Malpractice Advocate Profession in Indonesia

Abstract

Juridically, there is no clear and firm regulation related to the understanding and qualifications of malpractice advocates in Indonesia (there is a legal vacuum), but theoretically there have been many concepts and doctrines relating to legal malpractice, especially advocacy malpractice. In a sociological perspective, there have been many cases of advocacy malpractice that have emerged in the implementation of advocate practices in Indonesia. Meanwhile, in the perspective of legal philosophy, advocates as a noble legal profession (officium nobile) have no fair and certain formula for handling and settlement, both for clients who receive bad service from advocates and for advocates themselves as law enforcement officers. Based on the juridical, sociological, theoretical and philosophical reasons above, it is considered important to discuss the qualifications of an act including the malpractice of the Advocate profession and the forms of accountability of the advocate profession for advocacy malpractice cases. Therefore, this research uses normative legal research. Based on the results of the discussion, this study has the conclusion that the qualifications or parameters of the malpractice act of an advocate, if it meets the following requirements: (1) The existence of legal services provided by an advocate (rights and obligations); (2) Legal services are provided in: (a) below the applicable professional standards; (b) awarded in violation of the "fiduciary" obligation of the advocate; (c) defaults on contracts for providing legal services, or; (d) provided in a manner contrary to applicable law and code of conduct; (3) The advocate's actions take the form of acts against the law (intentional or negligence); (4) There are losses to the client; and (5) The loss is caused by the act of providing legal services by the advocate. There are three forms of advocacy accountability, namely ethical responsibility, juridical responsibility and disciplinary responsibility.