Part 4: American Lawyers

 

LESSON  11

 About the American Lawyer

 

Currently, there are about one million lawyers in the United States. About one out of every 300 people is a lawyer. Americans are frequently filing lawsuits, some of which are unnecessary, but this is closely related to how there is an excessive number of lawyers. Of course, this is also a natural result of social evolution. 

 

Large law firms in the United States were formed during the industrial revolution. Especially in the nineteenth century, big railroad companies were established and the lawyers for the railroad companies followed by expanding the profession. This concept has even developed into the  modern day where large companies are still backing big law firms. For example, in the 1970s, the United States government sued IBM for monopolizing the computer market. Both sides went to court and fought in court for fourteen years. IBM, being wealthy and powerful, hired hundred of lawyers. The United States Department of Justice became exhausted and unable to cope. They had no choice but to drop the lawsuit and ended with nothing. 

 

Section 1. Lawyer—An Enviable Profession

 

In most people’s minds, they have several typical descriptions for lawyers: someone who wears a nice suit, drives a new model luxury European car, and is eloquent and verbose in court. At least in Hong Kong and the United States, these types of lawyer images make many people envious. Of course what makes people the most envious about lawyers is the one thousand dollar per hour fee they charge. However, this image for American lawyers was only created in the past two to three decades by the media. 

 

Subsection 1.1. Lawyers are Traditionally seen as a Noble Profession

 

In the United States, being a lawyer was originally a noble profession. 

 

Ever since July 4, 1776 when America declared independence from Britain, lawyers have always been the pillar of American politics as well as the heroes for America’s founding. Today’s United States Constitution was established in 1787 by the Constitutional Convention in Philadelphia. Among the 55 representatives who attended the Constitutional Convention, thirty of them were lawyers. When looking into the history onwards from 1787, there have been a large proportion of presidents who were  also lawyers.

 

Gregory Peck starred in a classic movie To Kill a Mockingbird that was adapted from a novel. Although the story is fictional, in the Southern states before the victory of the Civil Rights Movement in the 1960s the fate encountered by the black people  accused of offending white people in that period was actually close to the plot in the movie. In the movie, Gregory Peck plays the role of a lawyer who helps the weak and stands up for justice. Even though he is in a small town and under the pressure of the entire populace, he still  speaks up for righteousness and struggles for the innocent black man. Although the story is fictional and Gregory Peck’s role is idealized, he still portrays the classic image of a traditional lawyer and represents an ideal of the law. Throughout American history, there were indeed a large number of lawyers who took a stand for justice, righteousness and the rule of law.

 

It can be said  that being a lawyer is a noble and respected profession with a long tradition in the United States. However, in recent years, with the huge cultural and social changes, the image of a lawyer as the noble professional has received a major blow. Due to limited space, we cannot have a very detailed and comprehensive analysis here. Nevertheless, a part of the reasons why the status and image of lawyers decline are self inflicted. For example, the legal profession has become a business operation; occasionally there are black sheep lawyers and a big case with large scale defrauding of  insurance companies, and so on. Aside from movies, it is becoming difficult to find  lawyers who are respected, have superior ability, and insist on justice. That is one of the reasons for the decline  of the image of a lawyer. For example, in the “Simpson Case”, the performance of the prosecution, the defense lawyers, and even the judge, caused the legal professionals to shake their heads in disapproval (the English mainstream television audience watching could hear the expert commentary every night), even the general audience reacted negatively.

 

Subsection 1. 2.  Being a Lawyer did not used to be a Profession to get Rich

 

Being a lawyer used to be a noble profession, but it was originally not a profession to get rich.

 

Thirty years ago, I graduated from law school and started to look for a job. Like all the other graduates, the road ahead was foggy; there was no clear direction. I felt quite anxious. At that time, the person who gave me the most encouragement and help was the Italian American judge Molinari. Molinari’s family took root in an Italian neighborhood in San Francisco. He had been a lawyer and judge in San Francisco for decades. When I was still in law school, I worked in the California Court of Appeal as a law clerk and met him there. He was one of the judges in District One of the Court of Appeal in California.

 

Judge Molinari often told me he disagreed with the new law school graduates who  only wanted to pursue the job for a large salary. After World War II, Judge Molinari practiced in San Francisco where all his clients were Italian-born workers, fisherman, and small businessmen. At that time, the United States had just climbed out of  the Great Depression in the 1930’s. After the War there were economic adjustments. The small people had low incomes and could not afford high legal fees. When his clients did not have the money to pay him for his services, Molinari accepted the fish they caught and their family raised chicken and eggs instead of cash. Molinari went from a compassionate lawyer serving the poor classes to eventually becoming a respected judge in the Court of Appeal. Molinari’s background made him believe that serving the community was the responsibility of a lawyer; there was no shame in having a modest income. Therefore, he thought that the young lawyer who sought only materialistic reward was actually against the professional spirit of a lawyer.

