England and Wales
Before the unification of the Supreme Court in 1873, solicitors practised in the courts of chancery, while attorneys and proctors practised in the common law and ecclesiastical courts, respectively.
In the English legal system, solicitors traditionally dealt with any legal matter apart from conducting proceedings in courts (advocacy), with some exceptions. Minor criminal cases tried in Magistrates' Courts, for example, and small value civil cases tried in county courts are almost always handled by solicitors. The other branch of the English legal profession, a barrister, has traditionally carried out the advocacy functions. Barristers would not deal with the public directly. This is no longer the case, as solicitor advocates may act at certain higher levels of court which were previously barred to them. Similarly, the public may now engage a barrister directly and without the need for a solicitor in certain circumstances.[1]
[edit] Regulatory scheme
Solicitors in England and Wales are represented by, and therefore pay their practising fees to the Law Society of England and Wales. The Solicitors Regulation Authority and Legal Complaints Service act independently of the Law Society, but together make up the complete system of professional regulation for solicitors.
[edit] Training and qualifications
Training and qualifications are regulated by The Solicitors Regulation Authority. Prospective solicitors must first possess a qualifying law degree,[2] or have completed a conversion course.[3] Then prospective solicitors must enrol with the Law Society as a student member and take a one-year course called the Legal Practice Course and then usually undertake two years' apprenticeship, known as a training contract.[4]
[edit] Recent developments
In England and Wales, the strict separation between the duties of solicitor and barrister has been partially broken down and solicitors frequently appear not only in the lower courts but (subject to passing a test) increasingly in the higher courts, too, (such as the High Court of Justice of England and Wales and the Court of Appeal). While the independent bar still exists in a largely unchanged state, a few firms of solicitors now employ their own barristers and solicitor-advocates to do some court work. Barristers, in turn, can now be directly instructed by certain organizations such as trade unions, accountants, and similar groups. Additionally, barristers who have completed the Bar Council's "Public Access" course can take instructions directly from members of the public, although there are some limitations on the type of work that can be done this way: for example, such barristers cannot take control of the conduct of litigation nor can they act in matrimonial matters.
This breakdown in the strict separation between barrister and solicitor is expected to go further in the next few years, with Legal Disciplinary Practices and Alternate Business Structures appearing.
Regulation of both barristers and solicitors is being reviewed by David Clementi on behalf of the Ministry of Justice. His final recommendations are expected to include a more unified regulatory system and new structures for cross-profession work.
[edit] Scotland
Scotland's legal system is separate from those of England and Wales and Northern Ireland. In Scotland, the legal profession is divided between solicitors and advocates, the distinction being similar to that between solicitors and barristers in England and Wales, though Scottish solicitors have traditionally represented their clients in the lower courts (such as the Sheriff Court and the District Court), only being excluded from the High Court of Judiciary and the Court of Session. However, under Section 24 of the Law Reform (Miscellaneous Provisions) Scotland Act 1990, suitably qualified solicitors were for the first time in Scotland granted rights of audience in the Supreme Courts in Scotland as well as in the House of Lords and the Judicial Committee of the Privy Council as solicitor advocates.
In Scotland, solicitors are regulated by the Law Society of Scotland, which require prospective solicitors to pass exams in a curriculum set by the Society. Ordinarily, this is done by obtaining an LLB in Scots law at a university approved by the Society, though it is also possible to sit the Society's own exams. Prospective solicitors are then required to take the Diploma in Legal Practice (a one-year course provided by several Scottish universities) and then undertake a two-year trainee ships with a law firm before they can qualify as a solicitor. As the Faculty of Advocates used to require a M.A. degree of its candidates, it used to be common to take a five-year combined MA LLB curriculum at the Scottish universities. Those intending to become solicitors who studied law as a first degree were at one time awarded a BL degree.
Prior to the formation of The Law Society of Scotland, solicitors were in most areas organized into a local Faculty of Procurators or Faculty of Procurators and Solicitors. These societies still exist, but their influence has waned. Whereas membership was once required in order to practice law in a particular locality, as long as a solicitor is registered with The Law Society of Scotland this is no longer the case. The local societies are now more likely to provide their members with a well-stocked law library, continuing professional development courses (all solicitors in Scotland are required to complete 20 hours of continuing professional development each year), and bring their members together to more effectively lobby The Law Society of Scotland and The Scottish Government regarding future legal developments.
