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Practice of law

From Wikipedia, the free encyclopedia
Not to be confused with Legal practice.
Professional responsibility
Duties to the client
Duties to the court
Duties to the profession
Sources of law
Penalties for misconduct
Competition law
Basic concepts
Anti-competitive practices
Enforcement authorities and organizations

In its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clients, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister, solicitor, or civil law notary. However, there is a substantial amount of overlap between the practice of law and various other professions where clients are represented by agents. These professions include real estate, banking, accounting, and insurance. Moreover, a growing number of legal document assistants (LDAs) are offering services which have traditionally been offered only by lawyers and their employee paralegals. Many documents may now be created by computer-assisted drafting libraries, where the clients are asked a series of questions that are posed by the software in order to construct the legal documents. In addition, regulatory consulting firms also provide advisory services on regulatory compliance that were traditionally provided exclusively by law firms.

Australia

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In Australia, to become a lawyer one must complete a Bachelors of Law, which takes four years, or a Juris Doctor postgraduate degree, which takes three years. Prospecitve legal professionals then partake in the Practical Legal Training (PLT) programme, which allows one to gain experience as an entry-level lawyer. One must then seek admission into legal practice, administered by Legal Admissions Boards in each state or territory, and get a practising certificate.[1]

China

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In mainland China, one must pass the National Judicial Examination to become a lawyer in line with the Chinese Constitution. Before doing this, one must obtain a law degree from an accredited institution in China. Before becoming a lawyer, one must also obtain a legal profession qualification certificate and become a member of a local bar association.[2]

Croatia

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In Croatia, the 1994 Law on the Legal Profession establishes that attorneys have the exclusive right to provide legal assistance. Attorneys must be memebrs of the Croatian Bar Association.[3]

France

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In France under Article 4 of Act 71-1130 of 31 December 1971, lawyers (known as avocats) have a monopoly on assisting and representing parties. All lawyers may represent clients in any part of France, metropolitan or overseas. Article 54 of Title II of the same Act specifies that anyone, including qualified lawyers, may give legal advice or draft private legal documents on behalf of others. France has rules of incompatibility, which means avocats are prohibited from undertaking any other profession or being a company director.[4]

To become a lawyer by the 'Standard Route', one must attend a Law School (EDA), where they take part in a professional education programme alongside their Master of Law degree. Students must then pass the Certificate of Aptitude in the Legal Profession (CAPA). There are alternatives to the Standard Route set out in law.[5]

Hong Kong

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Further information: Legal education in Hong Kong

Hong Kong follows the common law legal system, which it inherited as a British colony. It therefore follows the English split system, where qualified lawyers are divided into barristers and solicitors.

Kenya

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Qualified lawyers in Kenya are known as advocates. There are many stages in becoming an advocate, the last of which is a pupilage programme. [6]

Operating between 2012 and 2016, the Judiciary Transformation Network sought to increase digitisation in the Kenyan legal practice, including estabilshing an electronic case management system, establishing an SMS sytem to communicate with memebrs of the public, digitising court records, installing teleconferencing facilities in courts and ensuring the digital recording and transcription of proceedings.[6]

Singapore

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In Singapore, it is a criminal offence if an unauthorised person pretends to be a qualified lawyer or carries out any act that may be performed only by a qualified lawyer. The relevant provision is section 33 of the Legal Profession Act. The acts that may be performed only by a qualified lawyer are set out in section 33 of the Legal Profession Act and case law.[citation needed]

United Kingdom

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In England and Wales (a single jurisdiction covering the two countries), the legal profession is mostly divided into solicitors and barristers. Lawyers may also become a judge, the Attorney-General, the Solicitor-General or the Director of Public Prosecutions.[7]

Solicitors are generally the first port of call for those seeking legal advice. They prepare lawsuits and contracts for their clients and can represent them in a lower court, such as a magistrates' court or county court. To become a solicitor, one normally takes a three-year undergraduate law degree, known as an LL.B., followed by a one-year Legal Practice Course and two years as a trainee. If a prospective solicitor does not have an LL.B., they may take a law conversion course before their Legal Practice Course.

