In most
countries, particularly civil law countries, there has been a tradition of
giving many legal tasks to a variety of civil law notaries, clerks, and
scriveners.[1] These countries do not
have "lawyers" in the American sense, insofar as that term refers to
a single type of general-purpose legal services provider;[2]
rather, their legal professions consist of a large number of different kinds of
law-trained persons, known as jurists, of which only some are advocates who are
licensed to practice in the courts.[3] 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.[4]
Notably,
England, the mother of the common law jurisdictions, emerged from the Dark Ages
with similar complexity in its legal professions, but then evolved by the 19th
century to a single dichotomy between barristers and solicitors. An equivalent dichotomy
developed between advocates and procurators in some civil law countries, though
these two types did not always monopolize the practice of law as much as
barristers and solicitors, in that they always coexisted with civil law
notaries.[5]
Several countries
that originally had two or more legal professions have since fused or united
their professions into a single type of lawyer.[6] Most
countries in this category are common law countries, though France, a civil law
country, merged its jurists in 1990 and 1991 in response to Anglo-American competition.[7] In
countries with fused professions, a lawyer is usually permitted to carry out
all or nearly all the responsibilities listed below.
Oral arguments
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.[8] 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.[9] 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.[10]
In other countries, like Venezuela, no one may appear before a judge unless
represented by a lawyer.[11]
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.[12]
Legal Research and legal drafting
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.[13]
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). The
barrister then researches and drafts the necessary court pleadings (which will
be filed and served by the solicitor) and orally argues the case.[14]
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
conseils juridiques (who were merged into the main legal profession in 1991).[15]
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.[16]
Client counseling
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 her or his fees to
the client.[17]
In England,
only solicitors were traditionally in direct contact with the client.[18]
The solicitor retained a barrister if one was necessary and acted as an
intermediary between the barrister and the client.[19]
In most cases barristers were 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.[20]
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.[21] 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.[22]
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.[23] Some countries go
further; in England and Wales, there is no general prohibition on the giving of
legal advice.[24] Sometimes civil law
notaries are allowed to give legal advice, as in Belgium.[25]
In many countries, non-jurist accountants may provide what is technically legal
advice in tax and accounting matters.[26]
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.[27]
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.[28]
In others, jurists or notaries may negotiate or draft contracts.[29]
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).[30]
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).[31]
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),[32]
and a 1978 study showed that conveyancing "accounts for as much as 80
percent of solicitor-client contact in New South Wales."[33]
In most common law jurisdictions outside of the United States, this monopoly
arose from an 1804 law[34]
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.[35]
In others,
the use of a lawyer is optional and banks, title companies, or realtors may be
used instead.[36] In some civil law
jurisdictions, real estate transactions are handled by civil law notaries.[37]
In England and Wales a special class of legal professional–the licensed
conveyancer–is also allowed to carry out conveyancing services for reward.[38]
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.[39]
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).[40]
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.[41]
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.[42]
[1] Richard L.
Abel,
"Lawyers in the Civil Law World," in Lawyers in Society: The Civil
Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 1-53 (Berkeley: University
of California Press, 1988), 4.; see also Merryman, 105-109.
[2] Walter O.
Reyrauch, The Personality of Lawyers (New Haven: Yale University Press,
1964), 27.
[3] Jon T. Johnsen,
"The Professionalization of Legal Counseling in Norway," in Lawyers
in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip
S.C. Lewis, 54-123 (Berkeley: University of California Press, 1988), 91; see
also Kahei Rokumoto, "The Present State of Japanese Practicing Attorneys:
On the Way to Full Professionalization?" in Lawyers in Society: The
Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis,
160-199 (Berkeley: University of California Press, 1988), 164.
[4] Geoffrey C.
Hazard, Jr. &
Angelo Dondi, Legal Ethics: A Comparative Study (Stanford: Stanford
University Press,
2004, ISBN 0-8047-4882-9), 20-23.
[5] Benoit Bastard
and Laura Cardia-Vonèche, "The Lawyers of Geneva: an Analysis of Change in
the Legal Profession," trans. by Richard L. Abel, in Lawyers in
Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip S.C.
