Attorneys in the United States
An attorney at law (or attorney-at-law) in the United States is a practitioner in a court of law who is legally qualified to prosecute and defend actions in such court on the retainer of clients. Alternative terms include counselor (or counsellor-at-law) and lawyer. As of April 2011, there were 1,225,452 licensed attorneys in the United States.
The United States legal system does not draw a distinction between lawyers who plead in court and those who do not, unlike many other common law jurisdictions (such as those of the United Kingdom which distinguishes between solicitors who do not plead in court and the barristers of the English & Welsh system and advocates of the Scottish system who do plead in court), and civil law jurisdictions (such as Italy and France, which distinguish between advocates and civil law notaries). An additional factor which differentiates the American legal system from other countries is that there is no delegation of routine work to notaries public.
Practice of law
Once admitted to practice by the highest court of a state (the state supreme court), a function sometimes administered by the state's bar association, an American attorney may file legal pleadings and argue cases in that state court, provide legal advice to clients and draft important legal instruments such as wills, trusts, deeds and contracts.
Arguing cases in the federal courts requires separate admission.
In some states, real estate closings may be performed only by attorneys, even though the attorney's role in a closing may involve primarily notarization of documents and disbursement of settlement funds through an escrow account.
Actions that may be performed by lawyers are referred to as the practice of law. Practicing law includes interviewing a client to identify the legal question, analyzing the question, researching relevant law, devising legal solutions to problems and executing such solutions through specific tasks such as drafting a contract or filing a motion with a court.
Most academic legal training is directed to identifying legal issues, researching facts and law as well as arguing both the facts and law in favor of either side in any case.
For several years, law schools have sent through far more students than new job openings have become available. This leads to attorneys (once they pass the bar) seeking work in other occupations, either by choice or by the lack of employment opportunities. This has led to a market in legal temps or contract attorneys, where attorneys spend a certain period of time working on tasks such as discovery for a case.
Contrary to the media image of attorneys, a great deal of litigation and regulatory legal work is spent conducting research in a law library or in an electronic database like Westlaw, LexisNexis, or Bloomberg L.P. Many attorneys also spend a large portion of their working time drafting documents, such as legal briefs, contracts, wills and trusts. Few television programs and movies accurately portray the hours for tasks forming the core of the occupational life of many attorneys.
One occasional exception is the television program Law & Order, which sometimes shows the main characters researching at a computer late into the night (always using Westlaw, due to a contract between Westlaw and the show's producers). Some episodes also show lawyers keeping a small rack of clothes in their office for those times when research lasts all night and the character does not have time to go home to change.
Another notable portrayal of the profession was the series Murder One which featured a group of lawyers as central characters. The Practice did as well, but its accuracy may be questionable.
Movies and television also generally show attorneys focused on a single case. Most litigators have many cases in progress at any given time. Each case has deadlines that must be carefully monitored and court dates which one must not forget. Because they often balance many cases at once, attorneys that litigate often have difficult working lives when important documents must be drafted or other work must be performed on different cases at one time.
In litigation, attorneys spend much time discovering the facts of the case to develop a "theory of the case" that integrates facts and law in a way most favorable to their client. Many attorneys believe[weasel words] that the discovery process has reduced the number of civil cases that actually go to trial since the discovery process often allows for a clear evaluation of the merits of each side's position.
Some attorneys are not trial lawyers. Non-trial attorneys are sometimes called transactional lawyers, corporate lawyers, or attorney-advisors in the Federal Government. They specialize in activities that seldom involve them in litigation. Among these activities are writing legal opinion letters, drafting wills or trust documents, advising clients, structuring business transactions, negotiating and drafting contracts, developing tax strategies or preparing and prosecuting filings with government agencies such as the Internal Revenue Service, the Securities and Exchange Commission or the Patent and Trademark Office.
Many American attorneys limit their practices to specialized fields of law. Often dichotomies are drawn between different types of attorneys, but, with the exception of patent law practice, these are neither fixed nor formal lines. Examples include:
- Outside counsel (law firms) v. in-house counsel (corporate legal department)
- Plaintiff v. Defense Attorneys (some attorneys do both plaintiff and defense work, others only handle certain types of cases like personal injury, business etc.)
