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THE PRACTICE OF LAW IN AMERICA

Forms of contemporary legal practice in America range from single lawyer law offices to global firms wlth a thousand or more attorneys. Included are the famous trial attorney, the corporate lawyer, the local general practitioner, and a score of variations in between. Unlike attorneys in some other countries, American lawyers are not formally divided into groups according to their roles in the legal system. The British tradition, historically America's precursor, draws a distinction between solicitors, who consult with clients and draft legal documents, and barristers, who represent clients in court. In America, an attorney admitted to the bar can perform any element of legal representation. A small-town lawyer may draft a will, record a land transaction, incorporate a business, defend a traffic ticket charge, appear in court, and even argue cases on appeal—all the way to the U.S. Supreme Court. While an attorney in a larger urban practice may specialize only in assisting business formations, mergers, or dissolutions, the lawyers in both of these positions are legally permitted to perform all aspects of the practice of law.

During the colonial era, American attorneys commonly specialized in land law, inheritance, and simple business matters. Given the new settlements emphasis on agriculture, both attorneys and citizens alike were interested in who owned land, and how that land would be conveyed, measured, and taxed. Despite a common focus on land law, the practice of law varied widely from colony to colony. For example, the demand for legal services depended upon whether a colony required a litigant to have the representation of an attorney. Some colonies closely followed the English legal system, where the participants were not allowed to plead their cases directly in court, but required the presence of a lawyer to act as an advocate. In colonies that rejected the English legal system, parties were allowed and even encouraged to act on their own behalf.

Some early colonial settlements attempted to administer justice without resort to lawyers or courts of law, based on a widespread suspicion of the professional lawyer. Perhaps as a result of American society s disdain for the legal profession, pay was low, and many attorneys needed to take second jobs to support their families. When he first began to practice law, future chief justice of the United States Supreme Court Oliver Ellsworth took manual labor jobs to supplement his income of three pounds sterling per year. Some colonies even passed laws forbidding attorneys from receiving fees for their services. An early Virginia law, for instance, allowed a client to refuse to pay his attorney a portion of the fee. Perhaps in response to this law, Thomas Jefferson, Patrick Henry, and five other Virginia lawyers announced in a newspaper advertisement that they would only give legal advice for cash payment in advance, and they required a client to pay one-half the fee prior to beginning any litigation.

Lawyers' contributions to society and their status began to change during the Revolutionary period as they increasingly rose to prominence in town meetings or state assemblies. Indeed, out of the fifty-six signers of the Declaration of Independence, twenty-five were trained lawyers, and thirty-one of the fifty-five delegates to the Constitutional Convention were attorneys. Thomas Jefferson later claimed that the American legal profession was "the nursery of our Congress." During this period, lawyers also began to oversee the professionalization of the practice of the law, principally by controlling access to the profession by setting standards of practice and creating bar associations. By the first decade of the 1800s, most states had developed a cadre of trained lawyers practicing a relatively settled body of law in accordance with agreed-upon rules of practice, at least in the higher courts.

This growth in the professionalization of the legal profession, which had peaked around the years of the American Revolution, began to decline during the early years of the nineteenth century. By the 1800s, Americans wishing to become lawyers found it relatively easy to enter the profession since educational requirements and admission standards had been lowered in many states. An unfortunate consequence of these lower standards was that many lawyers were inexperienced and often corrupt. By the mid-nineteenth century, requirements for admission to the bar were practically nonexistent in a number of states. By 1840, only eleven of thirty jurisdictions retained any provisions concerning a minimum period of legal study. In addition to a lack of control over education and admission requirements, the legal profession also lacked supervisory controls over admitted lawyers. Since bar examinations were largely a formality, and no regulations governed practicing attorneys, the legal profession attracted reputable practitioners as well as charlatans.