Lewis, 295-335 (Berkeley: University of California Press, 1988), 297; Carlos
Viladás Jene, "The Legal Profession in Spain: An Understudied but Booming
Occupation," in Lawyers in Society: The Civil Law World, vol. 2,
eds. Richard L. Abel and Philip S.C. Lewis, 369-379 (Berkeley: University of
California Press, 1988), 369; see also Vittorio Olgiati and Valerio Pocar,
"The Italian Legal Profession: An Institutional Dilemma," in Lawyers
in Society: The Civil Law World, vol. 2, eds. Richard L. Abel and Philip
S.C. Lewis, 336-368 (Berkeley: University of California Press, 1988), 338.
[6] Harry W. Arthurs,
Richard Weisman, and Frederick H. Zemans, "Canadian Lawyers: A Peculiar
Professionalism," in Lawyers in Society: The Common Law World, vol.
1, eds. Richard L. Abel and Philip S.C. Lewis, 123-185 (Berkeley: University of
California Press, 1988), 124; David Weisbrot, "The Australian Legal
Profession: From Provincial Family Firms to Multinationals," in Lawyers
in Society: The Common Law World, vol. 1, eds. Richard L. Abel and Philip
S.C. Lewis, 244-317 (Berkeley: University of California Press, 1988), 250.; see
also Georgina Murray, "New Zealand Lawyers: From Colonial GPs to the
Servants of Capital," in Lawyers in Society: The Common Law World,
vol. 1, eds. Richard L. Abel and Philip S.C. Lewis, 318-368 (Berkeley:
University of California Press, 1988), 324.
[7] Anne Boigeol,
"The Rise of Lawyers in France," in Legal Culture in the Age of
Globalization: Latin America and Latin Europe, eds. Lawrence M. Friedman
and Rogelio Pérez-Perdomo, 185-219 (Stanford: Stanford University Press, 2003),
208.
[8] Geoffrey C.
Hazard, Jr. &
Angelo Dondi, Legal Ethics: A Comparative Study (Stanford: Stanford
University Press,
2004, ISBN 0-8047-4882-9), 20-23.
[9] Richard L. Abel, The
Legal Profession in England and Wales (London: Basil Blackwell, 1989), 116.
[10] See, e.g., Cal. Code. Civ. Proc. § 116.530 (preventing attorneys from
appearing in small claims court except as parties or witnesses).
[11] Rogelio
Pérez-Perdomo, "The Venezuelan Legal Profession: Lawyers in an
Inegalitarian Society," in Lawyers in Society: The Civil Law World,
vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 380-399 (Berkeley:
University of California Press, 1988), 387.
[12] Gordon Kent,
"Lawyerless Litigants: Is Justice Being Served?" Edmonton Journal, 27 January 2002, A1. See also
Alan Feuer, "Lawyering by Laymen: More Litigants Are Taking a
Do-It-Yourself Tack," New York Times, 22 January 2001, B1.
[13] Fiona Boyle,
Deveral Capps, Philip Plowden, Clare Sandford, A Practical Guide to
Lawyering Skills, 3rd ed. (London: Cavendish Publishing, 2005), 47-50.
[14] Richard L. Abel, The
Legal Profession in England and Wales (London: Basil Blackwell, 1989), 116.
[15] Anne Boigeol,
"The French Bar: The Difficulties of Unifying a Divided Profession,"
in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel
and Philip S.C. Lewis, 258-294 (Berkeley: University of California Press,
1988), 263; and Boigeol, "The Rise of Lawyers," 206.
[17] Paul J. Zwier
& Anthony J. Bocchini, Fact Investigation: A Practical Guide to
Interviewing, Counseling, and Case Theory Development (Louisville, CO:
National Institute for Trial Advocacy, 2000), 13-44; see also John H. Freeman, Client
Management for Solicitors (London: Cavendish Publishing Ltd., 1997),
266-274.
[18] Abel, England
and Wales, 1 and 141.
[19] J. R. Spencer and
Richard M. Jackson, Jackson's Machinery of Justice, 8th ed. (Cambridge:
Cambridge University Press, 1989), 336.
[20] R.E. Megarry, Lawyer
and Litigant in England (London: Stevens and Sons, 1962), 32; see also
Maureen Paton, "Cab-rank exits," The Times, 9 October 2001, 1.
This brief article explains the uneasy tension between solicitors and
barristers, and the loopholes that have developed. For example, a barrister
need not accept a case if the fee is too low or the barrister is just too busy.
