“A lawyer’s duty to a client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law and the lawyer’s own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.” –Law Society of Saskatchewan
The role of a lawyer in the US, that is from seeking justice for their client, bestowing upon them apt knowledge of the law, to simply restricting themselves to ethical means of attaining the aforementioned, has been termed as the most essential component of the legal system.
However, before understanding the justice seekers, it is also equally crucial to comprehend the essence of justice providers.
1. The Constitution of the United States
In 1787, numerous representatives from 12 of the 13 states of America excluding Rhode Island, which included public figures such as George Washington, Benjamin Franklin, James Madison, John Adams, and Thomas Jefferson states made their presence in a constitutional convention where US Constitution was given birth to.
A requirement of having 9 states to ratify the draft of the constitution, in 1798, when the ninth state, gave their assent to the aforementioned, the draft converted into an official codified document which repealed the regulatory statute preceding it, the Articles of Confederation.
As and when the proposed constitution saw the light of day, the public debates started raising a very principal gap which was that the said document contained no explicit protection of individual civil rights.
To rectify the situation, the creators of the constitution, assured the citizens of the states where this discussion was termed the most heated, that once made effective, the document shall be amended to include individual rights as the first and foremost act.
The said concern gave rise to 12 constitutional amendments in the very same year as the document, which is known as the constitution, was put into motion, of which 10 amendments were passed followed by their conversion into the Bill of Rights. Complementing the amendments was the Bill of Rights, which the judicial authorities amended 17 times further under the Constitution.
2. The Hierarchy of Courts
The U.S. Constitution has the sole authority, brought into existence, the U.S. Supreme Court which grants Congress the responsibility of creating lower courts. The U.S. district courts and the U.S. circuit courts of appeals are the two inferior courts, Congress has created with their power, under the supervision of the Supreme Court.
The former, which is the U.S. district courts are where the majority of federal cases be they civil and/or criminal is first heard, hence they are called the courts of first instance in the judicial system. There are 94 such district courts positioned for the regulation of justice in different parts of the nation.
Positioned in each court of Appeals District Courts, Federal Circuit Court of International Trade, Claims Court, and Court of Veterans Appeals Supreme Court state are at least one District court. Not just the fact that District judges preside individually to hear cases, but judges that have control over bankruptcy cases and magistrate judges who are obligated to extend their judicial duties, all of them fall under the supervision of district judges that share the seat with the aforesaid judges within the district courts.
Any decision made in the said district court, if the parties are dissatisfied with, the judgment passed, then can file an appeal in the court of appeals. Organized into 12, these regional intermediate appellate courts are located in different parts of the US of which the Court of Appeals for the Federal Circuit, is a court that serves with a nationwide jurisdiction for a limited number of specialized cases.
A party to a case can file an appeal in the court of appeals, which is often heard by a panel comprising 3 judges each. Adding on the same, these circuit courts fall under the regional category, as well as entertain appeals from decisions ordered by the federal administrative bodies, whereas a non-regional circuit court known as the Federal Circuit shines a light on appeals in specific cases such as those that involve patent laws and claims against the federal government.
After obtaining a judgment or order from the court of appeals, if the party wants to further the proceedings, then they can file for a petition in the US Supreme Court, known as the apex court in the country, which is positioned at the top of the federal court system.
Encompassing nine justices that preside hearings together to come to a consensual conclusion, at its discretion, the Supreme Court shall entertain appeals coming from the federal circuit courts of appeals as well as the high courts of the state if the appeal comprises of the U.S. Constitution or any law prevalent in the nation.
3. How Do Legislatures Come Into Action?
From passing a bill in both houses of Congress which is the Senate and the House of Representatives, to showcasing the same before the President to obtain his/her assent or veto, who serves as the head of the executive division, a federal law can only exist if the bill follows through the aforementioned steps.
Adding on the aforesaid, if the President uses his/her veto power to negate a bill, Congress has the opportunity to override the said decision if the bill receives 2/3 votes of the houses of Congress.
