Lawyer: Difference between revisions

For the fish called "lawyer", see Burbot.

English barrister

16th century painting of a civil law notary, by Flemish painter Quentin Massys. A civil law notary is roughly analogous to a common law solicitor, except that, unlike solicitors, civil law notaries do not practise litigation to any degree.

A lawyer is a person certified to give legal advice who advises clients in legal matters. Some lawyers represent clients in courts of law and in other forms of dispute resolution. In nearly all states, a lawyer must pass a bar exam prior to being authorized to give legal advice.

Law is a theoretical and abstract discipline, and working as a lawyer represents the "practical" application of legal theory and knowledge to solve real problems or to advance the interests of those who retain (i.e., hire) lawyers for legal services.

The role of the lawyer varies significantly across legal jurisdictions, and therefore can be treated here in only the most general terms. More information is available in country-specific articles (see below).

Terminology

The meaning of the word "lawyer" varies slightly between English dialects. In American English, the term is synonymous with licensed attorneys who practice law; attorneys who serve as judges, law clerks or legislators do not practice for the duration of their service. For consistency, this narrower definition is generally used throughout this article.

In British English, the word "lawyer" is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, and legal executives; and people who are involved with the law but do not practice it on behalf of individual clients, such as judges, law clerks, and legislators.

Responsibilities

Many jurisdictions, like England, have traditionally divided their legal professions into barristers and solicitors (known as advocates and procurators, respectively, in some civil law countries).

In some civil law countries, there has been a tradition of giving many legal tasks to a variety of civil law notaries, clerks, and scriveners. These countries do not have "lawyers" in the American sense, insofar as that term refers to a single type of general-purpose legal services provider; rather, their legal professions consist of a large number of law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts.

In contrast, several countries that began with a divided profession have since fused or united their legal profession into a single type of lawyer. Most countries in this category are common law countries, though France, a civil law country, merged together its jurists in 1990 and 1991 in response to Anglo-American competition. In countries with fused professions, a lawyer is usually permitted to carry out all or nearly all the responsibilities listed below.

Oral argument in the courts

The classic public image of a lawyer is of a polished, well-dressed advocate who smoothly argues a client's case before a judge or jury in a court of law. This is the traditional province of the barrister.

However, the boundary between barristers and solicitors has gradually evolved over time. For example, in England, the barrister monopoly covers only appellate courts, and barristers must compete directly with solicitors in many trial courts.

In some countries, litigants have the option (though not recommended) of arguing pro se, or on their own behalf. Therefore, it is common for litigants to appear unrepresented before certain courts like small claims courts; indeed, many such courts do not allow lawyers to speak for their clients, in an effort to save money for all participants in a small case. In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer. The advantage of the latter regime is that lawyers are familiar with the court's customs and procedures, and make the legal system more efficient for all involved. Unrepresented parties often damage their own credibility or slow the court down as a result of their inexperience.

Research and drafting of court papers

In most legal systems, lawyers are expected to brief a court in writing on the issue in a case before the issue can be orally argued. They may have to perform extensive research into relevant facts and law.

In England, a solicitor gets the facts of the case from the client and briefs a barrister in writing. The barrister then researches, drafts, and files the necessary court pleadings, and orally argues the case.

In Spain, the procurator merely signs and presents the papers to the court, but it is the advocate who drafts the papers and argues the case.

In some countries, like Japan, a scrivener or clerk may fill out court forms and draft simple papers for laypersons who cannot afford or do not need attorneys, and advise them on how to manage and argue their own cases.

Advocacy (written and oral) in administrative hearings

In most developed countries, the legislature has granted original jurisdiction over highly technical matters to executive branch administrative agencies which oversee such things. As a result, some lawyers have become specialists in administrative law. In a few countries, there is a special category of jurists with a monopoly over this form of advocacy; for example, France formerly had conseil juridiques (who were merged into the main legal profession in 1991). In other countries, like the United States, lawyers have been effectively barred by statute from certain types of administrative hearings in order to preserve their informality.

