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Для студентов юридического факультета
Институт международного права и экономики имени А. С. Грибоедова
кафедрой иностранных языков
С о с т а в и т е л ь доц. В.В. Ежова
Юридические профессии в Великобритании: Учебное пособие на английском языке. – М.: ИМПЭ им. А.С. Грибоедова, 2008. – 16 с.
Подготовлено на кафедре иностранных языков.
© Ежова В.В., 2008
Part I. LEGAL PROFESSIONS IN GREAT BRITAIN
In Great Britain lawyers work in a variety of ways and places. Lawyers are employed in industry and business, in local and central government, and as teachers in universities. The independent practising professions are, however, those parts of the profession which are most in the public eye, and they will be the focus of attention here.
We have a very small ‘higher’ or ‘senior’ branch of the profession – the Bar – and a much larger ‘junior’ branch. There were in 1993 fewer than 8,000 barristers in private practice in the whole of England and Wales, while there were some 55,000 solicitors’ in private practice. Both part of the profession have been growing very rapidly, and the number of solicitors has more than doubled in the past twenty years or so. Much of this rapid growth is undoubtedly due to the demand for legal services paid for by the State system of legal aid.
Text 2. THE DIVISION BETWEEN THE TWO PARTS
OF THE LEGAL PROFESSION
Why should the legal profession be divided in two as it in England when almost every other country in the world manages with one? Does this division serve the public interest? Once again, the answer to the first question is almost certainly that we have a divided legal profession because of the accidents of history, and that it is exceedingly unlikely that anyone devising a new legal system today would think it necessary to have a split profession. But it does not follow that the accidents of history have produced a result which is unsatisfactory. The weight of professional opinion is heavily in favour of maintaining the division between the two part of the profession, and this attitude, though certainly stemming partly from attachment to custom, was also upheld by the Royal Commission on Legal Services in 1979. The strongest argument in favour of the present division is probably that it helps to maintain the high quality of the senior judiciary. The Bar is so small (and the number of senior barristers who are serious candidates for judicial appointment is of course quite tiny for a country as large as this) that it is possible for the Lord Chancellor and his senior colleagues to hand-pick every new judge. And the results are undeniably impressive. Nobody who is in a position to compare the English judiciary with that of countries overseas (except perhaps for those which closely follow the English practice, such as Australia) can seriously doubt that the quality of the higher judiciary is probably unsurpassed, and perhaps even unmatched in the world. On the other hand, it must be admitted that this high quality is purchased at some price: in particular, as we have already seen, judges, like barristers, tend to be very much alike in their background, their values, and probably also their politics.
Text 3. DUTIES TO THE CLIENTS AND TO THE COURT
Another way of putting the distinction between the two branches of the profession is to describe solicitors as the general practitioners of the legal profession – though even this will not remain true for long. More and more solicitors are becoming specialists. It is the solicitors who have the first and direct contact with their clients. Barristers are brought in as and when they are needed – by solicitors.
It is not always popular to talk of the distinction between professional and commercial occupations. It smacks of snobbery (on the part of the ‘professionals’).
None the less, being a solicitor does not simply involve acquiring a knowledge of the theory and practice of the law. It also requires high standards of conduct and an onerous obligation to the courts. The full title of a solicitor is ‘Solicitor of the Supreme Court’. All solicitors are automatically officers of the courts. They have duties to the court which sometimes override the duties to their clients. For instance, solicitors must not knowingly allow their client to tell lies in the witness box. If a client confesses their guilt to a solicitor, the solicitor would be committing an offence if he or she then called the client to give evidence that they were innocent.
Text 4. THE WORK THAT SOLICITORS AND BARRISTERS DO
Solicitors’ work falls into two broad types:
Barristers’ work falls into two categories:
Many barristers regard themselves as belonging to the senior branch of the legal profession. Traditionally, it is said that barristers were drawn from the upper classes in society and solicitors came from the middle classes. It takes less time to quality as a barrister than to become a solicitor, but it takes much longer to start to earn a living wage. Barristers are not allowed to practise in partnerships. They all operate independently; barristers from the same set of chambers can appear on opposite sides in a case.
There is another popular belief about the distinction between barristers and solicitors which is at best only a half-truth. It is widely thought that solicitors do the paperwork in legal matters and barristers act as advocates in court, but although there is some foundation for this belief, the reality is somewhat different. Most advocacy in magistrates’ courts is in fact done by solicitors, and they also have rights of audience which are quite extensively used in County courts and in some crown court cases.
