Term and Origin of the Advocate
The Term Advocate refers to a person who provides legal advice in numerous countries and represents the interests of third parties before courts and authorities. The word derives from the Latin “advocatus,” meaning “one called (for help).” In German-speaking regions, “Advokat” is today mostly a historical or regionally used professional title, whereas in other countries and legal systems, the term continues to be used as the official designation for a legal advisor.
Legal Status and Duties of the Advocate
Admission Requirements
Admission as an advocate generally requires a completed university degree in law, supplemented by a state examination and usually several years of practical training. Additionally, applicants often must undergo a personal aptitude test or assessment procedure, which evaluates personal integrity and professional knowledge.
Scope of Activities
The advocate’s field of duties is multifaceted and essentially includes:
- Legal advice in all areas of law
- Representation before courts and authorities
- Drafting of pleadings and contracts
- Mediation and amicable settlement between parties
- Support and advice in arbitration proceedings
Rights and Duties
Advocates are subject to strict professional regulations. The main rights and duties include, among others:
- Confidentiality: Obligation to maintain secrecy regarding all facts learned in the context of the attorney-client relationship
- Independence: Freedom from instructions when performing the mandate
- Duty to provide diligent and loyal representation of interests
- Obligation to continuing education to maintain up-to-date expertise
Advocate in International Comparison
Germany
In German-speaking countries, “Advokat” is no longer an official designation. The advocate’s position largely corresponds to that of the “Rechtsanwalt”. In a historical context, the advocate was an independent figure in the court and legal system, but in the 19th century, the term was largely replaced by the modern professional title.
Austria
In Austria, “Advokat” was common until the entry into force of the Lawyers’ Act in 1868. Today, the practice of the profession is regulated by the Lawyers’ Act. The term is primarily used in historical or literary contexts.
Switzerland
In the German-speaking cantons of Switzerland, the term “Advokat” is still used, especially in official documents and common parlance. Admission as an advocate is governed by cantonal laws, which usually require a law degree, an internship, and passing the bar examination.
France, Italy and Other States
In the French (Avocat) and Italian (Avvocato) legal systems, the term plays a central role. It is subject to clearly defined ethical, professional, and legal standards. Activities include, in addition to counseling and representation in procedural law, assistance in out-of-court settlements.
Historical Development
Origin in Roman Law
The profession of advocate developed from the Roman legal system, where the “advocatus” acted as an assistant to the plaintiff or defendant in court. From there, the profession entered numerous European legal systems.
Development in the Middle Ages and Modern Period
In the Middle Ages, guilds and associations emerged that were responsible for the training and continuing education as well as for the enforcement of professional standards of their members. With increasing codification of the law, the advocate gained a firm position in the judicial system.
Professional Regulations
Professional Law Principles
Advocates are subject to numerous professional codes that regulate the exercise of the profession. These regulations serve in particular to protect clients, maintain independence and integrity, as well as the proper functioning of legal transactions.
Liability and Disciplinary Law
Breaches of professional duties can result in disciplinary measures and civil liability. The provisions on liability ensure that clients can assert claims against the advocate in case of damage.
Fields of Activity of the Advocate
Judicial and Extrajudicial Representation
A key field of activity is representation in legal proceedings of various kinds, ranging from civil to criminal cases. Advocates also play a central role in extrajudicial disputes, such as negotiations between parties or conciliation proceedings.
Contract Drafting and Legal Opinions
Advocates assist with the preparation, review, and revision of contracts, as well as with the drafting of legal opinions on complex issues. Resolving legal matters on a binding basis is an integral part of the profession.
Importance and Future Prospects
The work of the advocate remains of central importance in the modern legal system for the enforcement of rights, the guarantee of the rule of law, and the assurance of fair proceedings. As legal frameworks evolve and digitalization advances, the requirements for practicing the profession also develop.
Literature and Weblinks
This article serves as a comprehensive source of information on the term advocate in the legal system and provides a detailed insight into its legal significance, duties, and development.
Frequently Asked Questions
What tasks does an advocate undertake in the context of legal proceedings?
