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Lawyer

From Academic Kids

For information on the type of fish called Lawyer, see the article on Burbot.

A lawyer is a person licensed by the state to advise clients in legal matters and represent them in courts of law (and in other forms of dispute resolution). Most countries today require professional law advisors in their judicial systems. Lawyers have many names in different countries—including "advocate", "attorney", "barrister", "counsellor", "civil law notary" and "solicitor"—and many of these names indicate specific classes or ranks of jurists. In the United States, lawyers are formally called "Attorneys at Law".

Law is a rather 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 (usually financial and economic) of persons who retain (i.e. hire) lawyers for legal services.

Despite the fact that carrying on a law practice is similar to operating a private business, lawyering is traditionally considered to be a learned (and even honorable) profession requiring, in most common law countries, at least three years of education beyond a bachelor's degree. The degree earned by lawyers in the United States and many other countries is a J.D. or juris doctor. The equivalent degree for lawyers in England and Commonwealth countries such as Canada (excluding the province of Quebec) and Australia is a LL.B. or bachelor/baccaulareate of laws. In Quebec, lawyers hold a LL.L. or license en droit.

The role of the lawyer can vary significantly across legal jurisdictions. For instance, in some countries, lawyers may be required to lead or manage criminal investigations. In the United States, lawyers have taken over functions that used to be (and in some countries, still are) performed by other professionals, such as the civil law notary or even by non-professionals.

In the United States, lawyers are called attorneys. Strictly speaking, an attorney is similar to an agent, a person who has been formally empowered by someone else (a "principal") to act on behalf of the principal. Lawyers are "attorneys at law", authorised to plead cases on behalf of their clients.

Contents

Lawyers in the U.S.

The United States Department of Labor's Bureau of Labor Statistics (1 (http://www.bls.gov/oes/2001/oes231011.htm)) estimates that in 2001, there were 490,000 practicing lawyers in the U.S. It is frequently said that there are more lawyers per capita in the US than in any other country in the world. This statistic is misleading because it is difficult to compare numbers of law professionals between different legal systems. The roles of these professionals vary and some of the work that is done in the United States by a lawyer is performed by several different types of professionals in other countries.

Bar admission

Typical requirements

In order for a person to be admitted to the bar for the first time, all U.S. jurisdictions, except for the state of Wisconsin, require all applicants to take and pass a bar examination, which includes both a multi-state (national) portion and a portion designated for the laws of the particular state to which the applicant is applying, as well as a good character inquiry which is essentially a full background check. Two states do not administer the multi-state portion—Louisiana and Washington. In addition, all but a handful of jurisdictions require that the applicant have earned a law degree from an American Bar Association-accredited law school.

The state of Wisconsin grants a "diploma privilege" to students who graduate from any accredited law school within the state. This "diploma privilege" makes those students exempt from taking the bar exam; and, if they have earned acceptable grades in core areas of the law, they are allowed to become members of the Wisconsin Bar Association without taking either the multi-state or essay exam as all other applicants must do. Many American states also granted a similar privilege at the beginning of the 20th century, but gradually withdrew it under pressure from bar associations.

After passing the bar, a lawyer may practice any type of law in that state, except for patent law. Lawyers who wish to become a patent attorney must not only take the state bar exam but also must pass the United States Patent and Trademark Office registration examination, commonly known as the "patent bar." Legal ethics rules prohibit lawyers from using the title "patent attorney" unless they are admitted to practice before the USPTO. These additional requirements make patent attorneys very rare and are in high demand by many companies, making a starting salary of $120,000 quite average.

Benefits of admission

A successful applicant is issued a certificate of admission issued by the state's highest court and a membership card verifying their admission. The new lawyer will also be issued a unique bar identification number, which, in some but not all jurisdictions, must appear on all documents submitted by a lawyer to enable the court to confirm that the lawyer is a member of the bar in good standing.

The clinical training issue

The American legal system is unique in that, with two exceptions, it has no formal apprenticeship or clinical training requirements between the period of academic legal training and the bar exam, or even after the bar exam. The two exceptions are Delaware and Vermont, who require that candidates for admission serve a full-time clerkship of at least five months in the office of a lawyer previously admitted in that state before being eligible to take the oath of admission.

