Lawyer

From Example Problems
Jump to navigation Jump to search
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", counsel, "counsellor", "civil law notary" and "solicitor"; many of these names indicate specific classes or ranks of jurists.

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 (usually financial and economic) of persons who retain (i.e., hire) lawyers for legal services.

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 performed by other jurists such as the civil law notary or paralegal.

For information on legal systems see Common law or Civil Law

Common Law Jurisdictions

In common law jurisdictions there are generally two kinds of lawyer solicitors and barristers. Each has a specific role in the legal system. In general, solicitors will work for a client, prepare the case and may present it in court (usually just the lower courts), whereas a barrister will present cases in court (particularly the higher courts where they can have exclusive rights of audience.)

In Scotland barristers are called Advocates.

The Commonwealth

See main articles at Advocate, Barrister and Solicitor

In the Commonwealth 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 specialized), property conveyancing, wills and estates, preparing legal documents for business transactions and negotiating the legal terms of commercial contracts.

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.

Other common law jurisdictions, such as, 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. For example, in Canada (other than Quebec), a lawyer is called "Barrister and Solicitor", but informally by the title of "lawyer".

Unlike the United States most Commonwealth countries subject their lawyers and judges to strict court dress requirements.

United States

Main article: Law of the United States

In the United States, 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.

A professional attorney authorized to plead cases on behalf of and in place of their clients (a lawyer) is called an attorney-at-law, while someone authorized to act on someone else's behalf in a legal or business matter is an attorney-in-fact, who does not have to be a lawyer.

TheBureau of Labor Statistics (1) estimates that there are over 500,000 practicing lawyers in the U.S.

It is frequently said that there are more lawyers per capita in the U.S. 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.

Civil Law Jurisdictions

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

In Continental Europe any person who possesses a degree in law is called "lawyer" (or a jurist).

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, the jurists and what is many places known as advocates.

Germany

A lawyer (jurist) has to pass two state exams, and may chose to become an advocate (Rechtsanwalt).

Poland

Main article see Lawyers in Poland

In Poland any person who possesses a master's degree in law is called "lawyer" (prawnik). A new law of June 30 2005 essentially made lawyer's profession more open that it was before. Previously it was almost impossible to became a lawyer without support from family already in the profession.

Romania

In Romania, law school graduates have to pass an initial admittance exam to the Romanian Bar Association. This exam gives the succesful candidate the status of a trainee lawyer and a member of the Bar Association for two years. After traineeship, the lawyer has to pass a second set of exams to become a full member of the Bar Association and form a Law Office on his or her own as well as other forms such as a limited liability partnerships or a lawyers' professional corporation. Romanian Bar Association require any graduate who wishes to enter the profession to secure the written support of an experienced lawyer for the traineeship period. Throughout this period, known in the Americas as the "articles of clerkship", the trainee lawyer is mentored by an experienced lawyer of good standing. Due to the high number of law school graduates, securing an articling position is increasingly difficult to obtain in Romania, as well as in other civil-law or common-law jurisdictions.

The term "lawyer" in this context refers to the attorney at law, an individual exercising the liberal and free profession in the service of his or her clients. For the general terminology of all law school graduates, the correct word would be "jurist"

Quebec

In Quebec, which has a civil law system, there are two distinct legal professions: the 'avocat' and the 'notaire' (or civil law notary). Both professions require a law degree for entry. A 'notaire' is not to be confused with a notary public elsewhere in the U.S. and Canada. The two professions in Quebec have exclusive areas and overlapping areas of jurisdiction. The 'avocat' has exclusive jurisdiction to plead in court and to do all pre-trial matters. The 'notaire' has exclusive jurisdiction for the preparation and witnessing of notarial 'acts' such as mortgages, notarial-form marriage contracts, and notarial wills. Other than that, the two professions' jurisdictions generally overlap for non-litigious transactions: however, residential property purchase transactions and the preparation of marriage contracts are generally done by 'notaires', whereas transactions (whether litigious or not) in the fields of family law, corporate/commercial law and commercial real estate law are generally done by 'avocats'. Wills can be done by either a notary or an 'avocat'; however, the wills done by notaries are generally done as notarial 'acts' which, unlike wills prepared by 'avocats', do not need to be probated following the testator's death; this encourages clients to consult notaries in preference over 'avocats' for the preparation of wills.

All the mega law firms in Montreal and Quebec City are firms of 'avocats' and, in English, they identify themselves as 'Lawyers' or 'Attorneys'. In English, 'notaires' typically identify themselves as Notaries, but pursuant to Quebec law, they could also use the confusing description 'Title Attorney'. Notaries sometimes identify themselves as "Notaire and Conseiller Juridique" (i.e., Notary and Legal Advisor), to highlight that they take work in fields of law practice that overlap with those of 'avocats'.

Investigation and Prosecution

Main article see Prosecutor

England, Wales and Northern Ireland

In the England, Wales and Northern Ireland criminal investigation is carried out by the Police, HM Customs and Excise, the Inland Revenue, Trading Standards Officers and other state organisations (which may, or may not, employ a solicitor or barrister).

