1. LEGAL PROFESSION IN THE USA4
1.1 REGULATION OF THE LEGAL PROFESSION4
1.2 LAWYERS: PARASITES ON THE BACK OF THE AMERICAN TAXPAYER?
1.3 THE LEGAL PROFESSION FOR WOMEN: A PROBLEM OF GENDER EQUALITY11
2. THE LEGAL SYSTEM OF THE USA13
2.1 THE MAIN PRINCIPLES OF THE AMERICAN SYSTEM OF JUSTICE13
2.2 FACTS ABOUT THE AMERICAN LEGAL SYSTEM16
2.3 CORRUPTION IN THE AMERICAN LEGAL SYSTEM20
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:
- restrictions on entry;
- (ii) restrictions on advertising and other means of promoting a competitive process within the profession;
- restrictions on fee competition;
- 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 ac