Terminology

The meaning of the word "lawyer" varies slightly between English dialects. In American English, the term is synonymous with licensed attorneys who practice law. For consistency, the narrower definition is generally used throughout this article—in the sense that a lawyer provides representation and advice, as opposed to deciding cases or writing laws.

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.

[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.[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 law-trained persons, known as jurists, of which only some are advocates who are licensed to practice in the courts.[3][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][6][7]

Several countries that originally had two or more legal professions have since fused or united their professions into a single type of lawyer.[8][9][10][11] 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.[12] 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

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.[13]

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.[14] In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer.[15] 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.[16][17]

[edit] 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.[18]

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.[19]

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.[20]

[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).[21] 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.[22]

[edit] 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.[23] 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.[24][25]

[edit] 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.[26][27][28] 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.[29][30] 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.[31] In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters.[32]

[edit] 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.[33]

[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.[34] In others, jurists or notaries may negotiate or draft contracts.[35]

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).[36]

[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).[37] 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),[38] and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales."[39] In most common law jurisdictions outside of the United States, this monopoly arose from an 1804 law[40] 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.[41]

In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead.[42] In some civil law jurisdictions, real estate transactions are handled by civil law notaries.[43] In England and Wales a special class of legal professional, the Licensed Conveyancer is also allowed to carry out conveyancing services for reward.

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