Business, Legal & Accounting Glossary
An 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 attorney-at-law, attorney and counsellor (or counselor) at law, attorney, and lawyer.
The U.S. legal system has a united legal profession and does not draw a distinction between lawyers who plead in court and those who do not. Many other common law jurisdictions, as well as some civil law jurisdictions, have a separation, such as the solicitor and barrister/advocate split in the United Kingdom and the advocate/civil law notary split in France. There is also no delegation of routine work to notaries public or their civil law equivalent in the American system.
Strictly speaking, an “attorney” is one who acts on behalf of another person in some capacity. An “attorney-in-fact” is akin to an agent who acts on behalf of another person, typically with respect to business, property, or personal matters. Such an agent does not have to be licensed to practice law and may not need to have any license at all.
By contrast, an attorney-at-law, or lawyer, is a person trained and licensed by a relevant jurisdiction to practice law by representing clients in legal matters and giving legal advice. In the United States, the term attorney, standing alone, generally refers to this meaning rather than to “attorney-in-fact”.
The term “attorney-in-fact” is mostly seen in the context of someone representing another person’s interest in business negotiations or regarding signature pages on documents where the person signing is doing so on the basis of a power of attorney. The term power of attorney generally relates to an attorney-in-fact, not an attorney-at-law. Alternative titles for “power of attorney” type documents in non-U.S. jurisdictions include the French “Pouvoir”, the German “Vollmacht” and the Portuguese “Procuração”.
The term Attorney General is used to designate the chief law enforcement officer of a state or other political jurisdiction. The Attorney General is a lawyer who represents the government, prosecutes criminal cases, defends the government from lawsuits against it, and brings civil lawsuits to enforce consumer protection, antitrust, and other laws.
In common law jurisdictions outside the United States (e.g., England, Canada, Australia), attorney is incorrect as a general term, and lawyer, barrister, or solicitor is used instead. In these areas, the specific terms Crown attorney, power of attorney, and Attorney General, are also used. In intellectual property, the term patent attorney is commonly used.
In earlier times, some states, as well as the U.S. Supreme Court, maintained a divided legal profession, as can still be found in the United Kingdom, consisting of attorneys (who practised in courts of equity), solicitors (who practised in courts of law) and barristers, also known as counsel, whom solicitors and attorneys instructed to appear in the higher courts. In deference to this practice, when an attorney at law is admitted to practice in some states, his or her certificate of admission bears the title Attorney and Counselor-at-Law in recognition of his inheritance of both of these roles.
Some attorneys use the post-nominal Esq., the abbreviated form of the word Esquire.
Once admitted to practice by the highest court of a state (a function sometimes administered by the state’s bar association), an American attorney may file legal pleadings and argue cases in any state court (federal courts usually require separate admission), provide legal advice to clients, and draft important legal documents such as wills, trusts, deeds, and contracts.
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.
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, and arguing both the facts and law in favour 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 has often lead to attorneys (once they pass the bar) seeking work in other occupations, either by choice or by the lack of employment opportunities. This has lead to a market in legal temps or contract attorneys, where attorneys spend weeks working on discovery for a case – then are laid off.
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 or LexisNexis. 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 conducting research, often surrounded by a pile of books or printouts, or drafting documents which form 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.
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 favourable to their client. Many attorneys believe 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 or corporate lawyers. Transactional or corporate attorneys specialize in activities that seldom involve them in litigation, such as 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 these are neither fixed nor formal lines. Examples include:
Despite these descriptions, most 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 state 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. Similarly, Texas formally grants certification of specialization in the following fields: administrative law; business bankruptcy law; civil appellate law; civil trial law; consumer bankruptcy law; consumer law; commercial law; criminal law; estate planning and probate law; family law; health law; immigration and nationality law; juvenile law; labour and employment law; oil, gas and mineral law; personal injury; trial law; real estate law; tax law; and workers’ compensation law.
The vast majority of lawyers practising 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 speciality.
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 relatively 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 speciality).
