Lawyer description
A lawyer, or legal practitioner, 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.
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.
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.
In Canadian English, the word "lawyer" only refers to
individuals who have been called to the bar. They may
also be known as "barristers and solicitors", but should
not be referred to as "attorneys", as that word has a
different meaning under Canadian law.
Responsibilities
In most countries, particularly 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.
Notably, England, the mother of the common law
jurisdictions, emerged from the Dark Ages with similar
complexity in its legal professions, but then evolved by
the 19th century to a single dichotomy between
barristers and solicitors. An equivalent dichotomy
developed between advocates and procurators in some
civil law countries, though these two types did not
always monopolize the practice of law as much as
barristers and solicitors, in that they always coexisted
with civil law notaries.
Several countries that originally had two or more legal
professions have since fused or united their professions
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).[36]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."[38] 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,[48] 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.[56] 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 articles: Call to the bar and 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, lawyers generally structure
their legal education around their chosen specialty; the
boundaries between different types of lawyers 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 looked down upon
by their colleagues who have taken the traditional route
to magistracy.
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 an
exception. The United Kingdom is also an exception, as
both the U.K. and the U.S. are now home to several firms
with more than 1,000 lawyers after a wave of mergers in
the late 1990s.
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 work 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 widespread
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: "By 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. |