In Glasgow, The Royal Faculty of Procurators still exists. In Edinburgh, both The Society of Writers to Her Majesty's Signet (now known as the W.S. Society), whose members refer to themselves as a Writer to the Signet (W.S.), and the Society of Solicitors to the Supreme Courts (S.S.C.) are still in existence. In Aberdeen, solicitors can choose to belong to a Society of Advocates in Aberdeen. Members are formally referred to as an "Advocate in Aberdeen" to distinguish them from advocates.
In the 18th century, Dr Samuel Johnson marked the change in designation of the lawyers in Glasgow with a jibe about their moving from "procuring" (a play on the title "Procurator," meaning agent, a word still used in the Scottish courts, particularly when one Scottish solicitor is explaining to the court that he is covering a hearing only in the capacity of agent to another solicitor), to "soliciting."
Solicitors in Scotland have full rights of audience in the Sheriff Courts throughout Scotland in both criminal and civil cases. They also have rights of audience in the District Courts (the lowest criminal court in Scotland), although these are now being replaced by Justice of the Peace Courts, in which a solicitor also has a full right of audience. When in court, a solicitor will normally wear a suit and tie together with a Scottish bar gown (a form of black robe).
[edit] Republic of Ireland
Solicitors in the Republic of Ireland are represented and regulated by the Law Society of Ireland. It was formally established by Royal Charter in 1852. The legislative basis for its current role is set out in the Solicitors Acts 1954-2002.
Irish independence in 1921 was marked more by continuity with the British legal system than with change. The legal profession has remained divided between barristers (or abhcóidí in Irish) and solicitors (or aturnaethe in Irish). However, there has been some blurring of their respective roles over the years. Notably, under Section 17 of the Courts Act 1971, solicitors were granted a right of audience in all courts, although in practice relatively few solicitors act as advocates for their clients in the Superior Courts.
[edit] Australia
Regulation of the profession in Australia varies from state to state. Admission to practice is state-based, although mutual recognition enables a practitioner admitted in any state to practice nationally. In some states, the distinction between barristers and solicitors is nominal and reflects individual preferences and membership of professional associations. In others, at least in a practical sense, the distinction is clear from the type of practice practitioners have, even if they are entitled to practice in the other branch of the profession. Thus, while members of the bar practice only as barristers, a practitioner is admitted as a "barrister and solicitor." Thus, every solicitor is also a barrister, although many prefer to brief counsel rather than appear in courts or tribunals themselves. The trend to a fused profession is similar to that outlined above in England and Wales.
The states of New South Wales and Queensland, however, maintain strongly independent bars, call to which requires extra training. In those states, solicitors' rights of audience before superior courts are theoretically unlimited, but infrequently exercised in practice. Victoria also has an independent bar but solicitors have full right of audience before all courts.
[edit] Hong Kong
Hong Kong has not fully embraced the "fused profession" trend; solicitors are governed by the Law Society of Hong Kong and barristers are governed by the Hong Kong Bar Association. A person intending to become a solicitor in Hong Kong must have a professional law degree, either LLB or JD or another equivalent degree, and complete the one-year PCLL program. They must also complete a two-year trainee solicitor contract with a law firm. Solicitors enjoy rights of audience in the lower courts, but the rights do not extend to the Hong Kong High Court and the Hong Kong Court of Final Appeal; rights of audience in these two higher courts are restricted to barristers. But this tradition may change in the future. Work related to legislating for higher solicitors' rights of audience is being done - including the formation of a working party under the Chief Justice. The Chief Justice of Hong Kong has nodded to the proposal of creating a special scheme, under which a solicitor would be able to gain the status of "solicitor-advocate" along with higher rights of audience.