Legal practice on the American frontier in the nineteenth century also evidenced a disdain for formal regulations on the profession. Many early Western lawyers and judges were uneducated men without training in even the fundamentals of law or procedure. As a consequence of this lack of legal knowledge, there was little conformity in judgment or proccdurc between courts or between similar cases. Judges, lawyers, and jurors either ignored or were ignorant of precedent and the written law, which led to a practice based more on common sense ideas of fairness rather than codified laws or procedures. For example, in Indiana a prominent lawyer invoked the "great English common law" to support his argument. In response, the opposing attorney objected, "If we are to be guided by English law at all, we want their best law, not their common law. We want as good a law as Queen Victoria herself makes use of; for, gentlemen, we are sovereigns here. But we don't want no English law. United States' law is good enough for us; yes, Indi-a-na law is good enough for an Indiana jury."

The legal activities of frontier lawyers mirrored the business occupations of the frontier: farming, mining, land disputes, and fur trading. Given the lax requirements of the time, it is not surprising that legal practice was often informal. Litigation tended to be relatively simple, so specialized learning or skills were not necessarily required. Consequently, competition for business was fierce since many people could claim to have the relevant skills. And since court sessions were infrequent, many lawyers practiced law as a part-time venture.

Those Western lawyers who did practice full-time found themselves pursuing an arduous profession. Since the judges rode circuit, attorneys also rode circuit in order to appear in as many courts as possible. In order to raise their professional profile and attract business, Western attorneys had to cover as much ground as possible. At the time, riding circuit meant that attorneys traveled by horseback, with a change of clothes and a few legal books in their saddlebags. In sparsely settled areas with a few inns, judges and lawyers often slept together around a campfire. When they reached the town, the lawyers and the judge would change into their "court clothes" and convene in the courthouse. The lawyers would find clients among the parties at the courthouse, the sheriff would corral some jurors, and the judge would begin the proceedings.

In some frontier towns, Court Day was more than a chance for residents to conduct legal business—it was also a form of entertainment and social interaction. Towns that did not have courthouses used whatever was available, from saloons to open-air pastures. At times, witnesses' testimonies were drowned out by a noisy audience or non-court activities taking place elsewhere in the room. Some judges were conscious of their role in the entertainment and encouraged fistfights between the attorneys. The circus-like atmosphere, as well as the lack of jails, encouraged summary punishment in the courtroom. Whipping was a common punishment for felonies and would be carried out immediately by the sheriff.

Despite the often chaotic nature of the legal proceedings, in those days the judges and legal community shared a camaraderie rarely seen today. This legal fraternity developed for several reasons. The lawyers and the judge traveled together, ate together, entertained each other, and lodged together on the circuit. In more urban environments, lawyers had offices at or near courthouses and would spend their days in each others company. In a typical town, the lawyers would study together, and then practice together. The competition between lawyers was often friendly since there was enough routine legal work. This closed fellowship could lead to favoritism, but it also functioned to create an informal administration of justice that kept costs low and ensured speedy trials.

As Americans continued to move west and settle the frontier, the national economy industrialized at a rapid rate. Older areas of law grew as new types of contracts, torts, and crimes developed. Early in the nineteenth century, the domain of American contract law expanded considerably to govern most economic transactions, so that even leases and business associations were treated as basically contractual arrangements. With industrialization, tort law exploded in the late nineteenth century, both in England and America, and huge new treatises appeared on this topic. Concepts such as liability for extrahazardous activities and contributory negligence were adopted from England, but were more fully developed in America. At the same time, criminal law changed considerably, with the adoption of state and federal penal codes, which replaced the concept of common law crimes. Efforts were made to simplify rules of practice and procedure in America, and in 1848, New York became the first state to adopt a code of civil procedure, which became an important step in organizing American law. In the early i87os, the entire legislative product of the federal Congress was first organized into the multi-volume code known as the Revised Statutes of the United States. This was replaced in 1925 by the United States Code, which remains in effect today.

The changes in business practices after the Civil Wir led to the growth of corporations, and concomitantly the growth of law firms specializing in representing corporations. The late 1800s saw the rise of Wall Street firms that practiced a different law from the "storefront" lawyers. Major New York law firms were founded, beginning a trend away from small firms and sole proprietorships to large firms with salaried employees and multiple partners. Specialization in different practice areas and courts grew as these Wall Street firms expanded. Rather than initiating or responding to litigation, some firms specialized in advising clients on mergers, bond issues, shareholder relations, and labor matters, as well as how to avoid lawsuits.

