Lawyers

A lawyer is a Person qualified to give Legal Advice who advises Client s in legal matters and represents them in Court s 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. More information is available in country-specific articles (see below).

RESPONSIBILITIES

Many jurisdictions, like England , have traditionally divided their legal professions into Barrister s and Solicitor s (known as advocates and procurators, respectively, in some civil law countries).Benoit Bastard and Laura Cardia-Vonèche, "The Lawyers of Geneva: an Analysis of Change in the Legal Profession," trans. by Richard L. Abel, in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 295-335 (Berkeley: University of California Press, 1988): 297.Carlos Viladás Jene, "The Legal Profession in Spain: An Understudied but Booming Occupation," in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 369-379 (Berkeley: University of California Press, 1988): 369.Vittorio Olgiati and Valerio Pocar, "The Italian Legal Profession: An Institutional Dilemma," in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 336-368 (Berkeley: University of California Press, 1988): 338.

In some civil law countries, there has been a tradition of giving many legal tasks to a variety of s, of which only some are advocates who are licensed to practice in the courts.Jon T. Johnsen, "The Professionalization of Legal Counseling in Norway," in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 54-123 (Berkeley: University of California Press, 1988): 91.Kahei Rokumoto, "The Present State of Japanese Practicing Attorneys: On the Way to Full Professionalization?" in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 160-199 (Berkeley: University of California Press, 1988): 164.

In contrast, several other countries that began with a divided profession have since ''fused'' or ''united'' their legal profession into a single type of lawyer.Bastard, 299.Harry W. Arthurs, Richard Weisman, and Frederick H. Zemans, "Canadian Lawyers: A Peculiar Professionalism," in ''Lawyers in Society: The Common Law World'', vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 123-185 (Berkeley: University of California Press, 1988): 124.David Weisbrot, "The Australian Legal Profession: From Provincial Family Firms to Multinationals," in ''Lawyers in Society: The Common Law World'', vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 244-317 (Berkeley: University of California Press, 1988): 250.
Georgina Murray, "New Zealand Lawyers: From Colonial GPs to the Servants of Capital," in ''Lawyers in Society: The Common Law World'', vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 318-368 (Berkeley: University of California Press, 1988): 324.
In such countries, 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.Richard L. Abel, ''The Legal Profession in England and Wales'' (London: Basil Blackwell, 1989), 116.

In some countries, litigants have the option (though not recommended) of arguing ''pro se'', or on their own behalf, and it is common for litigants to appear unrepresented before certain courts like Small Claims courts. In others, like Venezuela , no one may appear before a judge unless represented by a lawyer.Rogelio Pérez Perdomo, "The Venezuelan Legal Profession: Lawyers in an Inegalitarian Society," in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 380-399 (Berkeley: University of California Press, 1988): 387.

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.See Abel, ''England and Wales'', 56 and 141.

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.Jene, 369.

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.Rokumoto, 164.

Practice before administrative courts

In most countries, administrative courts are informal bodies. In a few countries, there is a special category of jurists with a monopoly over this form of advocacy; thus, France has its ''conseil juridiques.'' Anne Boigeol, "The French Bar: The Difficulties of Unifying a Divided Profession," in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 258-294 (Berkeley: University of California Press, 1988): 263.
In other countries, like the United States , lawyers have actually been barred by statute from certain types of administrative hearings in order to preserve their informality.Richard L. Abel, ''American Lawyers'' (New York: Oxford University Press, 1989): 132.

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. 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. Abel, ''England and Wales'', 1 and 141. The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client.

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.
Arthurs, 125; Johnsen, 74; and Perdomo, 387.Erhard Blankenburg and Ulrike Schultz, "German Advocates: A Highly Regulated Profession," in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 124-159 (Berkeley: University of California Press, 1988): 124.Joaquim Falcão, "Lawyers in Brazil," in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 400-442 (Berkeley: University of California Press, 1988): 401.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.