- Transactional (or "office practice") attorneys (who negotiate and draft documents and advise clients, rarely going to court) v. litigators (who advise clients in the context of legal disputes both in and out of court, including lawsuits, arbitrations and negotiated settlements)
- Trial attorneys (who argue the facts, such as the late Johnnie Cochran) v. appellate attorneys (who argue the law, such as David Boies)
Despite these descriptions, some states forbid or discourage claims of specialization in particular areas of law unless the attorney has been certified by his or her state bar or state board of legal specialization. Other states allow indirect indications of specialization (in the form of advertisement language such as "our practice is limited to . . ."), but require that the lawyer states that he or she is not certified by a state board of legal specialization in the advertised practice area. Patent attorneys are allowed to advertise their specialization in all jurisdictions, since registration for patent law is administered by the United States Patent and Trademark Office (USPTO) instead of a state-level body.
Some states grant formal certifications recognizing specialties. In California, for example, bar certification is offered in family law, appellate practice, criminal law, bankruptcy, estate planning, immigration, taxation and workers' compensation. Any attorney meeting the bar requirements in one of these fields may represent himself as a specialist. The State Bar of Texas, for example, formally grants certification of specialization in 21 select areas of law.
The majority of lawyers practicing in a particular field may typically not be certified as specialists in that field (and state board certification is not generally required to practice law in any field). For example, the State Bar of Texas (as of mid-2006) reported 77,056 persons licensed as attorneys in that state (excluding inactive members of the Bar), while the Texas Board of Legal Specialization reported, at about the same time, only 8,303 Texas attorneys who were board certified in any specialty. Indeed, of the 8,303 certified specialists in Texas, the highest number of attorneys certified in one specific field at that time was 1,775 (in personal injury trial law). Despite the relative large number of lawyers that presumably would handle divorce, adoption and child custody matters, Texas reported that of 77,056 attorneys, only 697 in the entire state were certified in family law (which is, arguably, the applicable specialty).
Specialization in patent law is administered by the Office of Enrollment and Discipline of the US Patent and Trademark Office, which imposes stringent requirements for applicants to become registered as patent attorneys or patent agents. Only attorneys or agents so registered are permitted to practice patent law before the US Patent Bar. Such registration requires an undergraduate degree in engineering or a "hard" science.
About half of American attorneys work solo or in small firms; see law firm. There are also many mid-size firms, with anywhere from 50 to 200 attorneys and since the 1970s, some law firms have merged to form giant firms with 1,000 attorneys or more.
However, whether a law firm is large or small is also a relative concept depending on the size of the community served. A law firm with six attorneys in a small community may be considered a large firm for that area. Because of conflict of interest rules, the maximum size of a law firm is dependent upon the size of the population it serves. Conflict of interest rules prevent one attorney in a law firm from, for example, representing a client in litigation that has an adverse interest to the interests of another client represented by a different attorney in the same law firm. A 2012 survey conducted by LexisNexis Martindale-Hubbell determined 58 million consumers in the U.S. sought an attorney in the last year and that 76 percent of consumers used the Internet to search for an attorney.
Control of cases
An American attorney licensed in each applicable court may in a few cases control and argue his or her case at each level of the judiciary through its entire life cycle. A notable example of this is the Brown v. Board of Education litigation, where the same trial team handled the case from start to finish at the U.S. Supreme Court. However, cases which advance to the appellate level, particularly to the U.S. Supreme Court, are often reassigned to experienced appellate practitioners or firms.
Education and training
Avenues to becoming a lawyer
Almost all U.S. jurisdictions require successful completion of a bar examination to be licensed as an attorney. All but a few of those states which require a bar exam also require the applicant to have taken a degree in professional law from an accredited law school; most require it to be a professional degree in law granted in the United States (usually the Juris Doctor, or J.D., a doctorate). Only a few states accept foreign law degrees. In addition to this formal education, attorneys in most jurisdictions must complete regular Continuing Legal Education (CLE) requirements.
Bar exams are administered by agencies of individual states. In 1763, Delaware created the first bar exam with other American colonies soon following suit. A state bar licensing agency is invariably associated with the judicial branch of government because American attorneys are all officers of the court of the bar or bars to which they belong. Sometimes the agency is an office or committee of the state's highest court or intermediate appellate court.
In some states which have a unified or integrated bar association (meaning that formal membership in a public corporation controlled by the judiciary is required to practice law therein), the agency is either the state bar association or a subunit of it. Other states split the integrated bar membership and the admissions agency into different bodies within the judiciary. In Texas, for example, the Board of Law Examiners is appointed by the Texas Supreme Court and is independent from the integrated State Bar of Texas.
In almost all jurisdictions, the Multistate Professional Responsibility Examination (MPRE), an ethics exam, is also administered by the National Conference of Bar Examiners (NCBE), which creates it and grades it. The NCBE created the MPRE in 1980. The MPRE is offered three times a year, in March, August and November.
