Legal services are an important consideration for any business owner, but especially for small business owners, who often face a number of legal hurdles. Protecting the owner's personal assets from lawsuits against the business, ensuring protection for the business against lawsuits charging discrimination, wrongful termination, and sexual harassment, and handling employee contracts, copyright claims, and incorporation are just a few of the legal issues that commonly face small business owners.
The high costs of retaining a lawyer often make it seem as if competent legal services are out of reach of most small business owners. In addition, experts emphasize the dangers of entering into legal agreements without first obtaining advice from a qualified attorney. But there are reasonably priced methods of obtaining such services, like pre-paid plans and legal software. In many cases, this attempt to cut corners can turn small problems into big ones for small business owners. "Perhaps your tax structure is not to your best advantage, or you are not adequately protected from liability," Charles Poling noted in the New Mexico Business Journal. "If you're in a regulated business, you might run afoul of the law simply because you haven't gotten educated by your lawyer. Failing to consult with a securities or financial lawyer when you're raising capital can cause serious problems."
The type of legal services a small business should obtain varies with the size and age of the business. "Exactly what type of lawyer you need depends on what business you're in, and what stage it's at," Poling wrote. "A general business lawyer can help you as day-to-day questions come up, reviewing contracts and tax questions. But for more complicated matters, you might need a specialist…. Just starting up? Find someone who specializes in forming corporations or partnerships. Going public? Find a securities lawyer. Other specialties include environmental law, banking, patenting, copyrighting, medicine, nonprofit corporations, employment law, and so on."
According to Michael Barrier in Success, the best way to find a good attorney is by getting referrals from people you trust, especially those with similar legal needs. Before signing a retainer, small business owners should inquire about the attorney's experience, charges, and potential conflicts of interest. It may also be helpful to check your insurance policy, because certain litigation expenses may be covered.
PRE-PAID LEGAL SERVICES
Perhaps the most cost-effective way for small business owners to obtain legal advice is through a pre-paid legal services plan. These plans provide companies with affordable access to legal advice and attorney's services for one low, monthly fee.
Caldwell Legal, U.S.A. pioneered the concept in 1967 and remains one of the largest pre-paid firms serving small business. It offers Caldwell's Business Protector Program, available in all 50 states. At each Caldwell field office, attorneys provide telephone consultation, document review, letter writting, and other services, all for $37 per month. The plan includes unlimited hours of toll-free telephone consultation. The fee is indeed modest—based on Caldwell's own research which shows that 73 percent of legal problems can be solved with a single phone call. If more extensive services are needed, additional fees are applied as they are accrued. Caldwell charges hourly fees, if necessary, at the rate of $85 per hour ($125 per hour in New York).
Pre-Paid Legal Services is another company specializing in family and employee legal plans and may have solutions for the family-based small business and for businesses that wish to provide legal coverage for their employees (in the same way as they might provide health insurance). A family plan will range from around $16 to $36 a month for basic services—or higher if certain add-ons are selected.
ADVANTAGES OF PRE-PAID SERVICES
The primary advantage associated with pre-paid legal services is savings. For example, a typical pre-paid plan might charge $85 to $125 per hour for attorney's fees, plus the monthly premium, which can range up to $100 per month. Without the plan, the attorney's fees begin at around $200 per hour with a retainer fee of several thousand dollars often demanded up front.
Quality service is another promise of most pre-paid plans. For example, one plan requires its attorneys to have a minimum of 15 years of service, experience in business law, a favorable rating from Martindale-Hubbell (the rating service of the American Bar Association), and a clean record that shows no indication of ethical or malpractice claims against the attorney. Of course, these services vary in quality, just as attorneys vary in quality. Small business owners should do their research before signing up with a service. There are new ones joining the industry each year.
Another benefit of pre-paid plans is their size. Because they pool hundreds of small businesses, they instantly become one of the largest clients of whatever firm handles the plan's account. This is a huge benefit for small business owners. One owner on his or her own will be a very small part of any law firm's business. As one business owner in Ohio said of his former legal firm, "I felt I wasn't important enough to them." As part of the pre-paid plan, however, the small business becomes one part of a very important client that the law firm wants to keep happy to ensure continued business. Like HMOs, pre-paid plans offer collective bargaining power, as lawyers find it worth their while to offer low-cost services to plan members because of the high volume of business that is generated.
Pre-paid plans also make it easier for small businesses to practice preventive law instead of reacting to crises. Without the plan, a business owner is more likely to take his or her chances in any given situation and hope that no legal problems arise. This is because asking for legal advice can be so expensive. The plan, however, makes advice readily available and encourages owners to make use of it so that small problems do not become big problems.
