Who is a Lawyer

Lawyer

A lawyer or attorney at law 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,” “counselor,” “civil law notary”, and “solicitor”—and many of these names indicate specific classes or ranks of jurists.

Law is traditionally considered to be a learned profession.

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 (and in some countries, still are) performed by other professionals, such as the civil law notary or even by non-professionals.

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. 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, except for the state of Wisconsin, require all applicants to take and pass a bar examination, which includes both a multi-state (national) portion and a portion designated for the laws of the particular state to which the applicant is applying, as well as a good character inquiry which is essentially a full background check. The state of Wisconsin allows students who graduate from any accredited law school within the state a “diploma privilege”. This “diploma privilege” makes those students exempt from taking the bar exam and, upon a showing of acceptable grades in core areas of the law, are allowed to become members of the Wisconsin Bar Association without taking either the multi-state or essay exam as all other applicants must do. Two states do not adminster the multi-state portion—Louisiana and Washington.

A successful applicant is issued a certificate of admission issued by the state’s highest court and a membership card verifying their admission. The new lawyer will also be issued a unique bar identification number, which, in some but not all jurisdictions, must appear on all documents submitted by a lawyer to enable the court to confirm that the lawyer is a member of the bar in good standing.

In addition, all but a handful of jurisdictions require that the applicant have earned a law degree from an American Bar Association-accredited law school.

The American legal system is unique in that, with two exceptions, it has no formal apprenticeship or clinical training requirements between the period of academic legal training and the bar exam, or even after the bar exam. The two exceptions are Delaware and Vermont, who require that candidates for admission serve a full-time clerkship of at least five months in the office of a lawyer previously admitted in that state before being eligible to take the oath of admission.

At this time, numerous law schools have attempted to rectify this lack of experience by requring supervised “Public Service Requirements” of all graduates, see Brandeis School of Law (University of Louisville) Public Service Requirement

In most states, therefore, anyone with a J.D. (or equivalent experience in the states that allow it) may immediately take the bar exam and be admitted to the bar, and then may immediately seek out clients and start filing papers with a court. The current system has been heavily criticized, since clients often end up subsidizing the clinical training of young lawyers.

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

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

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 contrast, other common law legal systems still use the degree of Bachelor of Laws, or LL.B. Some universities, for instance, Oxford, offer B.A degrees instead of the LL.B.

A key distinction between the U.S. and U.K. systems is that in the U.S., the J.D. degree is usually undertaken by graduates whereas in the UK, the LL.B (or the equivalent 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 in the U.S. 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.

The LL.M and S.J.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, the majority of law professors hold only the J.D. degree.

Bar associations

All jurisdictions have a bar association, being an organization of which members of the bar in that jurisdiction are 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.

In all cases, however, the ultimate authority to establish the qualifications and standards for admission of lawyers rests with the jurisdiction’s highest court.

Lawyer credentials, prestige, and career path

American lawyers are very credential-oriented. Apart from the minimum requirements of a J.D. and admission to the state bar, there are certain credentials which lawyers and judges use to “size up” each other. The following credentials are always mentioned in lawyer profiles and biographies, but their subtle meaning is lost on most laypeople.

First, law schools are informally divided into “tiers” based on academic prestige. The most important are the top three, Yale, Harvard, and Stanford, which supply the vast majority of law professors for all other law schools, and most U.S. Supreme Court law clerks. After those come the top 20 or 30 law schools. The giant “megafirms” actually visit all these top-tier law schools each fall to recruit new associates for the following summer, in the famous on-campus interviewing process (OCIP). In contrast, most law firms cannot predict their labor needs that far in advance, and therefore most new law school graduates have to aggressively woo law firms during their third year or even after graduation.