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.Abel, ''England and Wales'', 185; Bastard, 318.Kees Schuyt, "The Rise of Lawyers in the Dutch Welfare State," in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 200-224 (Berkeley: University of California Press, 1988): 201. Sometimes civil law notaries are allowed to give legal advice, as in Belgium .Luc Huyse, "Legal Experts in Belgium," in ''Lawyers in Society: The Civil Law World'', vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 225-257 (Berkeley: University of California Press, 1988): 227.
In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.Murray, 325; and Rokumoto, 164.

Protecting intellectual property

In virtually all countries, Patent s, Trademark s, Copyright s and other forms of Intellectual Property must be formally registered with a government agency in order to be protected by 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.Rokumoto, 164.

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.Arthurs, 125; and Perdomo, 387. In others, jurists or notaries may negotiate or draft contracts.Huyse, 227.

Conveyancing

Conveyancing is the drafting of the documents necessary for the transfer of Real Property , such as Deed s and Mortgage s. In some jurisdictions, all Real Estate transactions must be carried out by a lawyer (or a solicitor where that distinction still exists).Abel, ''England and Wales'', 176; Murray, 325; and Perdomo, 387.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),Abel, ''England and Wales'', 177. and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales ."Weisbrot, 292. In others, the use of a lawyer is optional and banks, title companies, or Realtor s may be used instead.Weisbrot, 251. In some civil law jurisdictions, real estate transactions are handled by civil law notaries.Arthurs, 125; Huyse, 227; and Schuyt, 201.

Carrying out the intent of the deceased

In many countries, lawyers have a monopoly on the drafting of Will s, Trust s, 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. Huyse, 227.

In the United States, the estates of the deceased must be administered by a court through Probate , and American lawyers have a profitable monopoly over probate law.Ralph Warner & Stephen Elias, ''Fed Up with the Legal System: What's Wrong & How to Fix It'' (Berkeley: Nolo Press, 1994): 11.

''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.Abel, ''American Lawyers'', 133.Arthurs, 161; Murray, 342; Perdomo, 392; Schuyt, 211; and Weisbrot, 288.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.Boigeol, 280; and Jene, 376. In others, legal aid specialists are practically nonexistent. This may be because nonlawyers are allowed to provide such services, as in Norway ,Johnsen, 75 or because mandatory fee structures have enabled widespread implementation of affordable legal expense insurance, as in Germany .Blankenburg, 143. In Italy , trade unions and political parties provide what can be characterized as legal aid services.Olgiati, 354.

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.Huyse, 227; and Schuyt, 201. 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

At the universities of most 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.Abel, ''England and Wales'', 45-59 and ; Rokumoto, 165; and Schuyt, 204.

In a few countries, particularly the United States, law is primarily taught at Law School s. 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 award graduating students with a J.D. ( Doctor Of Jurisprudence ) as the standard law degree, and many offer post-doctoral law degrees such as the LL.M. (Legum Magister/Master of Laws), or the S.J.D. (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.Olgiati, 345. Others do not, like Venezuela.Perdomo, 384. A few countries teach how to read and think like a lawyer through assigned readings of judicial opinions 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 adapt to legal writing style either at their apprenticeship or their first job.Blankenburg, 132; and Olgiati, 345. Depending upon the country, a typical class size could range from five students in a seminar to five hundred in a giant lecture room. Most U.S. schools tend to retain small class sizes, and as such, grant admissions on a more limited and competitive basis.

Advanced countries tend to have a preference for full-time law programs,Abel, ''American Lawyers'', 57; and Murray, 337. while students in developing countries like Brazil and India often work full-time to pay the tuition and fees of their part-time law programs.Falcão, 410.J.S. Gandhi, "Past and Present: A Sociological Portrait of the Indian Legal Profession," in ''Lawyers in Society: The Common Law World'', vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 369-382 (Berkeley: University of California Press, 1988): 375.