Client intake and counseling (with regard to pending litigation)

Before a lawyer can accept a client's case, he or she must interview the client and determine whether it is worth taking. Generally, there is no obligation to take a case, with the exception of public defenders, who must defend all indigent criminal defendants who cannot afford an attorney. The lawyer must also stay in regular contact with the client and advise them about the case's status and possible outcome.

In England, only solicitors were traditionally in direct contact with the client. The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client. In most cases a barrister would be obliged, under what is known as the "cab rank rule", to accept instructions for a case in an area in which they held themselves out as practising, at a court at which they normally appeared and at their usual rates.

Legal advice (with regard to all legal matters)

Legal advice is the application of abstract principles of law to the concrete facts of the client's case in order to advise the client about what they should do next. In many countries, only a properly licensed lawyer may provide legal advice to clients for good consideration, even if no lawsuit is contemplated or is in progress. Therefore, even conveyancers and corporate in-house counsel must first get a license to practice, though they may actually spend very little of their careers in court. Failure to obey such a rule is the crime of unauthorized practice of law.

In other countries, jurists who hold law degrees are allowed to provide legal advice to individuals or to corporations, and it is irrelevant if they lack a license and cannot appear in court. Some countries go further; in England and Wales, there is no general prohibition on the giving of legal advice. Sometimes civil law notaries are allowed to give legal advice, as in Belgium. In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.

Protecting intellectual property

In virtually all countries, patents, copyrights, trademarks, industrial designs and other forms of intellectual property must be formally registered with a government agency in order to receive maximum protection under the law. The division of such work among lawyers, licensed non-lawyer jurists/agents, and ordinary clerks or scriveners varies greatly from one country to the next.

Negotiating and drafting contracts

In some countries, the negotiating and drafting of contracts is considered to be similar to the provision of legal advice, so that it is subject to the licensing requirement explained above. In others, jurists or notaries may negotiate or draft contracts.

Lawyers in some civil law countries traditionally deprecated "transactional law" or "business law" as beneath them. French law firms developed transactional departments only in the 1990s when they started to lose business to international firms based in the United States and the United Kingdom (where solicitors have always done transactional work).

Conveyancing

Conveyancing is the drafting of the documents necessary for the transfer of real property, such as deeds and mortgages. In some jurisdictions, all real estate transactions must be carried out by a lawyer (or a solicitor where that distinction still exists).Such a monopoly is quite valuable from the lawyer's point of view; historically, conveyancing accounted for about half of English solicitors' income (though this has since changed), and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales." In most common law jurisdictions outside of the United States, this monopoly arose from an 1804 law that was introduced by William Pitt the Younger as a quid pro quo for the raising of fees on the certification of legal professionals such as barristers, solicitors, attorneys and notaries.

In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead. In some civil law jurisdictions, real estate transactions are handled by civil law notaries. In England and Wales a special class of legal professional, the licensed conveyancer is also allowed to carry out conveyancing services for reward.

Carrying out the intent of the deceased

In many countries, only lawyers have the legal authority to do drafting of wills, trusts, and any other documents that ensure the efficient disposition of a person's property after death. In some civil law countries this responsibility is handled by civil law notaries.

In the United States, the estates of the deceased must be administered by a court through probate. American lawyers have a profitable monopoly on dispensing advice about probate law (which has been heavily criticized).

Pro bono or legal aid services

Lawyers are generally subject to some kind of official recommendation that they voluntarily provide a certain number of hours of free pro bono services to the poor each year.

In some countries, there are legal aid lawyers who specialize in providing legal services to the poor, disadvantaged, and indigent.France and Spain even have formal fee structures by which lawyers are compensated by the government for legal aid cases on a per-case basis. In others, legal aid specialists are practically nonexistent. This may be because nonlawyers are allowed to provide such services, as in Norway, or because mandatory fee structures have enabled widespread implementation of affordable legal expense insurance, as in Germany. In Italy, trade unions and political parties provide what can be characterized as legal aid services.