Within each law school, key credentials include:

• Order of the Coif membership (top 10% of class)
• Law review membership or editorial position (based either on grades or write-on competition or both)
• Moot court membership or award (based on oral and written argument)

On the basis of at least two or all three of the above, as well as three favorable faculty recommendations, some students then obtain a summer internship with a judge, or even an externship with a judge which replaces an entire semester of law school. Either job may be followed up by a one-year clerkship with a judge after graduation. A clerkship with a federal judge is usually more prestigious than one with a state judge, with the exception of certain state supreme courts.

With a favorable recommendation from a judge sitting on a federal Court of Appeals, a brilliant young attorney may be able to garner a subsequent clerkship with the U.S. Supreme Court (although graduates of the top three schools can often go directly from law school to the Supreme Court).

Attorneys who clerk at the Supreme Court are an elite group. They have job offers from multiple law firms awaiting them upon graduation, and when they start practicing after finishing their clerkship, they receive starting bonuses equal to their first year’s pay. Since starting salary at megafirms is around $125,000 per year, the implication is that such attorneys may earn $250,000 in their first year of practice. There are very few other professions where a bright 25-year-old can earn that kind of money; in contrast, most doctors do not earn that much until they are at least 32.

With Order of the Coif, law review, moot court, and a federal appellate clerkship on their resume (or at least three of the four), an attorney has many options. They may strive to make partner at a large law firm, or become a law professor at an top-tier law school and try to get tenure, or go to work for the Justice Department and try to get promoted to U.S. Attorney. Once they have reached any (or all) of those objectives, they may turn to building up their connections with a political party and hope that the President nominates them to a federal judgeship or a senior position in his administration.

Examples of judges who have followed such a career path include Richard Posner and Sandra Day O’Connor.

What American lawyers actually do

Unlike most other nations, the American legal system does not draw a strong line between solicitors and barristers, nor does it relegate most routine work to notary publics.

Once accepted by the bar association of a state, an American lawyer may file legal pleadings and argue cases in any court in that state (either federal or state), provide legal advice to clients, and draft important legal documents (like wills, trusts, deeds, and contracts). American lawyers use the term lawyering to refer to the art of practicing law.

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.

Practicing law can be broadly generalized as: (1) interviewing the client and identifying what is their legal matter or dispute, (2) “spotting” the discrete legal and factual issues embedded within the client’s larger problem, (3) systematically researching each issue, and (4) designing a solution that resolves at least some of the issues, if not all, and executing it through specific tasks like drafting a contract or filing a motion with a court. Most academic legal training is directed to “issue spotting,” how to research facts and law, and how to argue both the facts and law in favor of either side in any case.

Contrary to the media image of lawyers, virtually all serious legal work requires hours of in-depth research in a law library or in an electronic database like Westlaw or LexisNexis. Very few television programs and movies accurately portray the long nights surrounded by a pile of books or printouts which form the core of the average American lawyer’s occupational life.

In litigation, lawyers also spend a lot of time discovering the facts of the case, in order to develop a “theory of the case” that integrates facts and law in a way most favorable to their client. Sadly, too often the discovery phase of a case turns into an unpleasant war of attrition over petty technicalities. Most lawyers would agree that approximately 50 to 70% of all funds spent on legal services in the U.S. go towards discovery costs.

Most American lawyers are highly specialized in one field or another. Often dichotomies are drawn between different types of lawyers, but these are neither fixed nor formal lines. Examples include:

• Litigators (who sue and defend) v. transactional lawyers (who draft and advise)
• Solos and small firms (who can’t afford to litigate every little issue) v. big firms (who can)
• Plaintiffs’ lawyers (solos and small firms who represent individuals on contingent fee agreements) v. defendants’ lawyers (big firms billing large corporations by the hour)
• Trial lawyers (who argue the facts like Johnnie Cochran) v. appellate lawyers (who argue the law like David Boies)
• Outside counsel (law firms) v. in-house counsel (corporate legal department)

About half of American attorneys work as solos or in small firms. See law firm. There are also many midsize firms, with anywhere from 50 to 200 lawyers, and since the 1970s, some law firms have merged to form giant “megafirms” with 1,000 lawyers or more.

