Lawyer

Oral arguments being made before the New York Court of Appeals.

Arguing a client's case before a judge or jury in a court of law is the traditional province of the barrister in England and Australia,[23] and of advocates in some civil law jurisdictions.[24] However, the boundary between barristers and solicitors has evolved. In England today, the barrister monopoly covers only appellate courts, and barristers must compete directly with solicitors in many trial courts.[25] In countries like the United States, which have fused legal professions, there are trial lawyers who specialize in trying cases in court, but trial lawyers do not have a legal monopoly like barristers. In some countries, litigants have the option of arguing pro se, or on their own behalf. 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.[26] In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer.[27] 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.[28][29]

Often, lawyers brief a court in writing on the issues in a case before the issues can be orally argued. They may have to perform extensive research into relevant facts. Also, they draft legal papers and prepare for an oral argument.

In England, the usual division of labor is that a solicitor will obtain the facts of the case from the client and then brief a barrister (usually in writing).[30] The barrister then researches and drafts the necessary court pleadings (which will be filed and served by the solicitor) and orally argues the case.[31]

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.[32]

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.[33]

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 conseils juridiques (who were merged into the main legal profession in 1991).[34] 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.[35]

An important aspect of a lawyer's job is developing and managing relationships with clients (or the client's employees, if the lawyer works in-house for a government or corporation). The client-lawyer relationship is explained in six steps. First, the relationship begins with an intake interview where the lawyer gets to know the client personally. The second step is discovering the facts of the client's case. Thirdly is clarifying what the client wants to accomplish. The fourth step is where the lawyer shapes the client's expectations as to what actually can be accomplished. The second to last step begins to develop various claims or defenses for the client. Lastly, the lawyer explains her or his fees to the client.[36][37]

In England, only solicitors were traditionally in direct contact with the client.[38] The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client.[39] In most cases barristers were 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 practicing, at a court at which they normally appeared and at their usual rates.[40][41]

Legal advice is the application of abstract principles of law to the concrete facts of the client's case 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.[42][43][44] 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 the unauthorized practice of law.[45]

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.[46][47] Some countries go further; in England and Wales, there is no general prohibition on the giving of legal advice.[48] Singapore does not have any admission requirements for in-house counsel.[49] Sometimes civil law notaries are allowed to give legal advice, as in Belgium.[50]

In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.[51]

In virtually all countries, patents, 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.[33][52]

The trend in industrialized countries since the 1970s has been to greatly restrict the role of clerks and scriveners in patent and trademark work, and to require these functions to be performed only by lawyers or other licensed agents. This ensures that all work product in such cases receives the full protection of attorney-client privilege.

In the United States, for example, the Patent and Trademark Office (PTO) may not speak with anyone but the applicant's attorney about pending applications, and all documents filed in connection with a pending application are automatically accorded attorney-client privilege. The European Patent Office has a similar policy.

In contrast, many countries in the world do not recognize attorney-client privilege for work product related to intellectual property, or have only very limited recognition of the privilege. These countries include China, Japan, Korea, much of Southeast Asia, and most of Latin America. As a result, great care must be taken in these countries to protect intellectual property, as any work product related to a pending application may be disclosed to the public.

Many companies choose to file their applications in the United States or Europe first, and then file for protection in other countries where attorney-client privilege is not recognized. This allows them to keep their work product confidential while they are still in the process of perfecting their invention or design.[53]

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.[54] In others, jurists or notaries may negotiate or draft contracts.[55]

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).[56]

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).[57] 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),[58] and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales."[59] In most common law jurisdictions outside of the United States, this monopoly arose from an 1804 law[60] 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.[61]

In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead.[62] In some civil law jurisdictions, real estate transactions are handled by civil law notaries.[63] In England and Wales a special class of legal professionals–the licensed conveyancer–is also allowed to carry out conveyancing services for reward.[64]

In many countries, only lawyers have the legal authority to draft 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.[55]

In the United States, the estates of the deceased must generally be administered by a court through probate. American lawyers have a profitable monopoly on dispensing advice about probate law (which has been heavily criticized).[65]

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.[66] 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. Criminal defense lawyers specialize in the defense of those charged with any crimes.[67]

Clara Shortridge Foltz, admitted to the California Bar through an examination before attending law school.

