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Lawyers in private practice generally work in specialized businesses known as law firms,[106] with the exception of English barristers. The vast majority of law firms worldwide are small businesses that range in size from 1 to 10 lawyers.[107] The United States, with its large number of firms with more than 50 lawyers, is an exception.[108] The United Kingdom and Australia are also exceptions, as the UK, Australia and the U.S. are now home to several firms with more than 1,000 lawyers after a wave of mergers in the late 1990s. Notably, barristers in England, Wales, Northern Ireland and some states in Australia do not work in "law firms". Those who offer their services to members of the general public—as opposed to those working "in-house" — are required to be self-employed.[109] Most work in groupings known as "sets" or "chambers", where some administrative and marketing costs are shared. An important effect of this different organizational structure is that there is no conflict of interest where barristers in the same chambers work for opposing sides in a case, and in some specialised chambers this is commonplace. Professional associations and regulation Mandatory licensing and membership in professional organizations In some jurisdictions, either the judiciary[110] or the Ministry of Justice[111] directly supervises the admission, licensing, and regulation of lawyers. Other jurisdictions, by statute, tradition, or court order, have granted such powers to a professional association which all lawyers must belong to.[112] In the U.S., such associations are known as mandatory, integrated, or unified bar associations. In the Commonwealth of Nations, similar organizations are known as Inns of Court, bar councils or law societies.[113] In civil law countries, comparable organizations are known as Orders of Advocates,[114] Chambers of Advocates,[115] Colleges of Advocates,[116] Faculties of Advocates,[117] or similar names. Generally, a nonmember caught practicing law may be liable for the crime of unauthorized practice of law.[118] In common law countries with divided legal professions, barristers traditionally belong to the bar council (or an Inn of Court) and solicitors belong to the law society. In the English-speaking world, the largest mandatory professional association of lawyers is the State Bar of California, with 230,000 members. Some countries admit and regulate lawyers at the national level, so that a lawyer, once licensed, can argue cases in any court in the land. This is common in small countries like New Zealand, Japan, Portugal and Belgium.[119] Others, especially those with federal governments, tend to regulate lawyers at the state or provincial level; this is the case in the United States,[120] Canada,[121] Australia,[122] and Switzerland,[123] to name a few. Brazil is the most well-known federal government that regulates lawyers at the national level.[124] Some countries, like Italy, regulate lawyers at the regional level,[125] and a few, like Belgium, even regulate them at the local level (that is, they are licensed and regulated by the local equivalent of bar associations but can advocate in courts nationwide).[126] In Germany, lawyers are admitted to regional bars and may appear for clients before all courts nationwide with the exception of the Federal Court of Justice of Germany (Bundesgerichtshof or BGH); oddly, securing admission to the BGH's bar limits a lawyer's practice solely to the supreme federal courts and the Federal Constitutional Court of Germany.[127] Generally, geographic limitations can be troublesome for a lawyer who discovers that his client's cause requires him to litigate in a court beyond the normal geographic scope of his license. Although most courts have special pro hac vice rules for such occasions, the lawyer will still have to deal with a different set of professional responsibility rules, as well as the possibility of other differences in substantive and procedural law. Some countries grant licenses to non-resident lawyers, who may then appear regularly on behalf of foreign clients. Others require all lawyers to live in the jurisdiction or to even hold national citizenship as a prerequisite for receiving a license to practice. But the trend in industrialized countries since the 1970s has been to abolish citizenship and residency restrictions. For example, the Supreme Court of Canada struck down a citizenship requirement on equality rights grounds in 1989,[128] and similarly, American citizenship and residency requirements were struck down as unconstitutional by the U.S. Supreme Court in 1973 and 1985, respectively.[129] The European Court of Justice made similar decisions in 1974 and 1977 striking down citizenship restrictions in Belgium and France.[130] Who regulates lawyers A key difference among countries is whether lawyers should be regulated solely by an independent judiciary and its subordinate institutions (a self-regulating legal profession),[131] or whether lawyers should be subject to supervision by the Ministry of Justice in the executive branch. In most civil law countries, the government has traditionally exercised tight control over the legal profession in order to ensure a steady supply of loyal judges and bureaucrats. That is, lawyers were expected first and foremost to serve the state, and the availability of counsel for private litigants was an afterthought.[132] Even in civil law countries like Norway which have partially self-regulating professions, the Ministry of Justice is the sole issuer of licenses, and makes its own independent re-evaluation of a lawyer's fitness to practice after a lawyer has been expelled from the Advocates' Association.[111] Brazil is an unusual exception in that its national Order of Advocates has become a fully self-regulating institution (with direct control over licensing) and has successfully resisted government attempts to place it under the control of the Ministry of Labor.