The bar examination in most U.S. states and territories is at least two days long (a few states have three-day exams). It consists of essay questions, usually testing knowledge of the state's own law (usually subjects such as wills, trusts and community property, which always vary from one state to another). Some jurisdictions choose to use the Multistate Essay Examination (MEE), drafted by the NCBE since 1988, for this purpose. Others may draft their own questions with this goal in mind, while some states both draft their own questions and use the MEE. Some jurisdictions administer complicated questions that specifically test knowledge of that state's law.
Bar exams also usually consists of the Multistate Bar Examination, which is a multiple-choice standardized test created and sold to participating state bar examiners by the National Conference of Bar Examiners since 1972. The MBE contains 200 questions which test six subjects based upon principles of common law and Article 2 of the Uniform Commercial Code.
A majority of U.S. jurisdictions also require a performance test, which is intended to be a more realistic measure of actual lawyering skill. The candidate is presented with a stack of documents representing a fictional case and is asked to draft a memorandum, motion or opinion document. Many jurisdictions use the Multistate Performance Test (MPT), which was first created in 1997, while California drafts and administers its own performance tests.
The State of Washington has a separate Law Clerk program under Rule Six of the Washington Court Admission to Practice Rules. A college graduate of good moral character may be accepted into the four-year Rule Six Law Clerk Program, obtain employment in a law firm or with a judge for at least 30 hours a week and study a prescribed Course of Study under a tutor. After successful completion of the program, a law clerk may take the Washington State Bar Exam and, upon passing, will be admitted as an attorney into the Washington State Bar Association.
Degrees in law
The degree earned by prospective attorneys in the United States is generally a Juris Doctor (Latin for "Doctor of Jurisprudence"; abbreviated J.D. or, when conferred in English, D.Jur.).
This is distinct from most other Anglophone countries, where law is taught at the undergraduate level and the Bachelor of Laws (LL.B.) or other bachelor's degree is conferred. This undergraduate degree was followed by the Master of Laws (LL.M.), a master's degree in law. Where the LL.B. is still awarded, the highest degree is often still the Doctor of Laws (LL.D.), which is an academic degree in law (i.e. geared toward academia or theory rather than legal practice). The LL.D. is now exclusively given in the United States as an honorary degree.
In the United States, the LL.B. was elevated to the graduate school curriculum as a second bachelor's degree starting in 1896 with Harvard Law School under Christopher Columbus Langdell, "the father of modern American legal education." Then, starting in 1902 at the newly established University of Chicago Law School, the J.D. replaced the LL.B as the professional doctorate in law. By 1971, all American Bar Association-accredited law schools had replaced the LL.B with the J.D.
Because Louisiana has a system that, uniquely among the states, uses civil law, the Paul M. Hebert Law Center at Louisiana State University in the now offers a joint J.D./Diploma of Civil Law (D.C.L.) over seven semesters (instead of its previous six-semester program for the J.D. alone) in recognition of the increased Louisiana civil law component of the new program.
The LL.M. continues to be offered in the United States for two distinct purposes. One is to offer lawyers the chance to acquire an advanced level of expertise in a specific legal discipline, such as tax law. The LL.M may be a type of specialist post-doctoral degree. The other purpose is keeping the LL.M. as a degree for non-U.S. educated attorneys with the LL.B. or other non-U.S. law degree. Many foreign lawyers who have such a degree come to study in the United States to obtain an LL.M. degree in comparative law, in order to familiarize themselves with U.S. common law and to enable themselves to take the bar exam in New York or California, both of which allow foreign attorneys with such degrees to take the exam. Some of these lawyers end up practicing law in the U.S., while many of them return to their home countries and use their U.S. LL.M. and bar admission as a gateway to advising international clients.
The highest law degree obtainable in the United States is Doctor of Juridical Science (Scientiae Juridicae Doctor, abbreviated S.J.D. or J.S.D.). This is an academic degree that, like the Ph.D., is research-based and requires a dissertation (an original contribution to the academic study of law). The degree is very rarely awarded and is generally only sought by attorneys holding exceptional credentials and a desire to enter the legal academy (i.e. to become professors of law). The degree is generally only offered at top-tier law schools, which typically accept only a handful of students into their program each year. Admission is usually limited to those who have achieved their J.D. and LL.M. degrees with distinction. Successful applicants often have already published significant scholarly legal articles in their proposed area of study and a lot of them have legal teaching experience prior to entering the program.
