The Legal Profession II Lawyers & Law Practice Artemus Ward Department of Political Science Northern Illinois University
What do lawyers do? • What comes to mind when we think of lawyers? • We often think of lawyers participating in trials, but the reality is that a lawyer’s major job is providing advice and information that prevents disputes from becoming lawsuits and keeps clients free from entanglements with government and other businesses and individuals. • Most law work is done in offices behind a desk and involves reading, writing, and talking on the phone. • Lawyers are often negotiators - talking with other lawyers to try and reach settlements and compromises. • Lawyers have the knowledge and skill to navigate and use the legal system on their clients behalf.
Law Work • Law is a regulated profession. • It involves specialized skills and knowledge obtained after a considerable period of study, examination, formal licensing, and admission to the profession by state government. • It provides independence, high social status and income, & has special codes of professional conduct.
Specialization • 73% of American lawyers are in private practice. • The general practice - solo practitioners or small 3-4 person firms are how most private-practice lawyers make a living and how most people encounter lawyers - wills, divorces, finalizing home purchases. . . • Large firms employing dozens or hundreds of attorneys, however, are on the rise and are increasingly driving the profession – particularly in big cities.
Levels of Specialization • Business Law v. Personal Law - Most lawyers devote most of their time to either business matters or to the problems of individual personal clients, BUT NOT TO BOTH. There is very little overlap between business law and personal law practice. • Public Interest Law - A very small number of lawyers work in public interest law, representing various organizations that use the courts, as well as other branches of government, to obtain public policies which they favor. • Courtroom v. Law Office - Lawyers tend to concentrate either on courtroom or law office work. Most law practice involves legal research and negotiation, but when clients become involved in disputes that cannot be handled privately and informally, their lawyers sometimes pass them on to other lawyers who are more experienced and who specialize in going to court. Then some lawyers specialize in either trial or appellate advocacy. • Big cities v. small towns - In small towns and cities, most lawyers handle their cases from start to finish. The bigger the city, the more likely lawyers are to be specialists.
Subspecialties • There are five major divisions of law practice, each with subspecialties. • The chances are small that lawyers working in one of these five areas will ever do much work in one of the others. For example, a banking or tax lawyer probably will never do any business litigation or civil rights work, and a tax lawyer never appears in criminal court. • Many lawyers never even crossover subspecialties - patent law for investors of computer microprocessors; a lawyer working on new stock offerings for bank corporations, etc. Both may work for the same large corporation, but will not do the same kind of law. • Lawyers who represent private individuals are more likely than other lawyers to do a variety of law work, often because they do not have many repeat clients and have to take what they can get. • Population size of the community affects the degree of legal specialization. • The smaller the community, the less possible it is for lawyers to specialize narrowly.
Specialization & Prestige • Specialization and prestige go together. • At the top of the legal heap are corporate lawyers in large business law firms and corporations. 2007 starting salaries at the top firms for the best new law school graduates climbed to $160,000 with signing bonuses of $10,000. • Overall, attorneys with one to three years of experience at large law firms can expect to earn between $114,000 and $147,500 each year. • However, attorneys at the bottom of the prestige/specialization ladder are those who handle divorces, criminal defense, wills, & minor real estate trans. • While some lawyers at the top make a lot of money, many have problems making ends meet.
Firms • Most attorneys work for medium and large-size law firms. • Competition to attract the best attorneys is fierce. • On-site massages and manicures, a fresh-cooked breakfast and a well-equipped gym: It may sound like a brochure for a day spa, or a come-on for a dot-com-era startup, but it's an L.A. law firm. Liner Yankelevitz Sunshine & Regenstreif recently added the lifestyle features to ease attorneys' stress and maximize efficiency.
Women in Law Firms • According to a 2005 study by NALP (formerly the National Association for Legal Professionals), 48% of summer associates and 44% of first-year associates were women. • Yet, according to the National Association of Women Lawyers’ annual survey on the status of women in law firms, "women advance into the upper levels of law firms with only a fraction of the success enjoyed by their male classmates." • At the top 200 firms in the U.S., women comprise, on average, only 16% of the firms’ equity partners. • The NAWL survey found a significant salary gap as women advance through the ranks. Male and female associates, for the most part, make about the same amount. But male of counsel earn about $20,000 more than female of counsel, male nonequity partners make about $27,000 more than their female counterparts and male equity partners bring in almost $90,000 more than female equity partners.
Women in Law Firms • Why the disparity? • The NAWL survey wonders "whether women lawyers are given as many choice assignments, introductions to key firm clients and other opportunities to grow their own practices" as the men. • Insurance litigator Lorelie Masters explained that women have bought into the myth of meritocracy. It's an instinct that served them well as students: Sit up front, take great notes and always do your homework. It translates badly, though, into a law office, where they still assume, "If I'm a good lawyer, that's enough," she says. • In fact, Masters says that she spent the first dozen or so years of law firm life thinking just that -- if she did the best job possible, success would come to her. "And then in 1994, I realized that no one is going to know who Lorie Masters is unless I take charge." And that meant, among other things, recognizing that the firm wasn't necessarily going to give her career the same support it gave the men's careers. • The NAWL survey reports that a whopping 95 percent of the large firms say they have set up "women's initiatives" to help women develop their careers. Those initiatives include social networking, professional development and formal mentoring programs. Lorelie Masters of Jenner & Block
Plaintiffs’ and Defendants’ Lawyers • Lawyers who represent injured people or dissatisfied consumers against big businesses and insurance companies are often called plaintiffs’ lawyers because they initiate lawsuits that seek money damages. • The lawyers who work for the insurance companies, doctors, and businesses being sued are defendants’ lawyers because they typically defend against personal injury suits. • This distinction is largely a political one. Republicans (conservatives) tend to be defendants’ lawyers while Democrats (liberals) tend to be plaintiffs’ lawyers. Plaintiffs’ lawyers will often take cases on a contingency fee basis - they get say 30 or 40% of the award if they win, but little or nothing if they lose. • This division spills over into the larger political arena with conservative lawyers lobbying legislatures to limit jury awards and contingency fees claiming that high awards encourage litigation and increase insurance costs.