Barristers take their instructions from a solicitor and represent the client at court, presenting their case. Only barristers may represent clients at a higher court, such as the High Court. Barristers must be a member of one of four Inns of Court. Their professional body is the Bar Council.

Those who do not have a degree can take the CILEX Professional Qualification to become a legal executive. They undertake the same work as solicitors, but are normally only qualified to practise in a single area of law.

Scotland has a separate legal system dating before its union with England in the 18th century. Scotland too has solicitors, but the equivalent role to the English barrister is an advocate.[8]

Across the UK, a lawyer can be appointed as a King's Counsel (KC) on the basis of merit. KC's have may use the postnomial letters KC to mark their experience and have the privilege of sitting within the inner bar of court.

Crown Dependencies

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The Crown Dependencies are self-governing possessions of the British Crown. They are not part of the United Kingdom and have their own, separate legal systems, based on or influenced by common law.

Jersey's legal system is based on Norman customary law with significant influences from English law. Legal professionals can be advocates or écrivains (also known as solicitors), who are roughly equivalent to barristers and solicitors in England. To become an advocate, you must pass the Bar Training Course in England and Wales (or equivalent elsewhere in the UK), have passed the Jersey law examinations and have two years' practical experience in a Jersey law office. To become an écrivain, you must have a law degree or law conversion, have passed the Jersey law examinations and have three years' practical experience in a Jersey law office.[9]

The Bailiwick of Guernsey, there is only one category of lawyer, known as an advocate. To qualify, advocates must become a UK qualified barrister or solicitor, undertake pupillage in Guernsey, pass the Guernsey bar exams and take a brief course provided by the University of Caen.[10]

United States

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In the United States, the practice of law is conditioned upon admission to practice of law, and specifically admission to the bar of a particular state or other territorial jurisdiction. The American Bar Association and the American Law Institute are among the organizations that are concerned with the interests of lawyers as a profession and the promulgation of uniform standards of professionalism and ethics, but regulation of the practice of law is left to the individual states, and their definitions vary.[11]

Unauthorized practice of law

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"Unauthorized practice of law" (UPL) is an act sometimes prohibited by statute, regulation, or court rules.[11]

Definition

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The definition of "unauthorized practice of law" is variable, and is often conclusory and tautological,[12] i.e., it is the doing of a lawyer's or counselor's work by a non-lawyer for money.[11] There is some agreement that appearing in a legally constituted court in a legal proceeding to represent clients (particularly for a fee) is considered to be unauthorized practice of law.[11][12] But other variations are subject to interpretation and conflicting regulation, particularly as to the scope and breadth of the prohibition.[11] Black's Law Dictionary defines unauthorized practice of law as "The practice of law by a person, typically a nonlawyer, who has not been licensed or admitted to practice law in a given jurisdiction."[12]

The Restatement (Third) of the Law Governing Lawyers notes:

The definitions and tests employed by courts to delineate unauthorized practice by non-lawyers have been vague or conclusory, while jurisdictions have differed significantly in describing what constitutes unauthorized practice in particular areas.

Certain activities, such as the representation of another person in litigation, are generally proscribed. Even in that area, many jurisdictions recognize exceptions for such matters as small-claims and landlord-tenant tribunals and certain proceedings in administrative agencies. Moreover, many jurisdictions have authorized law students and others not locally admitted to represent indigent persons or others as part of clinical legal education programs. ...[12][13]

What is more controversial is out-of-court activities, particularly drafting of documents and giving advice, and whether that is considered to be unauthorized practice of law.[12][13] Some states have defined the "practice of law" to include those who appear as a representative in arbitration or act as arbitrators in disputes.[14] For example, there is a growing conflict between the multijurisdictional practice of law in arbitration proceedings in the financial service industry and state regulation of lawyers.[15] With a few exceptions, the general rule is that an appearance at an arbitration does not constitute the practice of law.[16]