Prosecution of criminal suspects

In many civil law countries, prosecutors are trained and employed as part of the judiciary; they are law-trained jurists, but may not necessarily be lawyers in the sense that the word is used in the common law world. In common law countries, prosecutors are usually lawyers holding regular licenses who simply happen to work for the government office that files criminal charges against suspects.

Education

Main article: Legal education

In some countries, law is taught by a faculty of law, which is a department of a university's general undergraduate college. Law students in those countries pursue a Bachelor of Laws degree. In some countries it is common or even required for students to earn another bachelor's degree at the same time. Nor is the LL.B. the sole obstacle; it is often followed by a series of advanced examinations, apprenticeships, and additional coursework at special government institutes.

In other countries, particularly the United States, law is primarily taught at law schools. In the United States and countries following the American model, (such as Canada with the exception of the province of Quebec) law schools are graduate/professional schools where a bachelor's degree is a prerequisite for admission. Most law schools are part of universities but a few are independent institutions. Law schools in the United States (and some in Canada and elsewhere) award graduating students a J.D. (Juris Doctor/Doctor of Law) (as opposed to the Bachelor of Laws) as the standard law degree. Many schools also offer post-doctoral law degrees such as the LL.M. (Legum Magister/Master of Laws), or the S.J.D. (Scientiae Juridicae Doctor/Doctor of the Science of Law) for students interested in furthering their knowledge and credentials in a specific area of law.

The methods and quality of legal education vary widely. Some countries require extensive clinical training in the form of apprenticeships or special clinical courses. Others do not, like Venezuela. A few countries prefer to teach through assigned readings of judicial opinions (the casebook method) followed by intense in-class cross-examination by the professor (the Socratic method). Many others have only lectures on highly abstract legal doctrines, which forces young lawyers to figure out how to actually think and write like a lawyer at their first apprenticeship (or job). Depending upon the country, a typical class size could range from five students in a seminar to five hundred in a giant lecture room. In the United States, law schools maintain small class sizes, and as such, grant admissions on a more limited and competitive basis.

Some students have a preference for full-time law programs, while others often work full- or part-time to pay the tuition and fees of their part-time law programs.

Law schools in developing countries share several common problems, such as an overreliance on practicing judges and lawyers who treat teaching as a part-time hobby (and a concomitant scarcity of full-time law professors); incompetent faculty with questionable credentials; and textbooks that lag behind the current state of the law by two or three decades.

Earning the right to practice law

Main article: Admission to the bar

Some jurisdictions grant a "diploma privilege" to certain institutions, so that merely earning a degree or credential from those institutions is the primary qualification for practicing law. Mexico allows anyone with a law degree to practice law. However, in a large number of countries, a law student must pass a bar examination (or a series of such examinations) before receiving a license to practice. In a handful of U.S. states, one may become an attorney by simply passing the bar examination, without having to attend law school first (though very few people actually become lawyers that way).

Some countries require a formal apprenticeship with an experienced practitioner, while others do not. For example, a few jurisdictions still allow an apprenticeship in place of any kind of formal legal education (though the number of persons who actually become lawyers that way is increasingly rare).

Career structure

The career structure of lawyers varies widely from one country to the next.

Common law/civil law

In most common law countries, especially those with fused professions, lawyers have many options over the course of their careers. Besides private practice, they can always aspire to becoming a prosecutor, government counsel, corporate in-house counsel, administrative law judge, judge, arbitrator, law professor, or politician. There are also many non-legal jobs which legal training is good preparation for, such as corporate executive, government administrator, investment banker, or journalist. In developing countries like India, a large majority of law students never actually practice, but simply use their law degree as a foundation for careers in other fields.

In most civil law countries, jurists generally structure their legal education around their chosen specialty; the boundaries between different types of jurists are carefully defined and hard to cross. After one earns a law degree, career mobility may be severely constrained. For example, unlike their American counterparts, it is difficult for German judges to leave the bench and become advocates in private practice. Another interesting example is France, where for much of the 20th century, all magistrates were graduates of an elite professional school for judges. Although the French magistracy has begun experimenting with the Anglo-American model of appointing judges from accomplished advocates, the few advocates who have actually joined the bench this way are seen by their colleagues as losers who failed in private practice.

