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A key difference among countries is whether lawyers should be regulated solely by an independent judiciary and its subordinate institutions (a self-regulating legal profession),[131] or whether lawyers should be subject to supervision by the Ministry of Justice in the executive branch.
In most civil law countries, the government has traditionally exercised tight control over the legal profession in order to ensure a steady supply of loyal judges and bureaucrats. That is, lawyers were expected first and foremost to serve the state, and the availability of counsel for private litigants was an afterthought.[132] Even in civil law countries like Norway which have partially self-regulating professions, the Ministry of Justice is the sole issuer of licenses, and makes its own independent re-evaluation of a lawyer's fitness to practice after a lawyer has been expelled from the Advocates' Association.[111] Brazil is an unusual exception in that its national Order of Advocates has become a fully self-regulating institution (with direct control over licensing) and has successfully resisted government attempts to place it under the control of the Ministry of Labor.[133][134]
Of all the civil law countries, Communist countries historically went the farthest towards total state control, with all Communist lawyers forced to practice in collectives by the mid-1950s.[135][136] China is a prime example: technically, the People's Republic of China did not have lawyers, and instead had only poorly-trained, state-employed "legal workers," prior to the enactment of a comprehensive reform package in 1996 by the Standing Committee of the National People's Congress.[137]
In contrast, common law lawyers have traditionally regulated themselves through institutions where the influence of non-lawyers, if any, was weak and indirect (despite nominal state control).[138] Such institutions have been traditionally dominated by private practitioners who opposed strong state control of the profession on the grounds that it would endanger the ability of lawyers to zealously and competently advocate their clients' causes in the adversarial system of justice.[139]
However, the concept of the self-regulating profession has been criticized as a sham which serves to legitimize the professional monopoly while protecting the profession from public scrutiny.[140] Disciplinary mechanisms have been astonishingly ineffective, and penalties have been light or nonexistent.[141][142][143]
Voluntary associations of lawyers[edit]
Lawyers are always free to form voluntary associations of their own, apart from any licensing or mandatory membership that may be required by the laws of their jurisdiction. Like their mandatory counterparts, such organizations may exist at all geographic levels.[86][144] In American English, such associations are known as voluntary bar associations.[145] The largest voluntary professional association of lawyers in the English-speaking world is the American Bar Association.
In some countries, like France and Italy, lawyers have also formed trade unions.[146]
Cultural perception of lawyers[edit]
Hostility towards the legal profession is a widespread phenomenon. The legal profession was abolished in Prussia in 1780 and in France in 1789, though both countries eventually realized that their judicial systems could not function efficiently without lawyers.[147] Complaints about too many lawyers were common in both England and the United States in the 1840s,[148][149] Germany in the 1910s,[150] and in Australia,[151] Canada,[152] the United States,[153][154][155] and Scotland[156] in the 1980s.
Public distrust of lawyers reached record heights in the United States after the Watergate scandal.[155][157] In the aftermath of Watergate, legal self-help books became popular among those who wished to solve their legal problems without having to deal with lawyers.[158] Lawyer jokes (already a perennial favorite) also soared in popularity in English-speaking North America as a result of Watergate.[159] In 1989, American legal self-help publisher Nolo Press published a 171-page compilation of negative anecdotes about lawyers from throughout human history.[160]
In Adventures in Law and Justice (2003), legal researcher Bryan Horrigan dedicated a chapter to "Myths, Fictions, and Realities" about law and illustrated the perennial criticism of lawyers as "amoral [...] guns for hire"[161] with a quote from Ambrose Bierce's satirical The Devil's Dictionary (1911) that summarized the noun as: "LAWYER, n. One skilled in circumvention of the law."[162]
More generally, in Legal Ethics: A Comparative Study (2004), law professor Geoffrey C. Hazard, Jr. with Angelo Dondi briefly examined the "regulations attempting to suppress lawyer misconduct" and noted that their similarity around the world was paralleled by a "remarkable consistency" in certain "persistant [sic?] grievances" about lawyers that transcends both time and locale, from the Bible to medieval England to dynastic China.[163] The authors then generalized these common complaints about lawyers as being classified into five "general categories" as follows:
abuse of litigation in various ways, including using dilatory tactics and false evidence and making frivolous arguments to the courts;
preparation of false documentation, such as false deeds, contracts, or wills;
deceiving clients and other persons and misappropriating property;
procrastination in dealings with clients; and
charging excessive fees.[164]
Some studies have shown that suicide rates among lawyers may be as six times as higher as the average population, and commentators suggest that the low opinion the public has of lawyers, combined with their own high ideals of justice, which in practice they may see denied, increase the depression rates of those in this profession.[165]
Compensation[edit]Main article: Attorney's fee
Lawyers are paid for their work in a variety of ways. In private practice, they may work for an hourly fee according to a billable hour structure,[166] a contingency fee[167] (usually in cases involving personal injury), or a lump sum payment if the matter is straightforward. Normally, most lawyers negotiate a written fee agreement up front and may require a non-refundable retainer in advance. In many countries there are fee-shifting arrangements by which the loser must pay the winner's fees and costs; the United States is the major exception,[168] although in turn, its legislators have carved out many exceptions to the so-called "American Rule" of no fee shifting.
Lawyers working directly on the payroll of governments, nonprofits, and corporations usually earn a regular annual salary.[169] In many countries, with the notable exception of Germany,[170] lawyers can also volunteer their labor in the service of worthy causes through an arrangement called pro bono (short for pro bono publico, "for the common good").[171] Traditionally such work was performed on behalf of the poor, but in some countries it has now expanded to many other causes such as the environment.
