What do Lawyers do - and how?
A lawyer is a person (often licensed by the state) who advises clients in legal matters and represent them in courts and in other forms of dispute resolution. Most countries require professional law advisors in their judicial systems,
which are subject to highly regulated admission rules (e.g. Bar Examination; see Wikipedia for details), before they are allowed to practice law; the “Unauthorized practice of law” is often prohibited by statute, regulation, or court rules. Lawyers have many names in different countries, including "advocate", "attorney at law" or "attorney" (US), "barrister", "counsel", "counselor", "civil law notary" and "solicitor"; many of these names indicate specific classes or ranks of
jurists (Etymology: from old Latin: "iur-", stem of "ius", meaning law. Important derivatives are: just, jury and justice).
Lawyers have the duty to assist clients to protect and / or establish their rights. Since Law is an abstract and theoretical discipline, which is often subject to interpretation, the advocacy from the point of view / in favor of the client is a characteristic professional feature of lawyers.
The role of the lawyer can vary significantly across legal jurisdictions, but their role in society is very important as they are acting as a “voice” for others.
All lawyers are subject to strict standards of professional responsibility which are set forth in codes of conduct and privileges, ethics, etc. and are established by the respective self-regulatory organizations / associations in different countries (e.g. Bar Association).
In most modern Democracies, the different legal systems have established and protected a fiduciary attorney / client relationship during the last centuries. The term ‘fiduciary’ means trust, and in a broader sense also confidence, good faith and reliance. Derived from this principle is the “Attorney–Client privilege” (Legal Confidentiality), which grants a protection from disclosing evidence. The aim is, to encourage clients to make "full and frank" disclosures to their attorneys, who are then in a better position to provide candid advice and effective representation.
General Tasks of a Lawyer
The Role of a Lawyer
There are a plethora of reasons, why a person contacts a lawyer, and informs him about his view of a specific situation. They all have in common, that the person, has the impression, to require some sort of assistance, to enforce their legally granted rights (or even to be informed what exactly these are in a certain case).
The saying “Talk is cheap – until you hire a lawyer” holds true, but for good reasons. Like similar professions (doctors, tax advisor, etc.) it requires a lot of knowledge, a special education and also practice, which takes years to acquire, and a permanent effort to keep it up to date. And this simply comes at a price.
There are many different general responsibilities of a lawyer. Foremost, they advise and represent individuals or legal entities (like companies or government agencies) on legal issues and disputes. They assist the aforementioned parties with litigation, contracts, depositions and other legal matters. As part of the consultation a lawyer has the following tasks and responsibilities:
- The possibility and / or necessity for the preservation of evidence, by such means as interviewing clients and witnesses or requesting documents, to ascertain the circumstances of the case.
- Evaluate findings and inform the client about the legal situation (legal advice), this includes the interpretation of laws, rulings (legal precedents) and regulations.
- Formulate possible legal actions including an estimation of their chances of success.
- Develop strategies and arguments in preparation for presentation of the case (be it in court, before quasi-judicial bodies, or to (the lawyer of) the opposite party).
- A lawyer can serve as a third-party neutral, having a non-representational role and thus helping the parties to resolve a dispute.
- Representation in court or at administrative hearings:
- Oral: lawyers provide in-person representation on behalf of their clients.
- Written: often, lawyers brief a court in writing on their view of the case before the topic can be orally argued.
- Inform the client about the expenses (including his own fees) and the possible cost risks.
The actions or counter measures can be almost anything, from a letter to the opponent up to a lawsuit. To appeal before a court always comes with a risk, compare the ancient Roman adage “In court and out on the high seas, you're in the hands of God” (the original in Latin: Coram iudice et in alto mari sumus in manu Dei).
Negotiating and Drafting Contracts
In the modern world, there a wide range of contracts, which are sometimes difficult to understand by layman: software licenses, employment contracts, insurance policies, prenuptial agreement (abbreviated: prenup) and contracts of sale. But a contract contains legally binding agreements, and an important legal principle, which applies here is condescend in the Latin phrase “pacta sunt servanda” ("agreements must be kept"). Lawyers can be of assistance when interpreting and drafting contracts, and this is widely considered to be a special form of legal advice.
A conveyancing transaction is the transfer of legal title of property, or the granting of an encumbrance such as a mortgage or a lien. Since these are usually valuable possessions, special rules apply (as opposed to transfer the ownership of a tablet, for example). A special procedure is needed, which includes a special form of contracts, where the law requires, that only experts with a special legal knowledge are allowed to set up these contracts.
Although in many countries, a hand-written and signed last will is legally valid, it is prudent, to have a lawyers legal assistance, especially to avoid quarrels between the beneficiaries.
In the United States, in order to transfer the estates of the deceased, a probate court decides the legal validity of a testator's (person's) will and grants its approval, to the executor (the person who is appointed by a Will).
Protecting Intellectual Property
Copyright infringements, which have augmented (and so has their detection) since the invention of the Internet. The exclusive rights of an author or artist, to control the “public fate” of their work are subject to a time limit, and generally expire 70 years after the author's death.
For patents, trademarks and the like most countries require a special registration with a government agency, to receive maximum protection under the law.
The difference between Barrister and Solicitor
Each has a specific role in the legal system
In the United States, an attorney at law (alternative terms: counsellor-at-law or lawyer) 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. In 2014, an estimated 58 million consumers in the U.S. sought legal help from one of the 1.200.000 licensed attorneys.
Unlike many other Common Law jurisdictions, the United States legal system does not make a distinction between lawyers who plead in court and those who do not.
A Barrister (Barrister-at-Law) is a lawyer in the legal system of England, Wales and other (former) countries of the Commonwealth, which was molded by the legal tradition of the see Common Law.
Barristers spend a lot of their time in court, dealing with witnesses, addressing the Judge and talking to other barristers. In Scotland, the equivalent to the barrister of the English legal system is the advocate.
Their role is to advocate before the Court, drafting legal pleading and they need the skills to "build" a case. In Ireland, England, and Wales, barristers usually wear a horsehair wig and a gown. They are recognized as legal scholars whereas solicitors are more into the day to day business. This could be interpreted as some sort of discrimination, but has to be put into the perspective of the principle of the common law, to rely for centuries, heavily on precedents, and to a much lesser extent on written law. Thus, highly qualified experts which also have a historical and philosophical understanding of the law are needed, when “new” precedents are “created” by new rulings.
Solicitors have specialist knowledge of different areas of the law such as family, finance, crime, property and employment. They give legal advice to clients, undertake negotiations and draft legal documents.
In the past, a solicitor’s advocacy work was restricted to lower-courts, like magistrates’ courts. But there are exceptions to this rule.
Both, barristers and solicitors can become judges, although (somehow understandable) more judges come from the bar than from the ranks of solicitors.