The profession and it’s regulation
The concept of a profession
It seems logical to begin the research about the profession related to the law and justice system with an evaluating of enrollment in the world of this career. Chapter I begins with a definition of the terms ‘profession’ and ‘professional’: according to the author, both descriptions were derived from the Latin word ‘profession’, which implies performing a presentation or speech in public. Nowadays, the interpretations of occupations highlight the special expertise of the profession; moreover, they describe the ethical accountability of the occupation. As a result, other designating characteristics derive, such as “self-regulation, prescribed qualifications, codes of conduct, occupational associations, and monopolies over certain work” (Rhode and Hazard 2).
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Recently, the lawyers of the United States are considered to be a profession of considerable importance. However, the author claims that this statement might not be true, as the advocated in America is considered to have turned a noble occupation of a lawyer into a business.
Moreover, over the past twenty years, the attention to this issue has been enhancing, sustained by the expanding rivalry and industrialism in the field of the justice system and by the perception of declining competent domination over the regulation of advocates. The legal practice has consistently been coordinated more on the community level then publicly or regionally, as it happens to be in Europe.
Nowadays, the jurisdictional barriers, not only the community but regional, have been crossed by the modern practice of the law. Furthermore, in several countries in Europe and South America, the occupation of the lawyer has been compromised; the representatives of the law practice are no longer required to be a member of a bar or be segregated into smaller groups of the law occupation.
The author gives the appearance of notaries as an example: notaries can assemble several categories of legal records. Besides, notaries receive legal education and obtain far more authorized accountability and position than their counterparts in the United States. As a result, assorted international accounting companies have already outnumbered law companies as the most accessible provider of law practice and services in the world.
In contradistinction to the popular belief that lawyers have quite high standards and mistrust for the law practice of the population in general, the members of the bar perceive this shift of opinions about their occupation as a motivation to renew the professional approaches and concepts. “To that end, state and local bar associations have launched a broad range of professionalism initiatives, including conferences, commissions, centers, and civility codes” (Rhode and Hazard 6). However, the efficiency of these initiatives regarding the law practice hasn’t been determined yet. Lawyers around the world are encouraged by the obligation to the professionalism of American Bar members, who aim to perform as a liberated inspection on legislative overreaching.
Professional norms: law, morality, and legal ethics
In this subchapter, the author gives the definitions of the concepts of ‘legal ethics’ and ‘morality’. Moreover, the correlations between professional responsibility, ethics, and the law of lawyering are established. Nowadays, the current understanding of these terms has been shifted from their authentic context. As a result, legal ethics is considered to be a subsidiary from trans-legal regulations, which indicate and emphasize more extensive approaches towards morality within religious and philosophical contexts. In other words, legal ethics is a method of governance that combines essential rules of conduct set by judicial systems and governmental bodies.
Also, the author describes two established philosophical practices that are considered to be the most pertinent for legal ethics. “Utilitarianism holds that the morally right action is the one that produces the greatest good for the greatest number. Deontology, a term derived from the Greek word deon, or, duty, holds that the morally right action is one that conforms to universal, generalizable principles of obligation” (Rhode and Hazard 7). There are several legal ethics issues connected to the restraints in these practices, which will be described in Chapter VI.
The subchapter continues with the typical dilemma of whether an advocate has a right to reveal an important piece of information about the threat to third parties, even despite the confidences of a lawyer’s customer. This dilemma can be considered in terms of both utilitarianism and deontology, like any other issue in legal ethics. Moreover, the disputes regarding the issue inevitably transfer on a level of unsupported arguments from both parties.
Opponents of the relativism theory claim that credible assertion could also be considered as an issue of debates. If the individuals receive broad material and opportunity towards detached and unbiased assessment, most of them will reach an agreement about fundamentally, indispensable foundations, such as truthfulness, compassion, justice, and so on. At the end of the subchapter, the author claims that the challenge of the lawyers is to avert moral pretension within moralistic confidence.
The law of lawyering
In the United States, the law appears to be an exceedingly standardized occupation. The American lawyers are not only dependent on the convoluted assortment of norms, both formal and informal, but also are obligated to follow alternative ways of regulation. In this subchapter, the author defines the courts, bar associations, and ethical codes as the essential origins of jurisdiction.
Sources of regulatory authority
The subchapter describes essential alternative sources of regulatory principles, such as “bar ethics committees, legislatures, administrative agencies, specialized bar organizations, and legal employers” (Rhode and Hazard 14). The author claims that with excessive growth of the courts’ activity in various processes, the judgments of ethics committees became less authoritative. On the contrary, the impact of legislatures and administrative agencies turned out to be more prominent. Moreover, in the last subchapter on Chapter I the author determines the subject of the whole research: the complexity of choice between coinciding practice norms.