HOW TO SELECT THE PLAN THAT IS RIGHT FOR YOU
The most important thing to look for is the number and type of services offered at a reduced rate as part of the plan. The number of services might be lower than you expect, so make sure the plan has what you need. Also find out what the plan charges for services that are not covered as part of the basic plan. A set fee for additional work may be cheaper in the long run than receiving a discount on the firm's "usual fee" for such services.
Additional steps to take include:
- Deciding whether you would prefer to work with just one lawyer over the years, or whether the service can provide a different lawyer for each legal matter.
- Do your homework. Obtain a list of clients and ask them if they have been satisfied with the quality of the legal work they have received.
- Ask how the law firm handles conflicts of interest when the person or business with a case against you uses the same pre-paid plan.
LEGAL SOFTWARE AND ONLINE ADVICE
Small business owners can also gain expertise and reduce risks and costs by utilizing one of the legal software packages that are designed just for small businesses. McGraw-Hill offers the Small Business Lawyer, a CD-ROM that contains more than 320 customized legal forms and agreements that cover such things as power of attorney, partnerships, loans, real estate, leases, and the sale of business assets. Once the software is installed, the business owner enters information about his business just once, after which all of the forms can be generated using that information.
A CD-ROM from Nolo Press called Quicken Legal Business Pro 2006 includes the full text of five books published by Nolo, each targeted at the small business owner. The books, which are fully searchable, address hundreds of legal situations that are common to small businesses. The disc includes 140 forms and sample contracts and other useful legal documents.
Another potential source of legal forms and advice is the Internet. A number of Web sites exist that provide directories of attorneys, sources for legal research, samples of various types of forms and documents, and even free legal advice in chat rooms. For example, the American Bar Association site provides the addresses of state and local bar associations and lawyer referral services at http://www.abanet.org/legalservices/lris/directory.html. Martindale-Hubbell also sponsors an online "lawyer locator" at http://www.martindale.com/. The Web site www.uslaw.com offers overviews of the law as it affects small business and also provides a directory of affiliated lawyers.
But according to Carol Ebbinghouse in Searcher, small business owners should approach online legal services with caution. Obtaining legal advice online makes it difficult to establish a recognized attorney-client relationship, which may leave a small business without the protection of confidentiality and with no recourse in cases of malpractice or conflict of interest. Another potential pitfall is that online attorneys may not be licensed in the business owner's state. They may even be law students or otherwise lack the necessary experience or qualifications to provide good advice. For those who do use online legal services, Ebbinghouse recommends making sure the site is in compliance with Internet privacy and security protocols, reviewing all disclaimers and conditions, and double-checking the advice received.
Barrier, Michael. "The Maw of the Law." Success. October 2000.
Britton, Akissi. "Do You Need Legal Insurance?" Essence. December 2002.
Bell, David M.M. "Ethics and the Internet: In a Chaotic Dot-Com World, Internet Use Presents Many Practical, Ethical, and Regulatory Questions for Lawyers." California Bar Journal. July 2000.
Ebbinghouse, Carol. "Medical and Legal Misinformation on the Internet." Searcher. October 2000.
Mogharabi, Shabnam. "Justice for All: Small businesses sometimes can't afford full-time lawyers. Prepaid legal plans might help ease your legal fees." Pool & Spa News. 8 August 2005.
Poling, Charles. "Is Your Lawyer Doing Right for You?" New Mexico Business Journal. March 1997.
Prizinsky, David. "Alliance specializes in counsel for cost-conscious companies." Crain's Cleveland Business. 6 February 2006.
Shottenkirk, Jerry. "Ada-based Pre-Paid Legal continues to prosper." Journal Record. 23 March 2006.
