1. LEGAL PROFESSION IN THE USA.. 4
1.1 REGULATION OF THE LEGAL PROFESSION.. 4
1.2 LAWYERS: PARASITES ON THE BACK OF THE AMERICAN TAXPAYER?
1.3 THE LEGAL PROFESSION FOR WOMEN: A PROBLEM OF GENDER EQUALITY 11
2. THE LEGAL SYSTEM OF THE USA.. 13
2.1 THE MAIN PRINCIPLES OF THE AMERICAN SYSTEM OF JUSTICE. 13
2.2 FACTS ABOUT THE AMERICAN LEGAL SYSTEM.. 16
2.3 CORRUPTION IN THE AMERICAN LEGAL SYSTEM.. 20
For centuries the legal profession constituted an exclusive club of white middle-class men. Although the last few decades have seen a dramatic increase in female and ethnic minority entrants research shows that a successful legal career is far from being equally open to all. This raises the question whether affirmative action should be introduced by the legal profession.
A positive answer has implications extending beyond legal practice. This is because the advanced educational qualifications and the intellectual and other skills required of entrants which are thought to guarantee high quality services to clients mean that appointing and promoting on merit is regarded as particularly important in professional and other skilled occupations.
Indeed it can be argued that legal academics have a special duty to ensure that those they purport to admit to law school on merit and prepare for practice do not later find their career prospects hampered by their social background. In addition for those wishing to ensure a more general acceptance of affirmative action persuading the legal profession that it is just and practicable is a useful starting place since lawyers are better placed than most occupational groups to secure an end to the current legal prohibition on `strong'1 forms of affirmative action.
The legal profession is morally and as far as gender and race are concerned legally obliged not to discriminate in distributing jobs and promotions. Currently the legal profession does so discriminate. Existing measures are unlikely to eradicate such discrimination even in the medium term. If appropriately designed and implemented quotas and decision-making preferences can reverse patterns of exclusion. Consequently unless there are strong countervailing considerations or insurmountable practical problems they should be introduced into legal practice.
In the rest of this article we will speak about current situation and the existing problems in the legal profession and legal system in the USA.
1. LEGAL PROFESSION IN THE USA
1.1 REGULATION OF THE LEGAL PROFESSION
The legal profession is regulated at state level (and not at federal level) by the highest court of each state. A US attorney can practise and appear in the courts of the jurisdiction/state in which he/she was admitted. Attorneys may have rights of practice and audience in other States by virtue of rules which allow for admission pro hace vice. In addition the rules of a number of State Bars in the US allow for "Admission on Motion" i.e. admission to another state without examination in the case of attorneys already qualified in other US states. The criteria for such admission differ from state to state but usually involve minimum periods spent in practice.
The interim report which was presented to the House of Delegates some years ago makes recommendations easing the practice of law by US lawyers in states other than their state of admission. It also eases the position on the temporary practice of home law in the U.S. by Foreign Lawyers with a proposed amendment to its Model Rule for the Licensing of Legal Consultants. US State Bars fall into 2 categories:
1. Unified State Bars: membership is compulsory in order for an attorney to be able to practise; membership therefore serves the purpose of a practising certificate.
2. Non-Unified State Bars: membership is voluntary and as such these bars have no regulatory powers.
On a national level the profession is represented by the American Bar Association (ABA). Membership of the ABA is not compulsory although it does have approximately 400 000 members. The ABA holds an annual meeting which is the largest annual gathering of lawyers in the world and is attended by approximately 12 500 international lawyers. The Law Society organises a programme of events at the ABA's annual meeting in order to raise awareness of the solicitors' profession and to facilitate contacts between English and Welsh solicitors and American attorneys.
Most states require a three year American law degree (Juris Doctor) in order to sit the State Bar examination. Some states recognise equivalent foreign legal qualifications or admittance to a foreign bar in an English common law jurisdiction but may require the applicant to take further courses in U.S. law at an ABA approved law school.
In some US States it is possible to practise as a Foreign Legal Consultant under home title (for instance as a solicitor). As a Foreign Legal Consultant it is possible to advise on home country law and international law but not to appear in court. The ABA commission on Multijurisdictional Practice referred to above has recently strongly encouraged those US States without a foreign Legal Consultants regime to introduce one.
One more type of regulation of the legal profession is self-regulation. Often self-regulation is seen as arising from the social institution of trust: a social contract between society and the profession mitigates the moral hazard problem arising from the information asymmetry. However they recognize that safeguards are required particularly to ensure that the profession does not operate as a cartel. They also feel that the various professions will act as watchdogs on each other.
Self-regulation may reduce the cost of the regulator acquiring information and makes adjustments to regulations easier. These benefits need to be compared to the potential efficiency losses due to the potential for cartel-like behavior. Even where regulation by a professional body is deemed an appropriate solution it has been argued that the public interest would be protected best by having a number of professional bodies in competition with each other.
Regulation may not be the only solution to the information asymmetry problem. Independent rating agencies have been suggested as a solution or the use of repeat purchasers to perform the agency function on behalf of infrequent purchasers. Competition can also generate its own quality signals.
The current state of the discussion in the conceptual literature is such that although some authors recognize the potential problem arising from the asymmetry of information between client and professional considerable skepticism remains on whether traditional self-regulation is a solution to the problem or a source of even greater welfare loss.