Many law schools have tried to rectify this lack of experience by requiring supervised "Public Service Requirements" of all graduates, see Brandeis School of Law (University of Louisville) Public Service Requirement (http://www.brandeislaw.com/psp/index.htm)

In most states, therefore, anyone with a J.D. (or equivalent experience in the states that allow it) may immediately take the bar exam and be admitted to the bar, and then may immediately seek out clients and start filing papers with a court. The current system has been heavily criticized, since clients often end up subsidizing the clinical training of young lawyers.

Interstate admission

Some jurisdictions permit the admission of an applicant who is already admitted to the bar of another state. This sort of admission may or may not be dependent on whether the jurisdiction to which the applicant is already admitted offers reciprocity to other jurisdictions, i.e., whether the jurisdiction itself allows attorneys in without admission. Some states zealously pride themselves on the exclusivity of their admissions process and therefore do not offer reciprocity of any kind.

Other jurisdictions allow admission to presently practicing lawyers upon the successful completion of a limited examination on procedure and/or ethics.

Federal courts

United States District Courts (Federal trial courts) condition their admissions policies on those of the state in which they are located. Generally speaking, a Federal District Court will admit a lawyer to practice provided that he or she is already admitted to practice in that state. Thus, for example, a lawyer admitted in California may automatically be admitted to the bar of a Federal court in California, but could likely not automatically gain admission to a Federal court in neighboring Oregon.

Other U.S. Federal courts, such as the U.S. Supreme Court, the U.S. Court of Federal Claims, or the U.S. Court of Veterans Appeals have open admissions policies, allowing bar admission to attorneys licensed anywhere in the country.

Legal education

In turn, before taking the bar exam, nearly all American lawyers must first attend law school for at least three years.

The degree awarded by U.S. law schools to graduates is the degree of Juris Doctor or J.D. (occasionally mis-Anglicized to Juris Doctorate). In contrast, other common law legal systems still use the degree of Bachelor/Baccalureate of Laws, or LL.B. Some universites, for instance Oxford, offer B.A degrees instead of the LL.B.

A key distinction between the U.S. and U.K. systems is that in the U.S., the J.D. degree is usually undertaken by graduates whereas in the UK, the LL.B (or the equivalent B.A.) is a primary, undergraduate, degree.

Graduate law degrees may also be obtained. A Master of Laws, or LL.M., is awarded after completion of a specialized program of study - often in esoteric subjects such as taxation or trial advocacy.

The ultimate law degree obtainable in the U.S. is the S.J.D., or Scientum Juris Doctor, literally "doctor of juridical science". This should not be confused with the "doctor of laws" degree, or LL.D., which is usually, but not always, awarded for honorary purposes. Usually, only law professors bother to earn an S.J.D., since it entails an additional three years on top of one for an LL.M and three for a J.D.

The LL.M and S.J.D. are not mandatory prerequisites for lawyers who wish to become law professors. Although such advanced degrees do help with regard to seeking employment at the most prestigious law schools, the majority of law professors hold only the J.D. degree.

Bar associations

All jurisdictions have a bar association, being an organization of which members of the bar in that jurisdiction may be members. Traditionally, the bar association issues a magazine or journal, forms committees to deal with issues relating to the bar such as fee disputes, rules, and the like, and promotes the greater good of the profession.

Many jurisdictions, particularly in the West, have so-called an integrated bar, meaning that the state's bar association is the body which licenses, regulates, and disciplines lawyers, and membership therein is mandatory.

In other jurisdictions, membership in the state bar association is voluntary, and the bar association has no official power, except those which may be conferred upon it by the state's highest court.

In some jurisdictions, there also exist county or local bar associations, which normally deal with the same issues, except on a more localized basis. There are also bar associations organized by and for members of a particular ethnic group (often based on gender, race, religion, or national heritage) or whose members share common legal interests or practices (such as bankruptcy lawyers or in-house counsel).

