Lesson Two: Legal Profession 第二课：法律职业[E-C]
2010-09-19 17:49:46A-A+
Part One: The Bar
第一部分：律师协会
The regulation of the legal profession is primarily the concern of the state, each of which has its own requirement for admission to practice. Most require three years of college and a law degree. Each state administers its own written examination to Exam, a day-long multiple-choice test, to which the state adds a day-long essay examination emphasizing its own law. A substantial fraction of all applicants succeed on the first try, and many of those who fail pass on a later attempt. In all, over forty thousand persons succeed in passing these examinations each year and, after an inquiry into their character, are admitted to the bar in their respective states. No apprenticeship is required either before or after admission. The rules for admission to practice before the federal court vary with the court, but generally those entitled to practice before the highest court of a state may be admitted before the federal courts upon compliance with minor formalities.
法律职业方面的规定主要是州来制定的，每个州均其自己的执业准入要求。大部分州都要求有三年的法学教育和法律学位。各州管理其各自的法律职业资格考试，该考试为一天的多项选择题测试，此外各州另加一天侧重考察有关本州法律的法律文书测试。大部分考生都能一
次通过考试，即使没通过的考生第二次考试也能考过。美国每年总共能有四万名考生通过考试，经过品质审核后他们即可申请加入当地的律师协会。律师执业前后均不必经过实习。联邦法院执业的准入规则与一般法院不同，但是一般来说，那些在州最高法院获得准入执业的律师在办完一些无关紧要的手续后即可获准在联邦法院执业。
A lawyer’s practice is usually confi ned to a single community for, although a lawyer may travel to represent clients, one is only permitted to practice in a state where one has been admitted. It is customary to retain local counsel for matters in other jurisdictions. However, one who moves to another state can usually be admitted without examination if one has practiced in a state where one has been admitted for some time, often five years.
一个律师的执业范围通常仅限于一个地区，因为，尽管律师可以代表当事人到其他地区办理事务，但是一个律师只能在其获准开业的州内从事律师业务。通常是聘请当地律师处理来处理其他辖区内的事务。然而，如果一个律师已在一个州执业一段时间，通常是5年，当他移居到另一州的时候，通常不需要再通过该州的考试即可获得执业准入。
A lawyer may not only practice law, but is permitted to engage in any activity that is open to other citizens. It is not uncommon for the practicing lawyer to serve on board of director of corporate clients, to engage in business, and to participate in public affairs. A lawyer remains a member of bar even after becoming a judge, an employee of
government or a private business concern, or a law teacher, and may return to private practice from these other activities. A relatively small number of lawyers give up practice for responsible executive positions in commerce and industry. The mobility as well as the sense of public responsibility in the profession is evidenced by the career of Harlan Friske Stone who was, at various times, a successful New York lawyer, a professor and dean of the Columbia School of Law, Attorney General of the United State, and Chief Justice of the United States.
一位律师不只是从事律师业务，还可以从事其他公民的事宜。执业律师在其公司客户里担任董事、从事商业活动和参与公共事务也很常见。律师即使做法官，受雇于政府官员或商业公司，或当法学老师仍旧是律师协会的成员，而且他们也可以从这些其他的职业再转做执业律师。只有相对很少一部分律师放弃律师执业而在工商业担任责任重大的领导层职位。在律师职业的流动性和公共责任感的特征方面，哈兰﹒菲斯克﹒斯通的职业生涯是个很好的例证，在不同时期，他曾先后是纽约州一位成功的律师、哥伦比亚大学法学院的院长、总检察长和联邦最高法院首席大法官。
There is no formal division among lawyers according to function. The distinction between barristers and solicitors found in England did not take root in the United States, and there is no branch of the profession that has a special or exclusive right to appear in court, nor is there a branch that specializes in the preparation of legal instruments. The
American lawyer’s domain includes advocacy, counseling, and drafting. Furthermore, within the sphere broadly defined as the “practice of law” the domain is exclusive and is not pen to others. In the field of advocacy, the rules are fairly clear: any individual may represent himself or herself in court but, with the exception of a few inferior courts, only a lawyer may represent another in court. Non-lawyers are, however, authorized to represent others in formal proceedings of a judicial nature before some administrative agencies. The lines of demarcation are less clear in the areas of counseling and drafting of legal instruments, as for example between the practice of law and that of accounting in the field of federal income taxation. However, the strict approach of most American courts is indicated by a decision of New York’s highest court that a lawyer admitted to practice in a foreign country but not in New York is prohibited from giving legal advice to clients in New York, even thought the advice is limited to the law of the foreign country where the lawyer is admitted. A foreign lawyer may, however, be admitted to the bar of one of the states and may, even without being admitted, advise an American lawyer as a consultant on foreign law.
