A lawyer, or legal practitioner, is a person certified to
give legal advice who advises clients in legal matters. Some lawyers represent
clients in courts 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.
Responsibilities
In most countries, particularly civil law countries, there has been a tradition
of giving many legal tasks to a variety of civil law notaries, clerks, and
scriveners.[1] These countries do not have "lawyers" in the American sense,
insofar as that term refers to a single type of general-purpose legal services
provider;[2] rather, their legal professions consist of a large number of
law-trained persons, known as jurists, of which only some are advocates who are
licensed to practice in the courts.[3][4] Notably, England, the mother of the
common law jurisdictions, emerged from the Dark Ages with similar complexity in
its legal professions, but then evolved by the 19th century to a single
dichotomy between barristers and solicitors. An equivalent dichotomy developed
between advocates and procurators in some civil law countries, though these two
types did not always monopolize the practice of law as much as barristers and
solicitors, in that they always coexisted with civil law notaries.[5][6][7]
Several countries that originally had two or more legal professions have since
fused or united their professions into a single type of lawyer.[8][9][10][11]
Most countries in this category are common law countries, though France, a civil
law country, merged together its jurists in 1990 and 1991 in response to
Anglo-American competition.[12] In countries with fused professions, a lawyer is
usually permitted to carry out all or nearly all the responsibilities listed
below.
Oral argument in the courts
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 a type of attorney known
commonly as a trial lawyer in the United States.
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.[13]
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.[14] In other countries, like Venezuela, no one may appear before a judge
unless represented by a lawyer.[15] 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.[16][17]
Research and drafting of court papers
Often, lawyers 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.[18]
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.[19]
In some countries, like Japan, a scrivener or clerk may fill out court forms and
draft simple papers for lay persons who cannot afford or do not need attorneys,
and advise them on how to manage and argue their own cases.[20]
Advocacy (written and oral) in administrative hearings
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
conseil juridiques (who were merged into the main legal profession in 1991).[21]
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.[22]
Client intake and counseling (with regard to pending litigation)
In England, only solicitors were traditionally in direct contact with the
client.[23] The solicitor retained a barrister if one was necessary and acted as
an intermediary between the barrister and the client. In most cases a barrister
would be 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
practising, at a court at which they normally appeared and at their usual
rates.[24][25]
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.[26][27][28] 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 unauthorized practice of law.
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.[29][30] Some countries go further; in
England and Wales, there is no general prohibition on the giving of legal
advice. Sometimes civil law notaries are allowed to give legal advice, as in
Belgium.[31] In many countries, non-jurist accountants may provide what is
technically legal advice in tax and accounting matters.[32]
Protecting intellectual property
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][34]
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.[35] In others, jurists or notaries may negotiate or
draft contracts.[36]
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).[37]
Conveyancing
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).[38] 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),[39] and a 1978 study
showed that conveyancing "accounts for as much as 80 percent of solicitor-client
contact in New South Wales."[40] In most common law jurisdictions outside of the
United States, this monopoly arose from an 1804 law[41] 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.[42]
In others, the use of a lawyer is optional and banks, title companies, or
realtors may be used instead.[43] In some civil law jurisdictions, real estate
transactions are handled by civil law notaries.[44] In England and Wales a
special class of legal professional, the Licensed Conveyancer is also allowed to
carry out conveyancing services for reward.
Carrying out the intent of the deceased
In many countries, only lawyers have the legal authority to do drafting of
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.[45]
In the United States, the estates of the deceased must be administered by a
court through probate. American lawyers have a profitable monopoly on dispensing
advice about probate law (which has been heavily criticized).[46]
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.[47] 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
Main article: Legal education
In some countries, law is taught by a faculty of law, which is a department of a
university's general undergraduate college.[48] Law students in those countries
pursue a Master or 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.[49]
In other countries, particularly the United States, law is primarily taught at
law schools. In the United States and countries following the American model,
(such as Canada[50] 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 in the United States (and some in Canada
and elsewhere) award graduating students a J.D. (Juris Doctor/Doctor of
Jurisprudence) (as opposed to the Bachelor of Laws) as the practitioner's law
degree. However, like other professional doctorates (including the M.D.), the
J.D. is not the exact equivalent of the Ph.D., since it does not require the
submission of a full dissertation based on original research. Many schools also
offer post-doctoral law degrees such as the LL.M (Legum Magister/Master of
Laws), or the S.J.D. (Scientiae Juridicae Doctor/Doctor of the Science of Law)
for students interested in advancing 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.[51] Others do not, like Venezuela.[52] A few countries prefer to teach
through assigned readings of judicial opinions (the casebook method) followed by
intense in-class cross-examination by the professor (the Socratic method).[53]
Many others have only lectures on highly abstract legal doctrines, which forces
young lawyers to figure out how to actually think and write like a lawyer at
their first apprenticeship (or job).[54][55][56] Depending upon the country, a
typical class size could range from five students in a seminar to five hundred
in a giant lecture room. In the United States, law schools maintain small class
sizes, and as such, grant admissions on a more limited and competitive
basis.[57]
Some students have a preference for full-time law programs,[58] while others
often work full- or part-time to pay the tuition and fees of their part-time law
programs.[59][60]
Law schools in developing countries share several common problems, such as an
overreliance on practicing judges and lawyers who treat teaching as a part-time
hobby (and a concomitant scarcity of full-time law professors);[61][62]
incompetent faculty with questionable credentials;[63] and textbooks that lag
behind the current state of the law by two or three decades.[64][65]
Earning the right to practice law
Main articles: Call to the bar and Admission to the bar
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.[66] Mexico allows anyone with a law degree to
practice law.[67] 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.[66][68][69] In a handful of U.S. states, one may become an
attorney by simply passing the bar examination, without having to attend law
school first (though very few people actually become lawyers that way).
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).[70]
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