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Civil Lawyer

lawyer

A lawyer, or legal practitioner, is a person certified to give legal advice who advises clients in legal matters. Some lawyers represent clients in courts of law and in other forms of dispute resolution.

Law is a theoretical and abstract discipline, and working as a lawyer represents the "practical" application of legal theory and knowledge to solve real problems or to advance the interests of those who retain (i.e., hire) lawyers for legal services.

The role of the lawyer varies significantly across legal jurisdictions, and therefore can be treated here in only the most general terms.

Terminology

The meaning of the word "lawyer" varies slightly between English dialects. In American English, the term is synonymous with licensed attorneys who practise law; attorneys who serve capacities such as judges, law clerks or legislators may be limited in their abilities to practice, in a loose usage of the term, may be considered lawyers. For consistency, the narrower definition is generally used throughout this article.

In British English, the word "lawyer" is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, and legal executives; and people who are involved with the law but do not practice it on behalf of individual clients, such as judges, law clerks, and legislators.

In Australian English, 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 Canadian English, the word "lawyer" only refers to individuals who have been called to the bar. They may also be known as "barristers and solicitors", but should not be referred to as "attorneys", as that word has a different meaning under Canadian law.

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. 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; rather, their legal professions consist of a large number of law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts.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.

Several countries that originally had two or more legal professions have since fused or united their professions into a single type of lawyer. 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. In countries with fused professions, a lawyer is usually permitted to carry out all or nearly all the responsibilities listed below.

Oral argument in the courts

The classic public image of a lawyer is of a polished, well-dressed advocate who smoothly argues a client's case before a judge or jury in a court of law. This is the traditional province of the barrister.

However, the boundary between barristers and solicitors has gradually evolved over time. For example, in England, the barrister monopoly covers only appellate courts, and barristers must compete directly with solicitors in many trial courts.

In some countries, litigants have the option (though not recommended) of arguing pro se, or on their own behalf. Therefore, 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. In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer. 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.

Research and drafting of court papers

In most legal systems, lawyers are expected to brief a court in writing on the issue in a case before the issue can be orally argued. They may have to perform extensive research into relevant facts and law.

In England, a solicitor gets the facts of the case from the client and briefs a barrister in writing. The barrister then researches, drafts, and files the necessary court pleadings, and orally argues the case.

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.

In some countries, like Japan, a scrivener or clerk may fill out court forms and draft simple papers for laypersons who cannot afford or do not need attorneys, and advise them on how to manage and argue their own cases.

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). 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.

Client intake and counseling (with regard to pending litigation)

Before a lawyer can accept a client's case, he or she must interview the client and determine whether it is worth taking. Generally, there is no obligation to take a case, with the exception of public defenders, who must defend all indigent criminal defendants who cannot afford an attorney. The lawyer must also stay in regular contact with the client and advise them about the case's status and possible outcome.

In England, only solicitors were traditionally in direct contact with the client. The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client. In most cases a barrister would be obliged, under what is known as the "cab rank rule", to accept instructions for a case in an area in which they held themselves out as practising, at a court at which they normally appeared and at their usual rates.

Legal advice (with regard to all legal matters)

Legal advice is the application of abstract principles of law to the concrete facts of the client's case in order to advise the client about what they should do next. In many countries, only a properly licensed lawyer may provide legal advice to clients for good consideration, even if no lawsuit is contemplated or is in progress. Therefore, even conveyancers and corporate in-house counsel must first get a license to practice, though they may actually spend very little of their careers in court. Failure to obey such a rule is the crime of unauthorized practice of law.

In other countries, jurists who hold law degrees are allowed to provide legal advice to individuals or to corporations, and it is irrelevant if they lack a license and cannot appear in court.Some countries go further; in England and Wales, there is no general prohibition on the giving of legal advice. Sometimes civil law notaries are allowed to give legal advice, as in Belgium. In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.

Protecting intellectual property

In virtually all countries, patents, copyrights, 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.

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. In others, jurists or notaries may negotiate or draft contracts.

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).

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). 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), and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales." In most common law jurisdictions outside of the United States, this monopoly arose from an 1804 law 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.

In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead. In some civil law jurisdictions, real estate transactions are handled by civil law notaries. In England and Wales a special class of legal professional, the Licensed Conveyancer is also allowed to carry out conveyancing services for reward.

Carrying out the intent of the deceased

In many countries, only lawyers have the legal authority to do drafting of wills, trusts, and any other documents that ensure the efficient disposition of a person's property after death. In some civil law countries this responsibility is handled by civil law notaries.