[edit] Canada
In the English-speaking jurisdictions of Canada (and New Brunswick, a bilingual jurisdiction), the profession is being fused; all lawyers are called to the bar and admitted as solicitors. While many barristers and solicitors choose to practice within the scope of one or the other traditional disciplines, many others choose a cross-discipline practice.[citation needed]
[edit] Japan
In Japan, Shihou-syoshi, the second tier legal profession who are prohibited from giving legal advice but are only allowed to prepare documents on behalf of their clients, describe themselves as Japanese "solicitors". Their attempt to register the word "solicitor" as their trade mark in Japan, however, was thwarted by the Japanese Trade Mark Office rejecting the application on the basis that the word was generic.[citation needed]
Friday, April 10, 2009
Attorney
Barrister
From Wikipedia, the free encyclopedia
Jump to: navigation, search
For the musician, see Sikiru Ayinde Barrister.
Barrister
Illustration of an early 20th century French barrister
Occupation
Type Profession
Activity sectors Law
Description
Competencies Advocacy and interpersonal skills, analytical mind, critical thinking, commercial sense
Education required Bar Vocational Course (and possibly Common Professional Examination)
Fields of employment Barristers' chambers, government
Related jobs Pupil barrister, solicitor, prosecutor
Average salary around £50,000.00 p/a starting to £1 million+ p/a as a QC
A barrister is a lawyer found in many common law jurisdictions that employ a split profession (as opposed to a fused profession) in relation to legal representation. In split professions, the other type of lawyer is the solicitor. Solicitors have more direct contact with the clients, whereas barristers often only become involved in a case once advocacy before a court is needed by the client. Barristers are also engaged by solicitors to provide specialist advice on points of law. Barristers are rarely instructed by clients directly (although this occurs frequently in tax matters). Instead, the client's solicitors will instruct a barrister on behalf of the client when appropriate.
The historical difference between the two professions—and the only essential difference in England and Wales today—is that a solicitor is an attorney, which means they can act in the place of their client for legal purposes (as in signing contracts), and may conduct litigation by making applications to the court, writing letters in litigation to the client's opponent and so on. A barrister is not an attorney and is usually forbidden, either by law or professional rules or both, from "conducting" litigation. This means that while the barrister speaks on the client's behalf in court, the barrister does so when instructed by a solicitor. This difference in function explains many of the practical differences between the two professions.
Many countries such as the United States do not observe a distinction between barristers and solicitors. Attorneys are permitted to conduct all aspects of litigation and appear before those courts where they have been admitted to the bar.Lawyer
From Wikipedia, the free encyclopedia
Jump to: navigation, search
It has been suggested that Practice of law be merged into this article or section. (Discuss)
It has been suggested that Attorney at law be merged into this article or section. (Discuss)
For other uses, see Lawyer (disambiguation).
"Lawyers" redirects here. For the television series, see The Lawyers.
Lawyer
19th century painting of lawyers, by French artist Honoré Daumier
Occupation
Names Attorney, counselor, solicitor, barrister
Type Profession
Activity sectors Law, business
Description
Competencies Analytical mind, research skills, writing skills
Education required see Professional requirements
Fields of employment Courts, corporations
Related jobs Judge
Average salary see Earnings and compensation
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law."[1] Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain stability, and deliver justice. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who retain (i.e., hire) lawyers to perform legal services.
The role of the lawyer varies significantly across legal jurisdictions, and so it can be treated here in only the most general terms.[2][3] More information is available in country-specific articles (see below).
Contents
[hide]
*
Terminology
In practice, legal jurisdictions exercise their right to determine who is recognized as being a lawyer; as a result, the meaning of the term "lawyer" may vary from place to place.[4]
* In New Zealand and Australia the word "lawyer" is used to refer to both barristers and solicitors (whether in private practice or practising as corporate in-house counsel) but not people who do not practice the law.
* In Canada, the word "lawyer" only refers to individuals who have been called to the bar or have qualified as civil law notaries in the province of Quebec. Common law lawyers in Canada may also be known as "barristers and solicitors", but should not be referred to as "attorneys", since that term has a different meaning in Canadian usage. However, in Quebec, civil law advocates (or avocats in French) often call themselves "attorney" and sometimes "barrister and solicitor".