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.[92] Mexico allows anyone with a law degree to practice law.[93] 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.[92][94][95] In a handful of U.S. states, one may become an attorney (a so-called country lawyer) by simply "reading law" and passing the bar examination, without having to attend law school first (although very few people actually become lawyers that way).[96]

Some countries require a formal apprenticeship with an experienced practitioner, while others do not. [97] For example, in South Africa it is required that in addition to obtaining an LL.B degree that person has to complete a year of pupillage under an experienced Advocate and have to be admitted to the bar to practice as an Advocate. Holders of an LL.B must have completed two years of clerkship under a principal Attorney (known as Articles) and passed all four board exams to be admitted as an "Attorney" and refer to themselves as such. 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).[98]

Some countries, such as Singapore, do not have any admission requirements for in-house counsel.[49]

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 become a prosecutor, government counsel, corporate in-house counsel, administrative law judge, judge, arbitrator, or law professor.[99] There are also many non-legal jobs for which legal training is good preparation, such as politician, corporate executive, government administrator, investment banker, entrepreneur, or journalist.[100] 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.[101]

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.[102] After one earns a law degree, career mobility may be severely constrained.[103] For example, unlike their American counterparts,[104] it is difficult for German judges to leave the bench and become advocates in private practice.[105] Another interesting example is France, where for much of the 20th century, all judiciary officials were graduates of an elite professional school for judges. Although the French judiciary 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 judicial office.[106]

In a few civil law countries, such as Sweden,[107] the legal profession is not rigorously bifurcated and everyone within it can easily change roles and arenas.

In many countries, lawyers are general practitioners who represent clients in a broad field of legal matters.[108] In others, there has been a tendency since the start of the 20th century for lawyers to specialize early in their careers.[109][110]

In countries where specialization is prevalent, many lawyers specialize in representing one side in one particular area of the law; thus, it is common in the United States to hear of plaintiffs' personal injury attorneys.[111][112] Texas offers attorneys the opportunity to receive a board certification through the state's Texas Board of Legal Specialization. To be board certified, attorney applicants undergo a rigorous examination in one of 24 areas of practice offered by the Texas Board of Legal Specialization. Only those attorneys who are "board certified" are permitted to use the word "specialize" in any publicly accessible materials such as a website or television commercial. See Texas Rule 7.02(a)(6).[113]

Lawyers in private practice generally work in specialized businesses known as law firms,[114] 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.[115] The United States, with its large number of firms with more than 50 lawyers, is an exception.[116] The United Kingdom and Australia are also exceptions, as the UK, Australia 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, Wales, Northern Ireland and some states in Australia do not work in "law firms". Those who offer their services to members of the general public—as opposed to those working "in-house" — are required to be self-employed.[117] 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 specialized chambers this is commonplace. Where lawyer will decide to work is largely down to the remuneration that they will receive. Trainee lawyer salaries vary widely throughout the UK, with their location having a big impact on their pay.[118]

In some jurisdictions, either the judiciary[119] or the Ministry of Justice[120] 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.[121] 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.[122] In civil law countries, comparable organizations are known as Orders of Advocates,[123] Chambers of Advocates,[124] Colleges of Advocates,[125] Faculties of Advocates,[126] or similar names. Generally, a nonmember caught practicing law may be liable for the crime of unauthorized practice of law.[127]

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 230,000 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.[128] Others, especially those with federal governments, tend to regulate lawyers at the state or provincial level; this is the case in the United States,[129] Canada,[130] Australia,[131] and Switzerland,[132] to name a few. Brazil is the most well-known federal government that regulates lawyers at the national level.[133]

Some countries, like Italy, regulate lawyers at the regional level,[134] 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).[135] In Germany, lawyers are admitted to regional bars and may appear for clients before all courts nationwide with the exception of the Federal Court of Justice of Germany (Bundesgerichtshof or BGH); oddly, securing admission to the BGH's bar limits a lawyer's practice solely to the supreme federal courts and the Federal Constitutional Court of Germany.[136]

Generally, 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. But the trend in industrialized countries since the 1970s has been to abolish citizenship and residency restrictions. For example, the Supreme Court of Canada struck down a citizenship requirement on equality rights grounds in 1989,[137] and similarly, American citizenship and residency requirements were struck down as unconstitutional by the U.S. Supreme Court in 1973 and 1985, respectively.[138] The European Court of Justice made similar decisions in 1974 and 1977 striking down citizenship restrictions in Belgium and France.[139]

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),[140] 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.[141] 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.[120] 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.[142][143]

