathering in cooperation with lawyers' associations and teaching science and Techniques of the day required by the legal profession and cooperation with higher education centers with the field of law to promote the knowledge of law. Also, the National Center can establish a school to advance the teaching of professional and new specialties.

D. Holding an admission test for applicants for internship licenses based on the needs of different regions. With the cooperation of the National Assessment and Training Organization and the determination of scientific, practical and professional standards for law trainees.

E. Development of rules and regulations for grading lawyers and improving scientific competence and transfer of lawyers.

F. Establish a single procedure for performing the duties of bar associations and lawyers.

G. Propose amendments to laws related to legal affairs and legal services and more.

H. Take the necessary measures to protect the rights of users of legal and legal services.

I. Training and expanding civil rights and defending the rights of citizens and trying to prevent violations of human rights standards and cooperation with domestic and international authorities in this field.

J. Supervising the implementation of regulations by the centers and announcing possible violations to the relevant authorities.

K. Supervising the proper conduct of the elections of the associations and issuing the rulings of the members of the board of directors, inspectors and prosecutors of the associations.

L. Appoint a representative to participate in international and domestic forums such as legislative, executive and judicial.

M. Establishment of an arbitration center for domestic and international affairs and expansion of arbitration and cooperation with arbitration authorities and acceptance of arbitration by individuals and authorities.

N. Develop and approve or reject the proposals of the centers within the limits of the rules and regulations.

O. Take the necessary measures to improve and upgrade the administrative structure of bar associations and create an information network and communication between bar associations.

P. Development and approval of financial, transactional and employment regulations of the center

Q. Determining the membership fee of the members of the associations and proposing the fee for attorney's fees to the relevant authorities.

R. Protecting and defending the individual and collective rights of lawyers and defending the rights of bar associations.

S. Support for the trade units, professional and legal organizations.

T. Determining the minimum standards of legal and advocacy services where possible.

U. Preparing and codifying the code of professional conduct and enforcing it, as well as compiling the ethical charter of the centers and lawyers and promoting professional ethics in providing legal services.

V. Investigation of professional violations and violations related to the duties of the members of the board of directors, inspectors, prosecutors and disciplinary judges of the centers as well as the members of the national center.

W. Other duties assigned to or transferred to the National Center under the regulations. He added that the National Center should be composed of representatives of lawyers from all over Iran, and that the members of each association should have one or more representatives, which requires a detailed discussion and requires an independent article. Some issues are briefly mentioned and emphasized that the decision-making body in the central organization should be independent of the board of directors of the Bar Associations and should be directly elected by the members (lawyers). Have a manager (to divide the work and perform tasks better, etc.).

In view of the above, the elements and organization of the National Center (as a minimum) will be as follows:

1. General Assembly

2. Council of Representatives (consisting of representatives of all centers).

3. The Executive Board (including the Chairman and Vice-Chairman and two other members) shall be the executive pillar of the National Association and shall be elected from among the Council of Representatives. The Chairman may be elected outside the Council of Representatives under certain conditions.

4. Inspectors who will be in charge of inspecting the National Center as well as some issues of the provincial centers.

5. The Supreme Court and the Supreme Disciplinary Court (to deal with the violations of the officials of the centers and members of the National Center, as well as to reconsider the decisions of the disciplinary courts of the lawyers of the provinces and the electoral issues of the centers).

6. Arbitration Center.

7. Training Center.

8. Specialized departments and commissions (such as: International Relations Commission, Parliamentary Affairs Commission, Public Relations and Information Commission, Judiciary Affairs Commission, etc.).

In view of the above, the structure of the recently announced Islamic Consultative Assembly and the draft prepared by the five-member board elected by the National Union of Bar Associations of Iran (which makes the General Assembly of the National Assembly composed of the main members of the Board The directors of all the centers have been appointed as the main pillars of the National Center and the decision-maker in all the main issues of the National Center. Each center will have at least seven or five board members and a maximum of 13 people (Medicine) He designs and drafts) 300 General Assembly will be in the not too distant future this number will be much higher. It is clear that, first of all, the accumulation of this number will cause a lot of time and money and the use of many facilities and significant manpower. Secondly, it will be very difficult to discuss and decide on this number of lawyers (and generally experts) on various issues. Third, it will save a lot of time for these people and prevent them from doing their job better. Therefore, in order for the National Center to be able as an independent and national institution that strengthens and supports the provincial centers in every way, and at the same time has legal and calculated supervision, which will lead to excellence and progress. To be dynamic, the main pillar of the National Center (for example, under the name of the Executive Council of the National Center) must be composed of representatives of all centers and based on the number of members of each center. For example, the centers have up to 1,500 members, one representative and more than 3,000 members ... and a maximum of five delegates, who are elected at the same time as the board election. The term of membership in the Executive Council is the same as the term of membership in the Board of Directors. The Executive Council also selects the Attorney General and members of the Supreme Disciplinary Court from among qualified lawyers.