Unlike other common law jurisdictions, there is nothing to prevent an American lawyer from controlling and arguing his case at each level of the judiciary through its entire lifecycle. However, cases which advance to the appellate level, particularly to the U.S. Supreme Court, are often assigned to experienced appellate practitioners or firms. Nonetheless, in some cases, a lawyer may handle his or her case from the trial level all the way to the U.S. Supreme Court. A notable example of this is the Brown v. Board of Education litigation, where the same trial team handled the case from start to finish.

Who can do legal work besides lawyers

Engaging in the kind of work customarily done by lawyers, without a valid, current license to do so, is the “unauthorized practice of law”, which is punishable as a crime in most jurisdictions. 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.

A person who has a J.D. but is not admitted to any bar is not a lawyer. However, some courts 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.

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.

American attorneys’ attire

Unlike their counterparts in other common law jurisdictions, American attorneys are not required to wear wigs or any other archaic items of clothing when they appear in court. They are expected to wear contemporary business suitss, preferably in dark conservative colors. This requirement has reportedly led to comical sharing arrangements among solo practitioners too poor to afford a decent suit.

Furthermore, since the 1990s, some law firms have slightly relaxed their dress codes, especially in certain Western states. A joke about the casual culture of Hawaii is that the only time a Hawaiian lawyer wears a suit is when he goes to court.

The one big exception is the United States Solicitor General, who traditionally argues before the U.S. Supreme Court in 19th-century attire, including a “morning coat” with tails.

What American lawyers are called

In the U.S., lawyers are most frequently referred to in everyday speech as “lawyers” or “attorneys”. Technically speaking, an “attorney” is simply one who acts on behalf of another. An “attorney at law” is, therefore, one who is trained to, and legally permitted to, act on behalf of a client. Practically speaking, there is no difference at all between “lawyer” and “attorney” in the United States.

Some lawyers and law firms may refer to themselves on advertisements and stationery as “attorneys and counsellors at law”. While there was formerly a legal distinction between the two, there is none at present. However, a judge will refer to an attorney appearing before him or her as “Counsel” or “Counsellor”, if not as “Mr. ___” or “Ms. ___”.

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 specialised), 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 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.

Unlike the U.S., the UK and most Commonwealth countries subject their lawyers and judges to strict court dress requirements.

Certain common law jurisdictions—for example, Malaysia, Singapore, 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, the situation in that country is quite different from common-law countries.

First of all, any person who possesses a 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 an examination for admission to internship, finish an internship of three years, and finally pass an appropriate admission exam. Those occupations are:

• 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 remnant 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 the 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 is commonly regarded as fair, admission to the notary, barrister and counselor’s professions is regarded as unfair. Regional bar associations have no vested interest in admitting new members, and often allow an extraordinarily 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 to 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 a law giving those bar associations rights to perform exams as unconstitutional. This, however, may mean that no admissions to those occupations may take place in 2004 since the Sejm didn’t create a new law governing admissions.

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 the reasons described above, many lawyers do not practice law in the strict sense. They may work 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 therefore 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 where 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 so-called ambulance chasers, the reputation of the legal profession has been diminished in recent times, particularly in the United States. Lawyers are blamed for an increase in litigation that has led to what some have termed a compensation culture in which people increasingly blame everyone but themselves for their mis-adventures. Some have argued that increased litigation against medical practictioners has led to higher insurance premiums and a reluctancy to take risks, but there is little empirical data to support this proposition. Some states have attempted to forestall the perceived problem by instituing legislatively-mandated caps on non-economic damages in medical-malpractice claims, the intent of which was to reduce physicians’ insurance premiums; however, data in states which have imposed such caps suggests that they have little to no effect on insurance rates.

Although the problems associated with the compensation culture are primarily associated with the United States, perhaps due to jurors there being willing to award substantial damages in tort actions, other common law jurisdictions are seeing an increase in litigation, particularly the United Kingdom where ‘no-win, no-fee’ offers are becoming increasingly common.