Hillstrom, Northern Lights
updated by Magee, ECDI
The Legal Profession
The Legal Profession
Golden Age. The plasticity of American law and its strategic position in American cultural life helped to make 1815 to 1850 a period that would be remembered as a golden age of the bar. The most glamorous attorneys of the era were the great advocates of the seaboard cities, including Daniel Webster, William Wirt, Rufus Choate, Horace Binney, and William Pinkney. Their principal stage was the Supreme Court, where crowds packed the galleries to hear their erudite and dramatic performances. The justices and the spectators were both important audiences, for these attorneys not only contributed to judicial decision making but were major figures
in a national literature that remained centered on oratory. Webster, the dominant lawyer of his generation, argued numerous cases before the Court, prevailing in such landmark decisions as Dartmouth College v. Wood-ward (1819), McCulloch v. Maryland (1819), Cohens v. Virginia (1821), and Gibbons v. Ogden (1824). His tear-jerking peroration on behalf of his alma mater in Dartmouth College (“It is, sir, as I have said, a small college. And yet there are those who love it.”) was one of the most famous moments in American oratory. The Court encouraged the emergence of legal argument as civic theater; an observer reported in 1824 that “counsel are heard in silence for hours, without being stopped or interrupted.” The literary dimension of the law helped to attract many ambitious young men who had made successful beginnings in the less prestigious profession of writing, such as Wirt, John Pendleton Kennedy, and Richard Henry Dana Jr. At the same time, the subsequent careers of such former attorneys as Washington Irving and William Cullen Bryant demonstrated that the bridge between law and literature could be crossed in the opposite direction.
Riding Circuit. While counsel before the Supreme Court traded rhetorical flourishes, a different but equally legendary legal culture emerged in the rapidly settling West. The typical lawyer on the frontier scrambled for business by traveling to the local courthouses of a judicial circuit as the judge made rounds to hear cases. Abraham Lincoln regularly rode the Eighth Judicial Circuit of Illinois in the 1840s with Judge David Davis, whom he would later appoint to the Supreme Court. The Eighth Circuit included approximately twenty counties spread over eleven thousand square miles; visits to every county seat took a total often weeks and were conducted twice each year. Upon arriving in each town Lincoln and the other lawyers would pick up a variety of cases—some criminal, some civil—that would have to be prepared and presented on a highly compressed schedule. Limited time and resources reduced the role of research and citations in frontier litigation, which called instead for common sense, the skill to analyze disputes effectively, and the charisma to sway a jury. Just as Webster personified the oratorical grandeur and consensus-building savvy of Supreme Court practice, Lincoln’s instinct for the main issue in any controversy, his psychological perceptiveness, and his ability to win audiences as a raconteur and to portray himself as a representative of the common man made him the archetypal lawyer of the prairie.
Opportunities. The legal cultures of Webster and Lincoln reflected different aspects of the profession as a path to social mobility and political advancement. Ambitious young men (no women would be admitted to the bar for decades) regarded a successful legal practice as the first step to becoming a “self-made man,” an expression coined during the period to describe the Kentucky lawyer-turned-statesman Henry Clay. The loose regulation of admission to the bar encouraged these hopes. Standards differed from state to state, but in 1840 only eleven states prescribed a specific period of study for admission to the bar. Under the Jacksonian assault on monopoly privileges, including professional licensing, New Hampshire eliminated all requirements except good moral character in 1842, and Maine followed suit the next year. Local variations added to the looseness of regulation. The prevailing system in the half-century after the Revolution had been for each county court to admit its own attorneys. In the 1830s it became commonplace for admission by any local court to confer a license to practice throughout the state. To be sure, a privileged background remained an asset in the law, especially in the seaboard states. Almost three-fourths of the attorneys admitted to the bar in Massachusetts and Maine between 1760 and 1840 had attended college. Of fortyeight lawyers whose deaths were reported in the Monthly Law Magazine shortly before midcentury, thirty-four were the sons of lawyers, judges, doctors, or merchants; fourteen were the sons of farmers, mechanics, or soldiers. But the doors of opportunity remained considerably more open than they would become when professionalization intensified after 1870.
Education. Most candidates for the bar trained in the office of an established practitioner, observing the attorney at work, performing routine tasks such as the copying of documents, and discussing readings from the classic works of English jurists Sir Edward Coke and William Blackstone. Some attorneys attracted many students; the highly regarded teaching of Newburyport lawyer Theophilus Parsons prompted Massachusetts to establish a rule limiting attorneys to three students at one time. A few lawyers decided to specialize in teaching rather than practice. The program of Tapping Reeve and James Gould at Litchfield, Connecticut, founded in 1784 as the first law school in the country, remained highly, successful into the late 1820s before closing in 1833 and graduated many of the most prominent men in American public life. After 1815, however, formal educational institutions dominated legal training. The College of William and Mary had already established the first American chair of law, held by George Wythe, but Harvard Law School, founded in 1817, became the model for the profession by creating a separate faculty that paralleled the schools of theology and medicine. The addition of Justice Joseph Story as a part-time professor in 1829 significantly increased Harvard’s influence and enrollments, which reached 163 students in 1844. In many ways, however, the law schools patterned on Harvard resembled the system of office training from which they had evolved. Legal education continued to focus on the elaboration of judicial doctrine, isolated from the study of government and the laws created by legislative enactment. The period of training for the bar remained brief. And although Story used hypothetical cases to test his students’ analytic abilities, lecturing remained the dominant form of instruction.