Protecting The Profession Unlike doctors and other professionals, lawyers have the most difficult time protecting their profession from outside attacks. • Shyster image is still common - lawyers seen by many as self-interested deal makers. • Routine law work by non-lawyers—Law work involves many routine forms and procedures that many people think they can do without needing a law degree (unlike say medicine). • For ex. real estate agents drafting contracts for the sale of property and arranging financing. • Lay persons realize that simple uncontested divorces, adoptions, name changes, and other routine matters require legal papers, a judge’s signature, and filing papers at the courthouse. • Paralegals wanting to advertise and offer their services directly to the public. • Bar Associations usually fight such movements. Why? To protect the profession. • Increasing competition among lawyers - leads to advertising, price-cutting, and can damage image and reputation.
Lawyers And Clients • There are two controversial areas at the intersection between lawyers & clients: 1.Access to lawyers 2. Ethics of law practice
Access to Lawyers • There is no absolute right to legal services or representation. • While criminal defendants facing jail time do get free counsel, people in civil disputes do not. • The poor and middle class have difficulty finding and using lawyers. They do, however, have several low-cost options in obtaining legal help. • The finest lawyers in the country are available to those who can afford to pay.
High Cost Legal Help • In 2007, the 250 largest U.S. law firms were charging an average of $350 per billable hour. • Partners charge more than Associates. • In 2007, the top rate at Wilmer Cutler Pickering Hale and Dorr was $1,000 an hour. • Critics of the system aren’t concerned with the high fees charged by the top partners at the top firms. One commented, “The problem isn’t the $1,000-an-hour lawyer who’s worth it. It’s the $450-per-hour associates who aren’t.”
Low Cost Legal Help • Contingency Fee – lawyer takes the case for free and pays all costs but gets 30-40% of the award if you win. Pro: • Level playing field – injured plaintiffs can take on big, deep-pocketed corporations and insurance companies. Con: • Legal gate keeping – it is up to the lawyer to take the case and she might not if she thinks the payout is too low or the case is too difficult. • Awards disproportionate to lawyer’s work – no matter how little a lawyer does, she still gets the contingency fee leaving the plaintiff with only 2/3 of the award or less. • Pull to settle big fee cases – lawyers may be inclined to settle just to get paid, taking the easy way out at the expense of their clients. • Cases with potential for creating new law and policy not applicable to the contingency fee system because no money is involved. For example, in a right to die case the client’s goal is to change the law to be allowed to die. Clients must pay on an hourly basis in these kinds of cases.
Low Cost Legal Help • Clinics & Insurance • deal with relatively routine matters - landlord/tenant, wills/contracts, divorces, criminal • legal insurance is like limited medical insurance; obtained through company or labor union program. • legal clinics are more common than legal insurance; available through local branches of national law firms, or local low-cost firms.
Low Cost Legal Help • Legal Services for the Poor • Legal Aid in Historical Context • Post-Civil War Freedman’s Bureau helped poor southern blacks in civil and criminal cases • Legal aid supported by private charities became more common toward the end of the 19th century (services performed by private attorneys were often prohibited - divorce, injury, etc.) • Legal Services Corporation - in 1965, Office of Legal Services (OLS) was created - a federally funded national legal services program. In 1974, it was reorganized as the Legal Services Corporation (LSC) now providing grants in aid to local legal aid organizations which rely mainly on local, state, and charitable contributions to function.
Legal EthicsStandards, rules, and codes of conduct that members of the legal profession are expected to follow and support • Professional Codes • The American Bar Association once prohibited lawyer advertising, the direct solicitation of clients, and aiding the unauthorized practice of law. The U.S. Supreme Court said these were unlawful limitations on competition among lawyers and the public’s access to legal services. • Now codes of conduct heavily emphasize a lawyer’s business relationships with clients: keeping funds which clients have deposited with their lawyers separate from the lawyers’ personal money; maintaining client privacy; fully and faithfully representing clients; avoiding conflicts of interest with clients; informing clients of progress of their case; providing free pro bono work.
Legal Ethics • Professional Codes • State Enforcement - most states place regulation of the practice of law with the state supreme court, but the courts, in turn, give most of the responsibility to disciplinary committees of the state bar association. • Penalties - disbarment, reprimands, orders to make financial restitution to clients, or temporary suspension of the right to practice law. Very few complaints (less than 2 or 3%) result in any action by disciplinary committees. Suing your attorney for malpractice is an option but very difficult to prove, as well as time-consuming and expensive. • Improving Conduct - 2/3 of the states require lawyers to take continuing education courses.
Legal Ethics • Representing Clients • Choosing Clients - Every person accused of a serious crime is entitled to a lawyer and the lawyer has an ethical obligation to provide a defense against criminal charges - no matter who the client is - rapist, child molester, serial killer, corporate robber baron, etc. • Trial Tactics - Are defense attorneys obligated to do everything legal to win an acquittal or avoid a financial judgment against their client? Or if the evidence seems clear, should they temper their defense strategy to ensure that justice is done?
Conclusion • The law enters into most aspects of daily life. • The law profession is split into specialized subgroups with little overlap. • Prestige, social status and income are closely tied to the type of law practiced and the clients represented. • Low cost legal help is available on a small scale (local, state level) for poor individuals. • Ethical standards in the law profession have become somewhat relaxed over time.