Specialization in patent law is administered by the Office of Enrollment and Discipline of the USPTO, which imposes stringent requirements for applicants to become registered as patent attorneys or patent agents.
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. 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 prevents 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.
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 re-assigned to experienced appellate practitioners or firms.
Almost all U.S. jurisdictions require successful completion of a bar exam 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 an American professional doctorate in law. 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.
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 proscribed Course of Study under a tutor. After successful completion of the Rule Six Law Clerk 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.
The degree earned by prospective attorneys in the United States is generally a Juris Doctor (J.D.), or Doctor of Jurisprudence. Historically, law was an undergraduate subject in the United States, as it still is in most other Anglophone countries, for which the LL.B. (Bachelor of Laws) or other undergraduate degree is conferred. This undergraduate degree was followed by the LL.M. or Master of Laws and, where the LL.B. is still awarded, the highest degree is often still the LL.D. or Doctor of Laws. In the United States, however, the LL.B. was elevated to the graduate school curriculum starting in 1896 (Harvard), as a second bachelor’s degree. Then, starting in 1902 in the University of Chicago, it was replaced by the professional doctorate in law, known generally as a “J.D.,” or “D.Jur.” when the degree is conferred in English. By 1971, all ABA-accredited American law schools had replaced the bachelor of laws with the professional doctorate in law.
The content of the professional doctorate in law curriculum is the same as for a bachelor of laws curriculum, except that study for the doctoral level degree builds upon prior undergraduate education whereas the bachelor of laws is still nominally an undergraduate degree, even in those few countries where it is conferred at graduate level as a second Bachelor’s degree. The label “doctor” is an academic tradition, but the tradition in the American legal profession is to call all attorneys “Mr.” or “Ms.” regardless of their academic qualifications.
The master of laws continues to be offered in the United States, sometimes as a type of specialist post-doctoral degree and sometimes as a legal master’s degree in U.S. law for non-U.S. educated attorneys with the bachelor of laws or another non-U.S. law degree. Many non-U.S. lawyers who have a bachelor of laws or other non-U.S. law degree come to study in the United States to obtain a master of laws 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 practising law in the U.S., while many of them return to their home countries and use their U.S. master of laws and bar admission as a gateway to advising international clients. Among U.S. lawyers, the most common use of the master of laws degree currently is to acquire an advanced level of expertise in a specific legal discipline, such as tax law. American law schools are very slowly beginning to address the situation of advanced academic law degrees by creating explicitly post-doctoral degrees, like the S.J.D. or J.S.D. (Scientiae Juris Doctor or Doctor of the Science of Law).
The Paul M. Hebert Law Center at Louisiana State University in the U.S. now offers a joint J.D. (Juris Doctor) and B.C.L. (Bachelor of Civil Law) over seven semesters (instead of its previous 6-semester program for the J.D. alone) in recognition of the increased Louisiana civil law component of the new program.
The highest law degree obtainable in the United States is the S.J.D., or Scientum Juris Doctor, literally “doctor of juridical science”. This degree is also known by the abbreviation J.S.D. at some U.S. schools, e.g. NYU Law School and Columbia Law School. The degree should not be confused with the “doctor of laws” degree, or LL.D., which is usually, but not always, awarded for honorary purposes.
The S.J.D. or J.S.D. degree is very rarely awarded, and is generally only sought by attorneys holding exceptional credentials and a desire to enter legal academia. The degree is generally only offered at the very top law schools, which typically accept only 4 or 5 students into their program each year. Admission is limited to those who have achieved their J.D. and LL.M. degrees with distinction. Successful applicants usually have already published significant scholarly legal articles in their proposed area of study, and many have legal teaching experience prior to entering the program.
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, no state would allow a student still completing the first year of law to argue a case in court. However, it is reminiscent of “teen court” programs that are expanding around the USA. In these programs, it is not law students, but high school students, who argue cases before a judge and sit on juries to decide penalties to impose upon other high school students who have agreed to be tried by the teen court in exchange for bypassing the regular court and having no criminal record created in the process, even if they are found responsible for a crime by the teen court. The punishment often includes community service, including sitting on juries in upcoming cases.
