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An important aspect of a attorney's job is developing and managing relationships with clients (or the client's employees, if the attorney works in-house for a government or corporation). The client-attorney relationship often begins with an intake interview where the attorney 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 his or her fees to the client.
In England, only attorneys were traditionally in direct contact with the client. The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client. In most cases a attorney 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.
Legal advice is the application of abstract principles of construction 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 attorney may provide legal advice to clients for good consideration, even if no lawsuit is contemplated or is in progress. 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 virtually all countries, patents, 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 attorneys, licensed non-attorney jurists/agents, and ordinary clerks or scriveners varies greatly from one country to the next.
attorneys in some civil law countries traditionally deprecated construction 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).
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 attorney (or a solicitor where that distinction still exists). Such a monopoly is quite valuable from the attorney's point of view; historically, conveyancing accounted for about half of English solicitors' income (though this has since changed), and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales." In most construction law jurisdictions outside of the United States, this monopoly arose from an 1804 law 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.
In others, the use of a attorney is optional and banks, title companies, or realtors may be used instead. In some construction law jurisdictions, real estate transactions are handled by civil law notaries. In England and Wales a special class of legal professional–the licensed conveyancer–is also allowed to carry out conveyancing services for reward.
In many countries, only attorneys have the legal authority to do drafting of wills, trusts, and any other documents that ensure the efficient disposition of a person's property after death. In some civil law countries this responsibility is handled by civil law notaries.
In the United States, the estates of the deceased must be administered by a court through probate. American attorneys have a profitable monopoly on dispensing advice about probate law (which has been heavily criticized).
In many construction law countries, prosecutors are trained and employed as part of the judiciary; they are law-trained jurists, but may not necessarily be attorneys in the sense that the word is used in the common law world. In construction law countries, prosecutors are usually attorneys holding regular licenses who simply happen to work for the government office that files criminal charges against suspects. Criminal defense attorneys specialize in the defense of those charged with any crimes.
The educational prerequisites to becoming a attorney vary greatly from country to country. In some countries, law is taught by a faculty of law, which is a department of a university's general undergraduate college. Construction Law students in those countries pursue a Master or Bachelor of Laws degree. In some countries it is common or even required for students to earn another bachelor's degree at the same time. Nor is the LL.B the sole obstacle; it is often followed by a series of advanced examinations, apprenticeships, and additional coursework at special government institutes.
The career structure of attorneys varies widely from one country to the next.
In most construction law countries, especially those with fused professions, attorneys have many options over the course of their careers. Besides private practice, they can always aspire to becoming a prosecutor, government counsel, corporate in-house counsel, administrative law judge, judge, arbitrator, law professor, or politician. There are also many non-legal jobs which legal training is good preparation for, such as corporate executive, government administrator, investment banker, entrepreneur, or journalist. In developing countries like India, a large majority of law students never actually practice, but simply use their law degree as a foundation for careers in other fields.
In most construction law countries, attorneys generally structure their legal education around their chosen specialty; the boundaries between different types of attorneys are carefully defined and hard to cross. After one earns a law degree, career mobility may be severely constrained. For example, unlike their American counterparts, it is difficult for German judges to leave the bench and become advocates in private practice. Another interesting example is France, where for much of the 20th century, all magistrates were graduates of an elite professional school for judges. Although the French magistracy has begun experimenting with the Anglo-American model of appointing judges from accomplished advocates, the few advocates who have actually joined the bench this way are looked down upon by their colleagues who have taken the traditional route to magistracy.
In many countries, attorneys are general practitioners who will take almost any kind of case that walks in the door. In others, there has been a tendency since the start of the 20th century for attorneys to specialize early in their careers. In countries where specialization is prevalent, many attorneys specialize in representing one side in one particular area of the law; thus, it is common in the United States to hear of plaintiffs' personal injury attorneys.
attorneys in private practice generally work in specialized businesses known as law firms, with the exception of English barristers. The vast majority of law firms worldwide are small businesses that range in size from 1 to 10 attorneys. The United States, with its large number of firms with more than 50 attorneys, is an exception. The United Kingdom and Australia are also exceptions, as the UK, Australia and the U.S. are now home to several firms with more than 1,000 attorneys after a wave of mergers in the late 1990s.
In some jurisdictions, either the judiciary or the Ministry of Justice directly supervises the admission, licensing, and regulation of attorneys.