律师之间并没有职能方面的正式划分。英国的诉讼律师和非诉律师的区分在美国并不存在，在律师职业中并不是说只有部分律师有出庭诉讼的特有或专属权，也不是部分律师只从事法律文件的准备工作。美国律师的执业领域包括代理诉讼、提供法律咨询和起草法律文件。而
且，在广泛地被人们称为“律师事务”的范围内，执业领域是特定且不对外公开的。在诉讼领域，规则是相当的清晰：每个人均可代表他/她自己出庭，但是在少数基层法院只有律师能代表当事人出庭。非律师也可被授权代理其他人参加行政机关的一些司法性质的正式程序。特别是在联邦税收方面，律师和会计师在提供咨询和起草法律文件方面的界限则更不明显。但是，美国大多数法庭都遵循纽约最高法院的一个判例所确认的严格的规则，即外国的执业律师若没有在纽约获得执业准入则不允许向在纽约的客户提供法律意见，即使这个法律意见仅限于该律师所执业的国家的法律。然而，一个外国律师可以申请加入一个州的律师协会，而且即使未获准执业，也可以给一个美国律师提供有关外国法方面的咨询。
Part Two: Lawyers in Private Practice
第二部分：私人执业律师
Among these fifteen lawyers in practice, nine, a clear majority, are single practitioners. The remaining six practice in law firms, which are generally organized as partnerships. Four or five of these six are partners and the others are associates, a term applied to salaried lawyers employed by a firm or another lawyer. This trend toward group practice is of relatively recent origin. Throughout most of the nineteenth century law practice was general rather than specialized. Its chief ingredient was advocacy rather than counseling and drafting, and the prototype of the
American lawyer was the single practitioner. Marked specialization began in the later part of that century in the large cities near the financial centers, With the growth of big business, big government and big labor, the work of the lawyer accommodated itself to the need of clients for expert counseling and drafting to prevent as well as to settle dispute, The best lawyers were attracted by this work and leadership of the bar gravitated to persons who rarely if ever appeared in court and who were sought after as advisors, planners, and negotiators. Today the lawyer regards it as sound practice to be continuously familiar with clients’ business problems and to participate at all steps in the shaping of their policies. Major business transactions are rarely undertaken without advice of counsel.
在十五个执业律师中，能有九个（大多数）都是单独开业者。其他六个在律师事务所执业，这些律所通常是合伙制的。6个律师中的4-5个是合伙律师，其他的是非合伙律师，他们一般是受雇于律所或律师的工薪律师。这种律师联合执业是近些年来所形成的趋势。在整个19世纪的大部分时期律师业务是一般化的而非专业化的，律师的主要业务是出庭诉讼而不是提供咨询和起草法律文书，美国律师最初都是单独开业者。19世纪后期一些大城市的金融中心附近，律师业务开始呈现出显著的专业化，随着商业膨胀、政府扩张以及劳动力的增多，律师也开始调整自己的业务以便满足客户的除解决纠纷外的专业咨询和起草法律文件以预防纠纷的需求，许多优秀律师被这些业务吸
引，律师界的领导人物多为那些极少出庭（如果确曾出庭的话）的人和那些作为顾问、策划者和谈判者而深受欢迎的人。现在的律师认为保持了解客户商业中的问题并参与到他们决策的过程是正常、合理的执业行为。大部分商业交易都要征询律师的法律意见。
Part Three: House Counsel
第三部分：专职法律顾问
Out of every twenty lawyers, two are employed by private business concerns, such as industrial corporations, insurance companies, and banks, usually as house or corporate counsel in the concern’s legal department. The growth of corporations, the complex of business, and the multitude of problems posed by government regulation make it desirable for such firms to have in their employ persons with legal training who, at the same time, are intimately familiar with the particular problems and conditions of the firm. In large corporations the legal department may number one hundred or more. The general counsel , who head of office, is usually an officer of the company and may serve on important policy making committees and perhaps even on the board of directors。 House counsels remain member of the bar and are entitled to appear in court, though an outside lawyer is often retained for litigation. However, it is house counsel’s skill as advisor rather than as advocate that is a valued asset. Constantly in touch with the employer’s
problems, house counsel is ideally situated to practice preventive law and may also be called upon to advise the company on its broader obligation to the public and the nation.