Specialization

In many countries, lawyers are general practitioners who will take almost any kind of case that walks in the door. In others, there has been a tendency since the start of the 20th century for lawyers to specialize early in their careers.

Organization

Main article: Law firm

Lawyers in private practice generally work in specialized businesses known as law firms, with the exception of English barristers. The vast majority of law firms worldwide are small businesses that range in size from 1 to 10 lawyers. The United States, with its large number of firms with more than 100 lawyers, is the outstanding exception. After the latest wave of mergers, several law firms in the United States and the United Kingdom have more than 1,000 lawyers.

Notably, barristers in England and Wales do not work in "law firms". Those who offer their services to the general public — as opposed to those working "in house" — are required to be self-employed. Most work in groupings known as "sets" or "chambers", where some administrative and marketing costs are shared. An important effect of this different organizational structure is that there is no conflict of interest where barristers in the same chambers work for opposing sides in a case, and in some specialised chambers this is commonplace.

Compensation

Main article: Attorney's fee

Lawyers are paid for their labor in a variety of ways. Lawyers in private practice may work for an hourly fee, contingency fee, lump sum payment, or retainer. In many countries there are fee-shifting arrangements by which the loser must pay the winner's fees and costs.

Lawyers working directly on the payroll of governments and corporations usually earn a regular annual salary. Finally, lawyers can volunteer their labor in the service of worthy causes through an arrangement called pro bono (for the common good).

Professional associations and regulation

Mandatory licensing and membership in professional organizations

In some jurisdictions, either the judiciary or the Ministry of Justice directly supervises the admission, licensing, and regulation of lawyers.

Other jurisdictions, by statute, tradition, or court order, have granted such powers to a professional association which all lawyers must belong to. In the U.S., such associations are known as mandatory, integrated, or unified bar associations. In the Commonwealth of Nations, similar organizations are known as Inns of Court, bar councils or law societies. In civil law countries, comparable organizations are known as Orders of Advocates, Chambers of Advocates, Colleges of Advocates,, Faculties of Advocates, or similar names. Generally, a nonmember caught practicing law may be liable for the crime of unauthorized practice of law.

In common law countries with divided legal professions, barristers traditionally belong to the bar council (or an Inn of Court) and solicitors belong to the law society. In the English-speaking world, the largest mandatory professional association of lawyers is the State Bar of California, with 200,000 members.

Some countries admit and regulate lawyers at the national level, so that a lawyer, once licensed, can argue cases in any court in the land. This is common in small countries like New Zealand, Japan, and Belgium. Others, especially those with federal governments, tend to regulate lawyers at the state or provincial level; this is the case in the United States, Canada, Germany, Australia, and Switzerland, to name a few. Brazil is the most well-known federal government that regulates lawyers at the national level.

Some countries, like Italy, regulate lawyers at the regional level, and a few, like Belgium, even regulate them at the local level (that is, they are licensed and regulated by the local equivalent of bar associations but can advocate in courts nationwide).

Such geographic limitations can be troublesome for a lawyer who discovers that his client's cause requires him to litigate in a court beyond the normal geographic scope of his license. Although most courts have special pro hac vice rules for such occasions, the lawyer will still have to deal with a different set of professional responsibility rules, as well as the possibility of other differences in substantive and procedural law.

Some countries grant licenses to non-resident lawyers, who may then appear regularly on behalf of foreign clients. Others require all lawyers to live in the jurisdiction or to even hold national citizenship as a prerequisite for receiving a license to practice; for example, the Supreme Court of Canada has upheld the constitutionality of a citizenship requirement. In contrast, American citizenship and residency requirements were struck down as unconstitutional by the U.S. Supreme Court in 1973 and 1985, respectively.

Who regulates lawyers

A key difference among countries is whether lawyers should be regulated solely by an independent judiciary and its subordinate institutions (a self-regulating legal profession), or whether lawyers should be subject to supervision by the Ministry of Justice in the executive branch.