[21] Arthurs, 125;
Johnsen, 74; and Pérez-Perdomo, "Venezuelan Legal Profession," 387.;
Erhard Blankenburg and Ulrike Schultz, "German Advocates: A Highly
Regulated Profession," in Lawyers in Society: The Civil Law World,
vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 124-159 (Berkeley:
University of California Press, 1988), 124; see also Joaquim Falcão,
"Lawyers in Brazil," in Lawyers in Society: The Civil Law World,
vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 400-442 (Berkeley:
University of California Press, 1988), 401.
[22] Justine Fischer
and Dorothy H. Lackmann, Unauthorized Practice Handbook: A Compilation of
Statutes, Cases, and Commentary on the Unauthorized Practice of Law
(Buffalo: William S. Hein Company, 1990), 30-35.
[23] Abel, England
and Wales, 185; Bastard, 318; see also Kees Schuyt, "The Rise of
Lawyers in the Dutch Welfare State," in Lawyers in Society: The Civil
Law World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 200-224
(Berkeley: University of California Press, 1988), 201.
[24] Stephen J.
McGarry, Multidisciplinary Practices and Partnerships: Lawyers, Consultants,
and Clients, § 1.06[1] (New York: Law Journal Press, 2002), 1-29.
[25] Luc Huyse,
"Legal Experts in Belgium," in Lawyers in Society: The Civil Law
World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 225-257
(Berkeley: University of California Press, 1988), 227.
[26] Georgina Murray,
"New Zealand Lawyers: From Colonial GPs to the Servants of Capital,"
in Lawyers in Society: The Common Law World, vol. 1, eds. Richard L.
Abel and Philip S.C. Lewis, 318-368 (Berkeley: University of California Press,
1988), 324.
[27] Anne Boigeol,
"The French Bar: The Difficulties of Unifying a Divided Profession,"
in Lawyers in Society: The Civil Law World, vol. 2, eds. Richard L. Abel
and Philip S.C. Lewis, 258-294 (Berkeley: University of California Press,
1988), 263; and Boigeol, "The Rise of Lawyers," 206.see also Lee
Rousso, "Japan's New Patent Attorney Law Breaches Barrier Between The
'Legal' And 'Quasi-Legal' Professions: Integrity Of Japanese Patent Practice At
Risk?" 10 Pac. Rim L. & Pol'y
781, 783-790 (2001).
[28] Arthurs, 125; and
Pérez-Perdomo, "Venezuelan Legal Profession," 387.
[29] Luc Huyse,
"Legal Experts in Belgium," in Lawyers in Society: The Civil Law
World, vol. 2, eds. Richard L. Abel and Philip S.C. Lewis, 225-257
(Berkeley: University of California Press, 1988), 227.
[30] Boigeol,
"The Rise of Lawyers," 206.
[31] Abel, England
and Wales, 176; Hazard, 90-93; Murray, 325; and Pérez-Perdomo,
"Venezuelan Legal Profession," 387.
[32] Abel, England
and Wales, 177.
[33] Weisbrot, 292.
[34] s. 14 Stamp Act
1804
[35] Brian Abel-Smith
and Robert Stevens, Lawyers and the Courts: A Sociological Study of the
English Legal System, 1750-1965 (Cambridge: Harvard
University Press,
1967), 23.
[36] Weisbrot, 251.
[38] Simon Domberger
and Avrom Sherr, "The Impact of Competition on Pricing and Quality of
Legal Services," in The Regulatory Challenge, eds. Matthew Bishop,
John Kay, Colin Mayer, 119-137 (New York: Oxford University Press, 1995),
121-122.
[39] Ralph Warner
& Stephen Elias, Fed Up with the Legal System: What's Wrong & How to
Fix It (Berkeley: Nolo Press, 1994), 11.
[40] Ralph Warner
& Stephen Elias, Fed Up with the Legal System: What's Wrong & How to
Fix It (Berkeley: Nolo Press, 1994), 11.
[41] Hazard, 34-35;
Huyse, 227; Merryman, 105, and Schuyt, 201.
Ojijo is an author of 31 books, ICT lawyer, public speaker on financial literacy and personal branding, feasibility study and financial projections expert. ojijo@allpublicspeakers.com. +256 776 100059
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