Lawyer credentials, prestige, and career path

American lawyers are very credential-oriented. Apart from the minimum requirements of a J.D. and admission to the state bar, there are certain credentials which lawyers and judges use to "size up" each other. The following credentials are always mentioned in lawyer profiles and biographies, but their subtle meaning is lost on most laypeople.

First, law schools are informally divided into "tiers" based on academic prestige. The most important are arguably, Yale, Stanford, Harvard, Berkeley, Columbia, Chicago, NYU, Michigan, and Pennsylvania, which supply the vast majority of law professors for all other law schools, and most U.S. Supreme Court law clerks. After those come the top 15 or 20 law schools. The giant "megafirms" actually visit all these top-tier law schools each fall to recruit new associates for the following summer. In contrast, most law firms cannot predict their labor needs that far in advance, and therefore most new law school graduates have to aggressively woo law firms during their third year or even after graduation.

Within each law school, key credentials include:

On the basis of these credentials, as well as three favorable faculty recommendations, some students then obtain a one or two-year clerkship with a judge after graduation. A clerkship with a federal judge is usually more prestigious than one with a state judge.

With a favorable recommendation from a judge sitting on a federal court of appeals, a brilliant young attorney may be able to garner a subsequent clerkship with the U.S. Supreme Court (although graduates of the top three schools can often go directly from law school to the Supreme Court).

Attorneys who clerk at the Supreme Court are an elite group. They have job offers from multiple law firms awaiting them upon graduation, and when they start practicing after finishing their clerkship, they receive starting bonuses equal to their first year's pay. Since starting salary at megafirms is around $125,000 per year, the implication is that such attorneys may earn $250,000 in their first year of practice. There are very few other professions where a bright 25-year-old can earn that kind of money; in contrast, most doctors do not earn that much until they are at least 32. However, it is important to note that this also entails extraodinary hours. For this reason, most law graduates only stay at these "megafirms" for a short time. In addition, very few starting associates make partner in firms of that size.

With Order of the Coif, law review, moot court, and a federal appellate clerkship on their resume (or at least three of the four), an attorney has many options. They may strive to make partner at a large law firm, or become a law professor at an top-tier law school and try to get tenure, or go to work for the Justice Department and try to get promoted to U.S. Attorney. Once they have reached any (or all) of those objectives, they may turn to building up their connections with a political party and hope that the President nominates them to a federal judgeship or a senior position in his administration.

Examples of judges who have followed such a career path include Richard Posner and Sandra Day O'Connor.

What American lawyers do

Unlike most other nations, the American legal system does not draw a strong line between solicitors and barristers, nor does it relegate most routine work to notaries public.

Once accepted by the bar association of a state, an American lawyer may file legal pleadings and argue cases in any court in that state (either federal or state), provide legal advice to clients, and draft important legal documents (like wills, trusts, deeds, and contracts). American lawyers use the term lawyering to refer to the art of practicing law.

In some states, real estate closings may only be performed by lawyers, even though the lawyer's role in a closing mostly involves notarization of documents and disbursement of settlement funds through an escrow account.

Practicing law can be broadly generalized as: (1) interviewing the client and identifying what is their legal matter or dispute, (2) "spotting" the discrete legal and factual issues embedded within the client's larger problem, (3) systematically researching each issue, (4) designing a solution that resolves at least some of the issues, if not all, and (5) executing it through specific tasks like drafting a contract or filing a motion with a court. Most academic legal training is directed to "issue spotting", how to research facts and law, and how to argue both the facts and law in favor of either side in any case.

Contrary to the media image of lawyers, virtually all serious legal work requires hours of in-depth research in a law library or in an electronic database like Westlaw or LexisNexis. Very few television programs and movies accurately portray the long nights surrounded by a pile of books or printouts which form the core of the average American lawyer's occupational life.

They also do not show the stressful "juggling" aspect of litigation, in that most litigators have many cases in progress at any given time. Each case has deadlines that must be carefully monitored, and court dates which one must not forget to attend; and the other side in any case can serve additional motions at any time that will further complicate things. Repeated failures to stay on top on all such details can lead to malpractice suits or disbarment.