The United States bankruptcy court for the Eastern District of Tennessee has held that "providing clients with explanations or definitions of such legal terms of art ... is, by itself, giving legal advice."[17][18] The North Carolina State Bar has held that "definition of lien law terms, warnings regarding time requirements, and reminders about sending out preliminary notices within five to ten days of beginning work, when combined with its preparation of legal documents [in the manner described], constitute providing legal advice."[17][18]

Texas law generally prohibits a person who is not an attorney from representing a client in a personal injury or property damage matter, and punishes a violation as a misdemeanor.[19] Some states also criminalize the separate behavior of falsely claiming to be lawyer (in Texas, for example, this is a felony if done to obtain economic benefit).[20]

Enforcement

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Criminal laws and enforcement of "Unauthorized Practice of Law (UPL)" statutes is the organized bar's preferred method. In Florida, the unauthorized practice of law is a third degree felony,[21] which is punishable by up to six months in prison[22] and $5000 in fines.[23] New Jersey has a law which makes it a "disorderly persons offense" to knowingly to engage in the unauthorized practice of law, and a "crime in the fourth degree" to commit UPL if one (a) creates a false impression that one is a lawyer; (b) derives a benefit from UPL, or (c) causes an injury by UPL.[24][25] In a 2015 survey by the American Bar Association, Florida had the largest budget—$1.8 million—nationwide for prosecuting the unauthorized practice of law.[26]

The state has interest in protecting the public from having unqualified persons hold themselves out as licensed professionals, but the existence of laws against unauthorized practice of itself does not guarantee that unlicensed professionals will be detected and those laws enforced.[27][28]

History and future

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The American Bar Association proposed model rules regarding the unauthorized practice of law, which Judge Richard Posner characterized as an attempt to perpetuate a monopoly to the disadvantage of consumers.[24] The judge observed that the legal profession is "a cartel of providers of services relating to society's laws" which cartel's focus is to restrict entry. "Modern economists call it 'rent seeking', but throughout recorded history, skilled crafts and professions have tried to raise their members' incomes by using the power of the state to limit entry."[24]

The practice of law was not formally regulated in Arizona for a time. However, the Arizona Supreme Court found independent inherent authority to regulate the practice of law.[29] Arizona's statute criminalizing unauthorized practice of law was allowed to lapse from a sunset law in 1985. Rose suggests that legislative proposals to recriminalize the unauthorized practice of law have heretofore failed because of anti-lawyer sentiment in Arizona politics.[30] Moreover, Rose asserts that resentment lingers from an unpopular interpretation of the old statute in State Bar v. Arizona Land Title & Trust Co., 90 Ariz. 76 (1961). This ruling imposed sanctions on a title and realty company engaged in drafting contracts. Rose says, "Throughout the country, various jurisdictions have developed numerous tests for defining the practice of law. But none is broader nor more all-encompassing than that articulated in Arizona Title."[31]

Attorney participation

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In the United States, the rules of professional conduct generally prohibit an attorney from assisting a non-attorney from engaging in the unauthorized practice of law. An attorney therefore may not partner with or split fees with a non-attorney in the performance of any sort of legal work. Furthermore, an attorney may not employ a disbarred or suspended attorney in a legal practice where former clients of the disbarred or suspended attorney will be represented. [32]

