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Chapter Topics
Legal Education
Licensing Requirements
Legal Ethics and Discipline
Bar Associations
The Work of Lawyers
Diversity and Stratification of the Legal Profession
Access to Legal Services
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Legal Education before 1870• lawyers were scarce in the Colonies
• entry into the profession was open – trained through self-study, often combined with an apprenticeship
• start of University based American legal education at William and Mary (1779)
• legal education connected to philosophy, political economy and ethics
• proprietary law schools (for-profit) emerged for practitioners (Litchfield 1784)
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The Modern Law School• Harvard Law School and Dean Christopher Columbus Langdell changed legal education
• introduced the case method – reading appellate court opinions
• the case method is now the standard form of instruction
• night law schools were founded as an alternative to University education
• in 1900 32 prestigious law schools founded the Association of American Law Schools
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Law School Admission• 140,298 law students
• based on Law School Admission Test (LSAT) and undergraduate performance
• Law School Admission Council (LSAC) develops and administers the test
• applicants use the Law School Data Assembly Service (LSDAS) to send their application materials to schools
• 2004-05, 145,258 LSAT tests compared to 1963-64, 37,598
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• women are 50% of enrolled law students, but only 29% of attorneys
• minorities earn 21% of the degrees earned with 7% of those going to African Americans and 7% going to Hispanic Americans
Law School Curriculum• early curriculum was 2 years today a standard curriculum is 3 years
• train students as generalists
• teach students to “think like lawyers”
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Curriculum• distinctive feature is the case method
• casebooks organize appellate court decisions
• few references to other disciplines (history, economics, public policy, etc.)
• employs the Socratic method – professor challenges student to explain the logic of their thinking
• no correct way of analyzing opinions, it is the process that counts
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Curriculum• critics of legal education argue:
• method of instruction is confrontational which does not suit many learning styles
• some argue too focused on knowledge needed to pass the bar exam
• others say not enough attention to the actual practice of law
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Differences in Law Schools• 188 American Bar Association (ABA) approved law schools in 2005
• most are affiliated with a university
• the rest are free standing (proprietary)
• law schools differ in prestige, elite national law schools, public and private university schools, and local/night schools
• ranked by U.S. News and World Report every year but not without controversy—the LSAC encourages applicants to find the “best law school for them”
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Law School Costs• 80% of law students rely on loans
• 2001 survey showed median debt of $84,400
• 2/3 of students report that law school debt keeps them from considering public sector jobs
• law school has always been expensive, but the cost is rising faster than lawyer salaries
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Licensing Requirements• passing the bar exam is required to practice law
• historically lawyers were admitted to the bar by courts and judges
• bar associations worked to improve the quality of the legal profession
• most bar exams include:
• (1) basic areas of law, (2) knowledge of state law, (3) legal ethics
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Licensing Requirements• the Multistate Bar Examination is used 48 states and offered twice a year:
• 2004, 77,246 tests administered with a passage rate of 64%
• NY & CA administer the most tests
• other tests include the Multistate Professional Responsibility Test and the Multistate Essay Test
• many students take a bar review course
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Legal Ethics and Discipline• are lawyers dishonest, unscrupulous, and conniving?
• increasingly law schools focus on ethics
• bar associations work to improve the public image of lawyers
• state high courts establish the standards of conduct for the legal profession—based on the ABA’s Model Rules of Professional Conduct
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• typically a state bar association disciplinary committee handles discipline
• common complaints include:
• (1) misuse of client funds, (2) acceptance of money for services never rendered, (3) felony conviction
• complaint is filed, investigation performed, recommendation made
• most complaints are dismissed, very few result in sanctions
• dissatisfied clients can also file a malpractice lawsuit
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Bar Associations• created to try and improve the professional standing of the legal profession
• traditionally elitist and conservative
• State Bar Associations
• 30 states have adopted an integrated bar, requiring all attorneys to join the state bar association
• American Bar Association – 600,000 members, attempts to speak for the legal profession
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Bar Association Activities• attempt to upgrade the quality of the legal profession
• try to remove dishonest lawyers
• promote the public image (by conducting assessments of public confidence)
• activities aimed at the unauthorized practice of law — lawyers traditionally have a monopoly over legal services
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• advocates argue that legal education is necessary to represent clients
• researchers have found that “experience” not legal training is the best predictor of success in court (Kritzer 1998)
• many legal tasks are routine (uncontested divorces, adoptions, name changes, wills)
• these tasks are being made easier by computer programs and handbooks
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The Work of Lawyers• many think of lawyers and trials together but the reality is that most lawyers do not spend their time in court
• England draws a formal distinction between:
• Solicitors – office attorneys who advise clients but argue only minor cases,
• Barristers – litigators who argue case in major trial courts
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The Work of Lawyers• Litigating – presenting cases before judges or juries
• trial attorneys must organize a case and the facts for presentation to the judge or jury
• only a small number of attorneys are full-time litigators
• Representing – helping clients with securing a license, dealing with administrative regulations, requesting variances, etc.
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The Work of Lawyers• Negotiating – most lawsuits are settled through negotiation. Lawyers work to settle a dispute in the most favorable way for their client. Negotiations in criminal court are frequently referred to as plea bargaining.
• Drafting Documents – lawyers spend a great deal of time writing documents. A properly drafted document can help a client avoid a lawsuit in the future. Documents are required at every stage of a lawsuit.
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The Work of Lawyers• Counseling Clients – lawyers advise clients about the dictates of the law. They are expected to provide sound, dispassionate advice about the law.