In the United States, the estates of the deceased must be administered by a court through probate. American lawyers have a profitable monopoly on dispensing advice about probate law (which has been heavily criticized).

Pro bono or legal aid services

Lawyers are generally subject to some kind of official recommendation that they voluntarily provide a certain number of hours of free pro bono services to the poor each year.

In some countries, there are legal aid lawyers who specialize in providing legal services to the poor, disadvantaged, and indigent. 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. The same type of system, though not as extensive or generous, operates in Australia. In others, legal aid specialists are practically nonexistent. This may be because nonlawyers are allowed to provide such services, as in Norway, or because mandatory fee structures have enabled widespread implementation of affordable legal expense insurance, as in Germany. In Italy, trade unions and political parties provide what can be characterized as legal aid services.

Prosecution of criminal suspects

In many civil law countries, prosecutors are trained and employed as part of the judiciary; they are law-trained jurists, but may not necessarily be lawyers in the sense that the word is used in the common law world. In common law countries, prosecutors are usually lawyers holding regular licenses who simply happen to work for the government office that files criminal charges against suspects.

Education

In some countries, law is taught by a faculty of law, which is a department of a university's general undergraduate college. Law students in those countries pursue a 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.

In other countries, particularly the United States, law is primarily taught at law schools. In the United States and countries following the American model, (such as Canada 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 Law) (as opposed to the Bachelor of Laws) as the standard 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 furthering their knowledge and credentials in a specific area of law.

The methods and quality of legal education vary widely. Some countries require extensive clinical training in the form of apprenticeships or special clinical courses. Others do not, like Venezuela. 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). 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).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.

Some students have a preference for full-time law programs, while others often work full- or part-time to pay the tuition and fees of their part-time law programs.

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);incompetent faculty with questionable credentials; and textbooks that lag behind the current state of the law by two or three decades.

Earning the right 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. Mexico allows anyone with a law degree to practice law. 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.In a handful of U.S. states, one may become an attorney by simply passing the bar examination, without having to attend law school first (though very few people actually become lawyers that way).

Some countries require a formal apprenticeship with an experienced practitioner, while others do not. For example, a few jurisdictions still allow an apprenticeship in place of any kind of formal legal education (though the number of persons who actually become lawyers that way is increasingly rare).

Career structure

The career structure of lawyers varies widely from one country to the next.

Common law/civil law

In most common law countries, especially those with fused professions, lawyers have many options over the course of their careers. Besides private practice, they can always aspire to becoming a prosecutor, government counsel, corporate in-house counsel, administrative law judge, judge, arbitrator, law professor, or politician. There are also many non-legal jobs which legal training is good preparation for, such as corporate executive, government administrator, investment banker, or journalist. In developing countries like India, a large majority of law students never actually practice, but simply use their law degree as a foundation for careers in other fields.

In most civil law countries, lawyers generally structure their legal education around their chosen specialty; the boundaries between different types of lawyers are carefully defined and hard to cross. After one earns a law degree, career mobility may be severely constrained. For example, unlike their American counterparts, it is difficult for German judges to leave the bench and become advocates in private practice. Another interesting example is France, where for much of the 20th century, all magistrates were graduates of an elite professional school for judges. Although the French magistracy has begun experimenting with the Anglo-American model of appointing judges from accomplished advocates, the few advocates who have actually joined the bench this way are looked down upon by their colleagues who have taken the traditional route to magistracy.

Specialization

In many countries, lawyers are general practitioners who will take almost any kind of case that walks in the door. In others, there has been a tendency since the start of the 20th century for lawyers to specialize early in their careers.

Organization

Lawyers in private practice generally work in specialized businesses known as law firms, 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. The United States, with its large number of firms with more than 50 lawyers, is an exception. The United Kingdom and Australia are also exceptions, as the U.K., 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 and Wales and some states in Australia do not work in "law firms". Those who offer their services to the general public — as opposed to those working "in house" — are required to be self-employed. 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.

Compensation

Lawyers are paid for their work in a variety of ways. Lawyers in private practice may work for an hourly fee, contingency fee, lump sum payment, or retainer. In many countries there are fee-shifting arrangements by which the loser must pay the winner's fees and costs.

Lawyers working directly on the payroll of governments and corporations usually earn a regular annual salary. Finally, lawyers can volunteer their labor in the service of worthy causes through an arrangement called pro bono (for the common good).

 

Jurisdictions of the common law

Prosecutors are typically lawyers who possess a university degree in law and are recognized as legal professionals by the court in which they intend to represent the state. They usually only become involved in a criminal case once charges need to be laid.

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