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

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)

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

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

• 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”

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

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

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”

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

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

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

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

• 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

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

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

• 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

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

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.

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.

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.

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

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

• 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.

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

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

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

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.

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

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)

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.

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

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

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

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

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

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

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