"Lawyers" redirects here. For the television series, see
The Lawyers.
"Litigators" redirects here. For the novel by John Grisham, see
The Litigators.
Lawyer A French lawyer |
| Occupation |
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| Names | Advocate, attorney, barrister, counsel, judge, solicitor |
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Occupation type | Lawyer |
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Activity sectors | Law, business |
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| Description |
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| Competencies | Analytical skills
Critical thinking skills
Knowledge of the law
Proficiency in legal researchand legal writing |
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Education required | see Professional requirements |
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Related jobs | Barrister, Solicitor, Judge,Advocate, Attorney,Prosecutor, Law clerk, Law professor |
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A
lawyer is a person who
practices law, as a
barrister,
attorney,
counselor or
solicitor.
[1] 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 hire lawyers to perform legal services.
The role of the lawyer varies greatly across legal jurisdictions, and so it can be treated here in only the most general terms.
[2][3]Terminology[edit]
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 Australia, the word "lawyer" is used to refer to both barristers and solicitors (whether in private practice or practicing as corporate in-house counsel).
- In Canada, the word "lawyer" only refers to individuals who have been called to the bar or, in Quebec, have qualified as civil law notaries. Common law lawyers in Canada are formally and properly called "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 English.
- In England and Wales, "lawyer" is used to refer to persons who provide reserved and unreserved legal activities and includes practitioners such as barristers, attorneys,solicitors, registered foreign lawyers, patent attorneys, trade mark attorneys, licensed conveyancers, public notaries, commissioners for oaths, immigration advisers and claims management services. The Legal Services Act 2007 defines the "legal activities" that may only be performed by a person who is entitled to do so pursuant to the Act. 'Lawyer' is not a protected title.
- In South Asia, 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] In fact, there are regulatory restrictions on non-lawyers like paralegals practicing law.[8]
- Other nations tend to have comparable terms for the analogous concept.
Responsibilities[edit]
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.
[9][10] 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;
[11] rather, their legal professions consist of a large number of different kinds of law-trained persons, known as
jurists, some of whom are advocates who are licensed to practice in the courts.
[12][13][14] 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.
[15]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; these two types did not always monopolize the practice of law, in that they coexisted with civil law notaries.
[16][17][18]Several countries that originally had two or more legal professions have since
fused or
united their professions into a single type of lawyer.
[19][20][21][22] 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.
[23] 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[edit]
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.
[24] However, the boundary between barristers and solicitors have evolved. In England today, the barrister
monopoly covers only appellate courts, and barristers must compete directly with solicitors in many trial courts.
[25] 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.
[26] In other countries, like Venezuela or Portugal, no one may appear before a judge unless represented by a lawyer.
[27] 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.
[28][29]Research and drafting of court papers[edit]
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 labor is that a solicitor will obtain the facts of the case from the client and then brief a barrister (usually in writing).
[30] The barrister then researches and drafts the necessary court pleadings (which will be filed and served by the solicitor) and orally argues the case.
[31]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.
[32]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.
[33]Advocacy (written and oral) in administrative hearings[edit]
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).
[34] 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.
[35]Client intake and counseling (with regard to pending litigation)[edit]
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.
[36][37]In England, only solicitors were traditionally in direct contact with the client.
[38] The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client.
[39] 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.
[40][41]Legal advice[edit]
Main article:
Legal adviceLegal 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.
[42][43][44] 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.
[45]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.
[46][47] Some countries go further; in England and Wales, there is
no general prohibition on the giving of legal advice.
[48] Sometimes civil law notaries are allowed to give legal advice, as in Belgium.
[49] In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.
[50]