有十分之一的律师受雇于私人企业，如商业公司、保险公司和银行，他们一般在这些公司企业的法务部做专职法律顾问。公司的发展、商业活动的复杂性以及政府颁布的法规带来的诸多问题使得这些公司很有必要让其员工接受法律培训并且让他们了解公司的特有问题和状况。一些大公司法务部可能会有一百多人。法务部负责人法务总监也通常是公司的领导层，他们可能在重大决策委员会甚至董事会中任职。公司法律顾问仍是律师协会的成员，可出庭代表诉讼，尽管公司一般是聘请外部律师来解决诉讼。然而，法律顾问的主要职责是提供法律意见而非出庭诉讼，其法律意见是很有价值的。由于经常了解公司老板的问题，法律顾问主要从事预防性法律事务，也可能被要求建议公司注意更广泛的公共义务和国家义务。
Part Four: Lawyers in Government
第四部分：政府部门中的律师
A parallel development has taken place in government and two out of twenty lawyers are now employees of the federal, state, county, and municipal governments, exclusive of the judiciary. Many of those entering public service are recent law graduates who find government salaries sufficiently attractive at this stage of their careers and seek the training that such service may offer as a prelude to private practice.
Limitation on top salaries, however, discourages some from continuing with the government. The majority serves by appointment in the legal departments of a variety of federal and state agencies and local entities. The United States Department of Justice alone employs more than two thousands, and the Law Department of the City of New York more than four hundreds. Others are engaged as public prosecutors. Federal prosecutors, the United States attorneys and their assistants, are appointed by the President and are subordinate to the Attorney General of the United States. State prosecutors, sometimes known as district attorneys, are commonly elected by each county and are not under the control of the state attorney general. As a rule, lawyers in government are directly engaged in legal work, since law training is infrequently sought as preparation for general government service. However, a small but important minority that constitutes an exception to this rule consists of those who have been appointed to high executive positions and those who have been elected to political office. Though the participation of lawyers in government has declined recently, for two centuries lawyers have made up roughly half of the Congress of the United States and of the state governors. These figures bear out the comment of Chief Justice Stone that, “No tradition of our profession is more cherished by lawyers than of its leadership in public affairs.”(Over)
在政府部门中也呈现出相似的发展，有十分之一的律师受雇于联邦、
州、县和市政府，司法系统除外。从事这些公共法律服务的大部分律师都是法学院的毕业生，对他们来说在政府部门工作的工资在他们执业生涯的刚开始阶段相当的诱人，而且寻求这种工作可提供的锻炼可作为私人开业的前奏。然而，对高薪水的限制让他们中一些人放弃继续在政府中的工作。大部分律师都是受任命在联邦和州的一些代表处和当地团体中任职。仅美国司法部就雇佣两千多名律师，纽约市的法律部也雇佣四百多名律师。其他律师则作为公诉检察官。联邦检察官、国家检察官和他们的助理检察官都是由美国总统任命的，并隶属于美国司法部。州检察官，有时候被称为地区检察官一般是由各州选举产生且不受其州检察长管辖。通常的规则是政府部门中的律师直接从事法律工作，因为很少为他们提供法律培训以让他们参与日常政府服务。但是，构成对此规则之例外的有虽少但很重要的一小部分人，包括那些被任命担任高级行政职务的人和那些被选举担任政治性官职的人。近年来虽然律师在政府部门工作的有所减少，但这两个世纪以来律师却占了美国国会和州政府官员中大约一半的职位。这些数字印证了首席大法官休斯的那句评论：“在我们的职业传统中，没有一个能像其担任公共事务领导的传统那样受到律师们的钟爱的。”（完）