Week Five, Law and Society


Assignments for Week 5:

1. Read Chapter 4 in your Samaha textbook and Lecture 4 below for this week’s quiz.


2. Cases in class this week:

            Chapter 4, State v. Bauer

            Chapter 4, State v. Fleck

            Chapter 4, State v. Loge


Lecture 4, The Legal Profession

A Brief History of the Legal Profession

1.  Through most of history, people were expected to make their own case, and this remains true in many countries today.  The origins of the legal profession can be traced back to ancient Rome, where some people were allowed to argue cases on behalf of others.  People knowledgeable about law were known as Juris Prudentes, and they were not permitted to collect a fee for representing people before the courts.  As the Roman Empire expanded during the Imperial Period, a legal profession emerged in response to the increasing complexity of the law.  With the fall of Rome and the coming of the Dark Ages, the role of lawyers shrank.  Lawyers in premodern Europe were often affiliated with the Church and addressed issues arising in canon law.  The reemergence of the legal profession is linked with the emergence of a capitalist economy which creates a substantial demand for legal services.


The American Legal Profession

1.   None of the first settlers in the seventeenth century was a lawyer, and many of the first settlers were antagonistic toward lawyers.  Lawyers were associated with the upper classes and with the religious persecution many of these settlers had endured in England.  Only gradually did some people begin to practice law on a part-time basis.  Typically they were educated in law by apprenticeship, though some traveled to England to learn law at the Inns of Court.  With the evolution of colonies into rapidly growing centers of commerce and trade throughout the eighteenth century, greater reliance upon lawyers became inevitable.  By the time of the American Revolution, lawyers were conspicuously present.  Some of the most famous leaders in the revolutionary cause—including John Adams, Thomas Jefferson, and John Marshall—were lawyers.  Lawyers were especially well represented among the signers of the Declaration of Independence, members of the Constitutional Convention, and representatives to the first Congress.  However, most members of the legal profession tended to be conservatives who sided with the King.


2.  American presidents who were lawyers or had a legal education, taught law, or held a legal post include Adams (John and John Quincy), Jefferson, Madison, Jackson, Van Buren, Tyler, Polk, Fillmore, Pierce, Buchanan, Lincoln, Hayes, Garfield, Arthur, Cleveland, Benjamin Harrison, McKinley, Taft, Wilson, Coolidge, Franklin D. Roosevelt, Truman, Nixon, Ford, Clinton.  When Alexis de Tocqueville visited the U.S. in the 1820s, he made the observation that lawyers had become the “new aristocracy,” having moved into the power vacuum created by a democratic society.  In the subsequent history of the U.S., lawyers have been overrepresented in the government and political system.  With the last presidency of the twentieth century, both the president (Bill Clinton) and, for the first time, the first lady (Hillary Rodham Clinton), were lawyers.  At times, as much as two-thirds of the U.S. Senate and one-half of the House have been lawyers, and lawyers have been overrepresented among state governors and legislators.


Twentieth Century Lawyers

1. At the beginning of this century a tightening of requirements for entrance into the legal profession took place.  The apprenticeship system was almost entirely replaced by college education and law school, with a three-year curriculum ultimately becoming the standard.  Law schools affiliated with elite universities had the most prestige and provided the most probable route to a successful career with a prominent law firm or eventual service in a high position within the government.  Passing the bar exam became a universal condition for admittance to legal practice.  The American Bar Association and state bar associations adopted requirements and rules that increased their control over who would be allowed to practice law, which protected the economic interests of private lawyers.  Minimum fee schedules were adopted to deter lawyers from engaging in costly price-cutting.


2.  The dominance of white Angle-Saxon Protestant males declined somewhat in the first half of the twentieth century; women and blacks were systematically and formally excluded for much of this period.  Only in the last several decades of the twentieth century was there a significant movement of women into the legal profession.  Still today white males disproportionately occupy the most prestigious judgeships and law firm partnerships and continue to dominate the American Bar Association, as well as the legal profession itself.


3.  The American Bar Association (ABA) was founded in 1878.  For most of its history, the ABA has been dominated by white males.  They declared in 1943 that members would not be excluded on the basis of race, creed, or color.  By the end of the century, the ABA had become the largest professional association in the world.  In 1908 it adopted Canons of Professional Ethics, replaced in 1969 with the Code of Professional Responsibility.  However, the primary objective of the ABA has been the protection and advancement of the professional and economic interests of lawyers.


What Contemporary Lawyers Do

1. In the second half of the twentieth century, the legal profession grew rapidly in response to an expanding economy and an expanding population.  Law school applications multiplied dramatically, and law schools were able to be more selective.  The law profession became increasingly competitive, especially during periods of economic downturns and downsizing.  In the 1970s, the U.S. Supreme Court struck down bar association minimum-fee schedules and bans on lawyers’ advertising.  With the expansion of rights to representation for poor people accused of crimes (with the government supplying or at least paying for the lawyers), as well as the growth of governmental regulatory agencies, the percentage of lawyers in private practice declined, while the numbers working for the government increased.


2.  Lawyers increasingly joined law firms, and some firms became huge with thousands of lawyers working in branches spread across the country.  The partners in these firms may draw seven-figure annual incomes, depending upon the size of profits.  Corporations and businesses also hire lawyers as full-time employees (in-house lawyers).  By the end of the century, less than half of attorneys were self-employed, and most of those coming out of law school secured their first jobs as employees.  The traditional status of lawyers as independent and autonomous was eroding.


Paralegals

1. Paralegal is one of the fastest-growing occupations in the United States.  Paralegals are employed to do legal research, draw up court papers, and double-check the accuracy of briefs prepared by lawyers.  What they cannot do is offer legal advice, set fees, or present cases in court.  No states require licensing for paralegals, and there are no specific educational requirements.


