چکیده:
وکالت دادگستری بهمثابۀ خدمتی عمومی باید منطبق با آخرین تحولات اجتماعی به شهروندان ارائه شود. گونهگونی، گستردگی و ابعاد فنی و تخصصی موضوعات و قوانین، ارائۀ خدمات حقوقی تخصصی را ضروری میسازد. با وجود این، در نظام حقوقی ایران تاکنون اقدامهای درخوری برای پاسخ به ضرورت پیشگفته انجام نگرفته است. مبادرت به تخصصیسازی وکالت بایستۀ شناسایی چالشها و ارائۀ راهکارهای مناسب است. مقالۀ حاضر با رویکرد توصیفی تحلیلی درصدد پاسخگویی به این پرسش است که تخصصیسازی وکالت در ایران با چه چالشهایی مواجه است و راهکارهای رفع آنها و طراحی نظام مطلوب در این زمینه کداماند؟ یافتههای پژوهش نشان میدهد عدم شناسایی قانونی، نبود بسترهای کامل، امکان ایجاد انحصار و مقاومت در برابر تغییر وضعیت موجود، از جمله چالشهای پیشروی تحقق ایدۀ مزبورند. راهکارهایی همچون شناسایی قانونی، تدوین معیارهای موجه برای تعیین تخصص وکلا، طراحی الگوی متناسب با ظرفیتها و محدودیتهای نظام وکالت دادگستری در ایران و بهرهگیری از تجارب دیگر کشورها قابل ارائه است.
Advocacy as a public service must be provided to citizens in accordance
with the latest social developments. A variety of legal issues and laws
necessitate the provision of specialized legal services. In Iran, no appropriate
measures have been taken to respond to this necessity. The specialization of
advocacy should identify the challenges and provide appropriate solutions.
This article seeks to answer these questions: What are the challenges facing
the specialization of advocacy in Iran? What are the solutions to solve them?
Nowadays, due to the wide range of issues and the complexity of social
relations, it is inevitable to change the system of general advocacy to a
system of specialized advocacy. It no longer seems realistic to expect all
lawyers to have full control over the rules and details of laws and regulations
on all matters. Although the legal profession is one of the first professions
for which special legal regulations have been adopted in Iran (since 1314),
the legal system governing this profession has not been sufficiently
developed yet.
Of course, the specialization of the legal profession is not just a trade
union category, but its consequences affect clients and society in general.
The representation of the judiciary as a public service makes the government
and the relevant trade unions responsible for ensuring the necessary
conditions for the proper provision of this service to members of society. An
important issue, however, is the design of the model and system in
accordance with the current situation in the country. This is done against the
rule based on the experiences of other countries and taking into account its
internal capacities and limitations. In general, for countries such as Iran,
which are at the beginning of the implementation of the above-mentioned
dea, adopting a step-by-step approach to provide the conditions for the
implementation of the above plan over time and evaluate the effects and
operational consequences of that idea can reduce to a considerable extent the
existing challenges. In any case, at the beginning of the implementation of
this idea, the specialized areas of advocacy will inevitably be general (such
as lawsuits, criminal proceedings). However, in continuation and with the
institutionalization of this idea, the mentioned areas can be made more
detailed. Undoubtedly, in determining the details of this matter, the number
of lawsuits filed in the judiciary, the higher educational system of law in the
country's universities, and the graduate degrees of lawyers and the needs of
the region should be considered as relevant considerations.
Based on the model proposed in this paper, the process of issuing a
general power of attorney license will continue as before by the Bar
Association and the Bar Association of the Judiciary. However, lawyers who
are eligible to obtain a specialized attorney's license (conditions such as the
expiration of a certain period of time after the issuance of a general
attorney's license, success in written and oral exams related to the scientific
qualification of candidates and no effective disciplinary conviction within a
certain period). They will receive a specialized power of attorney from the
date of application for a power of attorney. In the short term, other attorneys
can also practice law in specialized areas. However, when the number of
licensed lawyers in each of the jurisdictions reaches a pre-determined
quorum, it will not be possible for other lawyers to practice law in those
areas.
The most important challenges in the field of specialization of legal
representation in Iran include the lack of explicit recognition of the
specialization of the legal profession in the current Iranian legal system, the
restriction of citizens' access to legal services, the possibility of
monopolizing legal services (and consequently the decline in the quality of
these services and the increase in lawyers' fees), differences in determining
the terms and conditions related to the appointment and certification of
lawyers, and resistance to change in the current situation.
As mentioned, the adoption of the solutions proposed in this paper does
not necessarily lead to the complete elimination of these challenges. It is
obvious that disrupting the established order and making important and
fundamental changes will, in practice, entail problems and consequences,
some of which are inevitable. The main art, however, will be the managing
of these issues with the aim of achieving the above idea with the least costs
and negative consequences. In view of the studies conducted, it seems that if
the possibility of specializing in the legal profession is identified in the
relevant laws, the authority of the bar association in implementing the
specialization plan based on the relevant criteria, identifying the possibility
of judicial objection, determining specialized areas in accordance with the
existing capacities, designing a model appropriate to the situation in Iran
with the approach of maximal elimination of the challenges, specialization of
postgraduate courses in the field of law, forecasting and implementation of
specialized training courses by relevant trade unions and forecasting
appropriate disciplinary regulations can, to a considerable extent, pave the
way for the efficient and effective implementation of the aforementioned
idea.
Considering the existence of two lawyers' unions in Iran (Bar
Association, and the Bar Association of lawyers, official experts and family
counselors of the judiciary), the implementation of the legal professionalism
plan should be designed and implemented in a joint program by these
entities. Finally, considering the preparation of a comprehensive bill on
advocacy and legal advice, it seems that the most appropriate means to
anticipate the provisions needed for the proper implementation of the idea is
the provisions of the mentioned bill.