* In England, "lawyer" is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, legal executives and licensed conveyancers; and people who are involved with the law but do not practise it on behalf of individual clients, such as judges, court clerks, and drafters of legislation.
* In India, the term "lawyer" is often colloquially used, but the official term is "advocate" as prescribed under the Advocates Act, 1961.[5]
* In Scotland, the word "lawyer" refers to a more specific group of legally trained people. It specifically includes advocates and solicitors. In a generic sense, it may also include judges and law-trained support staff.
* In the United States, the term generally refers to attorneys who may practice law; it is never used to refer to patent agents[6] or paralegals.[7]
* Other nations tend to have comparable terms for the analogous concept.
[edit] 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.[8][9] 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;[10] rather, their legal professions consist of a large number of different kinds of law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts.[11][12][13] It is difficult to formulate accurate generalizations that cover all the countries with multiple legal professions, because each country has traditionally had its own peculiar method of dividing up legal work among all its different types of legal professionals.[14]
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.[15][16][17]
Several countries that originally had two or more legal professions have since fused or united their professions into a single type of lawyer.[18][19][20][21] 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.[22] In countries with fused professions, a lawyer is usually permitted to carry out all or nearly all the responsibilities listed below.
[edit] 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 of advocates in some civil law jurisdictions.[23] 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.[24] In countries like the United States that have fused legal professions, there are trial lawyers who specialize in trying cases in court, but trial lawyers do not have a de jure 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.[25] In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer.[26] 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.[27][28]
[edit] Research and drafting of court papers
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 and law while drafting legal papers and preparing for oral argument.
In England, the usual division of labour is that a solicitor will obtain the facts of the case from the client and then brief a barrister (usually in writing).[29] The barrister then researches and drafts the necessary court pleadings (which will be filed and served by the solicitor) and orally argues the case.[30]
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.[31]
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.[32]
[edit] 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).[33] 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.[34]
[edit] Client intake and counseling (with regard to pending litigation)
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 often begins with an intake interview where the lawyer gets to know the client personally, discovers the facts of the client's case, clarifies what the client wants to accomplish, shapes the client's expectations as to what actually can be accomplished, begins to develop various claims or defenses, and explains his or her fees to the client.[35][36]
In England, only solicitors were traditionally in direct contact with the client.[37] The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client.[38] 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.[39][40]
[edit] Legal advice
Main article: Legal advice
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.[41][42][43] 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.[44]
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.[45][46] Some countries go further; in England and Wales, there is no general prohibition on the giving of legal advice.[47] Sometimes civil law notaries are allowed to give legal advice, as in Belgium.[48] In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.[49]
[edit] 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.[32][50]
[edit] 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.[51] In others, jurists or notaries may negotiate or draft contracts.[52]
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).[53]
[edit] 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).[54] 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),[55] and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales."[56] In most common law jurisdictions outside of the United States, this monopoly arose from an 1804 law[57] 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.[58]
In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead.[59] In some civil law jurisdictions, real estate transactions are handled by civil law notaries.[60] In England and Wales a special class of legal professional–the licensed conveyancer–is also allowed to carry out conveyancing services for reward.[61]
[edit] Carrying out the intent of the deceased
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.[52]
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).[62]
[edit] Prosecution and defense 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.[63] 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.[64]
[edit] Education
Main article: Legal education
The educational prerequisites to becoming a lawyer vary greatly from country to country. In some countries, law is taught by a faculty of law, which is a department of a university's general undergraduate college.[65] 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.[66]
In other countries, particularly the United States, law is primarily taught at law schools. In the United States[67] and countries following the American model, (such as Canada[68] 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. 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.[69]
The methods and quality of legal education vary widely. Some countries require extensive clinical training in the form of apprenticeships or special clinical courses.[70] Others do not, like Venezuela.[71] 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).[72][73] 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).[74][75][76] 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.[77]
Some countries, particularly industrialized ones, have a traditional preference for full-time law programs,[78] while in developing countries, students often work full- or part-time to pay the tuition and fees of their part-time law programs.[79][80]
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);[81][82] incompetent faculty with questionable credentials;[83] and textbooks that lag behind the current state of the law by two or three decades.[84][81]
[edit] Earning the right to practice law
Main article: Admission to practice law
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.[85] Mexico allows anyone with a law degree to practice law.[86] 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.[85][87][88] 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).[89]
Some countries require a formal apprenticeship with an experienced practitioner, while others do not.[90] 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).[91]
From Wikipedia, the free encyclopedia
Jump to: navigation, search
For the musician, see Sikiru Ayinde Barrister.