The inspectors of the National Center (for example, three people) will inspect the issues related to the inspection of the National Center and will examine and take action when necessary to solve the problems of the provincial centers. However, the General Assembly (consisting of the main members of the Board of Directors of the Provincial Centers) only has to perform limited tasks such as determining the general policy of the National Center and electing the President of the National Association from among the members of the Executive Council and beyond. (From among the members of the Executive Council) and it should not be left to the decision of other matters related to the goals and duties of the National Center (which generally requires numerous meetings, specialized and detailed discussions and various measures). In addition, the meetings of the General Assembly of the National Center should be limited to once a year.

Thus, with this method, the Executive Council is the main pillar of the center, and according to their number and representation on behalf of all centers, it can review issues well and professionally and with sufficient time and make the necessary decisions. The Executive Council will also have various commissions. He adds that the executive council in question has no authority and cannot be fruitful.

It is also possible to approve the qualifications of candidates for the Board of Directors and the Prosecutor's Office and the inspectors and the representative (or representatives) of the Executive Council to a delegation composed of the President of the National Center (or his representative). Assigned from among the members of the Executive Council (elected by the Council). Therefore, the defined goals and tasks and the pillars and structures foreseen in the mentioned plans are not complete and should be completed as described above so that the National Center can have the expected efficiency and dynamism.

The second topic:

Objectives and tasks, structure and necessary organization of centers

Given the current situation of the society and the situation of the Bar Associations and their members and the expectations and needs that exist, as at least in each center, the following should be considered and implemented as the goals and pillars of each center. It is worth mentioning that in some texts, the duties and powers are mentioned, which is not correct, because the purpose here is to determine the tasks and goals, so there is no authority, but action must be taken to implement these cases and should not be delayed under the pretext of authority.

A. The tasks and goals of the center

1. Managing the affairs of the judiciary, supervising the actions of lawyers and trainees

2. Holding internship courses and granting licenses for advocacy and internships to eligible candidates

3. Judicial assistance

4. Defending the professional rights of lawyers and association and supporting members in various authorities

5. Investigation of disciplinary violations of lawyers and trainees through the prosecutor's office and the disciplinary court of lawyers

6. Planning to improve the scientific and practical level of trainees and lawyers and holding short-term and specialized training courses

7. To create the necessary grounds for the exchange of ideas in order to ensure the rights of natural and legal persons and to defend the citizens and other rights and freedoms enshrined in the Constitution and to strive to ensure and generalize justice.

8. Establishment of an arbitration and development center for arbitration through legal means

9. Efforts to provide welfare facilities for lawyers and trainees

10. Maintenance and management of the property and rights of the center

B. Pillars and organizations of the provincial center

The center of the province has the following pillars:

1. General Assembly

2. The Board of Directors

3. Inspectors

4. The prosecutor's office and the disciplinary court

In addition, the following offices are formed in each center:

1. Help

2. Planning, training and testing

3. Arbitration Center

4. Protection and protection of civil rights

5. Public Relations and Information

6. Administrative Andy welfare affairs

It seems that the task of the General Assembly should be only to elect the members of the Board of Directors and the Inspectors and the Prosecutor, as well as the member or members of the Executive Council of the National Center (according to the number of members and the quality of the National Assembly) and very important and extraordinary issues. To convene a general meeting once a year as usual and in very important and necessary times to be extraordinary.

The board of directors will have the necessary duties and powers according to the goals and duties of the association, and in addition to what is in the competence of the national association and the general board, it will have the right to decide and act in this regard in legal texts and plans and proposals. Enough discussion has taken place. One of the necessary pillars in an independent organization is the existence of strategies for reviewing and monitoring the performance of the board of directors or the executive body of the legal entity. Inspection is anticipated, so predicting the selection of inspectors along with the board of directors should be considered a positive and necessary point and its benefits should be considered and discussed. Of course, it is necessary for the duties to be specified in the law in a precise manner and in accordance with the needs, wants and problems of the Iranian Bar Association, among the following duties:

A. Reviewing financial statements and verifying their accuracy and submitting reports to the General Assembly.

B. Examining the performance of the board of directors and other organs of the association in terms of performing legal duties or leaving them, as well as the duties assigned to them in the general assembly. C. Comments on possible violations and abuses of position and position by the members of the Board of Directors and their discrimination.