In litigation, lawyers spend a lot of time discovering the facts of the case, in order to develop a "theory of the case" that integrates facts and law in a way most favorable to their client. Sadly, too often the discovery phase of a case turns into an unpleasant war of attrition over petty technicalities. Most lawyers would agree that approximately 50 to 70% of all funds spent on legal services in the U.S. go towards discovery costs.

Most American lawyers are highly specialized in one field or another. Often dichotomies are drawn between different types of lawyers, but these are neither fixed nor formal lines. Examples include:

  • Litigators (who sue and defend) v. transactional lawyers (who draft and advise)
  • Solos and small firms (who can't afford to litigate every little issue) v. big firms (who can)
  • Plaintiffs' lawyers (solos and small firms who represent individuals on contingent fee agreements) v. defendants' lawyers (big firms billing large corporations by the hour)
  • Trial lawyers (who argue the facts like Johnnie Cochran) v. appellate lawyers (who argue the law like David Boies)
  • Outside counsel (law firms) v. in-house counsel (corporate legal department)

About half of American attorneys work as solos or in small firms. See law firm. There are also many midsize firms, with anywhere from 50 to 200 lawyers, and since the 1970s, some law firms have merged to form giant "megafirms" with 1,000 lawyers or more.

Unlike other common law jurisdictions, there is nothing to prevent an American lawyer from controlling and arguing his case at each level of the judiciary through its entire lifecycle. However, cases which advance to the appellate level, particularly to the U.S. Supreme Court, are often assigned to experienced appellate practitioners or firms. Nonetheless, in some cases, a lawyer may handle his or her case from the trial level all the way to the U.S. Supreme Court. A notable example of this is the Brown v. Board of Education litigation, where the same trial team handled the case from start to finish.

Who can do legal work besides lawyers

Engaging in the kind of work customarily done by lawyers, without a valid, current license to do so, is the "unauthorized practice of law", which is punishable as a crime in most jurisdictions. In some jurisdictions, the definition of the practice of law is quite strict; persons have been successfully prosecuted for publishing do-it-yourself will forms and for representing special-education children in federal proceedings as specifically allowed by federal law.

A person who has a J.D. but is not admitted to any bar is not a lawyer. However, some courts allow law students to act as "certified student attorneys" after the satisfactory completion of their first year of law school and the completion of particular second- and third-year courses such as Evidence. Many states allow students to argue in front of a court as a certified legal intern (CLI), provided they meet certain prerequisites, such as requiring the student to have completed at least half of their law education, taken or is taking the law school's ethics class, and they are under the supervision of a lawyer. This concept was somewhat misrepresented in the movie Legally Blonde, where the protagonist argues before a jury. Although Elle was under the supervision of a lawyer, no state would allow a student still completing the first year of law to argue in court.

Paradoxically, some jurisdictions will allow a non-lawyer to sit as a judge, usually in lower courts or in hearings by governmental agencies, even though a non-lawyer may not practice before these same courts.

American attorneys' attire

Unlike their counterparts in other common law jurisdictions, American attorneys are not required to wear wigs, robes or any other archaic items of clothing when they appear in court. They are expected to wear contemporary business suits.

The one big exception is the United States Solicitor General, who traditionally argues before the U.S. Supreme Court in 19th-century attire, including a "morning coat" with tails.

What American lawyers are called

In the U.S., lawyers are most frequently referred to in everyday speech as "lawyers" or "attorneys". Technically speaking, an "attorney" is simply one who acts on behalf of another. An "Attorney-at-Law" is, therefore, one who is trained to, and legally permitted to, act on behalf of a client. In earlier times, some states, as well as the Supreme Court of the United States maintained a divided legal profession as can be found in the United Kingdom consisting of Attorneys' (solicitors) and Counsellors' (Barristers). In deference to this practice, when an Attorney-at-Law is admitted to practice in most states his certificate of admission bears the title Attorney and Counsellor-at-Law in recognition of his inheritance of both of these roles.

Lawyers in the U.K. and common law countries

In the United Kingdom, Canada, Australia, and several other common law countries, there are generally two kinds of lawyers—solicitors and barristers. Solicitors may practice before lower courts, but their main (and traditionally only) work is outside the courts, in such areas as legal advice (which may be highly specialised), property conveyancing, wills and estates, preparing legal documents for business transactions and negotiating the legal terms of commercial contracts.