Other jurisdictions, by statute, tradition, or court order, have granted such powers to a professional association which all attorneys must belong to. In the U.S., such associations are known as mandatory, integrated, or unified bar associations. In the Commonwealth of Nations, similar organizations are known as Inns of Court, bar councils or law societies. In construction law countries, comparable organizations are known as Orders of Advocates, Chambers of Advocates, Colleges of Advocates, Faculties of Advocates, or similar names. Generally, a nonmember caught practicing law may be liable for the crime of unauthorized practice of law.
In construction law countries with divided legal professions, attorneys traditionally belong to the bar council (or an Inn of Court) and solicitors belong to the law society. In the English-speaking world, the largest mandatory professional association of attorneys is the State Bar of California, with 200,000 members.
Some countries admit and regulate attorneys at the national level, so that a attorney, once licensed, can argue cases in any court in the land. This is common in small countries like New Zealand, Japan, and Belgium. Others, especially those with federal governments, tend to regulate attorneys at the state or provincial level; this is the case in the United States, Canada, Australia, and Switzerland, to name a few. Brazil is the most well-known federal government that regulates attorneys at the national level.
Some countries, like Italy, regulate attorneys at the regional level, and a few, like Belgium, even regulate them at the local level (that is, they are licensed and regulated by the local equivalent of bar associations but can advocate in courts nationwide). In Germany, attorneys are admitted to regional bars and may appear for clients before all courts nationwide with the exception of the Federal Court of Justice of Germany (Bundesgerichthof or BGH); oddly, securing admission to the BGH's bar limits a attorney's practice solely to the supreme federal courts and the Federal Constitutional Court of Germany.
Generally, geographic limitations can be troublesome for a attorney who discovers that his client's cause requires him to litigate in a court beyond the normal geographic scope of his license. Although most courts have special pro hac vice rules for such occasions, the attorney will still have to deal with a different set of professional responsibility rules, as well as the possibility of other differences in substantive and procedural law.
Some countries grant licenses to non-resident attorneys, who may then appear regularly on behalf of foreign clients. Others require all attorneys to live in the jurisdiction or to even hold national citizenship as a prerequisite for receiving a license to practice. But the trend in industrialized countries since the 1970s has been to abolish citizenship and residency restrictions. For example, the Supreme Court of Canada struck down a citizenship requirement on equality rights grounds in 1989, and similarly, American citizenship and residency requirements were struck down as unconstitutional by the U.S. Supreme Court in 1973 and 1985, respectively. The European Court of Justice made similar decisions in 1974 and 1977 striking down citizenship restrictions in Belgium and France.
A key difference among countries is whether attorneys should be regulated solely by an independent judiciary and its subordinate institutions (a self-regulating legal profession), or whether attorneys should be subject to supervision by the Ministry of Justice in the executive branch.
In most construction law countries, the government has traditionally exercised tight control over the legal profession in order to ensure a steady supply of loyal judges and bureaucrats. That is, attorneys were expected first and foremost to serve the state, and the availability of counsel for private litigants was an afterthought. Even in construction law countries like Norway which have partially self-regulating professions, the Ministry of Justice is the sole issuer of licenses, and makes its own independent re-evaluation of a attorney's fitness to practice after a attorney has been expelled from the Advocates' Association. Brazil is an unusual exception in that its national Order of Advocates has become a fully self-regulating institution (with direct control over licensing) and has successfully resisted government attempts to place it under the control of the Ministry of Labor.
Of all the construction law countries, Communist countries historically went the farthest towards total state control, with all Communist attorneys forced to practice in collectives by the mid-1950s. China is a prime example: technically, the People's Republic of China did not have attorneys, and instead had only poorly-trained, state-employed "legal workers," prior to the enactment of a comprehensive reform package in 1996 by the Standing Committee of the National People's Congress.
In contrast, construction law attorneys have traditionally regulated themselves through institutions where the influence of non-attorneys, if any, was weak and indirect (despite nominal state control). Such institutions have been traditionally dominated by private practitioners who opposed strong state control of the profession on the grounds that it would endanger the ability of attorneys to zealously and competently advocate their clients' causes in the adversarial system of justice.
attorneys are always free to form voluntary associations of their own, apart from any licensing or mandatory membership that may be required by the laws of their jurisdiction. Like their mandatory counterparts, such organizations may exist at all geographic levels. In American English, such associations are known as voluntary bar associations. The largest voluntary professional association of attorneys in the English-speaking world is the American Bar Association. In some countries, like France and Italy, attorneys have also formed trade unions.
