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Revision as of 08:06, 31 August 2004 by Longhair (talk | contribs) (→Lawyers in the U.K. and common law countries)(diff) ← Previous revision | Latest revision (diff) | Newer revision → (diff)A lawyer or attorney at law is an individual licensed by the state to advise clients in legal matters and represent them in courts of law and other legal agencies. Most countries today require professional law advisors in their juridical systems. Lawyers have many names in different countries—including "advocate," "attorney," "barrister," "counselor," "civil law notary", and "solicitor"—and many of these names indicate specific classes or ranks of jurists.
Increasingly, in the United States in particular, 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.
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.
Colloquially, in the United States, lawyers are called attorneys. In fact, almost anyone can be an attorney; (see for example attorney-in-fact) 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.
Lawyers in the U.S.
The United States Department of Labor's Bureau of Labor Statistics (1) 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 because 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
In order for a person to be admitted to the bar for the first time, all U.S. jurisdictions require that the applicant take and pass a bar examination.
In addition, all but a handful of jurisdictions require that the applicant have earned a law degree from an A.B.A.-accredited law school.
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.
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 an 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
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 systems following the English practice the equivalent degree is the Bachelor or Laws, or LL.B. Some universites, for instance Oxford, offer B.A degrees instead of the LL.B. One difference between the U.S. and U.K. systems is that in the U.S., the J.D. degree is usually only undertaken by graduates wheras in the UK, the LL.B (or 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 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.
In the UK it is possible for indiviuals who do not possess a law degree to enter the legal profession. Following the completion of the Common Professional Exam (CPE) or Bachelor of Legal Science (B.LegSci), the individual is in the same position as a graduate of a law school.
What constitutes the practice of law?
A person who has a Juris Doctor (or LL.B.) but is not admitted to any bar is not a lawyer. However, federal courts often 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. In systems that follow the English practice a person who has completed the course of study but is not yet admitted to the bar may practice under supervision in Articles of Clerkship usually called an Articling student. Otherwise, engaging in the kind of work customarily done by lawyers, without a valid, current license to do so, is the "unauthorized practice of law". 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.
For instance, 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.
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.
Lawyers in the U.K. and common law countries
In the United Kingdom, 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 specialist), property conveyancing, wills and estates.
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 recieved 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 corperate litigation. Indeed, one of the reasons for introducing Solicitor Adovates was to act as a check on the high costs associated with representation in commerical cases - law firms are now able to offer in-house representation for their clients at substantically reduced cost.
Certain common law jurisdictions&mdashfor example, Malaysia, Singapore, Sweden, Canada, and certain states in Australia have a fused legal profession, whereby lawyers practice as both barristers and solicitors.
Lawyers in Poland
As Poland's law system is based on continental civil law, situation in that country is much different than in common law countries.
First of all, any person who possesses Master's degree in Law is called lawyer (prawnik). However being a lawyer does not necessarily mean that one have the privileges usually attributed to attorney in United States. Due to such dualism in Poland there exists two classes of lawyers.
Lawyers admitted to bar associations
Five jurist's occupations require prospective candidates to apply for internship, pass admission to internship exam, finish three years internship, and finally pass appropriate admission exam. Those occupations are occupations of:
- 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 remnent 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 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 are commonly regarded as fair, admission to the notary, barrister and counselor's is regarded unfair. Regional bar associations have no vested interest in admitting new members, and often allow an extraordinary 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, than 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 law giving those bar associations rights to performs exams as unconstitutional. This however may mean that no admissions to those occupations may take place in 2004 since Sejm didn't create new law.
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 reasons described above, many lawyers do not practice law in strict sense. They find their job 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 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, when a local bar association tried to prosecute a woman (who held an M.A. in law), for giving legal advice without proper qualifications, the Constitutional Tribunal struck down this crime saying that having an M.A. in law does indeed grant an individual the proper qualifications.
Current Issues
Because of the actions of Ambulance chasers, or unethical lawyers, the reputation of the legal profession has been diminished in recent times. Many see lawyers as greedy people only interested in money, and hunting those with supposed deep pockets to sue them to gain large cash settlements, which they take a signifant percentage of.
Medical professionals and others blame the legal profession for the escalating costs of health care. Because of lawsuits, in some areas malpractice insurance costs have skyrocketed in recent times. This has forced some doctors to either move or leave the profession. As a result, some areas of the country are now facing a shortage of doctors, especially in high risk areas such as gynecology. Otherwise doctors are forced to pass the cost on to consumers. Doctors also practice "cover your back" medicine. In this type of medicine doctors order excessive number of tests - which are often unnessecary - to make sure that every possible angle is covered in case of legal questions later.
See also
- cross-examination
- list of jurists
- list of lawyers
- power of attorney
- public defender
- Ambulance chaser (derr)
External links
- Disambiguation: There is also a fish named Lawyer but more commonly called Burbot.