The late 1800s also saw the development of another form of practice: the in-house counsel. For example, the Prudential Insurance Company developed an exclusivity arrangement that resulted in attorneys whose sole client was the corporation. Eventually, in-house counsel came to mean attorneys employed by a corporation or organization to handle legal matters for the corporation. Corporate attorneys grew increasingly important and powerful, to the point where judges would resign to become in-house counsel for corporations, particularly the railroads.

Another area of practice that developed during the late nineteenth century was designed to address civil legal issues of the indigent. The Legal Aid Society of New York began in 1876, and by 1913, similar organizations funded by private contributions and volunteer lawyers existed across the nation. Additionally, specialized legal groups such as the American Civil Liberties Union and a variety of Legal and Education Defense funds were founded to advocate for specific causes or political groups.

Growth in the law was reflected in a corresponding growth in the number of lawyers. Prior to the Civil War there were fewer than 25,000 practicing lawyers. That number quadrupled to over 100,000 by 1890. Legislatures and the legal profession responded to the increased numbers of lawyers by attempting to control access to the profession by instituting new requirements for legal education and entrance to the bar. This new professionalization was accomplished through the organization of national and state bar associations. For example, the American Bar Association (ABA) was founded in 1878 as a national voluntary professional organization of lawyers, and almost immediately began lobbying for higher standards for admission to the practice. The local Association of the Bar of the City of New York was organized even earlier, in 1870. Similar state and local bar organizations were formed during the same period all across America, and worked toward tightening standards of practice. However, these were voluntary professional associations, and it was not until 1921 that the first legislation was passed requiring practicing lawyers to be members of New York's state bar. By 1923, every state and territory had a bar organization. In fact, the growth was so rapid that by 1930, there were over a thousand city and county groups. These bar associations also sponsored increased legal services by providing lawyer referral services and encouraging private voluntary representation, or pro bono work.

The American Bar Association was based upon the model of the Association of the Bar of the City of New York. It was not a federation of state bars, but an entirely separate organization. Like most bar associations at that time, the ABA consisted of a selective group of individuals, comprising about 18 percent of practicing lawyers. In 1936, the National Lawyers Guild was organized to provide a national bar organization of progressive, liberal, and radical attorneys. During its early years the Lawyers Guild was instrumental in representing citizens accused of Communism or arrested during mass protests. Guild attorneys returned to national prominence a second time during the Vietnam protest era of the late 1960s.

An unfortunate consequence of the increased formalization of legal education was that women and minorities were largely excluded from the practice of law. Modern lawyers might be surprised at the number of female attorneys who practiced during the unregulated colonial period. In every colony but Maryland, a wife could act as her husband s lawyer. Women not only acted under a husband's power of attorney, they sometimes acted as legal representatives or attorneys for non-related parties. After the Revolution, women's presence in law practice languished until the late 1800s. While universities such as the University of Michigan admitted women to study law as early as 1870, they were rarely able to practice law after graduation. As more law schools began to admit women in the 1970s, the number of practicing women grew. In 1960, less than 3 percent of practicing attorneys were women; in 1995, approximately 25 percent of practicing attorneys and 42 percent of law school students were women. Women now comprise 15 percent of partners in the nations law firms.

People of color faced similar barriers to the legal profession. Prior to the Civil War, people of color were only occasionally able to become lawyers. For example, John Mercer Eangston, the son of a slave, became an attorney in Ohio in 1854 and eventually became the first dean of Howard Law School. Immediately after the Civil Wir there was a small increase in the number of African-American attorneys, thanks largely to law schools such as Howard, but these gains soon dwindled, and by 1965, less than 2 percent of law students and practicing attorneys were African-American. Even those few African-Americans who were able to gain a legal education and admission to the bar had a difficult time acquiring clients and building a practice. Law firms tended to be even more discriminatory than law schools when it came to hiring non-white attorneys, so people of color often practiced in small firms or specialized areas. This racial discrimination existed in many leoal organizations. For example, the ABA, after mistakenly admitting three African-Americans to membership, changed their admission forms to require applicants to state their race, in the hopes of preventing any further "mistakes." The ABA has since become open to all American lawyers, and has even developed sections devoted to different minority groups.