Of all the civil law countries, Communist countries historically went the farthest towards total state control, with all Communist lawyers forced to practice in collectives by the mid-1950s.[144][145] China is a prime example: technically, the People's Republic of China did not have lawyers, and instead had only poorly trained, state-employed "legal workers," prior to the enactment of a comprehensive reform package in 1996 by the Standing Committee of the National People's Congress.[146]

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).[147] 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.[148]

However, the concept of the self-regulating profession has been criticized as a sham which serves to legitimize the professional monopoly while protecting the profession from public scrutiny.[149] Disciplinary mechanisms have been astonishingly ineffective, and penalties have been light or nonexistent.[150][151][152]

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.[93][153] In American English, such associations are known as voluntary bar associations.[154] 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.[155]

The earliest people who could be described as "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.[196] However, around the middle of the fourth century, the Athenians disposed of the perfunctory request for a friend.[197] 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.[198] 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.[199] 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.[200]

A law enacted in 204 BC barred Roman advocates from taking fees, but the law was widely ignored.[201] 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.[202] This was apparently not much money; the Satires of Juvenal complained that there was no money in working as an advocate.[203]

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.[204] But very early on, unlike Athens, Rome developed a class of specialists who were learned in the law, known as jurisconsults (iuris consulti).[205] Jurisconsults were wealthy amateurs who dabbled in law as an intellectual hobby; they did not make their primary living from it.[205] They gave legal opinions (responsa) on legal issues to all comers (a practice known as publice respondere).[206] 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.[205] 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."[205]

Detail from the sarcophagus of Roman lawyer Valerius Petronianus 315–320 AD. Picture by Giovanni Dall'Orto.

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.[207] 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.[208] The centralization and bureaucratization of the profession was apparently gradual at first, but accelerated during the reign of Emperor Hadrian.[209] At the same time, the jurisconsults went into decline during the imperial period.[210]

In the words of Fritz Schulz, "by the fourth century things had changed in the eastern Empire: advocates now were really lawyers."[211] For example, by the fourth century, advocates had to 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.[212] 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.[213] Claudius's fee ceiling lasted all the way into the Byzantine period, though by then it was measured at 100 solidi.[214] It was widely evaded, either through demands for maintenance and expenses or a sub rosa barter transaction.[214] The latter was cause for disbarment.[214]

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.[215] They were ubiquitous and most villages had one.[215] In Roman times, notaries were widely considered to be inferior to advocates and jury consults.

King James I overseeing a medieval court, from an illustrated manuscript of a legal code.

After the fall of the Western Roman Empire and the onset of the Early Middle Ages, the legal profession of Western Europe collapsed. As James Brundage has explained: "[by 1140], no one in Western Europe could properly be described as a professional lawyer or a professional canonist in anything like the modern sense of the term 'professional.' "[216] However, from 1150 (when Decretum Gratiani was compiled) onward, a small but increasing number of men became experts in canon law but only in furtherance of other occupational goals, such as serving the Catholic Church as priests.[217] From 1190 to 1230, however, there was a crucial shift in which some men began to practice canon law as a lifelong profession in itself.[218]

The legal profession's return was marked by the renewed efforts of church and state to regulate it. In 1231, two French councils mandated that lawyers had to swear an oath of admission before practicing before the bishop's courts in their regions, and a similar oath was promulgated by the papal legate in London in 1237.[219] During the same decade, the emperor of the Holy Roman Empire Frederick II, the king of the Kingdom of Sicily, imposed a similar oath in his civil courts.[220] By 1250, the nucleus of a new legal profession had clearly formed.[221] The new trend towards professionalization culminated in a controversial proposal at the Second Council of Lyon in 1275 that all ecclesiastical courts should require an oath of admission.[222] Although not adopted by the council, it was highly influential in many such courts throughout Europe.[222] The civil courts in England also joined the trend towards professionalization; in 1275 a statute was enacted that prescribed punishment for professional lawyers guilty of deceit,[223] and in 1280 the mayor's court of the city of London promulgated regulations concerning admission procedures, including the administering of an oath.[224] And in 1345, the French crown promulgated a royal ordinance which set forth 24 rules governing advocates, of which 12 were integrated into the oath to be taken by them.[225]

The French medieval oaths were widely influential and of enduring importance; for example, they directly influenced the structure of the advocates' oath adopted by the Canton of Geneva in 1816.[226] In turn, the 1816 Geneva oath served as the inspiration for the attorney's oath drafted by David Dudley Field as Section 511 of the proposed New York Code of Civil Procedure of 1848, which was the first attempt in the United States at a comprehensive statement of a lawyer's professional duties.[226]