D. Reviewing and supervising the resolutions of the Board of Directors and announcing their compliance or non-compliance with the legal standards to the General Assembly.

E. Report any misconduct in the organs of the center.

F. Report any action that harms the reputation of the association and lawyers.

G. Examining the offices of lawyers in terms of compliance with legal obligations and providing services and other legal matters.

It should be noted that in the current regulations and according to Article 5 of the Independence Bill, one of the members of the Board of Directors is selected as an inspector, it is not possible to achieve the objectives set for the inspection because this will be effective when measures are taken. And the implementation of the executive and powerful pillar of the board of directors should be examined and reviewed by another independent pillar in order to easily identify its strengths and weaknesses. In addition, the principle is that no one reports against himself or herself to his detriment, so there is no doubt that the existence of an independent board of directors is useful in every way, while with an inspector, the board is always self-sufficient. He is critical of his performance and feels more responsible than being a ruler, so he will be more law-abiding than authoritarian, which is one of the areas of growth and excellence of the center. Therefore, the inspection pillar cannot be effective with the conditions described in the submitted plans, and in principle, if the sole purpose is to perform the tasks mentioned in the plan, there is no need for an independent inspection pillar, and when a pillar in the center's organization It should be considered that it should have the appropriate power and authority of that element, not only to be inspected in name, but in practice, power and authority should not take significant action. Another issue that needs to be considered in professional organization is the existence of a prosecutor's office and a disciplinary court. But what matters is the quality of the selection of the prosecutor and the members of the court, as well as the conditions for their election. Prosecutors and prosecutors and members of the disciplinary tribunal are elected by the board of directors in accordance with the current regulations (regulations of the legal bill of independence of the Bar Association). The prosecutor of the central association must be forty years of age and fifteen years of experience in advocacy, and in addition to the center of the association, the prosecutor must have at least 35 years of age and five years of experience in advocacy. With this quality, the prosecutor does not have real independence and is under the supervision of the board of directors, because his selection and dismissal is in the hands of the board of directors, which is not logical and is not correct in terms of democratic principles, because if the Bar Association Let's compare the government, the board of directors is the executive branch, and the prosecutor's office and the court are similar to the judiciary, which must have relative independence. On the other hand, the prosecutor and the prosecutor's office can have full success when they are not concerned with dismissal and installation by the board of directors and the execution of their orders. Therefore, it is necessary for the prosecutor to be elected by the members themselves. In this way, firstly, the issue of dismissal and unnecessary installation is eliminated. Secondly, the prosecutor will be completely independent and will not have any concessions in terms of his decisions. The elected majority of lawyers will be more qualified and their actions and decisions will be supported by their votes. Fourth: Most importantly, with this method, the prosecutor cannot be a candidate for the board of directors at least at the same time, and He will not be affected by the election issues and the votes of the members, and he will choose the deputies and the judges himself. In addition, by guaranteeing the independence of the prosecutor and having the support of the members, he will certainly gain more authority and ability to prosecute violators and protect the rights of the members of the association, which will benefit both the advocacy community and the rights of plaintiffs and clients. However, to be more certain, a lawyer selected as a prosecutor should be barred from being a board member for a certain period of time in order to maintain the health of his or her work. It should be noted that in some professional organizations, the prosecutor is elected by the above-mentioned method. For example, according to Article 21 of the Law on the Association of Official Experts of Justice, approved by the Islamic Consultative Assembly in 2002, the disciplinary prosecutor is directly elected by the members (General Assembly). Eligible candidates (such as the board of directors) are selected for four years.

It should be noted that another view in this regard is the need for the selection of prosecutors by the board of directors, as in government systems in some countries senior judicial officials are elected by the president or it may be stated that the election of the prosecutor may be affected. It is one of the issues related to attracting the votes of the members and ... and also as a power to be in front of the board of directors and ... which of course will be debatable.