[133][134] Of all the civil law countries, Communist countries historically went the farthest towards total state control, with all Communist lawyers forced to practice in collectives by the mid-1950s.[135][136] China is a prime example: technically, the People's Republic of China did not have lawyers, and instead had only poorly trained, state-employed "legal workers," prior to the enactment of a comprehensive reform package in 1996 by the Standing Committee of the National People's Congress.[137] In contrast, common law lawyers have traditionally regulated themselves through institutions where the influence of non-lawyers, if any, was weak and indirect (despite nominal state control).[138] Such institutions have been traditionally dominated by private practitioners who opposed strong state control of the profession on the grounds that it would endanger the ability of lawyers to zealously and competently advocate their clients' causes in the adversarial system of justice.[139] However, the concept of the self-regulating profession has been criticized as a sham which serves to legitimize the professional monopoly while protecting the profession from public scrutiny.[140] Disciplinary mechanisms have been astonishingly ineffective, and penalties have been light or nonexistent.[141][142][143] Voluntary associations Lawyers are always free to form voluntary associations of their own, apart from any licensing or mandatory membership that may be required by the laws of their jurisdiction. Like their mandatory counterparts, such organizations may exist at all geographic levels.[86][144] In American English, such associations are known as voluntary bar associations.[145] The largest voluntary professional association of lawyers in the English-speaking world is the American Bar Association. In some countries, like France and Italy, lawyers have also formed trade unions.[146] Cultural perception Hostility towards the legal profession is a widespread phenomenon. The legal profession was abolished in Prussia in 1780 and in France in 1789, though both countries eventually realized that their judicial systems could not function efficiently without lawyers.[147] Complaints about too many lawyers were common in both England and the United States in the 1840s,[148][149] Germany in the 1910s,[150] and in Australia,[151] Canada,[152] the United States,[153][154][155] and Scotland[156] in the 1980s. Public distrust of lawyers reached record heights in the United States after the Watergate scandal.[155][157] In the aftermath of Watergate, legal self-help books became popular among those who wished to solve their legal problems without having to deal with lawyers.[158] Lawyer jokes (already a perennial favorite) also soared in popularity in English-speaking North America as a result of Watergate.[159] In 1989, American legal self-help publisher Nolo Press published a 171-page compilation of negative anecdotes about lawyers from throughout human history.[160] In Adventures in Law and Justice (2003), legal researcher Bryan Horrigan dedicated a chapter to "Myths, Fictions, and Realities" about law and illustrated the perennial criticism of lawyers as "amoral [...] guns for hire"[161] with a quote from Ambrose Bierce's satirical The Devil's Dictionary (1911) that summarized the noun as: "LAWYER, n. One skilled in circumvention of the law."[162] More generally, in Legal Ethics: A Comparative Study (2004), law professor Geoffrey C. Hazard, Jr. with Angelo Dondi briefly examined the "regulations attempting to suppress lawyer misconduct" and noted that their similarity around the world was paralleled by a "remarkable consistency" in certain "persistant [sic?] grievances" about lawyers that transcends both time and locale, from the Bible to medieval England to dynastic China.[163] The authors then generalized these common complaints about lawyers as being classified into five "general categories" as follows: abuse of litigation in various ways, including using dilatory tactics and false evidence and making frivolous arguments to the courts; preparation of false documentation, such as false deeds, contracts, or wills; deceiving clients and other persons and misappropriating property; procrastination in dealings with clients; and charging excessive fees.[164] Some studies have shown that suicide rates among lawyers may be as much as six times higher than the average population, and commentators suggest that the low opinion the public has of lawyers, combined with their own high ideals of justice, which in practice they may see denied, increase the depression rates of those in this profession.[165] Compensation Main article: Attorney's fee Lawyers are paid for their work in a variety of ways. In private practice, they may work for an hourly fee according to a billable hour structure,[166] a contingency fee[167] (usually in cases involving personal injury), or a lump sum payment if the matter is straightforward. Normally, most lawyers negotiate a written fee agreement up front and may require a non-refundable retainer in advance. In many countries there are fee-shifting arrangements by which the loser must pay the winner's fees and costs; the United States is the major exception,[168] although in turn, its legislators have carved out many exceptions to the so-called "American Rule" of no fee shifting. Lawyers working directly on the payroll of governments, nonprofits, and corporations usually earn a regular annual salary.[169] In many countries, with the notable exception of Germany,[170] lawyers can also volunteer their labor in the service of worthy causes through an arrangement called pro bono (short for pro bono publico, "for the common good").[171] Traditionally such work was performed on behalf of the poor, but in some countries it has now expanded to many other causes such as the environment. In some countries, there are legal aid lawyers who specialize in providing legal services to the indigent.