Within the scope of legal proceedings, the advocate assumes a variety of responsibilities covering both the legal representation and the safeguarding of the client’s interests. The advocate first analyzes the legal situation and assesses the prospects of success for a claim or defense. He prepares the necessary pleadings, lawsuits, applications, and responses and submits them to the court. During the proceedings, he participates in hearings, oral arguments, and appointments, files evidentiary motions, requests witness summonses, and conducts witness examinations. The advocate also engages in settlements with the opposing side to promote out-of-court solutions. Especially important is his advisory role, in which he informs the client about risks, litigation costs, and the potential consequences. Throughout the entire proceedings, the advocate is obliged to confidentiality and may always act only in the client’s interest.
What admission requirements must an advocate meet?
To work as an advocate, a legal education must be successfully completed. Usually, a law degree is required, followed by a legal internship (Referendariat) and successful completion of the Second State Examination in Law. Afterwards, admission to the bar must be applied for at the competent bar association, which requires proof of personal suitability, financial reliability, and a clean criminal record. In some legal systems, demonstration of professional experience or participation in a specialized attorney training is mandatory, especially if the advocate wishes to work in specialized areas of law. Admission is a prerequisite to represent clients independently before court.
What rights and duties does an advocate have towards his client?
An advocate is obliged to comprehensively protect the interests of the client. This firstly includes the duty of confidentiality regarding all information acquired in connection with the mandate. Furthermore, the advocate must provide professionally sound advice and inform the client about all relevant legal options, risks, and consequences. Communication must take place considering deadlines and in a comprehensible manner. There is a special duty of loyalty regarding the safeguarding of the client’s interests; the advocate may not take on conflicting mandates and must avoid conflicts of interest. Additionally, the advocate is obliged to continual professional development to ensure the quality of advice provided. When billing fees, he must comply with statutory regulations, in particular the Lawyers’ Remuneration Act (RVG), and is required to issue proper invoices.
To what extent is an advocate liable for errors in handling a mandate?
An advocate is liable to the client for damages arising from faulty advice or inadequate representation. Liability covers both pecuniary and non-pecuniary damages, provided these can be proven to result from a breach of duty by the advocate. Typical grounds for liability include incorrect legal advice, missing deadlines, failing to assert relevant claims, or inadequate defense. Liability is, however, generally limited to a contractually or statutorily specified maximum amount; moreover, the advocate is obliged to maintain professional liability insurance. This is intended to ensure that justified claims for damages can be settled. Liability reduction typically occurs where the client, despite being informed, expressly wishes for a particular action or knowingly makes risky decisions.
How is an advocate remunerated in the context of a mandate?
The remuneration of an advocate is generally determined by the agreements between the client and the advocate, with the Lawyers’ Remuneration Act (RVG) serving as the relevant statutory basis. Fees may be charged as a fixed fee, on an hourly basis, or according to the value in dispute. In certain cases, success-related fees may be agreed upon, provided this is not prohibited by law. In court proceedings, fees are generally set by law and depend on the amount in dispute. Surcharges may be charged for special activities, such as assisting with out-of-court settlements. The client must be fully informed about all costs incurred, including court and out-of-court expenses. Interim payments are possible during the mandate and must be accounted for transparently.
Is an advocate subject to special professional supervision or professional law?
An advocate is subject to comprehensive professional supervision by the relevant bar association. This ensures that the exercise of the profession complies with legal requirements and professional codes (e.g., the Federal Lawyers’ Act and the Professional Code for Lawyers). Violations of professional duties may result in cautionary, admonishing, or disciplinary measures such as warnings, fines, or, in extreme cases, exclusion from the legal profession. Professional oversight also includes checking whether the lawyer regularly attends continuing education, maintains his professional liability insurance, and observes ethical principles, in particular client confidentiality and the independence of the professional.
In which areas can an advocate be active?
An advocate can work in almost all fields of law, including civil law, criminal law, administrative law, labor law, family law, inheritance law, insolvency law, tax law, and many others. Activities may cover both representation in court and out of court. In addition to traditional client representation, many advocates also offer mediation, arbitration, or prepare expert opinions and draft contracts. Especially by obtaining specialist lawyer titles, many advocates specialize in particular fields to provide clients with especially qualified and specialized advice.