Scientists have identified a number of instruments typically used by self-regulators of the legal profession which may work against the public interest:
(i) restrictions on entry;
(ii) (ii) restrictions on advertising and other means of promoting a competitive process within the profession;
(iii) restrictions on fee competition;
(iv) restrictions on organizational form.
A separate although connected literature has developed on restrictions on the nature of fee contracts between lawyers and clients.
1.2 LAWYERS: PARASITES ON THE BACK OF THE AMERICAN TAXPAYER?
Many critics accuse lawyers of making legal services an expensive luxury and they challenged lawyers to re-think the way their services are provided and priced. In particular there is an idea to stop billing by the hour and start charging by the case. Another initiative is that there is a need for ceilings instead of an open-sky practice.
Criticism of lawyers' fees is almost as old as the profession itself and the present situation is no worse than before. But public tolerance has changed. Imagine if airlines charged on the same basis as lawyers: an hourly fee with no guarantees of any limit and the price escalating as delays bad weather and mechanical failures occurred.
What is to be done? Can the profession set its own house in order? The problem is not so much high fees in themselves; there's nothing wrong with charging a rich tariff to those who can afford it. After all it is said lawyers are selling a valuable commodity and are entitled to expect top-dollar remuneration.
But lawyers unlike bankers are not just another sector of the business world. They have sway over a legal system supposedly committed to social justice. And it is one of that system's virtues that justice is not for sale to the highest bidder. As long as lawyers are beyond the pocket of most citizens it means social injustice.
Sadly the legal profession too easily mistakes its own interests for those of the public. Allowing paralegals and others to offer more legal services might be a good start. A more practical effective solution would be to let lawyers retain their monopoly but only on the condition that they truly serve the public. This means that there must be more citizens and clients involved in running the profession that lawyers must be answerable to someone other than themselves that they pay for their monopolistic privilege by contributing a share of their fees to funding legal services for poorer litigants and that fees are regulated for price as well as quality.
As long as access to justice depends on access to lawyers society must oblige the legal profession to meet its public responsibilities – the leading one being that legal services must be genuinely available to all.
It is evident that the legal profession enjoys a special status because those who practice law and those who make the law are often the same people The legal business has been turned into some kind of mystical hocus pocus over the years and has been purposely made obscure complicated and difficult to understand in order to force the public to consult lawyers. Entry into the profession has also been made more difficult than necessary so that there won't be too many people competing for the work.
The law belongs to the people is not a trade secret of lawyers and judges. The courts exist for the sole purpose of serving the people and for no other reason. They work for people. They do not rule them. But now lawyers become judges and judges are lawyers. They take care of themselves. Judges in America are above the law. Who's going to convict a judge? Another judge? Not hardly! Judges have immunity and generally can't be sued. They can get away with anything and they know it. Therefore if they decide to break the law or break the rules of court they just do it. No one is there to stop them.
As with any other profession there is a possibility that there will be a few solicitors willing to turn a blind eye to suspicious activities where they will personally benefit be it by additional fee income or an increased client base. But this would not be the case for the vast majority of solicitors. And Law Society itself cannot dissolve the problem of “dirty hands”.
The system is supposed to be built on the idea of checks and balances where each branch of government has it's finger on the other two branches so if one branch gets out of line the other two reel them back in. However the judiciary is self regulating and only two of the three branches of government are part of the balance of power. Other than impeachment the other branches have no control over the judiciary.
Judges are people’s servants not rulers. And this concept is supported in the Rules of the Supreme Court which states as follows: "The legal profession's relative autonomy carries with it special responsibilities of self government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar."
We must always remember that the name says it all. When they cry like a stuck pig about what a great burden it will be on the legal community to have ethics imposed on judges and lawyers we must never forget that the rights of the public take precedents over the profits of attorneys. The courts are not here to suck the wealth from society and give it to lawyers.
Having mentioned negative sides of the profession we must admit positive ones. The Constitution establishes the fundamental right of access to the judicial system. The courts as guardians of every person's individual rights have a special responsibility to protect and enforce the right of equal access to the judicial system. If the courts have this special responsibility but no judicial police force to enforce their rulings why is there general compliance? Two important reasons stand out: (1) public trust and confidence in the system overall and (2) a strong commitment by the organized bar to work with the judiciary to establish and demand compliance of judicial decisions.
The organized bar has long recognized that it must speak out for the judiciary when it cannot speak out for itself. This is especially true during ongoing litigations for example when the press criticizes a judge's ruling and because of the confidentiality of an ongoing case the judge cannot explain his or her actions personally. The press may react by questioning not only the actions of the judge but his or her apparent unwillingness to respond. The organized bar is also in a position to help the public better understand the proceedings and the reasoning behind judges' rulings in an effort to inspire public confidence and generate thoughtful public debate.
The bar also works hard to provide trained advocates or counsel in civil matters. Though the right to counsel has been established in criminal cases it is not guaranteed in civil matters.
An eminent writer has said: "It requires two workmen to make a lawyer the Almighty and the man himself. The legal mind is the workmanship of God and no power beneath His can create it. Not possessing it no one ever became a successful lawyer; with it no one ever failed if he earnestly tried." So we can see that such a gift is worth of paying money for it.
1.3 THE LEGAL PROFESSION FOR WOMEN: A PROBLEM OF GENDER EQUALITY
The Constitution of the United States is to woman as an Emancipation Proclamation in that it erects no barriers imposes no limitations sanctions no discriminations on account of sex.