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Guest Editorial: The Burden of a Lawyer

Guest Editorial: The Burden of a Lawyer

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For many in this world the legal profession is nothing but an appealing vocation. One has to work hard for several years to get a law degree/admission only then to obtain a lavish lifestyle and earn big bucks.  

That is a simplistic yet lucrative picture many young people aspiring to become lawyers have in their minds, sometimes even through their initiation years. Many more outside the profession keep that picture in their heads throughout their lives.

Another view of lawyers and their profession can be summarized as the fatality of the “needless markup.” Many business people tend to think: “We are the ones who push the business wheels forward.  We know our business and trust each other.  We hammer a deal out, we structure it, we earn profit for ourselves, create working places for others, and grow the public wealth. And then – for some odd reason – the lawyers step in only to complicate the things and to earn those ‘big bucks,’ at our expense.”

Neither of these views can be farther from the truth!

Very few readers will dispute the preposition that the civilized world lives these days under rule-of-law principles – and in a rule of law country people can’t simply do whatever they want! People are supposed to follow applicable rules and procedures and align their wishes accordingly. That principle applies both to a street beggar and to a President, and to everybody in-between. The idea of compliance with established legal rules is key.

Indeed, that is a very important feature of a modern society. Governments have an entire system of law-enforcement bodies to maintain it, and indeed, an entire branch of government – the judiciary – is focused entirely on that feature, as are all sorts of executive branch agencies. All of them, taken together, with all their offices, are designed to perform one very important function: to maintain the rule of law in society. And yet the history of modern civilization tells us that all of this governmental ammunition to ensure respect for the rule of law is not sufficient.

Indeed, it is impossible for the government to ensure that each and every activity of each member of society is compliant with the law. It is especially difficult for the government fully to oversee the compliance of its own activities. It follows that a rule-of-law society needs to have other, non-governmental means, to support its foundations – including those functions related to the public control of the government.

Lawyers fill that gap.

Indeed; think for a while of the most mundane chore of a lawyer – drafting a dull trivial commercial contract for a client. Does it mean a lawyer puts a “needless markup” on top of the transaction costs by pocketing their part? One may certainly be left with that point of view. Yet it would be inherently wrong.

By setting his/her hands onto the deal a lawyer puts it within the framework of the law. A lawyer makes sure that the contract – as drafted – follows the respective modalities and is generally compliant with the requirements of legislation and jurisprudence in the relevant jurisdiction(s).

The same is even more true for lawyers engaged in dispute resolution matters – whether commercial, civil, administrative, criminal, or constitutional. Offering legal protection to a client in a courtroom or under an alternative dispute resolution mechanism is simply an indispensable part of the rule of law system.

The social role of lawyers becomes crystal clear when they oppose the government and its institutions by protecting the legitimate interests of their clients. As noted, it is difficult for the government to exercise control over its own compliance with the rule of law. Independent lawyers acting against the government actually do the job for it. They make sure that the government does not derail and keeps standing within the parameters of legitimate behavior.

Let us assume for a moment that all of a sudden lawyers abandoned their profession. In the not-too-distant future, civil society would either degrade to criminal anarchy or to a lawless dictatorship, or would simply vanish.

For all these reasons we ought to be proud of our social role! To walk one needs to have at least two legs. One is unable to walk with the rule of law concept on only the leg of governmental institutions/instruments. Lawyers, as an aggregation of independent professionals, provide the second leg for society. That permits the rule of law concept to firmly stand on the ground – and in most cases even to walk in the right direction.

I do not think I have exaggerated by even a slightest bit!

By Olexander Martinenko, Partner, CMS Cameron McKenna Nabarro Olswang, Kyiv Office

This Article was originally published in Issue 4.9 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

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