Tuesday, February 01, 2005

The Practice of Law

In my previous blog post entitled What Is the Law?, I set forth my own operational definition of "The Law." To wit, in its most commonly-used and general sense, the law is an institution that defines and governs human affairs -- i.e., a collection of laws that comprises a particular legal system. In this post, I will discuss the practice of law and attempt to clarify this very nebulous concept. I will also try to explain how my experiences with the practice of law have informed my personal sense of mission as an Internet consultant.

In its most general sense, the practice of law involves licensed attorneys giving legal advice, drafting legal documents, and representing their clients in legal negotiations and court proceedings such as lawsuits and criminal prosecutions. In this regard, the term attorney at law is virtually synonymous with the term lawyer and can be used to distinguish a licensed attorney from a layperson who is acting as an attorney in fact. An attorney in fact is a designated agent who has been given the power of attorney - i.e., a proxy to act on someone else's behalf. While there is nothing preventing an attorney at law from acting as an attorney in fact, an attorney at law acting in his or her professional capacity does not usually hold or exercise the power of attorney that is, in fact, wielded by an attorney in fact.

Depending on the jurisdiction and the needs of a particular client, the services performed by an attorney at law may be performed by a lawyer, an enrolled agent, a barrister, a solicitor, or a civil law notary. In addition to the subtle distinctions between the names of attorneys at law in various jurisdictions, there is also a substantial amount of overlap between the practice of law and various other professions wherein clients are represented by agents. These professions include real estate, banking, accounting, and insurance. Moreover, an increasing number of independent paralegals and unlicensed attorneys now offer services that have traditionally been offered only by lawyers and the paralegals that they employ, such as document preparation and even representation in certain quasi-legal proceedings.

For the most part, the practice of law is divided into three major areas: (1) Transactional law; (2) criminal law; and (3) civil law. Transactional law typically involves the drafting of legal documents, like contracts and wills, whereas criminal law typically involves the type of lawyering that is the fodder for TV shows like "Law and Order" and civil law typically involves disputes wherein people and/or businesses end up suing each other. There can be a great deal of overlap between these three general areas of practice, but most lawyers tend to have a preference for representing people in either transactions, criminal matters, or civil disputes.

I've had practical, hands-on experience with all three of the above-mentioned general areas of practice, as well many other areas of the law that don't fit neatly into these categories, such as administrative law, and I can say that (without exception) a lawyer needs at least one client or potential client to actually be engaged in the practice of law. As such, client intake is one area of commonality between all areas of legal practice. However, not all lawyers are familiar with the process of client intake, particularly lawyers who work for large firms.

In a large law firm, there are usually one or more "rainmakers" who bring in the business -- i.e., the partners -- and one or more lawyers who do all the grunt work - i.e., the associates. In theory, the hard work of an associate is rewarded when he or she becomes a partner; in reality, very few associates ever make the cut. Rather, most associates are cut loose after a few years of hard work with no idea of what the client intake process actually involves, much less any idea of how to practice law on their own.

In contrast to attorneys who work for large law firms are those attorneys who begin their legal careers as public defenders or as members of one of the Judge Advocates General (JAG) corps in the various branches of the United States military. Said attorneys actually get a great deal of practical experience in the practice of law, but -- like associates in large law firms -- they are well-insulated from the harsh financial realities of the practice of law. Even so, if and when these attorneys open their own offices, attorneys who have been public defenders or JAG corps attorneys have a distinct advantage over most associate attorneys who might hope to do the same, primarily because of their experience with client intake.

Unlike most associates at large law firms, I have had the opportunity to experience the process of client intake firsthand. During this process, a potential client will usually meet with an attorney for a "free" initial consultation. During this initial consultation, the attorney will listen to the potential client's story and evaluate the potential client's situation, but seldom will the attorney actually give the potential client any legal advice or offer any legal opinions. Rather, at this point, the attorney's primary concern is whether he or she wants to represent that particular potential client, and the primary determining factor for attorneys who are not public defenders or members of the JAG corps is usually how much revenue that potential client represents. Indeed, many law firms hire non-lawyers as gatekeepers to conduct the initial potential client interview and determine a potential client's ability to pay.

Ethically speaking, it is incumbent upon an attorney to turn away a client who does not actually need a lawyer, but it is very rare that an attorney will actually turn away a paying client, and there are certain cases that are such obvious moneymakers that most attorneys will take them on a contingency basis. In other words, when the issue of potential revenue is resolved, the typical attorney will waste no time catching the money while the tears are falling. After that, and only after that, do the client's concerns become a real issue for most lawyers. Moreover, then, and only then, do most attorneys offer a meaningful opinion on whether they can actually help a client with the legal issues that are facing them.

In my work as an Internet consultant, I proceed upon the premise that all of my potential clients need me more than I need them, and my initial consultation consists of demonstrating this fact to them by putting their concerns first and answering any questions they may have. After I have demonstrated to them in no uncertain terms that I can help them, and only after that, do I expect or want to get paid. At that point, they usually have their checkbooks out and are asking me how much they owe me. And by virtue of the fact that almost all of my clients will benefit financially from my services, I have no compunction about taking their money.

The pragmatic financial concerns that are inherent in the practice of law will often prevent ethical attorneys from enjoying the outward trappings of success. In fact, some of the best attorneys whom I know must find another way to earn a living while they are engaged in the practice of law. Some teach, others temp; and still others live off of their spouses, parents, or trust funds. As for me, I hope to raise the bar , both literally and figuratively, by selling my Internet consulting services to only the most noble and competent of attorneys. Said attorneys do not simply practice law, they aspire to see that justice is done. The money that they make in the process is just a way of keeping score.

If you want to study the practice of law, consider getting an online university degree. Over the last several years the emergence of accredited colleges online law degrees has made it easier than get started on a law career.