Barrister
Illustration of an early 20th century French barrister
Occupation
Type Profession
Activity sectors Law
Description
Competencies Advocacy and interpersonal skills, analytical mind, critical thinking, commercial sense
Education required Bar Vocational Course (and possibly Common Professional Examination)
Fields of employment Barristers' chambers, government
Related jobs Pupil barrister, solicitor, prosecutor
Average salary around £50,000.00 p/a starting to £1 million+ p/a as a QC
A barrister is a lawyer found in many common law jurisdictions that employ a split profession (as opposed to a fused profession) in relation to legal representation. In split professions, the other type of lawyer is the solicitor. Solicitors have more direct contact with the clients, whereas barristers often only become involved in a case once advocacy before a court is needed by the client. Barristers are also engaged by solicitors to provide specialist advice on points of law. Barristers are rarely instructed by clients directly (although this occurs frequently in tax matters). Instead, the client's solicitors will instruct a barrister on behalf of the client when appropriate.
The historical difference between the two professions—and the only essential difference in England and Wales today—is that a solicitor is an attorney, which means they can act in the place of their client for legal purposes (as in signing contracts), and may conduct litigation by making applications to the court, writing letters in litigation to the client's opponent and so on. A barrister is not an attorney and is usually forbidden, either by law or professional rules or both, from "conducting" litigation. This means that while the barrister speaks on the client's behalf in court, the barrister does so when instructed by a solicitor. This difference in function explains many of the practical differences between the two professions.
Many countries such as the United States do not observe a distinction between barristers and solicitors. Attorneys are permitted to conduct all aspects of litigation and appear before those courts where they have been admitted to the bar.Lawyer
From Wikipedia, the free encyclopedia
Jump to: navigation, search
It has been suggested that Practice of law be merged into this article or section. (Discuss)
It has been suggested that Attorney at law be merged into this article or section. (Discuss)
For other uses, see Lawyer (disambiguation).
"Lawyers" redirects here. For the television series, see The Lawyers.
Lawyer
19th century painting of lawyers, by French artist Honoré Daumier
Occupation
Names Attorney, counselor, solicitor, barrister
Type Profession
Activity sectors Law, business
Description
Competencies Analytical mind, research skills, writing skills
Education required see Professional requirements
Fields of employment Courts, corporations
Related jobs Judge
Average salary see Earnings and compensation
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law."[1] Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain stability, and deliver justice. Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who retain (i.e., hire) lawyers to perform legal services.
The role of the lawyer varies significantly across legal jurisdictions, and so it can be treated here in only the most general terms.[2][3] More information is available in country-specific articles (see below).
Contents
[hide]
*
Terminology
In practice, legal jurisdictions exercise their right to determine who is recognized as being a lawyer; as a result, the meaning of the term "lawyer" may vary from place to place.[4]
* In New Zealand and Australia the word "lawyer" is used to refer to both barristers and solicitors (whether in private practice or practising as corporate in-house counsel) but not people who do not practice the law.
* In Canada, the word "lawyer" only refers to individuals who have been called to the bar or have qualified as civil law notaries in the province of Quebec. Common law lawyers in Canada may also be known as "barristers and solicitors", but should not be referred to as "attorneys", since that term has a different meaning in Canadian usage. However, in Quebec, civil law advocates (or avocats in French) often call themselves "attorney" and sometimes "barrister and solicitor".
* In England, "lawyer" is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, legal executives and licensed conveyancers; and people who are involved with the law but do not practise it on behalf of individual clients, such as judges, court clerks, and drafters of legislation.
* In India, the term "lawyer" is often colloquially used, but the official term is "advocate" as prescribed under the Advocates Act, 1961.[5]
* In Scotland, the word "lawyer" refers to a more specific group of legally trained people. It specifically includes advocates and solicitors. In a generic sense, it may also include judges and law-trained support staff.