The Stratification of the Bar and the Organization of Legal Practice

1.  On the high end, in terms of income and prestige, are the corporate lawyers, or Wall Street lawyers.  They are most likely white males from privileged backgrounds, graduates of elite universities and law schools (such as Harvard, Yale, and Stanford), enjoying six and seven figure annual incomes, and representing wealthy and powerful corporations and individuals.  They spend most of their time not in courtrooms but in meetings with clients and other parties, and drafting letters, reviewing complex legal documents, negotiating settlements, etc.  On the other end of the scale are the struggling solo practitioners, working out of small offices in inner-city neighborhoods.  They are more likely to be members of ethnic or religious minorities who have attended public colleges and night law schools.  Most earn a modest income by providing a variety of services, including representation against criminal charges, drawing up of wills, representation in landlord-tenant disputes, etc.  Between these extremes are lawyers practicing in a diversity of settings.  Lawyers are likely to have far more in common with their clients than with each other.   


Lawyer-Client Relationships

1.  A lawyer is supposed to represent the best interests of the client.  But lawyers are also sworn officers of the court, as well as members of a larger public.  The lawyer is formally obligated not be a party to a sworn falsehood in court.  The lawyer may be oriented toward cooperating with other court figures (the courtroom workgroup, including the judge and opposing lawyer, with whom the lawyer must maintain an ongoing relationship).  Lawyers are also naturally concerned with their own self-interest, including maximizing their income.  The richer and more powerful the client, the more likely that the client will dominate the lawyer.  Much evidence suggests that clients experience their lawyers as arrogant, paternalistic, not empathic, uncommunicative, and inattentive.  This may be attributed to the professional socialization of lawyers.  They learned to focus on the legal logic in a case as opposed to the emotional dimensions experienced by clients.  If lawyers fail to return calls and to move forward on cases, this is a consequence of the fact that lawyers are insecure about sources of future income and take on more cases than they can handle.


Public Defenders

1. Legal services and aid to the poor expanded in the last several decades.  The landmark case of Gideon v. Wainwright (1963) established the constitutional right to representation for indigents facing felony charges.  This right was extended, in 1972, in Argersinger v. Hamlin, to misdemeanor cases involving jail time.  Some commentators say that the principal purpose of the public defenders office is to legitimate the system of law and its claims of due process and fairness.  The person who most frequently suggested that a defendant in a criminal case plead guilty was the defense lawyer.


Women in the Legal Profession

1. As late as 1963, only 3 percent of American lawyers were women.  By the end of the twentieth century, almost half of law school graduates were women.  Much discrimination against women has persisted into the present time.  Only two of the nine justices of the U.S. Supreme Court are women.  When the first female Supreme Court justice, Sandra Day O’Connor, graduated from Stanford Law School in the 1950s, she received no job offers as a lawyer—only an offer to be a legal secretary.  Today there are a small minority of judges that are women.  Women who are associates must exceed the performance and productivity of their male counterparts if they are to be promoted to partner.  They tend to earn significantly less money than male lawyers, although the gap in pay is decreasing.


Legal Ethics

1.  Law schools have more of an emphasis on ethics due to unethical conduct by lawyers in the Watergate affair.  At that time, the ABA required an ethics course in all law schools.  On the issue of ambulance chasing, the Supreme Court has upheld state bans on approaching accident victims for business.  Some specific forms of advertising (e.g., a female lawyer in a seductive pose; a male lawyer in a boxing outfit, prepared to do battle for clients), have been viewed as unethical.  As part of the adversarial ethic, a lawyer is expected to make the best possible case on behalf of the client, or on behalf of the state if the lawyer is a prosecutor, rather than to attempt getting at the truth by laying out all available evidence on both sides of a case. 


2.  Because of the lawyer-client confidentiality principle, lawyers should not disclose possibly incriminating revelations made to them by clients in the course of consultations.  The rationale for this principle is that a client can only obtain full-fledged representation and an effective defense if the client does tell the truth.  However, if a client discloses the intent to take actions that might cause death or do bodily harm to another person, the lawyer is permitted (but not required) to report this in violation of the confidentiality principle.  They may attempt to talk the client out of such action or they may withdraw from representing the client.


3.  Prosecutors may also engage in forms of unethical conduct, especially when they are eager to obtain convictions.  They may deliberately conceal evidence favorable to the defense (exculpatory evidence), or even knowingly present false evidence unfavorable to the defense in court.  In one case that was the subject of two books, a 17-year-old boy was convicted of murdering his mother in a trial where a key witness known to the prosecutor was not called, even though that witness would have raised fundamental questions about the prosecution’s case.  The boy was acquitted in a subsequent trial. 


Legal Education

1.  The Law School Curriculum.  The first year curriculum at law schools typically might include the following:  Contracts, Torts (personal injuries), Property (rights of ownership, conditions of transfer), Constitutional Law (historical interpretation of the U.S. Constitution), Procedure (rules for litigation), Criminal Law (substantive and procedural).  The second year consists of the following courses:  Wills and trusts, Taxation, Evidence, Corporations, Administrative law, The courses for the third year include elective courses, such as:  Jurisprudence, International law, Legal history, Labor law, Women and the law, and Poverty law.  The third year will also will include a course in legal ethics or professional responsibility. 


Conclusion


1.  With rapid change in society, there will be expected rapid change in the legal profession.  International and global law will likely increase.  Additionally, technology will have an impact on the profession, possibly with legal advice available on the Internet.              




© Karen Donahue 2017