Licensing of Attorneys
| Author | Jeffrey Wilson |
| Pages | 35-42 |
Page 35
The terms lawyer and attorney are commonly used interchangeably; one refers to the other. In each of the 50 states and the District of Columbia, the practice of law is limited to attorneys/lawyers who have been formally registered and admitted to practice in that state or district. Being admitted to practice is generally a three-fold process: graduation from an accredited law school, obtaining a passing score on the multi-state and state bar examinations, and meeting all character and fitness criteria established by a state administrative board responsible for overseeing the practice of law in that state. The unlicensed practice of law, by either a layman or a trained lawyer who has failed to obtain licensure, carries serious consequences, including administrative, civil, and/or criminal sanctions.
Technically speaking, successful graduation from an accredited law school, along with passing scores on multi-state and state bar examinations, objectively determine professional competency of an individual to practice law. However, because incompetency or unprofessional conduct can result in serious harm or damage to a client, licensure is mandated to ensure the overall and continued competence of each practitioner.
As with other licensed professions, the practice of law is primarily self-policed by the state administrative body that admits each person to practice. The state maintains a continued interest in the competency of attorneys after admission to practice, and has power to suspend or rescind licenses to practice within the state. Most states also mandate periodic continued legal education (CLE) after law school, to ensure that lawyers stay current on changing law and procedural practice.
The framers of the U.S. Constitution clearly believed that the interpretation of constitutional rights should be entrusted to specialists. Article III provides for an independent judicial power equal in power to the executive and legislative branches, and one which has jurisdiction over both states and individuals. It also created a federal judiciary with the power
Page 36
to determine whether Congress had exceeded its powers, and the power to review state court decisions in certain cases.
Early colonial legislation was primarily reviewed by administrative authorities in the mother countries (e.g., England, Spain, France). As colonial industry and population increased (to approximately 300,000 in 1700), review of colonial legislation came under increasing scrutiny. As for colonists, the necessity of dealing in commercial matters with English merchants, and the reliance on English law to support colonists' grievances against the crown, enhanced the desire to create a native force of legal professionals who understood the nuances of legal terms and clauses.
Apprenticeships were completed in a manner similar to England's Inns of Court. There was no formal "admission" to practice law, but, following "book" study and apprenticeship, prospective lawyers were "accepted" into practice by local and experienced members of the profession. By the time of the American Revolution, each colony had a bar of legally trained and respected professionals.
Eventually and especially in colonial cities, the legal profession enjoyed both social status and economic success. With such status, colonial lawyers became increasingly involved in politics as well; 25 of the 56 signatories to the Declaration of Independence were lawyers.
With newly-gained American independence came a certain political antipathy toward English law, resulting in the creation of several early statutes prohibiting the citation of any English decision handed down after independence. Loyalist attorneys returned to England, and those that stayed to seize political or judicial posts under the new government found much of their talents and expertise no longer in demand. The opportunity to broaden the base of American law was considerable, with an expressed interest in Roman and French law for enlightenment and guidance. (The Code of Napoleon did not appear until the beginning of the 19th century.) However, few judges or lawyers were versed in foreign languages, and the lack of an adequate body of American case law to bridge the gap left the legal bar in splinters.
For the above reasons, the quality of lawyers in the states was palpably inferior to the systemically-trained professionals of England. Early American lawyers were generally self-taught and self-read. Respected laypersons were often elected or appointed as judges to fill the gap and keep up with the newly burgeoning nation. During the early 1800s, the state of Rhode Island had a farmer serving as its chief justice, as well as a blacksmith serving as a member of its highest court. Early judges grappled with jurisprudential conflicts to form new law that would fit the peculiar needs of a young growing country, and especially, the needs peculiar to their own jurisdictions. Eventually, judges "rode circuits," i.e., they traveled from county seat to county seat, hearing cases, and lawyers often traveled with them.
As the volume of new American case law grew, the uncertainty of earlier parochial court decisions gave way to more predictable and standard outcomes. Local judges increasingly strove to shape their own decisions so as to provide consistency with that of other regional (and eventually, state) jurisdictions.
By the end of the Civil War (1860s), the influence of English law upon America was negligible, although familiar procedures, vocabulary, and conceptual approaches to legal jurisprudence survived and were incorporated into American law. A few states originally paralleled the English system by distinguishing barristers from solicitors within the legal profession (Massachusetts, New Jersey, New York, Virginia). However, by the mid-1800s, such distinctions were dropped in favor of a single class of lawyers who dealt directly with both clients and courtrooms.
Notwithstanding the splintered beginnings of American law, the accepted preparation for becoming a lawyer remained the completion of an apprenticeship under a trained lawyer, along with self-reading of such printed sources as the American edition of William Blackstone's "Commentaries on the Laws of England" (which first appeared in the 1760s) and James Kent's "Commentaries on American Law." Eventually, Blackstone's Commentaries sold as many copies in America as in England.
The earliest known formal legal education was at Oxford University, as early as the 1750s. William Blackstone began offering lectures on the English common law at that time (which became the source for his later Commentaries), and many smaller American universities later followed his example. In 1779, a chair of law was established at William...
To continue reading
Request your trial