• this role sometimes creates tension between the lawyer and client. Lawyers must sometimes give advice that the client would rather not hear—for example, the evidence will likely lead to a conviction or your not going to be able to get that much money in a settlement.
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The Work of Lawyers• Cause Lawyering – involves the mobilization of the law combined with political calculations.
• emerged in the 1960s with civil rights and consumer safety initiatives
• includes both the political left and right
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Where Lawyers Work• Private Practice – nearly 75% of lawyers work in private practice
• number of solo practitioners is declining
• economies of scale make working in a firm—an association of lawyers—more and more desirable
• Business – many business hire lawyers
• house counsel – employed by the business as salaried employees
• outside counsel – a lawyer or firm hired by the business but not a employee
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• Government – nearly 10% of the nations lawyers work for government.
• typically we think of government lawyers prosecuting criminals
• but many other lawyers are employed by the federal, state and local government
• Law Clerks – provide legal research and writing for judges. Judicial clerkships are highly prized by law students and seen as prestigious by future employers.
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Diversity and Stratification of the Legal Profession• there are many differences among lawyers and law firms
• Heinz and Lauman and Nelson found in a Chicago study:
• lawyers range from general to specific in their practice with less than 25% considering themselves specialists
• lawyers consistently represent either plaintiffs or defendants
• lawyers tend to represent either large corporations or individuals
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Diversity and Stratification of the Legal Profession• they concluded that lawyers are either part of the
• corporate sector—representing large corporations, regulatory agencies, or governmental bodies, or
• personal client sector attorneys—representing individuals
• corporate sector lawyering has been growing faster than the private client sector
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Large Law Firms
• Often referred to as Wall Street Lawyers
• Largest is Chicago’s Baker & McKenzie, 3,214
• small number of “large law firms” but they have a great deal of influence
• represent mostly corporate clients
• offer coordinated, highly specialized legal services
• lawyers are
• associates—recent law school graduates who provide legal assistance
• partners—hold permanent positions and contribute to firm management
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Large Law Firms• firm lawyers are sometimes described as: finders (finding new clients), minders (managing the firm), and grinders (doing legal research and work)
• participate in bar association leadership
• expanded rapidly in the 1980s, but number of super large firms has been declining
Solo Practitioners• individual attorneys
• represent one-shotters—individuals who rarely make legal claims
• have modest incomes and focus mostly on criminal, personal injury, divorce, real estate, etc.
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Lawyer Employment and Salaries
• geography is important, in 2003 43% of all new lawyer jobs were in 20 cities!
• fastest growth in large states, NY, CA, TX
• 2004 median salary $94,930
• 25% make less than $64,620
• 2004 median starting salaries for lawyers in the 10 cities with the largest number of jobs, $116,500 private practice, $64,400 business, $47,234
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Legal Services
• there are many lawyers in the U.S. (>1M) but individual citizens still report difficulty obtaining legal services, why?
• many lawyers work for business
• lawyers can be expensive
• but they are often necessary
• in criminal prosecutions, legal representation is a right (Gideon v. Wainwright 1963)
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Legal Services
• legal services are provided—if you cannot afford them. There are two systems:
• assigned counsel – lawyers are assigned cases by a judge on case by case basis and paid hourly for their work
• often young and inexperienced lawyers
• used by half of the counties in the U.S.
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Legal Services• public defender—salaried lawyers working for the state or local jurisdiction who are assigned cases by an administrative professional
• intended to bring professionalism to criminal representation of the poor
• used frequently in urban areas
• proponents argue that lawyers can focus on the cases because they are salaried, critics charge that because they receive a salary they will not be as passionate advocates
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Civil Representation for the Poor• in civil matters, free legal representation is a privilege, not a right
• mostly offered by a legal clinic, the Legal Services Program or on a contingency fee basis
• Contingency Fee—the lawyers agrees to be paid only if the case is won
• very controversial, but
• increase the availability of lawyers to the poor
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Civil Representation for the Poor• distinctive feature of U.S. law
• opponents charge that (1) unfair to clients because winning lawyers take a large portion of the settlement, (2) lawyers make too much for their time spent, (3) the chance of winning big causes reckless behavior by the attorneys.
• proponents counter that (1) lawyers that use the contingency fee do not benefit all that much, (2) they turn away plenty of cases, (3) may not cause higher verdicts
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Civil Representation for the Poor• Advertising and Legal Clinics
• most advertising is modest, but accident victims often do receive letters from attorneys. States may place restrictions on advertising
• legal clinics may be run by community based organizations or law schools. They often specialize in uncomplicated matters: uncontested divorce, wills, bankruptcy, etc.
• the number of clinics has been declining
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Civil Representation for the Poor• Legal Services Program—created in 1965 by President Lyndon Johnson to offer civil legal services to the poor
• precursors were small, largely urban organizations trying to provide professional legal services
• the LSP created neighborhood offices, government funded, independent, advocated for the poor
• replaced by the Legal Services Corporation in 1974
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Civil Representation for the Poor• Legal Services Corporation – is a private, nonprofit corporation established by Congress in 1974
• overseen by an 11 person committee appointed by the president and confirmed by the Senate
• FY 2005 budget, $330.8M
• provides aid to >1M annually
• subject of partisan debates in Congress, but support is bi-partisan and budgets have been steady
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Conclusion• legal representation is very important
• legal education is rigorous
• lawyers belong to bar associations and attempt to police themselves for ethical violations
• the legal profession is diverse
• legal services for indigents in criminal matters is a right, but for civil matters it is a privilege