[172][173] France and Spain even have formal fee structures by which lawyers are compensated by the government for legal aid cases on a per-case basis.[174] A similar system, though not as extensive or generous, operates in Australia, Canada, and South Africa.[citation needed] In other countries, legal aid specialists are practically nonexistent. This may be because non-lawyers are allowed to provide such services; in both Italy and Belgium, trade unions and political parties provide what can be characterized as legal aid services.[175] Some legal aid in Belgium is also provided by young lawyer apprentices subsidized by local bar associations (known as the pro deo system), as well as consumer protection nonprofit organizations and Public Assistance Agencies subsidized by local governments.[176] In Germany, mandatory fee structures have enabled widespread implementation of affordable legal expense insurance.[177] History Main article: History of the legal profession 16th-century painting of a civil law notary, by Flemish painter Quentin Massys. A civil law notary is roughly analogous to a common law solicitor, except that, unlike solicitors, civil law notaries do not practice litigation to any degree. Ancient Greece The earliest people who could be described as "lawyers" were probably the orators of ancient Athens (see History of Athens). However, Athenian orators faced serious structural obstacles. First, there was a rule that individuals were supposed to plead their own cases, which was soon bypassed by the increasing tendency of individuals to ask a "friend" for assistance.[178] However, around the middle of the fourth century, the Athenians disposed of the perfunctory request for a friend.[179] Second, a more serious obstacle, which the Athenian orators never completely overcame, was the rule that no one could take a fee to plead the cause of another. This law was widely disregarded in practice, but was never abolished, which meant that orators could never present themselves as legal professionals or experts.[180] They had to uphold the legal fiction that they were merely an ordinary citizen generously helping out a friend for free, and thus they could never organize into a real profession—with professional associations and titles and all the other pomp and circumstance—like their modern counterparts.[181] Therefore, if one narrows the definition to those men who could practice the legal profession openly and legally, then the first lawyers would have to be the orators of ancient Rome.[182] Ancient Rome A law enacted in 204 BC barred Roman advocates from taking fees, but the law was widely ignored.[183] The ban on fees was abolished by Emperor Claudius, who legalized advocacy as a profession and allowed the Roman advocates to become the first lawyers who could practice openly—but he also imposed a fee ceiling of 10,000 sesterces.[184] This was apparently not much money; the Satires of Juvenal complain that there was no money in working as an advocate.[185] Like their Greek contemporaries, early Roman advocates were trained in rhetoric, not law, and the judges before whom they argued were also not law-trained.[186] But very early on, unlike Athens, Rome developed a class of specialists who were learned in the law, known as jurisconsults (iuris consulti).[187] Jurisconsults were wealthy amateurs who dabbled in law as an intellectual hobby; they did not make their primary living from it.[187] They gave legal opinions (responsa) on legal issues to all comers (a practice known as publice respondere).[188] Roman judges and governors would routinely consult with an advisory panel of jurisconsults before rendering a decision, and advocates and ordinary people also went to jurisconsults for legal opinions.[187] Thus, the Romans were the first to have a class of people who spent their days thinking about legal problems, and this is why their law became so "precise, detailed, and technical."[187] Detail from the sarcophagus of Roman lawyer Valerius Petronianus 315–320 AD. Picture by Giovanni Dall'Orto. During the Roman Republic and the early Roman Empire, jurisconsults and advocates were unregulated, since the former were amateurs and the latter were technically illegal.[189] Any citizen could call himself an advocate or a legal expert, though whether people believed him would depend upon his personal reputation. This changed once Claudius legalized the legal profession. By the start of the Byzantine Empire, the legal profession had become well-established, heavily regulated, and highly stratified.[190] The centralization and bureaucratization of the profession was apparently gradual at first, but accelerated during the reign of Emperor Hadrian.[191] At the same time, the jurisconsults went into decline during the imperial period.[192] In the words of Fritz Schulz, "by the fourth century things had changed in the eastern Empire: advocates now were really lawyers."[193] For example, by the fourth century, advocates had to be enrolled on the bar of a court to argue before it, they could only be attached to one court at a time, and there were restrictions (which came and went depending upon who was emperor) on how many advocates could be enrolled at a particular court.[194] By the 380s, advocates were studying law in addition to rhetoric (thus reducing the need for a separate class of jurisconsults); in 460, Emperor Leo imposed a requirement that new advocates seeking admission had to produce testimonials from their teachers; and by the sixth century, a regular course of legal study lasting about four years was required for admission.[195] Claudius's fee ceiling lasted all the way into the Byzantine period, though by then it was measured at 100 solidi.[196] Of course, it was widely evaded, either through demands for maintenance and expenses or a sub rosa barter transaction.[196] The latter was cause for disbarment.