AN AMERICAN ARISTOCRACY
Struck by the social mobility, he equalitarian implulses, and the power of voters that he observed in the United States, Alexis de Tocqueville devoted extensive attention in his Democracy in America (1835–1840) to the law as a source of stability. Although he recognized that “under all free governments, of whatever sort, one finds lawyers in the leading ranks of all parties,” he argued that the distinctive American political and social conditions tended to make legal precedence a powerful conservative force:
Study and specialized knowledge of the law give a man a rank apart in society and make of lawyers a somewhat privileged intellectual class. The exercise of their profession daily reminds them of this superiority; they are the masters of a necessary and not widely understood science; they serve as arbiters between the citizens; and the habit of directing the blind passions of the litigants toward the objective gives them a certain scorn for the judgment of the crowd. Add that they naturally form a body. It is not that they have come to an understanding among themselves and direct their combined energies toward one objective, l but common studies and like methods link their intellects, as common interest may link their desires.
So, hidden at the. bottom of a lawyer’s soul one finds some of the tastes and habits of an aristocracy. They share its instinctive preference for order and its natural love of formalities; like it, they conceive a great distaste for the behavior of the multitude and secretly scorn the government of the people….
If you ask me where the American aristocracy is found, I have no hesitation in answering that it is not among the rich, who have no common link uniting them. It is at the bar or the bench that the American aristocracy is found….
The more one reflects on what happens in the United States, the more one feels convinced that the legal body forms the most powerful and, so today, the only counterbalance to democracy in that country.
Source: Alexis de Tocqueville, Democracy in America, edited by J. P. Mayer, translated by George Lawrence (New York: Harper & Row, 1969), pp. 264–268.
American Blackstones. While changes in legal education between 1815 and 1850 were superficial, an important transformation took place in legal scholarship. Previous commentaries on law, such as James Wilson’s lectures at the University of Pennsylvania in 1790 and James Kent’s lectures at Columbia College in 1794, had emphasized constitutional and political questions. The publication of state courts’ opinions, however, made possible innovative examinations of the common law. By the 1820s commentators were regularly drawing on these reports and on English precedents to offer new syntheses of American law. The model for their efforts was Blackstone’s Commentaries on the Laws of England (1765–1769), which Henry St. George Tucker had edited in 1803 in a thoughtful and influential version that incorporated American cases. John Reed even published a three-volume Pennsylvania Blackstone (1831). Chancellor Kent’s four-volume Commentaries on American Law (1826–1830) did not merely adapt Blackstone but provided a comparable overview of the entire common law. Although Blackstone remained a staple of legal literature, Kent’s Commentaries represented a declaration of independence for American law and a maturation of American legal scholarship.
Treatises. Following the publication of Kent’s Commentaries, legal writers, led by the prolific Story, increasingly focused on the close analysis of specific branches of law. Although it might seem odd that a jurist as talented and ambitious as Story would write an entire book on bailments (loans of property), the new treatises proved influential. A timely treatise, aimed at practicing attorneys and judges, could shape the development of a specific doctrine or even determine what the branches of law were and which cases were comparable. For example, the identification of insurance law as a distinct field, reinforced by Willard Phillips’s Treatise on the Law of Insurance (1823), meant that principles used to decide insurance cases would no longer necessarily be applicable in other types of contract disputes. Treatises were both a cause and a result of the increasing specialization of American common law.
Codification. Another response, to the rapid proliferation of judicial decisions, beginning in the 1820s, was the call to replace ad hoc, judge-made common-law rules with comprehensive legislative codes. To some Jacksonian reformers, most prominently Robert Rantoul Jr. of Massachusetts, codification was a matter of political legitimacy and class relations. The common law did not reflect the sovereignty of the people, he argued. More over, the shaping of the common law was dominated by the wealthy and well educated, who could understand its complexities and afford counsel to represent their interests. Other reformers, led initially by Justice Story and Timothy Walker of Ohio, did not share Rantoul’s concerns about the legitimacy or class fairness of the common law but favored codes for economic reasons. They believed that legislative codes of laws would provide uniformity and simplicity and would promote economic development by facilitating the resolution of commercial disputes.
