Legal Profession in the United States

It is a longstanding tradition in the Anglo-American legal world that anyone can represent himself in court. But contemporary law and judicial procedure are so complicated that it is unrealistic for a litigant to represent himself in any but the simplest matters. Lawyers are essential to ensure the full and fair presentation of cases. American courts, being passive agencies in the common-law tradition, depend on lawyers to present the litigants' positions and to develop the evidence and the legal arguments. Under the adversary system it is each lawyer's obligation to present his client's case to the court vigorously and completely. Lawyers are thus an integral part of the machinery of justice.

In the United Slates admission to the practice of law and the governance of the legal profession are matters of state concern. One can speak accurately, for example, of "the Virginia bar" or "the Texas bar'' or "the Illinois bar," meaning the lawyers in each of those states who have been licensed by those states. There is no such thing as "the American bar" in any official or formal sense. That expression is used loosely to refer to all the lawyers in the United States, each of whom has been state-licensed. There is no national or federal authority to admit persons to the legal profession. The entity known as the American Bar Association is a private, voluntary, nationwide organization of some 370,000 lawyers from all slates; is the largest organization of lawyers in the country, although there are many other private bar associations, often based on areas of legal specialization.

In each state the requirements for admission to the bar are set by the supreme court or the legislature or the two acting together. Typically graduation from an accredited law school is required; there are more than 170 such schools in the United States, almost all affiliated with universities. Law school requires a three year course of study after a student has attended college for four years and received a bachelor's degree. Law school graduates are awarded the degree of Juris Doctor (J.D.). They are then eligible to take a state bar examination, a written examination lasting two or three days. These examinations are usually administered by a body of lawyers, known as bar examiners, acting under the authority of the state's supreme court. Applicants who pass the bar examination and who also meet the requisite standards of character are admitted into the bar by that court.

Within the legal profession there is no formal division; there are no barristers or solicitors. Anyone admitted to the bar in a state is legally authorized to engage in any kind of legal practice in that state. As a practical matter, though, there is an increasing degree of specialization among lawyers. Typical areas of specialization are litigation, taxation, labor law, patent law, family law, trusts and estates, and various branches of administrative law.

A lawyer admitted to one state's bar can practise in another state only if he gets admitted in that state or that state recognizes the original state's admission. This kind of reciprocity is accorded in some states but not in all. However, a court may occasionally permit a lawyer from another state to appear before it for the purpose of presenting a particular case if there is some special reason for doing so.

A major change in the nature of practice has been in the growth of the large urban law firms. They have expanded enormously in the number of their partners and associates, and they have become national and international, each firm typically having offices in several American cities and, increasingly, in foreign cities. Many of these firms have hundreds of lawyers spread throughout their several offices, and sometimes a single office will have two or three hundred attorneys. Another significant change in the nature of practice, noted above, has been the increase in specialization among lawyers in both large and small firms.

The total figure given above is misleading as to the number of actively practising lawyers in the country. That figure includes every living person who has been admitted to the bar. Many of those persons arc retired. Many do not engage in any legal work but pursue other careers, often in business. The figure also includes all those who are judges and law professors. Many lawyers are employed by government – federal, state, and local – in positions such as prosecuting attorneys, counsel to agencies, and stall attorneys in innumerable government departments and offices. Many other lawyers are "house counsels" in private corporations and other non-governmental organizations; they work full-time exclusively for those employers. As all of this suggests, there is a varied and rich array of career paths open to American lawyers.

Each state's bar is typically governed through the official state-wide bar organisation to which all the state's lawyers belong. This body is usually authorised by legislative enactment or supreme court rule to exercise control over admissions to practice and over disciplinary proceedings involving lawyers. Often the supreme court is given jurisdiction by the legislature over these matters, and it then delegates that authority to the state bar reserving, however, the power to review the state bar's actions.

The other threat to lawyers' independence comes from the changed nature of law practice and from altered rules on professional conduct. Many lawyers today work for a single client or for a few similar clients; their livelihood is dependent on the satisfaction of those clients.

The rules of professional responsibility now permit advertising by lawyers, and this has tended to inject an increasingly commercial atmosphere into law practice.

As is it evident from the foregoing, a huge number of American lawyers arc not involved with the courts; they spend their time in law offices, government bureaus, corporate buildings, conference rooms, and legislative halls. Only a relatively small number of practising lawyers are actively engaged in litigation. Of those, many rarely appear in courtrooms. Civil litigation today, in contrast to that of several decades ago, consists in large measure of pre-trial activity such as drafting pleadings and motions, examining documents, questioning witnesses on depositions, preparing and answering interrogatories, and participating in negotiations with other lawyers and in pre-trial conferences with judges. In criminal cases much time is devoted to investigation, negotiations between prosecutors and defence counsel about charges and pleas, and the sentencing process.