Prosecution in England and Wales is handled by the Crown Prosecution Service 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).

Scotland

In Scotland all investigations are nominally under the control and direction of the area Procurator Fiscal. All decisions to prosecute are taken by the Procurator Fiscal on behalf of the Lord Advocate (in whose name all public prosecutions are carried out in Scotland.) Procurators Fiscal are part of the Crown Office.

Court Attire

Black robes and white neck tabs are worn by lawyers in jurisdictions like such as England and Wales, Northern Ireland and Canada and are remainders of the highly learned status of lawyers who are expected by courts and non-judicial legal licensing bodies to differentiate themselves (at the symbolic level) from everyday businessmen and clients.

In England and a small number of other jurisdictions in the Commonwealth, besides the black robes and white neck tabs, barristers still wear the traditional barrister wigs for trials. However, in most jurisdictions in the Commonwealth, barristers are now prohibited from wearing barrister wigs.

Solicitors in common law jurisdictions appearing court generally wear just black robes.

Initial Education

Practicing law is often similar to operating a private business, but the practice of law is traditionally considered to be a learned honorable profession requiring, in most common law countries, a degree in law.

In addition, in the United States and Canada (other than Quebec), at least three years of undergraduate university education, in a subject other than law ("pre-law studies") is required as a prerequisite to entry into the law degree program.

United States

See main article at Education of Lawyers in the United States

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

The degree earned by lawyers in the United States is generally a Juris Doctor (J.D.). Louisiana State University in the U.S. now offers a joint J.D. (Juris Doctor) / B.C.L. (Bachelor of Civil Law) over 7 semesters (instead of its previous 6-semester program for the J.D. alone) in recognition of the increased Louisiana civil law component of the new program.

Canada

Canada has similar requirements and systems to that of the United States. The one exception is Quebec, owing its legal system being based on Civil Law.

The University of Toronto in Canada has recently changed the name of its Bachelor of Laws degree to that of Juris Doctor (J.D.). The University of Toronto is the only Canadian university to do so.

Quebec

In Quebec, lawyers hold a LL.B. (Legum Baccalaureus), LL.L. (licence en droit), or B.C.L. (Bachelor of Civil Law), depending on the university where they received their civil law education.

In contrast to common law degree programs in Canada, civil law degree programs require entering students to hold only two years of junior college (called CEGEP in Quebec) after Quebec's 11th grade.

United Kingdom

The equivalent degree for lawyers in the United Kingdom and Commonwealth countries such as Canada (excluding the province of Quebec) and Australia) is the LL.B. or Bachelor of Laws or the Oxford University or Cambridge University B.A. in Jurisprudence. A feature of the Oxford and Cambridge B.A. degrees is that B.A. recipients can upgrade their undergraduate B.A. to an undergraduate M.A. by the process of 'inception'. Inception can be applied for, generally 4 years after graduation, by payment of a nominal fee (without the need for further academic work or qualifications).

The LL.B. is ordinarily undertaken by undergraduates after secondary school; and it is rare for students to undertake this course after having already earned a bachelor's degree in a non-law subject. Those who already possess a bachelor's degree in a non-law subject will, instead of pursuing an LL.B., usually study for a postgraduate Diploma in Law (previously the Common Professional Exam). However, in Scotland an LL.B. is required of all students, irrespective of previous higher education.

Graduate Degrees

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 specialized subjects such as taxation or trial advocacy.

United States

The highest law degree obtainable in the United States 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.

Canada

In Canada (including Quebec), the graduate law degree is generally the LL.M., and some universities offer the higher S.J.D. as well. Some universities are beginning to offer research thesis based Doctor of Philosophy (Ph.D.) degrees in law following the LL.M.

The LL.M, S.J.D. and Ph.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, many law professors in the U.S. and Canada (especially those with practical experience in the practice of law before appointment as a law professor) hold only the J.D. or LL.B. degree. However, competition for positions is, in effect, now making the LL.M. and higher degrees a practical necessity.

United Kingdom

In the United Kingdom lawyers wishing to specialize further take the Master of Laws (LL.M.), Doctor of Laws (LL.D.) or Doctor of Philosophy (Ph.D.) in Law.

Oxford University offers of a Bachelor of Civil Law (B.C.L.) in place of the Master of Laws degree. The B.C.L. is not required for admission to the practice of law. The B.C.L. generally takes one year to complete.

Canadians studying law on Rhodes scholarships at Oxford, after having a Canadian university degree in a non-law subject, tend to take both the B.A. (Jurisprudence) and the B.C.L.

Licensing and Discipline

Bar Associations

All jurisdictions have a bar association (or equivalent), being an organization of which members of the bar in that jurisdiction may (or must) 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).

Canada

Canada in common with the United Kingdom is a country 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 or territorial 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 or territorial 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.

See also

External link

ca:Advocat da:Advokat de:Rechtsanwalt es:Abogado eo:Advokato fr:Avocat (métier) he:משפטן ko:변호사 nl:Advocaat (beroep) ne:अधिवक्ता ja:弁護士 no:Advokat nn:Advokat pl:Adwokat pt:Advogado ru:Юрист sv:Advokat zh:律師