Results. The codification movement achieved mixed results, in part because by 1850 most states had shifted from appointed to elected judges, undercutting Rantoul’s critique of the common law as antidemocratic. The state of Louisiana, with its distinctive Continental legal heritage, emerged as America’s only civil-law (as opposed to common-law) state, after reformer Edward Livingston led the way in developing Louisiana’s civil code. The most ambitious codification advocate, New York attorney David Dudley Field, emerged in the 1840s as the successor to Story’s call for uniform, simple law codes, written by professionals. Although Field lobbied assiduously for codification of much of the common law, he enjoyed significant success only in the area of civil procedure (the rules for filing and litigating cases). New York adopted the Field Code of civil procedure in 1848, but the West proved to be the most fertile field for codification. Missouri enacted a version of the Field Code in 1849, and California followed suit in 1851 with the prodding of Field’s brother, future Supreme Court justice Stephen J. Field. Codification continued to enjoy sporadic successes after the Civil War but only approached Field’s aims in the mid twentieth century with the promulgation of the Uniform Commercial Code and the adoption of the Federal Rules of Civil Procedure.
ADVICE TO ASPIRING LAWYERS
The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done.
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will be business enough.
Let no young man choosing the law for a calling for a moment yield to the popular belief [that lawyers are necessarily dishonest]—resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.
Source: Abraham Lincoln, “Notes for a Law Lecture,” 1850 [?], in The Collected Works of Abraham Lincoln, nine volumes, edited by Roy P. Basler (New Brunswick, N.J.: Rutgers University Press, 1953–1955), II: pp. 81-82.
Maxwell Bloomfield, American Lawyers in a Changing Society, 1776–1876 (Cambridge, Mass.: Harvard University Press, 1976);
Robert A. Ferguson, Law and Letters in American Culture (Cambridge, Mass.: Harvard University Press, 1984);
Lawrence M. Friedman, A History of American Law, second edition (New York: Simon &. Schuster, 1985).
LEGAL PROFESSION. Known as "the bar," after the railing in courtrooms, the legal profession is the vocation of the law, and its practitioners include essentially those who hold licenses to practice law granted by states or particular courts, but also those who through legal education or vocation participate in the culture or institutions of the law. Law is a profession, and, as such, it requires special knowledge and skill acquired under the supervision of a practitioner and is subject to standards of admission and regulation by an elite within the profession.
There were lawyers of various sorts in ancient Greece and Rome, but the legal profession in its current sense was a medieval invention. The development of a professional bench and bar in England began in the twelfth and thirteenth centuries, shortly after the rediscovery of the texts of classic Roman law led both to more sophisticated forms of legal education and to a more complex system of national and Church laws. In early medieval England, university instruction prepared young men to practice canon and admiralty law, while a loose band of full-time lawyers consolidated into various London houses or "inns" in which the older lawyers who pled before the Courts taught younger lawyers. These inns became the basis for both the schooling and the management of the bar. By the dawn of the American colonial era, English lawyers usually studied the liberal arts at a college or university and then studied law in one of the London Inns of Court. Scotland maintained a similar institution in the College of the Faculty of Advocates.
American colonists who acted as judges or lawyers initially had no legal education but acted from their consciences and such law books as they had, to the degree they understood them. By the late 1600s, a few attorneys traveled to England to study in the Inns of Court, being called to the bar in London and returning to the United States. Although this practice began in Massachusetts, by 1770 most colonial lawyers trained in England were in the southern colonies. Throughout the eighteenth century, a few quite influential lawyers emigrated to the colonies from England, Ireland, and Scotland. Moreover, the number of lawyers with legal training had grown large enough for successive generations to be taught through apprenticeships. On the eve of the Revolution, several colleges occasionally taught law as an academic pursuit, although only the College of William and Mary had a law professor.
Lawyers were active during the Revolution and in the early Republic. Twenty-four of the forty-six signers of the Declaration of Independence were lawyers, and its drafter, lawyer Thomas Jefferson, wrote it in the form of a legal petition. Indeed, many leaders of the early states were lawyers, as were Jefferson, John Adams, Alexander Hamilton, and other leaders of the young national government.
With independence, different states and the federal courts had varied approaches to the bar. Until 1801 the U.S. Supreme Court required a distinction between attorneys, who appeared in court, and counselors at law, who provided legal advice, a division similar to the English distinction between barristers and solicitors, and one followed in various ways by some states. This practice died early in the 1800s, since which time all U.S. lawyers have been considered eligible to perform either role.