In addition to the above-mentioned pillars, considering that each independent society needs solutions that meet all its needs in terms of management and survival in a correct and principled way (in accordance with the goals, duties and ideals of that society), therefore, in order to It is quite appropriate to provide this to the departments in the organization of the association as much as possible and in accordance with the foreseen goals. Support and assistance and education and testing (or similar topics) should be specified as other pillars of each law, because important matters such as internship, testing, holding training and specialized courses, scientific and practical conferences, workshops and lectures, preparation of the plan The bills and bills for the board of directors and finally the referral to the National Center, cooperation with the parliamentary commissions and the representatives in the technical study of the plans and bills, etc. can be assigned to the Department of Education and Research. Also important are the management of matters related to the defense of persons in need in criminal and civil cases, as well as legal matters outside the courts (in which a significant number of people are not able to exercise their right, given that the complexity of the case is increasing). The main tasks of the Office of Judicial Assistance are: Also, one of the important tasks of the protection department can be to defend the rights of members' lawyers in the relevant authorities, who may be violated in various ways or be prosecuted on false charges. It is worth noting that there is no explicit text in the current regulations regarding the association's defense of its members, which is a major shortcoming, because the nature of the work of a lawyer always poses a risk to the lawyer, so it is essential that at least the professional organization belongs to lawyers. It is obligatory to support the lawyer so that the lawyer can perform his professional duties with more independence and the rights of the people are better provided. In addition, performing and providing solutions to provide the best citizenship rights can be one of the duties of this office. Socially, the existence of such solutions is essential, and in principle, in reform and improvement Things will be effective and there will be a field where interested lawyers will provide good social services. Other tasks of the Bar Association include the establishment and administration of arbitration institutes, as well as the encouragement of lawyers to the category of arbitration. This can be in line with other sectors in order to privatize, decentralize, expand non-governmental governance and reduce the burden on the judiciary, the elaboration of which will prolong the speech.

In addition, the existence of an active center for arbitration can have the following effects:

1. Carrying out part of technical and specialized investigations in disputes by the Bar Association and member lawyers.

2. Addressing disputes between lawyers and their clients.

3. Earning income for the centers of well-known and specialized lawyers and lawyers (who are included in the list of judges by the Arbitration Center as judges). Third topic:

Some modifications and strategies (related to the topic of discussion) for further dynamism of bar associations

A. Due to the nature of advocacy, which is a scientific-spiritual work, and although advocacy is a kind of freelance job in terms of job and profession, the principle is that its employee should always be considered due to the competitive aspect of work. It should be in the direction of its progress and excellence, but according to the existing conditions and situation in terms of academic education and social issues, etc., conditions should be provided that promote all members. One of these solutions is the grading of lawyers. For example, upon entering the profession, be recognized as a second-class lawyer for up to five years, and then be recognized as a first-class lawyer if there is no violation or success in the comprehensive exam. Or, for example, after five years of experience as a basic attorney, an incentive and incentive test was considered as a promotion and retraining test to be performed by the National Center and nationwide. Another solution that encourages members to be more active and dynamic is to hold specialized courses and award company certificates and success in these courses, which in a way will lead to the specialization of healthy and useful work and competition, and now one by one. One of the essential needs of the legal community is to pay attention to this issue because the issues are becoming more specialized and more complex. Therefore, in addition to general legal knowledge, professionals must have a relative mastery of specific issues in various legal fields. Of course, in the existing plans, attention has been paid to the above issues.

B. Another solution that provides the ground for the growth and excellence of most centers is to predict salaries and bonuses for people who work and serve in various organs of the centers. Because there are interested and capable lawyers who want to spend a lot of time on the affairs of the center, but they may not be able to devote their time to the center as it should be due to economic difficulties. The experience and ability of these people will definitely improve the quality of work, and in the short and medium term, useful results and effects will be created for the legal community. Of course, at the moment, there are interested people in all the centers who spend a lot of time without any expectations. Despite such a system, the number of these people can be increased and the quality of work can be improved.

C. One of the current problems of the centers is their lack of income compared to the existing expenses, which need to be addressed. Of course, there are solutions that need to be considered separately.

D. Another problem of the legal community is the issue of attorney's fees and tariffs and the issues arising from it. It seems that its angles should be well studied and clear, comprehensive and complete criteria should be set for it, which should respect the rights of lawyers and bar associations, as well as eliminate ambiguities and misconceptions of others and critics, and on the other hand, encourage people to use more advocacy services and prevent potential misconduct.

E. Another issue that will definitely help to reduce the inadequacies of the centers and improve the affairs is the discussion of updating the violations and disciplinary punishments. Determine and determine, because some penalties have virtually no deterrent effect on some offenses.

In this regard, one of the penalties can be set for the payment of membership fees, for example, three to ten times the amount for the offender (similar to a fine), as there is a deduction in disciplinary offenses of judges or government employees. The income of the center should be used to deal with infrastructure and educational affairs.

Among the issues that cause the excellence and progress of bar associations, we can mention the moral charter of bar associations as well as lawyers. In this regard, a complete ethical charter can be prepared and while explaining it (especially in the internship course), the desired ideals and ideals can be clarified and committed as a covenant, lawyer and association of lawyers to fulfill it and thus clear horizons to Set the title of the target point.