In most civil law countries, the government has traditionally exercised tight control over the legal profession in order to ensure a steady supply of loyal judges and bureaucrats. That is, lawyers were expected first and foremost to serve the state, and the availability of counsel for private litigants was an afterthought. Even in civil law countries like Norway which have partially self-regulating professions, the Ministry of Justice is the sole issuer of licenses, and makes its own independent re-evaluation of a lawyer's fitness to practice after a lawyer has been expelled from the Advocates' Association. Brazil is an unusual exception in that its national Order of Advocates has become a fully self-regulating institution (with direct control over licensing) and has successfully resisted government attempts to place it under the control of the Ministry of Labor.

In contrast, common law lawyers have traditionally regulated themselves through institutions where the influence of non-lawyers, if any, was weak and indirect (despite nominal state control). Such institutions have been traditionally dominated by private practitioners who opposed strong state control of the profession on the grounds that it would endanger the ability of lawyers to zealously and competently advocate their clients' causes in the adversarial system of justice.

However, the concept of the self-regulating profession has been heavily criticized as a sham which serves to legitimate the professional monopoly while protecting the profession from public scrutiny. In many countries, disciplinary mechanisms have been astonishingly ineffective, and penalties have been light or nonexistent in the vast majority of cases.

Voluntary associations of lawyers

Lawyers are always free to form voluntary associations of their own, apart from any licensing or mandatory membership that may be required by the laws of their jurisdiction. Like their mandatory counterparts, such organizations may exist at all geographic levels. In American English, such associations are known as voluntary bar associations. The largest voluntary professional association of lawyers in the English-speaking world is the American Bar Association.

In some countries, like France and Italy, lawyers have also formed trade unions.

Criticism of lawyers

Hostility towards the legal profession is a universal phenomenon. The legal profession was abolished in Prussia in 1780 and in France in 1789, though both countries eventually realized that their judicial systems could not function efficiently without lawyers. Complaints about too many lawyers were common in both England and the United States in the 1840s Germany in the 1910s,; and in Australia, Canada, the United States, and Scotland in the 1980s.

Public distrust of lawyers reached record heights in the United States after the Watergate scandal. In the aftermath of Watergate, legal self-help books became popular among those who wished to solve their legal problems without having to deal with lawyers. Lawyer jokes (already a perennial favorite) also soared in popularity in English-speaking North America as a result of Watergate. In 1989, American legal self-help publisher Nolo Press published a 171-page compilation of negative anecdotes about lawyers from throughout human history.

History

It is very difficult to determine when the legal profession started, because of all the confusion as described above about who is a lawyer. If one tightly defines a lawyer as a man — there were no female lawyers until the 19th century — who earns his living through advocacy in a court of law on behalf of others, then the earliest lawyers were probably the orators of ancient Athens (see History of Athens). However, Athenian orators faced serious structural obstacles. First, there was a rule that individuals were supposed to plead their own cases, which was soon bypassed by the increasing tendency of individuals to ask a "friend" for assistance. Fortunately, around the middle of the fourth century BCE, the Athenians disposed of the perfunctory request for a friend. Second, a more serious obstacle, which the Athenian orators never completely overcame, was the rule that no one could take a fee to plead the cause of another. This law was widely disregarded in practice, but was never abolished, which meant that orators could never present themselves as legal professionals or experts. They had to uphold the legal fiction that they were merely an ordinary citizen generously helping out a friend for free, and thus they could never organize into a real profession — with professional associations and titles and all the other pomp and circumstance — like their modern counterparts. Therefore, if one narrows the definition to those men who could practice the legal profession openly and legally, then the first lawyers would have to be the orators of ancient Rome.

A law enacted in 204 BCE barred Roman advocates from taking fees, but the law was widely ignored. The ban on fees was abolished by Emperor Claudius, who legalized advocacy as a profession and allowed the Roman advocates to become the first lawyers who could practice openly — but he also imposed a fee ceiling of 10,000 sesterces. This was apparently not much money; Juvenal complained that there was no money in working as an advocate.