Earning the right to practice law

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.Abel, ''American Lawyers'', 62. However, in many countries, a law student must pass a Bar Examination (or an series of such examinations) before receiving a license to practice.Alan A. Paterson, "The Legal Profession in Scotland: An Endangered Species or a Problem Case for Market Theory?" in ''Lawyers in Society: The Common Law World'', vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 76-122 (Berkeley: University of California Press, 1988): 89.

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).Weisbrot, 266.

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, law professor, or politician.Abel, ''England and Wales'', 214; Arthurs, 131; Gandhi, 374; and Weisbrot, 277. 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.Gandhi, 374.

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.Blankenburg, 133.

Specialization

In many countries, lawyers are general practitioners who will take almost any kind of case that walks in the door.Olgiati, 353. In others, there has been a tendency since the start of the 20th century for lawyers to specialize early in their careers.Abel, ''American Lawyers'', 122.

PROFESSIONAL ASSOCIATIONS AND REGULATION

Mandatory licensing and membership in professional organizations

In some jurisdictions, either the judiciaryWeisbrot, 264. or the Ministry of JusticeJohnsen, 86. 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.Boigeol, 271. In the U.S., such associations are known as mandatory, integrated, or unified Bar Association s. In the Commonwealth of Nations, similar organizations are known as Inns Of Court , Bar Council s or Law Societies .Abel, ''England and Wales'', 127 and 243-249; Arthurs, 135; and Weisbrot, 279. In civil law countries, comparable organizations are known as Orders of Advocates,Bastard, 295; and Falcão, 401. Chambers of Advocates,Blankenburg, 139. Colleges of Advocates,Jene, 370., Faculties of Advocates,Paterson, 79. or similar names. Generally, a nonmember caught practicing law may be liable for the crime of Unauthorized Practice Of Law .Arthurs, 143.

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.Murray, 339; Rokumoto, 163; and Schuyt, 207. Others, especially those with federal governments, tend to regulate lawyers at the state or provincial level; this is the case in the United States,Abel, ''American Lawyers'', 116. Canada ,Arthurs, 135. Germany,Blankenburg, 139. Australia,Weisbrot, 244. and Switzerland,Bastard, 299. to name a few. Brazil is the most well-known federal government that regulates lawyers at the national level.Falcão, 404.

Some countries, like Italy, regulate lawyers at the regional level,Olgiati, 343. 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).Huyse, 239.

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.Arthurs, 140. In contrast, American citizenship and residency requirements were struck down as unconstitutional by the U.S. Supreme Court in 1973 and 1985, respectively.Abel, ''American Lawyers'', 68.

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.Abel, ''Civil Law World'', 10; Johnsen, 70; Olgiati, 339; and Rokumoto, 161. 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.Johnsen, 86. 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.Falcão, 423.

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).Abel, ''England and Wales'', 29; and Arthurs, 148. 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.Arthurs, 138; and Weisbrot, 281.

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.Abel, ''American Lawyers'', 246. In many countries, disciplinary mechanisms have been astonishingly ineffective, and penalties have been light or nonexistent in the vast majority of cases.Abel, ''American Lawyers'', 147; Abel, ''England and Wales'', 135 and 250; Arthurs, 146; Paterson, 104; and Weisbrot, 284.

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.Abel, ''England and Wales'', 132-133. In American English, such associations are known as voluntary bar associations.Arthurs, 141. 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 Union s.Boigeol, 274; and Olgiati, 344.

CRITICISM OF LAWYERS

Hostility towards the legal profession is a universal phenomenon. The legal profession was abolished in Paterson, 76. in the 1980s .

Public distrust of lawyers reached record heights in the United States after the published a 171-page compilation of negative anecdotes about lawyers from throughout human history.Andrew Roth & Jonathan Roth, ''Devil's Advocates: The Unnatural History of Lawyers'' (Berkeley: Nolo Press, 1989): ix.

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