Text 5. THE PLACES WHERE SOLICITORS AND BARRISTERS WORK
There are also other important differences between the professions, some of which are less well known to the public. The first is that the Bar is heavily concentrated in London. Only a third of barristers have chambers in the provinces, and most senior barristers practise on London. Since all appeal work is taken in the Court of Appeal or the House of Lords, both of which sit exclusively in London, there is a natural tendency for the leaders of the profession to practise there. Nearly all barristers in London have their chambers – in a small part of the town – the Temple, Lincoln’s Inn, Gray’s Inn, and the surrounding areas. Barristers have to be members of one or other of the four Inns of Court, which are situated in this part of London, and which own the chambers from which most barristers practise. In consequence they tend to become well acquainted with each other, they often lunch together in the Inns of Court, and they develop a camaraderie which is probably unmatched by any other professional group.
Text 6. HISTORICAL ROOFS OF THE LEGAL PROFESSION
The expression ‘solicitor’ first came into being towards the end of the sixteenth century. There were two types of lawyers practising in the High Courts: attorneys and barristers.
In the eighteenth century attorneys were prevented from joining the Inns of Court. The attorneys in retaliation formed the Society of Gentlemen Practisers in the Courts of Law and Equity. Included in the membership of the Society was a growing group of lawyers called solicitors. Solicitors were employed to solicit favourable decisions on behalf of litigants bogged down in the court process.
The name ‘attorney’ had acquired unpleasant connotations and went out of usage in England, in favour of the ‘gentler’ term solicitor. The only relic of these former days is the Attorney-General, the Government’s chief law officer.
Text 7. LEGAL EXECUTIVES
In addition to solicitors, many firms employ legal executives, who are less qualified than solicitors. In theory, they are there to do the routine, run-of-the-mill legal work, but in practice many of them carry out responsible and complex tasks. The typical job-recruiting advertisement for a legal executive will state that he or she ‘must be able to work without supervision’. Many legal executives do the job of a qualified solicitor and indeed, as they tend to specialize in small areas of the law, they can become more skilled at their work than a solicitor with general experience.
The most fitting analogy of the relationship between a legal executive and a solicitor is that of a junior executive and a managing director.
The Institute of Legal Executives was formed in 1963. In the ten years to 1991 its membership doubled to 21,000. There are 5,000 fellows (i.e. fully qualified legal executives). The Institute has set up an examination structure so that the competence of members can be verified. The role of legal executives is increasing in importance.
For instance, many can become licensed conveyancers and their rights of audience have gradually been extended (they can presently appear before a county court judge on an unopposed application for adjournment or on a straightforward application for judgement by consent).
Any person who has four GCSEs in certain approved subjects can enrol with the Institute (although this is not needed for those over twenty-five). They will then have to take two courses lasting in all up to four years, and pass two examinations, after which they will be a ‘Fellow’ of the Institute. This will entitle them to take the Common Professional Examination if they wish to become a solicitor.
Text 8. THE JUDGE
In common law countries, a law graduate can’t choose to become a judge. It is only after many years of experience as a lawyer, professor or member of the government, that a judge can be appointed by the Lord Chancellor. To be appointed a senior court judge (Lord/Court of Appeal/High Court) it is necessary to gain the 10 years experience as a barrister. A solicitor may appointed a judge in an inferior court after 5 years experience.
Upon completion of his formal education (not necessarily a legal education), a person spends 15, 20, or 25 years in the private practice of law or in law teaching or governmental legal service and then, at about age 50, becomes a judge. No competitive examination is taken, as he is appointed or elected to office.
In England, the appointive system is the case for all levels of judges, including even local JPs (who are selected by an advisory committee answerable to the Lord Chancellor’s office and, after selection, undergo a period of basic training). Appointments are primarily under the control of the Lord Chancellor, who, although a cabinet officer, is also the country’s highest judge.
Compare this to civil law countries, where a law graduate can choose a career as a judge by passing an examination and entering the service as a low-level judge in her early 20s.
The common law judge is practically free from outside supervision, enjoys greater power and prestige, and can only be removed by peers. In private life judges have the same status as anyone else, and can be arrested and convicted of a crime just like anyone else.
Lay judges (JPs) also enjoy a great deal of prestige within society. Indeed, one of the main criticisms is that there is an imbalance in the courts of people representing the upper echelons of society. A recent survey showed that 80% of our top judges came from the top public schools and Oxbridge; all were white males. The situation may change in the future, as more members of the ethnic minorities and more women are now barristers, some of whom will presumably be appointed judges in 10-15 years.
Text 1. THE AMERICAN LEGAL PROFESSIONS
The United States has long had more lawyers than any other nation. In the decades since 1950, the number of lawyers both absolutely and in relation to the population as a whole has increased dramatically. At the beginning of the 1950s, there were more than 220,000 lawyers. By 1980, there were more than 540,000 lawyers. The estimated figure for 1984 is almost 650,000 lawyers, or 1 for every 364 people. The most dramatic growth occurred in the 1970s as more students sought admission to law schools, which in turn grew to accommodate the increased demand.