Like their Greek contemporaries, early Roman advocates were trained in rhetoric, not law, and the judges before whom they argued were also not law-trained. But very early on, unlike Athens, Rome developed a class of specialists who were learned in the law, known as jurisconsults (iuris consulti). Jurisconsults were wealthy amateurs who dabbled in law as an intellectual hobby; they did not make their primary living from it. They gave legal opinions (responsa) on legal issues to all comers (a practice known as publice respondere). Roman judges and governors would routinely consult with an advisory panel of jurisconsults before rendering a decision, and advocates and ordinary people also went to jurisconsults for legal opinions. Thus, the Romans were the first to have a class of people who spent their days thinking about legal problems, and this is why their law became so "precise, detailed, and technical."

During the Roman Republic and the early Roman Empire, jurisconsults and advocates were unregulated, since the former were amateurs and the latter were technically illegal. Any citizen could call himself an advocate or a legal expert, though whether people believed him would depend upon his personal reputation. This changed once Claudius legalized the legal profession.

By the start of the Byzantine Empire, the legal profession had become well-established, heavily regulated, and highly stratified. The centralization and bureaucratization of the profession was apparently gradual at first, but accelerated during the reign of Emperor Hadrian. At the same time, the jurisconsults went into decline during the imperial period.

In the words of Fritz Schulz: "[B]y the fourth century things had changed in the eastern Empire: advocates now were really lawyers." For example, by the fourth century, advocates had be enrolled on the bar of a court to argue before it, they could only be attached to one court at a time, and there were restrictions (which came and went depending upon who was emperor) on how many advocates could be enrolled at a particular court. By the 380s, advocates were studying law in addition to rhetoric (thus reducing the need for a separate class of jurisconsults); in 460, Emperor Leo imposed a requirement that new advocates seeking admission had to produce testimonials from their teachers; and by the sixth century, a regular course of legal study lasting about four years was required for admission. Claudius's fee ceiling lasted all the way into the Byzantine period, though by then it was measured at 100 solidi. Of course, it was widely evaded, either through demands for maintenance and expenses or a sub rosa barter transaction. The latter was cause for disbarment.

The notaries (tabelliones) appeared in the late Roman Empire. Like their modern-day descendants, the civil law notaries, they were responsible for drafting wills, conveyances, and contracts. They were ubiquitous and most villages had one. In Roman times, notaries were widely considered to be inferior to advocates and jurisconsults. Roman notaries were not law-trained; they were barely literate hacks who wrapped the simplest transactions in mountains of legal jargon, since they were paid by the line.

Beyond the Romans

Civilizations other than the Graeco-Roman may have developed the lawyer function independently or as a matter of cultural diffusion. The heroic sagas of Iceland tell several accounts of disputes settled through lawyering. In Hrafnkels saga, Sámr Bjarnisson pursues a wrongful death action against a powerful neighbor; the defendant bides his time and gets revenge. Njál's saga, a bitter feud alternates between violence and legal action. It culminates in a legal duel between the two finest lawyers in Iceland featuring concepts of venue, jury selection and stiff penalties for improper pleadings. Ultimately the lawyers come to blows, underscoring the weakness of a legal system dependent on self-help.

The civilizations of the Indian subcontinent feature notable lawyers, such as Ram Shastri.

More information by country

Commonwealth countries

• Advocate
• Barrister
• Solicitor
• Legal Executive - considered a lawyer in England and Wales
• Licensed Conveyancer - considered a lawyer in England and Wales and Australia
• Notary public - a legal professional in England and Wales
• Scrivener

United States

• Attorney at law

See also

• Ambulance chaser (derogatory)
• Attorney
• Court dress
• Esquire
• St. Ivo of Kermartin (patron saint of lawyers)
• Law Broker
• Law firm
• Legalese (derogatory)
• List of jurists
• List of law firms
• List of lawyers
• Practice of law
• Prosecutor
• Public defender
• Rules lawyer (derogatory)

External links

United States

• Lawyers - employment and earnings estimates for employed lawyers, Bureau of Labor Statistics (BLS)
• Woe Unto You, Lawyers! - a classic, caustic look at the legal profession by a Yale University professor of law