In the UK criminal investigation is done by the Police, HM Customs and Excise, Inland Revenue, Trading Standards Officers and other state organisations (which may, or may not, employ a solicitor or barrister). The prosecution of those criminal cases is done by either the local council, or more usually the Crown Prosecution Service (which does employ a number of solicitors and barristers) and the cases are heard by lay magistrates (who are not lawyers, but who are assisted by a clerk with legal qualifications), or by a Judge (who is legally qualified). Coroners will either be a solicitor, barrister, or medical doctor.

Barristers may practice before lower, superior and high courts. Traditionally (and still for major cases) both a solicitor (for advice) and a barrister (for representation) were required for legal representation before the courts.

In recent years however, the exclusive rights of audience in higher courts held by barristers have been eroded by the introduction of Solicitor Advocates. Solicitors who are described as such have usually received specialised training including tuition on the practices and formalities of court. However, due to the costs and time associated with this training, the majority of solicitor advocates practice in the fields of commercial law or corporate litigation. Indeed, one of the reasons for introducing Solicitor Advocates was to act as a check on the high costs associated with representation in commercial cases - law firms are now able to offer in-house representation for their clients at substantially reduced cost.

Unlike the U.S., the UK and most Commonwealth countries subject their lawyers and judges to strict court dress requirements. Of course, the "archaic" black robes and white neck tabs worn by lawyers in jurisdictions like the United Kingdom and Canada can be viewed positively (and proudly) as remainders of the highly learned status of lawyers who are expected by courts and non-judicial legal licensing bodies to differentiate themselves (at least at the symbolic level) from everyday businessmen and clients.

Certain common law jurisdictions—for example, Malaysia, Singapore, Canada (excluding the province of Quebec), and certain states in Australia—have a fused legal profession, whereby lawyers are licensed as both barristers and solicitors and can practice as both, even though most lawyers in these jurisdictions spend most of their time practicing as one or the other but seldom both.

Canada is one of the few countries in the world where the licensing and disciplining of lawyers is not done by the courts but by non-judicial licensing and regulatory bodies, called Law Societies (or Barristers' Society in the province of Nova Scotia), which are composed of lawyers and law professors instead of judges. A person must be admitted as a member of the Law Society of his/her province or territory in order to practice law. Each Law Society, as created and incorporated by provincial legislation, is headed by a President (or Treasurer in the province of Ontario) and a group of individuals called Benchers. The President is elected by the Benchers from among their own while most (but not all) Benchers are elected from among the membership by lawyers, law professors and other members of the Law Society through local district elections. The few Benchers who are not elected are appointed by the provincial government's attorney-general and are drawn from members of the general public so they could provide a "non-lawyer" perspective and represent symbolically the general public interest. It is the Benchers who conduct disciplinary hearings and mete out punishment. Despite the fact that such a system of "self-regulation" has its critics, there is nothing suggesting that it has failed to hold unethical or incompetent lawyers accountable and to maintain public confidence in the legal profession. The Law Societies also administer the bar examinations written by law school graduates, keep track of which law school graduate is articling (i.e. apprenticing) with which experienced lawyer (called a principal), and provide educational seminars and materials (under the label "Continuing Education") to practicing lawyers. In addition to the Law Societies, there is the Canadian Bar Association which is a voluntary association and lobbying organization that seeks to further the interests of legal justice, civil liberty and the legal profession itself. Membership in the Association is not mandatory for lawyers, and the Association offers educational seminars and materials to practicing lawyers.

Lawyers In Europe

As European's law systems are based on continental civil law, the situation in Europe is quite different from common-law countries.

In Europe any person who possesses a degree in law is called "lawyer". Such lawyers can 'practice' law as employees hired by law firms or legal departments of other business entities. However, being a lawyer does not necessarily mean that one has the privileges usually attributed to "attorney" or "solicitor" in the United States or Canada. Due to such dualism, in Europe there are two classes of lawyers.

France

36 000 lawyers in 2000 (1 for 1725 hab.), 25 000 in 1980.