Growth of the profession has been greeted with a mixed response. Some believe that the more lawyers there are, the more they will be available to do the less renumerative work of the middle- and lower-income populations. This will, it is argued, increase the access to justice that is required in a democratic society. Others argue that the increase of lawyers only means more litigation, which will further clog the courts. These two arguments are of course not unrelated. Almost by definition, the more access there is, the more litigation there will be. Whether this is good or bad depends on one’s views as to the cases that should be heard by the courts.
Text 2. ARE THERE TOO MANY LAWYERS?
Some people believe that there are too many lawyers in the United States and that an excessive number of lawyers is directly responsible for a national ‘litigation mentality’. One famous example that is often cited involves the case of a woman who successfully sued a fast food restaurant for several million dollars because her coffee was too hot and it burned her when she spilled it on her lap. Others believe that although there are many lawyers, there are not enough lawyers working on the ‘right’ kinds of cases. They argue that many poor and homeless persons are often without any legal advocates and that other groups are in need of additional legal representation, including women who are victims of domestic violence, persons who suffer discrimination in housing or employment, and immigrants who require legal assistance. Using your own words, please discuss both viewpoints.
1. What is ‘litigation mentality’ in the USA caused by?
2. What groups of the population need additional legal representation?
Text 3. CAREER PATHS
The Legal Profession. It may be surprising to learn that the Constitution does not restrict membership on the Supreme Court to attorneys. In practice, however, this restriction has been absolute. People involved in the selection process have assumed that a person must have legal training to serve effectively on the Court.
Certainty the large number of attorneys in the Senate and the strength of the organized bar help to ensure that this rule never will be violated.
What this means is that a person who does not undertake legal training early in life is disqualified from consideration for the Supreme Court, the willingness and capacity to obtain a legal education, then, is the first and least flexible requirement for recruitment to the Court.
For the first century of the Court’s history, most justices had undergone apprenticeship under a practicing attorney, as was the predominant pattern at that time. If legal education is a necessary first step in the path to the Court, almost as necessary as a last step is the holding of a high position in government or the legal profession.
A majority of the recent justices have followed a second path. This path begins with a private practice, followed at some point by elevation to a high administrative or judicial position from which the selection to the Court was made, or to a series of positions in administration and the judiciary and then to the Court.
The careers of the justices who fit into this category have differed in the length of time that the person spends in the ‘intermediate’ positions. For some justices, this is a relatively long period that constitutes an important part of their pre-court work.
The importance of such a position stems largely from the credibility that it gives a operson for consideration by the selectors. A private practitioner or a state trial-court judge might be superbly qualified for the Court, but their qualifications would be questioned because of their lowly positions. A high government or judicial position also helps to make a person visible to the president and others involved in the nomination process and helps to bring about the acquaintanceship with presidents that has been a factor in a great many.
As this discussion makes clear there are multiple paths to the positions from which Supreme Court appointments are made. Certainly the careers of the persons selected as justices differ a great deal. At any given time the nine members of the Court are likely to have brought with them a broad range of career experience. What they will share is their membership in the legal profession and their success at reaching the higher levels within that profession or within government.
Text 4. PLACES WHERE AMERICAN LAWYERS WORK
The traditional field for American lawyers is that of private law practice, which may be carried on alone or in partnership. Sometimes, in larger cities, law firms may have more than 100 members, and firms of 15 or 20 members are common. But the Law-trained person finds many other ways in which to use his abilities. Some work for corporations or other business enterprises. Some become judges. A smaller group teach law. A considerable number serve the public in many ways, as counsel to government departments, as members on government agencies or commissions, and as members of legislative bodies. By the 1960’s lawyers had many more opportunities to work for poor or disadvantaged people or to participate in work done by so-called public interest law firms.
Text 5. STARTING A CAREER IN LAW
Although you may not be sure whether a career in law is the route you wish to pursue, if you are contemplating such a career path even slightly you should start taking steps now. Since there are no required courses for acceptance to law school, you should take courses that will enhance your writing skills, your reading comprehension, and your analytical skills. Develop your logical reasoning abilities and increase your awareness of political, economic, and social issues and institutions. Test your aptitude and interest, choosing courses that are challenging and interesting to you.
Take advantage of the opportunities that are available to you so that you can decide whether a legal career is really what you wish to pursue. Try to obtain law-related experiences, through internships, externships, or summer jobs. Get to know your professors and talk to them about your interests. Attend law-related programs that are offered at Lafayette. Speak to other students, read, investigate, and, most of all, do not wait until your senior year to think about these things.