Post the assent to a bill, it becomes a federal law, which is none other than the statutes that are in use. From encompassing the concept of paying income taxes, and establishing the Social Security system, to protecting the environment by regulating air and water pollution, the legal statutes touch upon a variety of subjects that is essential for citizens.
Each state comprises their own legislative and executive divisions that create, initiate, and implement laws within that particular state.
4. The Idea of A Lawyer
Serving as an advocate for the parties involved in a dispute, a lawyer’s duty is not only to present their side of the evidence, and analyze the evidence showcased by the other side but to express arguments that prove the parties’ contentions and hold that interest till the end of the proceedings.
From engaging in any sort of monetary transaction regarding a home or business, drafting a will, negotiating the terms of a contract, or indulging in a situation pertaining to separation or divorce, lawyers make it a point to safeguard the interest of their clients through and through.
The scope of understanding the lawyer’s responsibilities is extensive as they are not only restricted to explaining to their clients as to which all laws are applicable to their case and outlining a number of different options suitable but also in terms of advising the risks and benefits each choice holds.
Lawyers also indulge in negotiations with the other party to find a way to resolve an issue amicably, and mutually, and that is beneficial in all senses.
Although lawyers are made for safeguarding the interest and offering legal protection to their clients, it is essential to pinpoint that they also represent the court as officers hence, they owe a duty of due respect in terms of maintaining professional conduct in the court of law that not only includes a duty of honesty and integrity but also a duty of being absolutely frank, that refers to a responsibility of unveiling certain factual and legal information to the court.
4.1 The Criteria for Becoming a Lawyer
To understand how laws and the legal profession are executed, lawyers must undergo special kind of training. Each state has put forth certain standards that must be met by an individual only after which a license is granted for the said person to practice law in that location.
The following are the requisites that must be fulfilled by the individual to do the aforesaid:
- Have a bachelor’s degree or its equivalent.
- Complete three years at a law school having ABA recognition.
- Attempt and clear the state bar examination, which usually lasts for two or three days. The exam analyses the knowledge of the individual in specified areas of law. Additionally, there are tests that examine professional ethics and professional responsibility.
- Must have a clean slate pertaining to character and fitness. Applicants for legal licenses must be approved by a committee that examines and analyses the character and background of the said person.
- Take an oath, to always serve justice, maintain ethics and support the state and federal constitutions as well as laws.
- Own a license authorized by the top court in the state, which usually refers to the state supreme court.
4.2 The Access Granted to Lawyers and Legal Services
Every individual is entitled to a right to call upon for receiving assistance from a lawyer of their choice, who shall not only be responsible for safeguarding and establishing their rights but also for defending the individuals in all stages of civil or criminal proceedings.
It is highly essential for the state governments to make sure that proper procedures and responsive protocols are brought into play for having given equal access to lawyers within their territory and subject to their jurisdiction, without categorization of any kind, that includes discrimination on the basis of race, colour, ethnic origin, sex, language, religion, political or another opinion, national or social origin, property, birth, economic or another status.
Not only the aforementioned, but the state governments must also, very diligently put forth the provisions for having sufficient funding and other resources for legal services to the poor and as deemed important, to any other disadvantaged persons.
The professional conduct of lawyers shall be in such a form so that there is cooperation in the organization and in consensus with the provision of services, facilities, and other resources.
Apart from the duties stated above, the state governments and other professional associations and institutions of lawyers must be in a position to initiate and promote programmes that serve as a tool to inform the public about their rights and duties under the law and the importance of lawyers in safeguarding their fundamental freedoms.
4.3 Special Safeguards in Criminal Justice Matters
Serving as an absolute essential duty of the state governments is the idea to ensure that all individuals are immediately informed by a competent individual holding the power to bestow the knowledge of their rights, who are known as lawyers, in situations that give rise to an arrest or detention or when they are charged with any criminal offence.
Under any circumstances, if an individual is not able to acquire the service of a lawyer that the interests of justice so require, then the person has the right which entitles him/her to appoint a lawyer of experience, competence and knowledge who can comprehend the type of the offence they are charged with in order to provide appropriate legal assistance, without any kind of consideration if they fall under the category of an indigent person.