Lawyers In Poland

In Poland any person who possesses a master's degree in law is called "lawyer" (prawnik).

Polish lawyers admitted to bar association

Five jurist's occupations require prospective candidates to apply for internship, pass an examination for admission to internship, finish an internship of three years, and finally pass an appropriate admission exam. Those occupations are:

  • Prosecutor (prokurator): The legal representative of prosecution and supervision over police investigations;
  • Judge (sędzia);
  • Notary (notariusz): whose job consists of mixture of civil law notary and notary public duties;
  • Barrister (adwokat): whose main function is to represent persons before court in both civil and criminal trials;
  • Counselor (radca prawny) A strange remnant of the pre-1989 situation, when each state-owned enterprise has its own counselor. With the diminishing number of such enterprises, counselors are now very similar to barristers, but they can represent their clients only in civil cases.

Once admitted to the bar association of one occupation, a jurist can move to another occupation with little hassle.

The major obstacle in becoming of one of those jurists is to pass admission to the internship exam. Such exams are performed by appropriate regional bar associations (in cases of prosecutors and judges by appellate district attorney and appellate district court respectively). These exams are the toughest exams in one's career, and after them prospective jurists don't need to be afraid of failing the admission exam.

While admission to internship in the prosecutor and judge professions is commonly regarded as fair, admission to the notary, barrister and counselor's professions is regarded as unfair. Regional bar associations have no vested interest in admitting new members, and often allow an extraordinarily low number of new interns (often one or two) for each year. It is said that those professions are inherited, since only son or daughter of an barrister can become one. Even the president of the Barrister's National Bar said in a television interview that he preferred the son of a barrister as a candidate to internship to others. Additional exams for those occupations are often ridiculously wide and can include questions about movies directed by Krzysztof Kieslowski.

Given that situation, the Constitutional Tribunal in February 2004 struck down a law giving those bar associations rights to perform exams as unconstitutional. This, however, may mean that no admissions to those occupations may take place in 2004 since the Sejm didn't create a new law governing admissions.

Only members of those five occupations can write certoriaris to the Supreme Court and the Constitutional Tribunal in cases in which they themselves are sides. All others must use the services of barristers or counselors.

Similar privileges have habiliated Ph.D.s in Law. They can join any bar association without exams, and can write certoriaris to Supreme Court and Constitutional Tribunal.

Lawyers not admitted to bar associations

Due to the reasons described above, many lawyers do not practice law in the strict sense. They may work in public administration (which has its own highly legalized proceedings), the police (which prosecute small crimes), tax services and similar governmental agencies.

Because under Polish law an agent can act for any person therefore some lawyers do what in the UK is being done by solicitors. Thus, specialized persons write legal agreements, perform negotiations, or execute debts.

Additionally, since a company can be represented in civil court by its own employees, some small and medium companies do not employ barristers or counselors, but instead rely on in-house lawyers not admitted to bar.

In a recent case where a local bar association tried to prosecute a woman (who held a master's degree in law), for giving legal advice without proper qualifications, the Constitutional Tribunal struck down this crime saying that having a master's degree in law does indeed grant an individual the proper qualifications.

Current Issues

Template:NPOV-section Template:Cleanup-section The reputation of the legal profession has diminished in recent years, particularly in the United States where lawyers are often blamed for an increase in litigation. Tort reform has become a central issue; the argument being that increased litigation has led to higher insurance premiums. While it is well known that insurance premiums for doctors have risen greatly in the last several years, the role of tort in these reforms is a source of controversy. Some states have attempted to eliminate the perceived problem by instituting legislatively-mandated caps on non-economic damages. For example, the Labor State Government of the State of New South Wales in Australia passed the Civil Liability Act 2002 where the maximum recoverable figure for damages was capped at $350 000 Australian Dollars. This act was passed after several multi million dollar claims against local councils threatened to bankrupt many of them.

See also

External link

de:Rechtsanwalt es:Abogado eo:Advokato fr:Avocat (mtier) nl:Advocaat (beroep) no:Advokat ja:弁護士 pt:Advogado sv:Advokat zh:律師

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