On the other hand, in 1790 Massachusetts passed a law attempting to end the legal profession, by allowing any person to represent another in court. Many states embraced this legal deprofessionalization. In 1842 New Hampshire declared that any adult could act as an attorney, a law copied by Maine, Wisconsin, and Indiana. A similar mood had already led to popular elections of judges in which candidates were not required to be lawyers; this practice began in 1832 and eventually spread to thirty-eight states, in many of which it still continues.
Even so, the growing complexity of the law and the legalistic nature of the national culture spurred both evolution and enlargement in the bar. The expansion of commercial, industrial, canal, road, and railroad concerns, growing personal wealth, and increased state and federal regulation all led to a swelling demand for lawyers. Moreover, law came to be seen as the tool to balance power between the state and the citizen. As Alexis de Tocqueville noted, Americans "prize freedom much, they generally value legality still more: they are less afraid of tyranny than of arbitrary power."
Throughout the nineteenth century, most attorneys read law in the office of an experienced lawyer, who would appear before a judge to move the student be sworn into the practice of law. Occasionally, judges would interrogate the applicant, but usually the word of the older lawyer alone was sufficient, and the attorney was launched on a career. The result was a loose-knit fraternity of lawyers with greatly varying levels of skill and professionalism.
The Enhancement of Professional Standards
After the Civil War, lawyers concerned with the bar's poor reputation formed institutions to improve the standards of both the profession and the existing body of law. Bar associations were created to establish standards for lawyer admission and conduct, as well as to promote law reform, commencing with the Association of the Bar of the City of New York in 1870, and the American Bar Association in 1878. These associations pressed state legislatures and courts to hold law schools to standards of accreditation and to promote law reform projects, such as the American Law Institute, formed in 1923 to encourage modernization and uniformity among state laws.
Two nineteenth-century innovations led to greater restrictions on entry to the practice. The first was the growth of legal education, which became a requirement to practice in most states by the end of the century (see Law schools). The second was the advent of formal examinations as a condition of licensure. In the 1850s the Massachusetts Court of Common Pleas instituted written exams for all candidates, rather than oral exams administered by individual judges. This practice spread slowly, although it blossomed in the 1870s and 1880s. Although some states conferred licenses on graduates of their state
law schools, every state employed some form of bar examination by the mid-twentieth century. At the start of the twenty-first century, both legal education and the bar exam remain significant steps toward entry of the profession. By 2000 almost every applicant for the bar had graduated from law school. Of 72,704 people examined that year to enter the bar in the fifty states, only 59 had read for the bar rather than taking law degrees. The bar examination remains a formidable barrier to entry of the profession; only 47,160 of those examined, or 65 percent, passed.
Two restrictions on entry into the profession, however, ended in the 1800s. Until 1844, the legal profession, like most professions in the United States, was open only to men descended from Europeans; women and members of other races were excluded. The first lawyer of African descent, a native of Indiana named Macon Bolling Allen, was admitted in 1844 to practice law in Maine. In 1847 he became a justice of the peace in Massachusetts. Myra Bradwell, arguably the first American woman lawyer, was a law publisher in Chicago who passed the Illinois bar examination in 1869 but was initially denied a license by that state and by the U.S. Supreme Court. She was admitted to practice in 1890, and her admission was back-dated by the state supreme court to 1868. Lemma Barkaloo appears to be the first female law student, admitted to St. Louis Law School in 1868. In 1872 Charlotte E. Ray became the first black woman lawyer in the United States and the first woman lawyer in the District of Columbia. Despite these initial inroads, the law remained a largely white, male domain, and large numbers of both women and minorities began to enter the profession only in the later twentieth century.
The Growing Size of Law Firms
The twentieth century saw a dramatic increase in the size of law firms and the degree of specialization of legal practice. In a trend that began with New York firms, such as Cravath, large numbers of young lawyers were hired to work as associates for a smaller number of partners, selected from among the associates who were not culled out over a seven-year period; this pyramidal structure had the effect of increasing the fees earned by partners. It also allowed a partnership to have hundreds of specialists and to provide a broader range of services to large multinational clients. By the close of the century, many firms had hundreds of lawyers, working from multiple cities. These firms expect their associates to work very long hours, though for very high pay. Despite this high pay for associates, in the year 2000 partnership shares reached as high as $3.2 million per partner and averaged just over $800,000 in the richest one hundred U.S. law firms.
As law firms grew, a gulf widened between lawyers representing plaintiffs and those representing defendants. Except for suits initiated by corporations, most large firms specialized in corporate defense and the support of commercial activities. Plaintiffs' work generally fell to lawyers in solo practice or to small firms without conflicts arising from work for clients like those they sued, with less over-head, and with less of the liability risk faced by large firms with work done by many partners. This division was heralded in 1946, with the formation of an association for lawyers representing claimants for workman's compensation, which later became the American Trial Lawyers Association.