Text C. Read the text and make up the plan for its discussion.

Judges

The multitudinous judicial systems in the United States are operated by a variety persons. Judges are, of course, at the core of any court system. They are the decision makers. However, there is a vast supporting cast. Most intimately connected with the judges are those who assist them in the process of deciding issues and cases: law clerks, staff attorneys, and trial court adjuncts. Beyond these are the clerical and administrative personnel: secretaries, clerks of court and their staffs, judicial educators, and court administrators. Outside the court systems are numerous organizations whose functions are to assist the courts in various ways. Finally, there are the lawyers who present cases.

Because American judges sit on courts of widely varying types and come from a variety of backgrounds and experiences, it is difficult to generalize about them. Two generalizations, however, are possible. First, judges in the United States initially come to the bench from other lines of legal work and after a substantial number of years of professional experience. Second, once on the bench they do not, in the main, follow a promotional pattern through the ranks of the judiciary. In these respects American judges differ from judges of the common-law and civil-law systems in other parts of the world.

Compared to the English and civil-law systems of judicial recruitment and promotion, the methods used in the United States are quite varied. These procedures generally lack means of assuring professional quality. Moreover, the American judges' backgrounds are much more diverse than those of the English and civil-law judges. With the relatively minor exception of some lay judges on state courts of limited jurisdiction, all American judges have studied law and been licensed to practice law.

Although most judges have actually practised law, the nature of that practice can be quite varied. Many judges have been litigators, but some have been office lawyers or counsels to organizations such as corporations or private associations. The types of law practice that judges have experienced range from small-town general practice to specialized fields in large metropolitan firms. Numerous judges have been lawyers in government service as prosecuting attorneys or counsels to government agencies, either state or federal. Some judges are former law professors, but their number is small. Many judges have earlier been active in political affairs, often as legislators, political campaign managers, or party committee members or chairmen. Indeed, many American judges can be described as former lawyer-politicians.

Another feature of the American judiciary that sharply distinguishes it from that of civil-law countries and other common-law countries is that persons can enter the judicial system at any level. A lawyer can initially become a judge on the highest court, the lowest court, or any court in between. There is no system or pattern about this. In other words, a lawyer who has never been a judge can become a judge a court of last resort or an intermediate appellate court or a trial court, in either a state or the federal system. Lawyers who come on the bench at the trial or intermediate appellate levels have no real promise of moving to a higher court, although some may have hopes in that regard. Some judges do move up, but most spend their entire judicial careers in the same court. There is no system of promotion and no substantial sentiment among American lawyers, judges, or politicians that such a system would be desirable. There is, however, a body of opinion to the contrary. Views about judicial promotion vary from state to state. In Virginia, for example, there is a tradition of moving trial judges to the appellate bench, but in most states there is no such tradition. In the last decade or so it has been common for Presidents to nominate judges of appellate courts to be Justices on the U.S. Supreme Court, but that has not been the dominant pattern historically.

Text D. Read the text and ask questions on it to be discussed in class.

Judges Nomination

Lawyers become judges in the United States through four methods: 1) by nomination of the chief executive with confirmation by a legislative body, 2) by appointment of the chief executive from a short list of persons certified by an independent commission to be qualified for the position, 3) by popular election, and 4) by election in the legislature. Terms of office vary considerably from one system to another. They range from terms of years – some as short as four or six and a few as long as twelve to fifteen – to "good behavior," usually spoken of as a term "for life."

The federal system is the best known example of executive nomination with legislative confirmation. All federal judgeships are filled in this manner. The filling of district judgeships usually involves a significant amount of participation by members of the Senate, the confirming body. Senators view district judgeships in their states as being of special importance to them and their supporters. The Attorney General of the United States and the Department of Justice, which he heads, are key executive branch participants in the selection process, along with the White House staff. All of these participants must discuss and often negotiate with each other in order to arrive at a mutually agreeable choice – a person acceptable, to them both professionally and politically. While the President ultimately selects the nominee, he is constrained as a practical mailer by all these forces.

In making nominations for the U.S. courts of appeals the President and the Department of Justice have a somewhat freer hand, with less involvement by the Senators. Judges on each of these courts are drawn from several states, so no Senator has as strong an interest in the vacancy as he usually does in a district court position in his own state. In selecting Supreme Court nominees, the President has even more leeway, but he still must take into account sentiment in the Senate, as that body has in effect a veto power over the nomination.

