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Lesson Two: Legal Profession 第二课:法律职业[E-C]

(2010-09-19 17:49:46)




分类: 何家弘《法律英语》

Part One: The Bar



   The regulation of the legal profession is primarily the concern of the state, each of which has its own requirement for admission to practice. Most require three years of college and a law degree. Each state administers its own written examination to Exam, a day-long multiple-choice test, to which the state adds a day-long essay examination emphasizing its own law. A substantial fraction of all applicants succeed on the first try, and many of those who fail pass on a later attempt. In all, over forty thousand persons succeed in passing these examinations each year and, after an inquiry into their character, are admitted to the bar in their respective states. No apprenticeship is required either before or after admission. The rules for admission to practice before the federal court vary with the court, but generally those entitled to practice before the highest court of a state may be admitted before the federal courts upon compliance with minor formalities.



   A lawyer’s practice is usually confined to a single community for, although a lawyer may travel to represent clients, one is only permitted to practice in a state where one has been admitted. It is customary to retain local counsel for matters in other jurisdictions. However, one who moves to another state can usually be admitted without examination if one has practiced in a state where one has been admitted for some time, often five years.



    A lawyer may not only practice law, but is permitted to engage in any activity that is open to other citizens. It is not uncommon for the practicing lawyer to serve on board of director of corporate clients, to engage in business, and to participate in public affairs. A lawyer remains a member of bar even after becoming a judge, an employee of government or a private business concern, or a law teacher, and may return to private practice from these other activities. A relatively small number of lawyers give up practice for responsible executive positions in commerce and industry. The mobility as well as the sense of public responsibility in the profession is evidenced by the career of Harlan Friske Stone who was, at various times, a successful New York lawyer, a professor and dean of the Columbia School of Law, Attorney General of the United State, and Chief Justice of the United States.



   There is no formal division among lawyers according to function. The distinction between barristers and solicitors found in England did not take root in the United States, and there is no branch of the profession that has a special or exclusive right to appear in court, nor is there a branch that specializes in the preparation of legal instruments. The American lawyer’s domain includes advocacy, counseling, and drafting. Furthermore, within the sphere broadly defined as the “practice of law” the domain is exclusive and is not pen to others. In the field of advocacy, the rules are fairly clear: any individual may represent himself or herself in court but, with the exception of a few inferior courts, only a lawyer may represent another in court. Non-lawyers are, however, authorized to represent others in formal proceedings of a judicial nature before some administrative agencies. The lines of demarcation are less clear in the areas of counseling and drafting of legal instruments, as for example between the practice of law and that of accounting in the field of federal income taxation. However, the strict approach of most American courts is indicated by a decision of New York’s highest court that a lawyer admitted to practice in a foreign country but not in New York is prohibited from giving legal advice to clients in New York, even thought the advice is limited to the law of the foreign country where the lawyer is admitted. A foreign lawyer may, however, be admitted to the bar of one of the states and may, even without being admitted, advise an American lawyer as a consultant on foreign law.



Part Two: Lawyers in Private Practice



    Among these fifteen lawyers in practice, nine, a clear majority, are single practitioners. The remaining six practice in law firms, which are generally organized as partnerships. Four or five of these six are partners and the others are associates, a term applied to salaried lawyers employed by a firm or another lawyer. This trend toward group practice is of relatively recent origin. Throughout most of the nineteenth century law practice was general rather than specialized. Its chief ingredient was advocacy rather than counseling and drafting, and the prototype of the American lawyer was the single practitioner. Marked specialization began in the later part of that century in the large cities near the financial centers, With the growth of big business, big government and big labor, the work of the lawyer accommodated itself to the need of clients for expert counseling and drafting to prevent as well as to settle dispute, The best lawyers were attracted by this work and leadership of the bar gravitated to persons who rarely if ever appeared in court and who were sought after as advisors, planners, and negotiators. Today the lawyer regards it as sound practice to be continuously familiar with clients’ business problems and to participate at all steps in the shaping of their policies. Major business transactions are rarely undertaken without advice of counsel.



Part Three: House Counsel



    Out of every twenty lawyers, two are employed by private business concerns, such as industrial corporations, insurance companies, and banks, usually as house or corporate counsel in the concern’s legal department. The growth of corporations, the complex of business, and the multitude of problems posed by government regulation make it desirable for such firms to have in their employ persons with legal training who, at the same time, are intimately familiar with the particular problems and conditions of the firm. In large corporations the legal department may number one hundred or more. The general counsel , who head of office, is usually an officer of the company and may serve on important policy making committees and perhaps even on the board of directors。 House counsels remain member of the bar and are entitled to appear in court, though an outside lawyer is often retained for litigation. However, it is house counsel’s skill as advisor rather than as advocate that is a valued asset. Constantly in touch with the employer’s problems, house counsel is ideally situated to practice preventive law and may also be called upon to advise the company on its broader obligation to the public and the nation.



Part Four: Lawyers in Government



    A parallel development has taken place in government and two out of twenty lawyers are now employees of the federal, state, county, and municipal governments, exclusive of the judiciary. Many of those entering public service are recent law graduates who find government salaries sufficiently attractive at this stage of their careers and seek the training that such service may offer as a prelude to private practice. Limitation on top salaries, however, discourages some from continuing with the government. The majority serves by appointment in the legal departments of a variety of federal and state agencies and local entities. The United States Department of Justice alone employs more than two thousands, and the Law Department of the City of New York more than four hundreds. Others are engaged as public prosecutors. Federal prosecutors, the United States attorneys and their assistants, are appointed by the President and are subordinate to the Attorney General of the United States. State prosecutors, sometimes known as district attorneys, are commonly elected by each county and are not under the control of the state attorney general. As a rule, lawyers in government are directly engaged in legal work, since law training is infrequently sought as preparation for general government service. However, a small but important minority that constitutes an exception to this rule consists of those who have been appointed to high executive positions and those who have been elected to political office. Though the participation of lawyers in government has declined recently, for two centuries lawyers have made up roughly half of the Congress of the United States and of the state governors. These figures bear out the comment of Chief Justice Stone that, “No tradition of our profession is more cherished by lawyers than of its leadership in public affairs.”(Over)







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