In some countries, there are legal aid lawyers who specialize in providing legal services to the indigent.[172][173] France and Spain even have formal fee structures by which lawyers are compensated by the government for legal aid cases on a per-case basis.[174] A similar system, though not as extensive or generous, operates in Australia, Canada, as well as South Africa.[citation needed]
In other countries, legal aid specialists are practically nonexistent. This may be because non-lawyers are allowed to provide such services; in both Italy and Belgium, trade unions and political parties provide what can be characterized as legal aid services.[175] Some legal aid in Belgium is also provided by young lawyer apprentices subsidized by local bar associations (known as the pro deo system), as well as consumer protection nonprofit organizations and Public Assistance Agencies subsidized by local governments.[176] In Germany, mandatory fee structures have enabled widespread implementation of affordable legal expense insurance.[177]
History[edit]16th-century painting of a civil law notary, by Flemish painter Quentin Massys. A civil law notary is roughly analogous to a common law solicitor, except that, unlike solicitors, civil law notaries do not practice litigation to any degree.
Ancient Greece[edit]
The earliest people who could be described as "lawyers" were probably the orators of ancient Athens (see History of Athens). However, Athenian orators faced serious structural obstacles. First, there was a rule that individuals were supposed to plead their own cases, which was soon bypassed by the increasing tendency of individuals to ask a "friend" for assistance.[178] However, around the middle of the fourth century, the Athenians disposed of the perfunctory request for a friend.[179] Second, a more serious obstacle, which the Athenian orators never completely overcame, was the rule that no one could take a fee to plead the cause of another. This law was widely disregarded in practice, but was never abolished, which meant that orators could never present themselves as legal professionals or experts.[180] They had to uphold the legal fiction that they were merely an ordinary citizen generously helping out a friend for free, and thus they could never organize into a real profession—with professional associations and titles and all the other pomp and circumstance—like their modern counterparts.[181] Therefore, if one narrows the definition to those men who could practice the legal profession openly and legally, then the first lawyers would have to be the orators of ancient Rome.[182]
Early Ancient Rome[edit]
A law enacted in 204 BC barred Roman advocates from taking fees, but the law was widely ignored.[183] The ban on fees was abolished by Emperor Claudius, who legalized advocacy as a profession and allowed the Roman advocates to become the first lawyers who could practice openly—but he also imposed a fee ceiling of 10,000 sesterces.[184] This was apparently not much money; the Satires of Juvenal complain that there was no money in working as an advocate.[185]
Like their Greek contemporaries, early Roman advocates were trained in rhetoric, not law, and the judges before whom they argued were also not law-trained.[186] But very early on, unlike Athens, Rome developed a class of specialists who were learned in the law, known as jurisconsults (iuris consulti).[187] Jurisconsults were wealthy amateurs who dabbled in law as an intellectual hobby; they did not make their primary living from it.[187] They gave legal opinions (responsa) on legal issues to all comers (a practice known as publice respondere).[188] Roman judges and governors would routinely consult with an advisory panel of jurisconsults before rendering a decision, and advocates and ordinary people also went to jurisconsults for legal opinions.[187] Thus, the Romans were the first to have a class of people who spent their days thinking about legal problems, and this is why their law became so "precise, detailed, and technical."[187]
Late Ancient Rome[edit]Detail from the sarcophagus of Roman lawyer Valerius Petronianus 315-320 AD. Picture by Giovanni Dall'Orto.
During the Roman Republic and the early Roman Empire, jurisconsults and advocates were unregulated, since the former were amateurs and the latter were technically illegal.[189] Any citizen could call himself an advocate or a legal expert, though whether people believed him would depend upon his personal reputation. This changed once Claudius legalized the legal profession. By the start of the Byzantine Empire, the legal profession had become well-established, heavily regulated, and highly stratified.[190] The centralization and bureaucratization of the profession was apparently gradual at first, but accelerated during the reign of Emperor Hadrian.[191] At the same time, the jurisconsults went into decline during the imperial period.[192]
In the words of Fritz Schulz, "by the fourth century things had changed in the eastern Empire: advocates now were really lawyers."[193] For example, by the fourth century, advocates had to be enrolled on the bar of a court to argue before it, they could only be attached to one court at a time, and there were restrictions (which came and went depending upon who was emperor) on how many advocates could be enrolled at a particular court.[194] By the 380s, advocates were studying law in addition to rhetoric (thus reducing the need for a separate class of jurisconsults); in 460, Emperor Leo imposed a requirement that new advocates seeking admission had to produce testimonials from their teachers; and by the sixth century, a regular course of legal study lasting about four years was required for admission.[195] Claudius's fee ceiling lasted all the way into the Byzantine period, though by then it was measured at 100 solidi.[196] Of course, it was widely evaded, either through demands for maintenance and expenses or a sub rosa barter transaction.[196] The latter was cause for disbarment.[196]
The notaries (tabelliones) appeared in the late Roman Empire. Like their modern-day descendants, the civil law notaries, they were responsible for drafting wills, conveyances, and contracts.[197] They were ubiquitous and most villages had one.[197] In Roman times, notaries were widely considered to be inferior to advocates and jurisconsults.[197] Roman notaries were not law-trained; they were barely literate hacks who wrapped the simplest transactions in mountains of legal jargon, since they were paid by the line.[198]

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