State governments have the duty to ensure that any and all detained or arrested individuals, attached or devoid of a criminal charge, must have the right to be directed to a lawyer, which shall not take any additional time beyond forty-eight hours from the time of arrest or detention.
4.4 Duties and Responsibilities of A Lawyer
A lawyer not just has to uphold the respect of the court considering they are officers of law but must also ensure to safeguard of the interest of the clients at all costs through the course of proceedings.
At all times, it is essential for a lawyer to maintain the honour, respect, and decency of the legal profession as they are the essential agents of the administration of justice.
The duties of lawyers towards their clients shall include:
- It is essential to make the clients understand their legal rights, obligations and duties, as well as brief them about the modus operandi of the legal system which is as relevant to the extent of their legal rights and obligations.
- To assist clients in every possible way and take legal action to protect their interests that is plausible considering their circumstances.
- As the clients are new to the court system, guiding them in making an appearance before courts, tribunals, or administrative authorities, serves to be the most crucial responsibility of a lawyer.
- While keeping in mind the official standards set and the ethics of the legal profession, to maintain the essence of human rights and fundamental freedoms presented by national and international law, lawyers have the duty to protect the rights of their clients and promote the cause of justice in a nutshell.
4.5 Safeguarded Rights of The Lawyers
Serving as highly crucial, the state governments must make it a point that not just lawyers are given opportunities to disperse their professional functions without any sort of intimidation, hindrance, or harassment but are also able to have a consultation with their clients freely within their own country and abroad.
Joining the same idea is the fact, lawyers must not be threatened with, prosecution or any other sanctions inclusive of administrative and economic for any step taken in accordance with recognized professional duties, standards, and ethics.
If at all, under any circumstance, the security of the lawyers is at risk as a result of discharging their functions, then the authorities must take an action to protect them from such situations.
To not be associated, linked, or identified with their clients or the aforesaid causes as a result of discharging their functions, is an utmost requirement for a lawyer.
Being in the legal profession, it marks a priority for lawyers to enjoy civil and penal immunity for the relevant statements made by them with good intentions in written or oral pleadings or when they make an appearance before a court, tribunal or other legal or administrative authority.
Ensuring that lawyers are always given access to appropriate information, files and documents in their possession under the required time frame so as to enable the lawyers to provide effective legal assistance to their clients is one of the most essential requisites that must be taken care of by the relevant authorities.
To respect and be marked as confidential always any kind of conversations and consultations that prevails between lawyers and their respective clients within their professional relationship, is the responsibility of the state governments.
7. The Disciplinary Proceedings
In relation to federal law, and customs and officially put forth international standards and norms, codes of professional conduct for lawyers must be created by the legal profession.
From the fact that lawyers have the right to a fair hearing, which is inclusive of the right to be assisted by a lawyer at the discretion of the client to the complaints put up against the law officers be fairly dealt with under appropriate procedures, the lawyers are equipped with specific rights as they are known as the administrators of justice.
Such aforesaid disciplinary proceedings which are executed against lawyers are to be brought before an unbiased disciplinary committee created by the legal profession that is put before an independent statutory authority or a court, hence the aforesaid is subjected to an independent judicial review.
6. Professional Associations of Lawyers
The arena of the legal profession grants the opportunity to lawyers to form and join various professional associations to not just represent their interests but also promote their continuing education and training along with the idea to protect their professional integrity.
The said professional connections of lawyers must be in sync with the state governments to ensure that everyone receives appropriate and equal access to legal services as well as being able to, without any kind of improper intervention, counsel and assist their clients in accordance with the law and the authorized professional standards and ethics.
From analyzing the concept of lawyers, and how the judicial branch was brought into force, to comprehending the duties and responsibilities the lawyers are bestowed with, understanding the role of lawyers in the US legal system is highly crucial to absorbing the essence of the US judicial system.
As officers of the court, they are not only responsible for upholding the respect and dignity of the legal system where justice is served with honesty but also the interests of their clients with equal sincerity.