Law students in court
Some courts allow law students to act as "certified student attorneys" after the satisfactory completion of their first year of law school and the completion of particular second- and third-year courses with subjects such as evidence. Many states allow students to argue in front of a court as a certified legal intern (CLI), provided they meet certain prerequisites, such as having completed at least half of their law education, having taken or be taking the law school's ethics class and being under the supervision of a qualified and licensed attorney.
This concept was somewhat misrepresented in the movie Legally Blonde, where the protagonist Elle argues before a jury. Although Elle was under the supervision of an attorney, Massachusetts—like almost all other states—does not allow a first year law student to argue a case in court.
Additionally, most states have rules allowing law students in their third and final year to practise on a limited basis while under the direct supervision of a licensed attorney. These laws vary from state to state. While many states are very strict, some states like Kansas and Illinois provide opportunities for law students to argue cases in trials.
Unlicensed practice of law
Some states provide criminal penalties for falsely holding oneself out to the public as an Attorney at law and the unauthorized practice of law by a non-Attorney.
A person who has a professional law degree, but is not admitted to a state bar is not an attorney at law but may be considered a lawyer (one learned in the law, according to Black's Law Dictionary) since he or she does not hold a license issued by a state. For example, Presidents Obama and Clinton are lawyers, as both men have law degrees and thus are "learned in the law." Nevertheless, they are no longer attorneys at law because neither holds a current law license in any state and thus cannot legally engage in the practice of law. In most states, the practice of law by an "out-of-state" lawyer is considered unauthorized practice of law within that state, even if the lawyer is licensed in good standing in one or more other states. Exceptions are sometimes made when an out-of-state lawyer is granted temporary permission to practice within the state pro hac vice or for in-house counsel who travel to represent a multistate corporation.
In addition, a few areas of law, such as patent law, bankruptcy, or immigration law, are mandated by the U.S. Constitution to be strictly under federal jurisdiction. In this case, state courts and bar associations are not allowed to restrict the practice of that field of law. Thus, these lawyers and non lawyers may freely advise clients as to these matters anywhere in the jurisdiction of the United States without regard to state court or bar association rules. Furthermore, prior to November 15, 1938, individuals could become registered as "patent attorneys" with the USPTO without ever passing a state bar exam or going to law school. That status was grandfathered for patent attorneys registered prior to that date. This represents a holdover to the traditional meaning of the term "attorney" as "agent" or "attorney-in-fact". There are still some living patent attorneys who became registered as patent attorneys before that date, as far back as 1934. Today, a lawyer who is eligible or, takes, and passes the patent bar is considered a "patent attorney"; a non-lawyer who is eligible for, takes, and passes the patent bar is considered a "patent agent".
In some jurisdictions, the definition of the practice of law is quite strict. Persons have been successfully prosecuted for publishing do-it-yourself will forms and for representing special education children in federal proceedings as specifically allowed by federal law.
Paradoxically, some jurisdictions will allow a non-attorney to sit as a judge, usually in lower courts or in hearings by governmental agencies, even though a non-attorney may not practice before these same courts. Similarly, in a jurisdiction where a judge is elected by the people, the judge often does not need to be licensed to practice law or trained in any particular way. Likewise, the U.S. Constitution does not provide any such requirement for a U.S. Supreme Court justice or other federal judge, although no non-lawyer has ever been appointed as a federal judge.
|This section does not cite any references or sources. (February 2011)|
Unlike their counterparts in other common law jurisdictions, American attorneys are not required to wear wigs, robes or any other items of court dress when they appear in court. They are usually expected to wear contemporary business suits.
- Merriam-Webster Online
- "ABA Market Research Department". Market Research Department. American Bar Association. 2011-04-xx. Retrieved 2012-10-04.
- "Standing Committee on Specialization | Standing Committee / Specialization". Abanet.org. 2012-03-05. Retrieved 2012-10-06.
- Texas Board of Legal Specialization (TBLS)
- See factsheet entitled "State Bar of Texas Facts," from www.texasbar.com.
- TBLS FAQs
- "How Consumers Choose an Attorney: Information Gathering". The National Law Review. Stephen Fairley. 2012-09-27. Retrieved 2012-10-01.
- California Bar Background information, accessed April 21, 2009
- William Burnham, Introduction to the Law and Legal System of the United States, 4th ed. (St. Paul: Thomson West, 2006), 135.
- Bar Admissions background, PDF
- Washington Courts: APR Rule 6, Law Clerk Program
- But see CT Practice Book Sec. 3-16(2), allowing a first year law student to appear in court as part of a law school clinical program.