Only a handful of states employ a judicial selection method similar to the federal. In most states the commission nominating method is used for at least some courts. In some states all judges are appointed through this process. In others it is used only for appellate judges. In still others it is used only for trial judges in certain cities or counties.

This so-called "merit plan" involves the use of an independent nominating commission, typically consisting of nine to fifteen members, a mixture of lawyers, judges, and non lawyers. Efforts are usually made to constitute the body in a nonpartisan way to diminish as much as possible the aura of partisan politics in the selection process. When a judicial vacancy occurs, the commission invites suggestions from the bar and the public as to suitable nominees. It also receives applications from interested lawyers. The commission will then review all available information about each prospect and will often interview those who appear most promising. In the end it will submit to the Governor a list of those it considers best qualified, supposedly without regard to political affiliation. In some states the list consists of three names; in other states as many as five names may be submitted. From this list the Governor makes the appointment.

Despite the spread of commission nominating system in the last half of the twentieth century and the continual campaign in its support, many states still choose judges at popular elections. This method of judicial selection, unknown in England and in the first decades of the United States, was introduced during the presidency of Andrew Jackson as an aspect of "Jacksonian democracy." In some states candidates for judgeships run under party labels like candidates for all other offices. In others they are on the ballot without party identification. Running for a judgeship under either arrangement raises special problems. A candidate for judicial office cannot have a "platform" or an agenda for action. The nature of the office requires that its holder be objective and above all that he not take a position in advance on any issue; judges must decide cases on the basis of the facts and the law as they appear when the case is before them for decision. That being so, there is little of significance that a judicial candidate can appropriately say. Another major problem is campaign financing. Campaigns for judgeships have become increasingly expensive, a condition exacerbated by the high cost of television advertising, considered essential to a successful race. The candidate must raise these funds from others, chiefly lawyers who will be appearing before him in the future. The damage to judicial objectivity and to the appearance of objectivity is obvious.

At the time of the formation of the Union, over half of the states chose their judges by election in the legislature. Now only two states employ this method, Virginia and South Carolina. While legislative election has disadvantages in that the decision often turns on partisan political factors, it has an advantage over popular election in that it does not involve extensive and costly campaigning by the prospective judge.

It is interesting that in many states where the law provides for the election of judges, the majority of judges are in fact appointed by the Governor. This is because the Governor is authorized to fill vacancies that occur between elections or legislative sessions, and many vacancies come about at those times through death, resignation or retirement.

Text E. Translate the text in writing. Get ready to discuss it.

Judicial Independence

The concept of judicial independence, deriving in the United States from the separation of powers, means that in deciding cases judges are free from control by the executive and legislative branches of government as well as from control by the popular will of the moment. In other words, judges act free of extrajudicial controls in determining the facts, ascertaining and enunciating the law, and applying the law to the facts to arrive at decisions of cases. Although this concept is widely believed in and supported in the United States, it does not mean, and has never meant, an absolute and complete independence of the judiciary. That would not be tolerable in a democracy. Under democratic theory the people are sovereign. The judiciary, like the rest of government, must be ultimately accountable to the people. However, too much accountability can unduly impair independence. The tension between judicial independence and accountability cannot be altogether resolved. What one finds among the American judicial systems, therefore, are varying degrees of independence. The key element is tenure of office.

The highest degree of judicial independence is found in the federal system. All federal judges hold office during good behavior and can be removed only through impeachment by Congress. In an impeachment proceeding the House of Representatives must prefer charges against the judge by a majority vote, and the Senate must try the judge on those charges. The judge can be removed only if the Senate finds him guilty by a two-thirds vote. Impeachment is a formidable procedure, not easily invoked.

At the other end of the spectrum, affording the smallest degree of independence, are those state judicial systems in which judges hold office for terms of years, at the end of which they must stand for reelection by the voters. A judge with a term as short as four or six years, no matter how conscientious he may be, can hardly be unaware that his judicial decisions could become a political issue in the next election, never more than a few years away. Even if the judge himself can perform judicial duties without regard to such considerations, public suspicion of political influence will be a lurking threat to the appearance of justice. Short terms of office and popular election seem inconsistent with the concept of judicial independence. Yet such arrangements exist in many states along with praise for the virtues of judicial independence.

Judges whose terms are substantially longer are less likely to be influenced by political concerns. Longer terms also strengthen the appearance of judicial independence. Terms of twelve or fifteen years, found in some states, provide a higher degree of independence than terms of four or six years, but not as high a degree as tenure during good behavior.

Text F. Read and translate the text. Make up the summary of the text in writing