The American legal profession continued to grow and diversify in the last half of the twentieth century. As of 1996, there were 900,000 attorneys admitted to the bar of one or more U.S. jurisdictions, although not all were practicing law. Most of these attorneys were, and as the twenty-first century opens still are concentrated in metropolitan areas, with over 25 percent of all attorneys practicing either in New York or California. Less than 0.1 percent of the bar are in "public interest" firms, while more than 75 percent of all practicing attorneys are in private practice. In fact, the majority of attorneys today practice in firms, with over 25 percent of these attorneys working in large firms of over a hundred attorneys, or with offices in more than one state. More than sixty firms in the United States have more than four hundred attorneys each, with the largest firm having over two thousand attorneys. Even as mammoth law firms continue to expand, the number of small "boutique" firms (firms specializing in a narrow practice areas) also continue to grow. However, less than half of the attorneys in private practice are in sole proprietorships.

The remaining American lawyers are in a mix of private businesses, government services, the judiciary, or education. The practice of law extends beyond acting as an advocate on behalf of a client. Lawyers have always worked for federal, state, and local governments, representing the governments' interests through litigation, as elected representatives, and as advisors to legislative bodies. Currently, nearly eight thousand attorneys work for the United States Department of Justice alone. In addition to serving as prosecutors, some government attorneys may work in the government-funded public defender system, developed largely as a result of the Warren Court's extension of the Federal Constitution's Bill of Rights to the states. An additional form of government practice resembling private practice developed in 1974, when the Legal Services Corporation was chartered by Congress. The Legal Services Corporation attempted to fulfill the legal needs of the indigent by providing access to government-funded legal offices, supplementing or replacing the privately funded legal aid societies. Funding for Legal Services was cut during the Reagan era, but the program continued.

Traditionally, legal practice was local in nature, and today, even America's most famous lawyers can only practice in a state or court where they have been admitted. While the practice of law in America remains local, the issues or clients arc becoming increasingly olobal.The United States has been engaged in international trade since its inception. While colonial lawyers like Alexander Hamilton dealt mostly in admiralty law, modern lawyers must deal with international law within a new context and in new courts. More and more twenty-first-century clients will be global organizations, and twenty-first-century American lawyers must, in turn, engage in global competition and develop global legal practices. The rapid development of new technologies, from computer codes to genetic engineering, is expanding the importance and changing the shape of laws governing intellectual property. Digitization of information and expansion of the internet is forcing a rethinking of copyright law and licensing agreements. The ready availability of public records online brings into sharp focus the conflict between concepts of free access to information and the right to privacy. And the ability to use new technologies such as DNA analysis to track criminals is changing our concept of reasonable doubt and sometimes freeing wrongfully convicted citizens.

The practice of law is now a $130 billion per year industry. A legal practice is run more as a business, with attendant business strategics regarding market development, advertising, and outsourcing. Electronic technology has affected every aspect of the practice of law—from communicating with clients, to research, from drafting documents, to presenting evidence, and from filing motions, to billing the client. How legal services are marketed and delivered has begun to require cutting-edge technology. For a traditional profession, this rapid pace of change can have a dizzying effect on attorneys' compensation, competence, client bases, billing methods, and law office management. While todays professional law journals discuss the same quality-of-lifc issues addressed during colonial times—the long hours required, clients that expect high-quality legal work but are unwilling to pay for it, and of course the nasty jokes about the profession—modern front-page articles talk about increased attorney compensation as well as tell horror stories about demands for increased billable hours.

Despite the accelerating rate of change in the elements of practicing law, some essential aspects remain the same. The lawyer must still identify the client s legal issues, advocate on the client's behalf, and draft legal documents. The practice of law serves a dual purpose: its fundamental principles support a methodology to govern new forms of commerce or family relationships, and its adaptability serves to regulate those new forms as they develop. As methods of financing business change, so does the practice of law that enables and often regulates the change. As new areas of business develop, so do new areas of law. In resolving controversies within a community, whether on a personal or a global scale, those who practice law shape human conduct and therefore the development of American jurisprudence.

 

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TITLE: Law and Legal Services at CitiMall Shopping Mall

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