Additionally, most states have rules allowing law students in their third and final year to practice on a limited basis while under the direct supervision of a licensed attorney. These laws vary state to state. While many states are very strict, some states like Kansas provide opportunities for law students to argue cases before juries.
In Illinois, a student currently in good standing who has earned credits that represent at least three-fifths of the credits required for graduation may be eligible for a 711 license (based on Illinois Supreme Court Rule 711). A 711 license allows a student to: (1) Counsel clients, negotiate in the settlement of claims, and engage in the preparation and drafting of legal instruments. (2) Appear in the trial courts and administrative tribunals subject to the following qualifications: (i) Appearances, pleadings, motions, and other documents to be filed with the court may be prepared by the student or graduate and may be signed by him with the accompanying designation “Senior Law Student” or “Law Graduate” and must also be signed by the supervising member of the bar. (ii) In criminal cases, in which the penalty may be imprisonment, in proceedings challenging sentences of imprisonment, and in civil or criminal contempt proceedings, the student or graduate may participate in pretrial, trial, and post-trial proceedings as an assistant of the supervising member of the bar, who shall be present and responsible for the conduct of the proceedings. (iii) In all other civil and criminal cases, the student or graduate may conduct all pretrial, trial, and post-trial proceedings, and the supervising member of the bar need not be present. (3) The student may prepare briefs, excerpts from the record, abstracts, and other documents filed in courts of review of the State, which may set forth the name of the student or graduate with the accompanying designation “Senior Law Student” or “Law Graduate” and must be filed in the name of the supervising member of the bar.
A graduate who has completed the Juris Doctor may qualify for a 711 license if the graduate (1) has not yet had an opportunity to take the first Bar examination scheduled after graduation; (2) has taken the Bar exam but has not received the results; or (3) has taken and passed the Bar examination but has not yet been sworn in as a member of the Illinois bar.
A 711 license is not available for a student working for a private law firm. The license is available for work with (1) a legal aid bureau, legal assistance program, organization or clinic chartered by the State of Illinois or approved by a law school approved by the American Bar Association, (2) the Office of the Public Defender, or (3) a law office of the State or any of its subdivisions.
Some states provide criminal penalties for falsely holding oneself out to the public as a lawyer, and the unauthorized practice of law by a non-lawyer.
A person who has a professional law degree but is not admitted to a state bar is not a lawyer, and cannot legally engage in the practice of law. In most states, even the practice of law by an “out-of-state” lawyer is considered the unauthorized practice of law within that state. Exceptions are sometimes made when the out-of-state lawyer is permitted temporarily to practice within the state pro hac vice or in some cases as in-house counsel for corporations.
In addition, a few areas of law, such as patent 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, and a patent attorney may freely advise clients as to patent 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 PTO 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 non-lawyer who takes and passes the patent bar would be 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 needs 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.
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 expected to wear contemporary business suits.
The one exception is the United States Solicitor General, who traditionally argues before the U.S. Supreme Court in 19th-century attire, including a “morning coat” with tails.
Attorneys in the United States do not usually have to adhere to a strict colour code garb and can argue their cases wearing business suits. However, judges in the United States and Canada have occasionally been reported to order that a lawyer is not dressed appropriately and must return at a later date in proper attire – and to issue the lawyer a fine as if the lawyer had failed to show up for the hearing.
Because an accredited legal education generally provides a strong understanding of not only the substance of the law, but also an advanced analytical approach to the use and ramifications of the law, many professions, other than the practice of law, promote or require those with legal educations. As a result of overcrowding in the legal profession, the desire to achieve better work-life balance, and disenchantment with the legal profession, many attorneys are leaving the Bar to pursue these other professions that take advantage of the attorney’s legal education. In some instances, graduates of law school who either cannot be admitted or who decide not to bother to be admitted to a state bar, enter these various professions.
In these fields, law degrees are useful (and sometimes mandatory, such as in the case of policy analysts and legislative drafters) qualifications for a job.
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This glossary post was last updated: 18th April, 2020 | 4 Views.