We welcome you and wish you much success at Lafayette College, and we both look forward to getting to know you.
advocate (n) – защитник, адвокат
advocacy (n) – адвокатская деятельность
arbiter (n) – арбитр, третейский судья
argue (v) – доказывать, обсуждать
to argue the case – обсуждать дело
argument (n) – доказательство по аргументу, дискуссия
assist (v) – способствовать
associate (n) – сообщник, компаньон, чиновник судов общего права
case (n) – случай, судебное дело, спорный вопрос в суде, обвинение, доказательство
carry a case – проводить судебное дело
bring a case – возбуждать судебное дело
drop a case – отказаться от иска
close a case – прекратить дело
argue a case – обсуждать дело
initiate a case – возбуждать судебное дело
chamber (n) – комиссия судей, контора адвоката (pl)
charge (v) – обвинять
charge of a crime – обвинять в совершении преступления
college of advocates – коллегия адвокатов
to commit a crime – совершить преступление
confess (v) – признавать, сознаться
counsel (a client) – советовать, консультировать
counselor (n) – советник, адвокат (Ирландия и США)
court (n) – суд
defend (v) – защищать в суде; защищаться
defendant (n) – ответчик, обвиняемый, подсудимый
deal with (v) – иметь дело с кем-либо, с чем-либо
dispute (n) – спор
draft (n) – проект
draft (v) – составит проект
duty (n) – обязанность
employ (v) – нанять на работу
engage (v) – обязывать, занимать чем-либо, нанимать
engagement (n) – обязанность, договоренность
enterprise (n) – предприятие, предпринимательство
evidence (n) – доказательство, свидетельские показания, улика
to give (present/provide) evidence – давать показания
foundation (n) – основание, обоснование, учреждение, фонд
give (v) – давать, предоставлять
to give opinion – вынести решение, дать заключение
to give notice – уведомить
to give time – предоставлять отсрочку
to give evidence – давать показания
to give the benefit of the doubt – истолковывать сомнения в пользу ответной стороны
hearing (n) – допрос в суде, слушание
hearsay (n) – показания с чужих слов
innocent (a) – невиновный
investigator (n) – следователь
interpretation (n) – толкование
judge (n) – судья
juridical (a) – юридический, правовой; судебный, судейский
lawful (a) – правомерный, законный
legal (a) – юридический, правовой
legalize (v) – узаконивать, засвидетельствовать
legality (n) – законность
legitimate (n) – законный
litigator (n) – сторона в судебном деле
litigation (n) – тяжба судебного спора
lodge (v) – подавать (заявление, жалобу, прошение)
lodgement (n) – подача прошения
legislative (a) – законодательный
motion (n) – ходатайство
memorandum (n) – меморандум
meeting (n) – собрание
negotiate (v) – вести переговоры
negotiator (n) – лицо, ведущее переговоры
negotiation (n) – переговоры
object (v) – возражать
objection (n) – возражение
obtain (v) – получать, приобретать
oppose (v) – возражать
opposition (n) возражение
plaintiff (n) – истец
practice (n) – практика; обычай
proceedings – рассмотрение дела в суде, судебное разбирательство
take initiate – возбуждать уголовное преследование
promote (v) – способствовать, содействовать
promotion (n) – повышение в должности
position (n) – должность
to hold a position – занять должность
pursue (v) – проводить (политику)
qualify as/for – отвечать требованиям
represent (a client) – представлять; сообщать, заявлять
require (v) – требовать
requirement (n) – требование; необходимое условие
resolution (n) – резолюция; разрешение спора, решение
ruling (n) – постановление; решение суда
restrict (v) – ограничивать
render (v) – представлять, предоставлять
seek (v) – искать, добиваться
seek rights of advocasy – требовать права защиты
settlement (n) – урегулирование
trainee (n) – лицо, которое обучают
trier (n) – лицо, рассматривающее юридические вопросы
testify (v) – давать показания; быть свидетелем
testimony (n) – свидетельские показания
training (n) – обучение
umpire (n) – арбитр
verdict (n) – решение присяжных, вердикт
to take/reach verdict – вынести вердикт
witness (n) – свидетель; свидетельство, свидетельские показания
Janosik Robert J. Encyclopedia of the American Judicial System. – New York: Charles Scribner’s Sons, 1987.
Fine Toni M. American Legal Systems: A Resource and Reference Guide. – Anderson Publishing Co. 1997.
Encyclopedia Americana / Deluxe Library Edition. – Grolier Incorporated, 1990.
Aнгло-юридический словарь. – М.: Русский язык, 1993.
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