 

Actually, in the United States, for a period of two hundred years, being a lawyer was not a career to get rich. For example, when President Lincoln was still a lawyer, prior to freeing the slaves in the Civil War, he was also a low income “small” lawyer like Judge Molinari. The modern day large law firms and wealthy lawyers only began to emerge in the late nineteenth century. At that time, a number of large enterprises were created (especially the big railroad companies that built the transcontinental railroad). The lawyers who served under these large enterprises also had to expand, which gave rise to relatively large and wealthy law firms began to appear. The big law firms that performed financial services for Wall Street also appeared as the American economy grew. However before the 1950s, these types of law firms were relatively few. Lawyers like Molinari were the typical American lawyers. 

 

Starting with the 1990s, the United States economic bubble bursted with the rising government deficit and massive layoff in the military, the unemployed were not limited only to the blue color class. Among the 800,000 plus lawyers, quite a few were also unemployed. In recent years, the legal profession experienced a structural decline, which was closely related to the overall economic conditions in the United States.

 

Section 2 Qualifications to Become a Lawyer

 

Subsection 2.1.  Qualifications

 

For many professions in the United States, including lawyers, doctors, teachers, etc., the qualifications and licenses are based on the state standards. In other words, to become a lawyer in California, one needs to pass a lawyers' license examination in California. Lawyers with licenses from other states cannot practice in California. Likewise, lawyers who only have a California license cannot practice in other states. 

 

American law schools are different from those in Hong Kong or Britain.  Under the British legal system, there are research institutions, but basically a law school student needs only to complete his major discipline, graduate from the university, pass a professional examination, to become a lawyer.  The American law school has a three year curriculum, but the students there have already graduated from college with a bachelor's degree.  The graduate from a law school receives upon graduation a Doctor of Jurisprudence degree (J.D).

 

Many states in the United States require lawyers to complete a law school curriculum before taking the state license examination, but some states differ in this matter. For example, in California, if a persona does not have the financial ability or time to go to law school, but he or she has the ability and determination to become a lawyer, he can study the law curriculum on his own but under the direction of an experienced lawyer. Then he can participate in a preliminary test to become a lawyer.  After passing this test, he can take the regular California lawyer license examination (called Bar Examination). If he passes, he receives a license and becomes officially a lawyer.  

 

The state lawyer license  examination is not created by the government and the license is also not issued by the government. For example, California’s Bar examination is developed by the California State Bar. This license is issued by the Bar Association. Likewise, if a California lawyer makes a mistake, the California State Bar can determine whether to punish him, suspend his license, or even revoke his license. They are independent from any governmental department.

 

 When a lawyer receives a California license, he also receives another qualification, that is, he is entitled to represent a client and appear in the federal courts in California, the federal Court of Appeals and the Supreme Court of the United States.

 

Since licenses have a state restriction, if a lawyer from California goes to New York to handle a case, he would have to hire a New York licensed lawyer to represent his client. Of course, he can also familiarize himself with New York’s laws and take the state's attorney license examination. This would mean that he has licenses for both states and  can practice also in New York State.

 

Subsection 2.2.  Trial  Attorneys and Non-trial Attorneys

 

In Hong Kong, lawyers are divided into solicitors and barristers. By their nature, the former is a non-trial attorney and should handle general affairs. The latter appears in court as a trial attorney and perhaps should be called a litigation attorney to be more precise. 

(Footnote: to be more accurate, a solicitor in Hong Kong can also litigate but only on the lower court level. The barrister litigates and appears in the Superior Court level and above) 

 

The American system is different from that of Hong Kong. In the United States, there is no formal division between trial and non-trial lawyers. In principle, all American lawyers are entitled to deal with legal matters or appear in court for any matter. However, there are actually some lawyers who specialize in court appearances. Lawyers who handle criminal jury trials are often called trial lawyers. Lawyers who usually only take care of civil cases but do not go to court often may never have a jury trial experience despite several decades of practice. For a lawyer to get jury trial training and experience, it is best to first become a government's prosecutor or a public defender, or to join a law firm that specializes in criminal matters and personal injury cases, because criminal matters and personal injury cases offer the most opportunities to go to court.

 

As for non-trial lawyers, a more accurate name may be a more broadly defined title "legal advisor" because the lawyer's basic work is acting as advisor to the client. In more formal proceedings in the United States, people will address the lawyer as counsellor which means legal advisor.