See also

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References

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  1. ^ "How to become a lawyer in Australia - Lawyer Monthly". https://www.lawyer-monthly.com/. Retrieved 2024-08-25. {{cite web}}: External link in |website= (help)
  2. ^ "Requirements to Be a Lawyer in China: A Comprehensive Guide". www.chinalegalexperts.com. Retrieved 2024-08-25.
  3. ^ Croatia, Attorney. "Attorney Croatia". Attorney Croatia. Retrieved 2024-08-25.
  4. ^ "The Role of the Lawyer | Site Name". www.cnb.avocat.fr. Retrieved 2024-08-25.
  5. ^ "Accessing the legal profession in France | Site Name". www.cnb.avocat.fr. Retrieved 2024-08-25.
  6. ^ a b Ahmed, Leyla (2024-03-05), "Legal practice in Kenya", Social Structure Adaptation to COVID-19 (1 ed.), London: Routledge, pp. 122–131, doi:10.4324/9781032690278-17, ISBN 978-1-032-69027-8, retrieved 2024-08-25
  7. ^ Abel, Richard L. (1 January 1998). The Making of the English Legal Profession: 1800-1988. Beard Books. ISBN 978-1587982507.
  8. ^ Palmer, p. 213
  9. ^ "Jersey Law Course". Institute of Law Jersey. Retrieved 2024-08-25.
  10. ^ "Home". The Guernsey Bar. Retrieved 2024-08-25.
  11. ^ a b c d e "State Definitions of the Practice of Law" (PDF). American Bar Association. Archived from the original (PDF) on 14 January 2016. Retrieved April 29, 2011.
  12. ^ a b c d e Garner, Bryan A., ed. (1999). Black's Law Dictionary (7th ed.). St. Paul MN: West. pp. 1191–1192.
  13. ^ a b Restatement (Third) of the Law Governing Lawyers (4 cmt c ed.). American Law Institute. 1998.
  14. ^ Spector, David M.; Romero, Jessica (First Quarter 2006). "Arbitration and The Unauthorized Practice of Law" (PDF). ARIAS Quarterly U.S. 13 (1). AIDA Reinsurance & Insurance Arbitration Society: 16–19. Archived from the original (PDF) on July 25, 2011. Retrieved May 18, 2011.
  15. ^ "BNA INSIGHTS: State Regulation of Unauthorized Practice of Law in Arbitration and Mediation: The Trend Toward Permitting Multijurisdictional Practice in Alternative Dispute Resolution". Securities Regulation & Law Report. Bureau of National Affairs. August 16, 2010. Retrieved May 18, 2011.
  16. ^ Bennett, Steven C. (May 2002). Arbitration: essential concepts. New York: Incisive Media, LLC. pp. 175–178. ISBN 978-0-9705970-8-3. ISBN 0-9705970-8-8.
  17. ^ a b Budde, Nate (11 April 2014). "Can Software Practice Law? The Unauthorized Practice of Law and Technology". The Lien & Credit Journal. Archived from the original on 15 April 2014. Retrieved 14 April 2014.
  18. ^ a b North Carolina State Bar v. Lienguard, Inc., 2014 NCBC 11
  19. ^ Tex. Gov’t Code sec. 38.123. Chapter 38 of the penal code, containing 38.122 and 38.123 Archived May 1, 2009, at the Wayback Machine
  20. ^ Tex. Gov’t Code sec. 38.122
  21. ^ §454.23 Fla. Stat. (2016)("Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state ... commits a felony of the third degree."
  22. ^ §775.082(3)(e) Fla. Stat.(2016)
  23. ^ §775.083(1)(c) Fla. Stat. (2016)
  24. ^ a b c McCarter, George W.C. (May 1, 2003). "The ABA's Attack on "Unauthorized" Practice of Law and Consumer Choice". The Federalist Society for Law and Public Policy Studies. Retrieved April 29, 2011.
  25. ^ New Jersey General Assembly. "N.J.S.A. 2C:21-22". Statutes of New Jersey. New Jersey.
  26. ^ Draper, Lindsay (September 2015). "2015 Survey of Unlicensed Practice of Law Committees" (PDF). American Bar Association. Retrieved 17 December 2016. The Florida Bar continues to lead the country in funding UPL enforcement, spending approximately $1.8 million annually.
  27. ^ Hogan, Daniel B. (1983). "The effectiveness of licensing: History, evidence, and recommendations". Law and Human Behavior. 7 (2–3): 117–138. doi:10.1007/BF01044517. S2CID 112414536.
  28. ^ Rhode, Deborah L. (1990). "The Delivery of Legal Services by Non-Lawyers". Georgetown Journal of Legal Ethics. 4: 209.
  29. ^ In re Creasy, 198 Ariz. 539 (2000). See generally Jonathan Rose, "Unauthorized Practice of Law in Arizona: A Legal and Political Problem That Won't Go Away", 34 Ariz. St. L.J. 585.
  30. ^ Id. at 593.
  31. ^ Rose at 588.
  32. ^ "Formal Opinion 1998-01". nycbar.org. Retrieved 2022-09-15.
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