Obligations et responsabilités de l'avocat

Abstract : The history of lawyers is a history marked by changes and renovations. It focuses on the transformation of society. The profession of lawyer reflects the reality of society. It is the image of a modern society and in the same time of an archaic society in which the lawyer defends the honor, dignity and human life. Initially, the lawyer was bound by an obligation of means, to deploy appropriate means to defend the interests of clients. But henceforth with the scientific progress and like other professions, such as medicine, the lawyer has to upon to assume more tasks specified particularly for the preparation of acts which must provide legal certainty to the document he writes, otherwise he shall be liable to the client. Obviously, the lawyer held today, a double duty, it means to defend the interests of its clients from various jurisdictions on time in force and the procedure, in addition to that of result for legal activities that are devoid of any hazard. The nature of these obligations has a shift of responsibility of the lawyer in the triple aspects: civil, criminal and disciplinary. The analytical study of the nature of the obligations of the lawyer, obligations of means and obligations of result and impact on the responsibility of the civil, disciplinary and criminal lawyer has led us to several specific conclusions. The responsibility of the lawyer under an obligation of means rests on the client to demonstrate the failure of his attorney. However, it is bound by an obligation of result, its liability is assumed. Indeed, there is a direct impact on the nature of bonds the burden of proof. Subsequently, the theory of obligations of means and obligations of result is normal to a contract, but it would be anomalous in the criminal field. If the unit of responsibility takes shape in the idea of breach of an obligation, there are special techniques that the judge should take into consideration. It is not irrelevant that the obligation is intended or created by the parties to obtain a particular satisfaction, or it predates all legal relationships, forcing the individual to direct all men composing the company or only part of them. The term obligation, as does "commitment made" or "direct coercion" appears to have a variable content. While no specific legal reasoning allows excluding tort the scope of the theory of obligations of means and obligations of result, but the fact that for centuries the two responsibilities are opposed, was born on feeling the content of the non-contractual obligation could not be analyzed as conventional duties. However, we cannot reconcile the theory of obligations of means and obligations of result of extra-contractual liability. Because this theory cannot be figured in contractual matters. As a result, introducing the theory in the field of non-contractual liability arises from confusion between levels of responsibility, their own logic and their legal systems. Also, the lawyer may commit offences or fail to meet its ethical obligations in the exercise of the profession. These offenses or violations have an impact on his responsibility and that can have an impact on his career and professional future.
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Said Naoui. Obligations et responsabilités de l'avocat. Droit. Université de Grenoble, 2014. Français. ⟨NNT : 2014GREND005⟩. ⟨tel-01228509⟩



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