Changes in information technology, especially the growth of electronic information archives and communications systems, growing competition from organizations besides law firms, increased reliance on non-legal treatments for criminal behavior, an increasingly global economy, and greater specialization and enlargement of the profession will all alter the legal profession in the twenty-first century. Still, lawyers will continue to perform a variety of unique tasks, particularly in managing the criminal justice system, assisting in government, managing complex commercial transactions, and resolving disputes.
The bar has grown faster than the population as a whole. In 1850 there were 23,900 lawyers; in 1900 there were 114,700. In the year 2000, the U.S. Census Bureau estimated that 955,300 lawyers and judges were primarily employed in legal practice in the United States. An additional 15,000 were law teachers and another 80,000 lawyers were inactive, engaged in non-legal work, or retired. There are expected to be 1,355,000 U.S. lawyers by 2005. The legal profession has become an important part of the U.S. economy, not only by facilitating commercial transactions and dispute resolutions but also as an industry. In 1999 the U.S. Census Bureau estimated that legal services in the United States generated $157 billion in revenues.
Abel, Richard. American Lawyers. New York: Oxford University Press, 1989.
Dos Passos, John. The American Lawyer: As He Was—As He Is— As He Can Be. Reprint. Littleton, Colo.: Rothman, 1986. The original edition was published in 1907.
Pound, Roscoe. The Lawyer from Antiquity to Modern Times, with Particular Reference to the Development of Bar Associations in the United States. St. Paul, Minn.: West, 1953.
Reed, Alfred Z. Training for the Public Profession of the Law. New York: Arno, 1976.
The Legal Profession
The Legal Profession
Professionalism. Changes in the practice of law during the mid nineteenth century fit into a broader development of professionalism as a theme unifying different sorts of work. Just as training in law became more structured and admission to practice became more closely regulated, similar trends could be seen in other fields ranging from medicine to architecture. The overarching rise of professionalism was tied to the expansion of the economy, which provided new markets for various specialists, and also to the increasing prestige of science, which helped to explain why professionalization in medicine preceded comparable developments in law by a generation. The analogy of law to science that was so pervasive during the third quarter of the nineteenth century would later lose much of its appeal, but not until it had left a lasting imprint on the organization of the legal profession.
Langdell’s Law. The vanguard of professionalism in legal education was Harvard Law School, where Christopher Columbus Langdell assumed the new position of dean in September 1870. Langdell promptly revolutionized legal education, which even in the leading schools consisted of a one-year program of lectures and independent reading not markedly different from traditional apprenticeship arrangements between practitioners and novices. Langdell lengthened the Harvard program to two years in 1871 and to three years in 1876, which remains the standard at American law schools. For the first
time he required entrants to have a college degree or to pass a formidable examination. Langdell also developed an entirely new curriculum. He divided the field of law into sets of courses progressing from the basic to the advanced, requiring students to pass examinations in order to move forward. Throughout the United States, law students are still required in their first year to take courses in subjects that Langdell identified as fundamental, including contracts, torts, property, and civil procedure.
Formalism in the Classroom. Most important, Langdell developed a new method for teaching all subjects. Students would no longer be assigned to read the same sort of treatises and commentaries that practitioners used; no longer would they listen to professors deliver lectures explaining the law. Instead, Langdell introduced the “casebook,” consisting of the legal decisions that had contributed the most to the development of each field. Students probed for the principles underlying these cases in a Socratic dialogue conducted by the professor, who now became a full-time member of the university faculty rather than a part-time practitioner. Langdell published the first casebook in 1871. His approach was not an instant success—by the end of his first term only seven students remained in his class, and Boston University Law School was established in 1872 to offer a traditional education. Gradually, however, Langdell’s revolution came to dominate all instruction in American law schools.