* In the United States, the term generally refers to attorneys who may practice law; it is never used to refer to patent agents[6] or paralegals.[7]
* Other nations tend to have comparable terms for the analogous concept.
[edit] 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.[8][9] 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;[10] rather, their legal professions consist of a large number of different kinds of law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts.[11][12][13] It is difficult to formulate accurate generalizations that cover all the countries with multiple legal professions, because each country has traditionally had its own peculiar method of dividing up legal work among all its different types of legal professionals.[14]
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.[15][16][17]
Several countries that originally had two or more legal professions have since fused or united their professions into a single type of lawyer.[18][19][20][21] 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.[22] In countries with fused professions, a lawyer is usually permitted to carry out all or nearly all the responsibilities listed below.
[edit] 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 of advocates in some civil law jurisdictions.[23] 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.[24] In countries like the United States that have fused legal professions, there are trial lawyers who specialize in trying cases in court, but trial lawyers do not have a de jure 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.[25] In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer.[26] 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.[27][28]
[edit] Research and drafting of court papers
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 and law while drafting legal papers and preparing for oral argument.
In England, the usual division of labour is that a solicitor will obtain the facts of the case from the client and then brief a barrister (usually in writing).[29] The barrister then researches and drafts the necessary court pleadings (which will be filed and served by the solicitor) and orally argues the case.[30]
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.[31]
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.[32]
[edit] 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).[33] 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.[34]
[edit] Client intake and counseling (with regard to pending litigation)
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 often begins with an intake interview where the lawyer gets to know the client personally, discovers the facts of the client's case, clarifies what the client wants to accomplish, shapes the client's expectations as to what actually can be accomplished, begins to develop various claims or defenses, and explains his or her fees to the client.[35][36]
In England, only solicitors were traditionally in direct contact with the client.[37] The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client.[38] 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.[39][40]
[edit] Legal advice
Main article: Legal advice
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.[41][42][43] 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.[44]
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.[45][46] Some countries go further; in England and Wales, there is no general prohibition on the giving of legal advice.[47] Sometimes civil law notaries are allowed to give legal advice, as in Belgium.[48] In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.[49]
[edit] 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.[32][50]
[edit] 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.[51] In others, jurists or notaries may negotiate or draft contracts.[52]
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).[53]
[edit] 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).[54] 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),[55] and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales."[56] In most common law jurisdictions outside of the United States, this monopoly arose from an 1804 law[57] 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.[58]
In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead.[59] In some civil law jurisdictions, real estate transactions are handled by civil law notaries.[60] In England and Wales a special class of legal professional–the licensed conveyancer–is also allowed to carry out conveyancing services for reward.[61]
[edit] Carrying out the intent of the deceased
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.[52]
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).[62]
[edit] Prosecution and defense 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.[63] 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.[64]
[edit] Education
Main article: Legal education
The educational prerequisites to becoming a lawyer vary greatly from country to country. In some countries, law is taught by a faculty of law, which is a department of a university's general undergraduate college.[65] 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.[66]
In other countries, particularly the United States, law is primarily taught at law schools. In the United States[67] and countries following the American model, (such as Canada[68] 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. 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.[69]
The methods and quality of legal education vary widely. Some countries require extensive clinical training in the form of apprenticeships or special clinical courses.[70] Others do not, like Venezuela.[71] 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).[72][73] 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).[74][75][76] 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.[77]
Some countries, particularly industrialized ones, have a traditional preference for full-time law programs,[78] while in developing countries, students often work full- or part-time to pay the tuition and fees of their part-time law programs.[79][80]
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);[81][82] incompetent faculty with questionable credentials;[83] and textbooks that lag behind the current state of the law by two or three decades.[84][81]
[edit] Earning the right to practice law
Main article: Admission to practice law
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.[85] Mexico allows anyone with a law degree to practice law.[86] 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.[85][87][88] 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).[89]
Some countries require a formal apprenticeship with an experienced practitioner, while others do not.[90] 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).[91]
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