[196] The notaries (tabelliones) appeared in the late Roman Empire. Like their modern-day descendants, the civil law notaries, they were responsible for drafting wills, conveyances, and contracts.[197] They were ubiquitous and most villages had one.[197] In Roman times, notaries were widely considered to be inferior to advocates and jury consults.<rnes, 515"/> Roman notaries were not law-trained; they were barely literate hacks who wrapped the simplest transactions in mountains of legal jargon, since they were paid by the line.[198] Middle Ages The Village Lawyer, c. 1621, by Pieter Brueghel the Younger After the fall of the Western Roman Empire and the onset of the Early Middle Ages, the legal profession of Western Europe collapsed. As James Brundage has explained: "[by 1140], no one in Western Europe could properly be described as a professional lawyer or a professional canonist in anything like the modern sense of the term 'professional.' "[199] However, from 1150 onward, a small but increasing number of men became experts in canon law but only in furtherance of other occupational goals, such as serving the Roman Catholic Church as priests.[200] From 1190 to 1230, however, there was a crucial shift in which some men began to practice canon law as a lifelong profession in itself.[201] The legal profession's return was marked by the renewed efforts of church and state to regulate it. In 1231 two French councils mandated that lawyers had to swear an oath of admission before practicing before the bishop's courts in their regions, and a similar oath was promulgated by the papal legate in London in 1237.[202] During the same decade, Frederick II, the emperor of the Kingdom of Sicily, imposed a similar oath in his civil courts.[203] By 1250 the nucleus of a new legal profession had clearly formed.[204] The new trend towards professionalization culminated in a controversial proposal at the Second Council of Lyon in 1275 that all ecclesiastical courts should require an oath of admission.[205] Although not adopted by the council, it was highly influential in many such courts throughout Europe.[205] The civil courts in England also joined the trend towards professionalization; in 1275 a statute was enacted that prescribed punishment for professional lawyers guilty of deceit,[206] and in 1280 the mayor's court of the city of London promulgated regulations concerning admission procedures, including the administering of an oath.[207] And in 1345, the French crown promulgated a royal ordinance which set forth 24 rules governing advocates, of which 12 were integrated into the oath to be taken by them.[208] The French medieval oaths were widely influential and of enduring importance; for example, they directly influenced the structure of the advocates' oath adopted by the Canton of Geneva in 1816.[209] In turn, the 1816 Geneva oath served as the inspiration for the attorney's oath drafted by David Dudley Field as Section 511 of the proposed New York Code of Civil Procedure of 1848, which was the first attempt in the United States at a comprehensive statement of a lawyer's professional duties.[209] Titles Example of a diploma from Suffolk University Law School conferring the Juris Doctor degree. Generally speaking, the modern practice is for lawyers to avoid use of any title, although formal practice varies across the world. Historically lawyers in most European countries were addressed with the title of doctor, and countries outside of Europe have generally followed the practice of the European country which had policy influence through colonization. The first university degrees, starting with the law school of the University of Bologna (or glossators) in the 11th century, were all law degrees and doctorates.[210] Degrees in other fields did not start until the 13th century, but the doctor continued to be the only degree offered at many of the old universities until the 20th century. Therefore, in many of the southern European countries, including Portugal and Italy, lawyers have traditionally been addressed as “doctor,” a practice, which was transferred to many countries in South America and Macau. The term "doctor" has since fallen into disuse, although it is still a legal title in Italy and in use in many countries outside of Europe.[211] In French- (France, Quebec, Belgium, Luxembourg) and Dutch-speaking countries (Netherlands, Belgium), legal professional are addressed as Maître ..., abbreviated to Me ... (in French) or Meester ..., abbreviated to mr. ... (in Dutch). The title of doctor has never been used to address lawyers in England or other common law countries (with the exception of the United States). This is because until 1846 lawyers in England were not required to have a university degree and were trained by other attorneys by apprenticeship or in the Inns of Court.[212] Since law degrees started to become a requirement for lawyers in England, the degree awarded has been the undergraduate LL.B. In South Africa holders of a law degree who have completed a year of pupillage and have been admitted to the bar may use the title "Advocate", abbreviated to "Adv" in written correspondence. Likewise, Italian law graduates who have qualified for the bar use the title "Avvocato", abbreviated in "Avv." Even though most lawyers in the United States do not use any titles, the law degree in that country is the Juris Doctor, a professional doctorate degree,[213] and some J.D. holders in the United States use the title of "Doctor" in professional[214] and academic situations. In countries where holders of the first law degree traditionally use the title of doctor (e.g. Peru, Brazil, Macau, Portugal, Argentina), J.D. holders who are attorneys will often use the title of doctor as well.[215] It is common for English-language male lawyers to use the honorific suffix "Esq." (for "Esquire"). In the United States the style is also used by female lawyers. In many Asian countries, holders of the Juris Doctor degree are also called "博士" (doctor).[216] |
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