The American legal profession and bar regulatory structures
The origins of the profession
The Anglo-American tradition
The law practice has been existent for more than 2000 years. For the first three hundred years A.C. the lawyers of that time received proper knowledge and guidance through the law practice in the courts of big cities. Nonetheless, when the Holy Roman Empire had ceased to exist, the professionally established practice had also deteriorated.
Due to the Norman incursion into the lands of England, all debates were usually resolved by an unofficial tension of the society, or, to settle the debate more legitimate, an ordeal by the means of ‘compurgation’ was used. The ordeal was a name for a trial, which was resolved by divine intervention: the incriminated person was subjected to risk whether of fire of water. The outcome of this trial could be deciphered as a sign from the Lord, determining whether the accused was guilty or blameless. An alternate court for the accused was a hearing of the reliability of the incriminated. The trustworthiness of the blamed person could be confirmed by a particular quantity of compurgators’ oaths.
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Without doubts in the process of time, the more advanced system for trials had emerged. “Church courts on the Continent and in England, which adjudicated various civil as well as religious matters, developed more rational procedures of factual and legal argument” (Rhode and Hazard 20). At the same time, not only the lawyers had taken an increasingly important role in society but demand for people who were able to maintain legal papers and business dealings. The law practice began to interest the society as a gentlemen’s occupation, which had led to various strict selective programs.
Nevertheless, the colonists that inhabited the land of America were not willing to adopt the traditions of the legal system in the United Kingdom. As a result, the public opinion has divided: some people believed that the law would be interfering with their personal affairs, others claimed that the lawyers would stimulate the construction of the legal boundaries. The law had divided into two branches: God’s Law and Lawyers’ Law; the proponents of each theory were telling that they were not able to coexist.
Qualifications for the bar and discriminatory practices
Despite the diversities in opinions between the proponents of different theories, in a developing nation, law practice is necessary, their skills and experience became more valuable, and people began to establish the law schools. Over time, the standards for enrollment into a law school have risen; however, the requirements were still quite low until the 1800es. The author explains that, despite the common belief, the open-admission program has been evolving slowly. The law practice was almost inaccessible to the members of various minorities. The women were also not allowed to enter the law practice as an independent lawyer.
However, it has changed after the Civil War, and women began to receive a legal education. The concurring opinions by Justice Bradley summarized prevailing assumptions about the separate spheres of the sexes: “The natural and proper timidity and delicacy, which belongs to the female sex unfits it for many of the occupations of civil life… The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator” (Rhode and Hazard 24). Therefore, we can deduce that God’s law implemented that there would be no women in law practice.
The conditions of practice
Not until the end of the nineteenth century, the lawyers were used to practicing in firms with two of three members. While they were infiltrated by various occupations such as realtors, bookkeepers, and so on, the lawyers have found their place on the market and firmly entrenched in it.
Bar regulatory structures and professional associations
In this subchapter, the author briefly discusses multiple bar regulatory forms. For example, “one of the first undertakings of the American Bar Association, formed in 1878 at the Saratoga Springs summer resort, was to draft Canons of Ethics”( Rhode and Hazard 25). The primary target of this organization was to advertise probity and cohesion; moreover, it was meant to keep the commercial activity under control. The various acts of the bar associations were aimed to serve the interests of society. As a result, lawyers and advocates were at the head of almost every notable community amends during the last two hundred years.
Diversity within the profession
From the beginning of the 1970s, the component of women and representatives of other races in the field of law practice started to advance. In this subchapter, the author provides the framework for the explanation of the approach implicating that the careers of lawyers were intercepted by various factors such as conflicting patterns, persecutions based on race or gender of a person, obstinate structures of organizations, and others. Moreover, the author had sought assistance from disparate resources, which underline the aspiration of the employees to work with the company of their kind. If they receive assistance from employees with a comparable background, the efficiency of the workers will increase significantly.
Basic professional norms
The chapter depicts the basic contents of the law practice, which includes “independence, competence, loyalty, confidentiality, candor, and integrity in personal and professional conduct” (Rhode and Hazard 45). These accountabilities prolong on applicants, courtroom, and society. The chapter consists of several subchapters that will be described below.
Responsibilities as a profession: Independence in professional regulation and professional judgment
As the Preamble to the ABA’s Model Rules of Professional Conduct implies, “an independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on the government for the right to practice” (Rhode and Hazard 47). Moreover, the author states the complex of self-regulation that appoints comparable responsibilities. They are described in the Model Rules Preamble.
Responsibilities to clients: Loyalty, competence, and confidentiality
The constitutional relations between advocated and their customers are of agency structure; thus, the relations require assorted fundamental obligations, such as adherence, competence, and reticence. In this subchapter, the author proceeds with the description of these responsibilities and their application in the law practice.
Responsibilities to the system of justice and the rule of law
This subchapter gives a detailed definition of the fundamental responsibilities of the lawyers according to the Model Rules Preamble.
Rhode, Deborah, and Geoffrey Hazard. Professional Responsibility and Regulation (Concepts and Insights), Eagan, Minnesota: Foundation Press, 2006. Print.