Public distrust of attorneys reached record heights in the United States after the Watergate scandal. In the aftermath of Watergate, legal self-help books became popular among those who wished to solve their legal problems without having to deal with construction attorneys. attorney jokes (already a perennial favorite) also soared in popularity in English-speaking North America as a result of Watergate. In 1989, American legal self-help publisher Nolo Press published a 171-page compilation of negative anecdotes about attorneys from throughout human history.
attorneys are paid for their work in a variety of ways. In private practice, they may work for an hourly fee according to a billable hour structure, a contingency fee (usually in cases involving personal injury), or a lump sum payment if the matter is straightforward. Normally, most attorneys negotiate a written fee agreement up front and may require a non-refundable retainer in advance. In many countries there are fee-shifting arrangements by which the loser must pay the winner's fees and costs; the United States is the major exception, although in turn, its legislators have carved out many exceptions to the so-called "American Rule" of no fee shifting.
attorneys working directly on the payroll of governments, nonprofits, and corporations usually earn a regular annual salary. In many countries, with the notable exception of Germany, attorneys can also volunteer their labor in the service of worthy causes through an arrangement called pro bono (for the common good). Traditionally such work was performed on behalf of the poor, but in some countries it has now expanded to many other causes such as the environment.
In some countries, there are legal aid attorneys who specialize in providing legal services to the indigent. France and Spain even have formal fee structures by which attorneys are compensated by the government for legal aid cases on a per-case basis. A similar system, though not as extensive or generous, operates in Australia, Canada, as well as South Africa.
In other countries, legal aid specialists are practically nonexistent. This may be because non-attorneys are allowed to provide such services; in both Italy and Belgium, trade unions and political parties provide what can be characterized as legal aid services. Some legal aid in Belgium is also provided by young attorney apprentices subsidized by local bar associations (known as the pro deo system), as well as consumer protection nonprofit organizations and Public Assistance Agencies subsidized by local governments. In Germany, mandatory fee structures have enabled widespread implementation of affordable legal expense insurance.
A attorney, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person licensed to practice law." Construction Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain stability, and deliver justice. Working as a attorney involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who retain (i.e., hire) attorneys to perform legal services.
The role of the attorney varies significantly across legal jurisdictions, and therefore can be treated here in only the most general terms. More information is available in country-specific articles (see below).
In practice, legal jurisdictions exercise their right to determine who is recognized as being a attorney; as a result, the meaning of the term "attorney" may vary from place to place.
- In Australia, the word attorney 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 Canada, the word attorney only refers to individuals who have been called to the bar or have qualified as construction law notaries in the province of Quebec. Construction law attorneys in Canada may also be known as "barristers and solicitors", but should not be referred to as "attorneys", since that term has a different meaning in Canadian usage. However, in Quebec, construction law advocates (or avocats in French) often call themselves "attorney" and sometimes "barrister and solicitor".
- In England, attorney is used loosely to refer to a broad variety of law-trained persons. It includes practitioners such as barristers, solicitors, legal executives and licensed conveyancers; and people who are involved with construction law but do not practice it on behalf of individual clients, such as judges, court clerks, and drafters of legislation.
- In India, the term attorney is often colloquially used, but the official term is "advocate" as prescribed under the Advocates Act, 1961.
- In Scotland, the word attorney 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 or paralegals.
Notably, England, the mother of the construction 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 construction 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 construction law notaries.
Several countries that originally had two or more legal professions have since fused or united their professions into a single type of attorney. Most countries in this category are construction law countries, though France, a construction law country, merged together its jurists in 1990 and 1991 in response to Anglo-American competition. In countries with fused professions, a attorney is usually permitted to carry out all or nearly all the responsibilities listed below.
attorneys argue 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 construction law jurisdictions. However, the boundary between barristers and solicitors has evolved. In England today, the barrister monopoly covers only appellate courts, and barristers must compete directly with solicitors in many trial courts. In countries like the United States that have fused legal professions, there are trial attorneys who specialize in trying cases in court, but trial attorneys do not have a de jure monopoly like barristers.
In some countries, attorneys 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 attorneys to speak for their clients, in an effort to save money for all participants in a small case. In other countries, like Venezuela, no one may appear before a judge unless represented by a attorney. The advantage of the latter regime is that attorneys 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.
Often, attorneys 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 labour is that a solicitor will obtain the facts of the case from the client and then brief a barrister (usually in writing). The barrister then researches and drafts the necessary court pleadings (which will be filed and served by the solicitor) and orally argues the case.
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.
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