Fields of Practice. The maturation of the economy provided new opportunities for lawyers to make money. Even in large cities, few attorneys practiced in lucrative specialties in 1850; the noteworthy exception had traditionally been marine insurance. Even leaders of the bar spent much of their time on conveyances of real estate, the drafting of wills and the administration of estates, and routine debt collection. Industrialization placed a premium on different fields such as patent law, torts, and eminent domain. In the more advanced stage of economic development that characterized the years after 1850 the problems of corporate finance and management became specialties broad enough to support a much larger number of commercial lawyers. Although railroads and other corporate clients affected practice in every city of significant size, the trend was most advanced on Wall Street, New York, where leaders of the bar focused on the issuance of stocks and bonds and on the designing of increasingly complex corporate structures. The appearance of law firms that would long remain influential illustrated the entrenchment taking place in the period. The forerunner of the firm of Cravath, Swaine and Moore moved to New York in 1854. The founders of Shearman and Sterling met in the practice of David Dudley Field, who represented the famous Wall Street operators Jim Fisk and Jay Gould. As one of the most distinguished practitioners in the country, Field confirmed young John W. Sterling’s sense that the era of the legal generalist was over and guided him into developing an expertise in the law of corporations.
Bar Associations. Concern over the involvement of attorneys in corrupt machinations prompted the founding of the first professional organizations. The Association of the Bar of the City of New York was organized in 1870 to combat the tainting of the law through the highly publicized battle over control of the Erie Railroad. Organizations quickly spread to other parts of the country; Chicago lawyers founded a bar association in 1874. By 1878 eight city and eight state bar associations had been founded in twelve states. In the same year, the American Bar Association was founded at the resort in Saratoga, New York, with a charge to “advance the science of jurisprudence… uphold the honor of the profession… and promote cordial intercourse among members of the American Bar.” Like farmers who were at the same time organizing to bargain collectively with railroads over shipping rates, and like laborers who were organizing to bargain collectively with employers over the conditions of work, attorneys saw themselves as organizing to deal collectively with corporations in asserting professional independence, including ethical standards. As one founder put it, the early bar associations were troubled that lawyers “do simply what their employers desire.” And like the organization of physicians, bar associations also sought to suppress competition, actively seeking to suppress informal training by apprenticeship and supporting the reforms in legal education spearheaded by Langdell.
Lincoln the Lawyer. The legal practice of Abraham Lincoln reflects the changes in the profession that affected lawyers in modest towns such as Springfield, Illinois. After serving as a junior partner first to the politically connected John Todd Stuart and then to Stephen T. Logan, Lincoln opened a firm with the younger William Herndon in 1844. As the head attorney of the firm he assumed responsibility for spending about ten weeks twice each year riding with Judge David Davis and other attorneys to each courthouse in the eleven thousand square miles of the Eighth Judicial District. (He would later appoint Davis to the U.S. Supreme Court.) In each town he handled a wide variety of cases, many of which were small disputes among neighbors. In 1851 he handled his first significant case for a railroad, enforcing a stock subscription by an investor unhappy about a change in the planned route of the road. By middecade Lincoln was spending much of his time on cases involving railroads. For example, he successfully represented the powerful Illinois Central in a suit brought by a county challenging the state’s authority to exempt the railroad from all local taxes. He also defended the builders of the first railroad bridge to cross the Mississippi River in a suit brought by the owners of a steamboat that crashed into a pier. Although one of the leading lawyers in Illinois, he encountered the exclusivity of nationally prominent attorneys when he became the local counsel in patent litigation over the mechanical reaper invented by Cyrus McCormick. “Why did you bring that d—d long armed Ape here,” Pittsburgh attorney Edwin Stanton asked the Philadelphia lawyer who headed McCormick’s legal team; “he does not know anything and can do you no good.” Snubbed, Lincoln dropped out of the litigation; as president of the United States seven years later, he appointed Stanton to the position of Secretary of War.
Maxwell Bloomfield, American Lawyers in a Changing Society, 1776–1876 (Cambridge, Mass.: Harvard University Press, 1976);
David Herbert Donald, Lincoln (New York: Simon & Schuster, 1995);
Lawrence M. Friedman, A History of American Law, second edition (New York: Simon & Schuster, 1985);
Arthur E. Sutherland, The Law at Harvard: A History of Ideas and Men, 1817–1967 (Cambridge, Mass.: Harvard University Press, 1967).
The Depression had varying effects on the different segments of the legal profession. Urban lawyers who typically practiced on their own or in association with one or two other lawyers representing individuals suffered severe losses of income. Small-town lawyers struggled to sustain practices based on local businesses and estate planning. Lawyers who represented large corporations found their practices changing from negotiating contracts to negotiating the terms of bankruptcies, but managed to sustain their practices at pre-Depression levels, although large law firms reduced or suspended hiring new lawyers.
The New Deal's regulatory programs also had varying effects. Lawyers had to develop the legal structures for implementing the New Deal's programs and defend those programs against constitutional attack. Substantial numbers of young lawyers joined the administration in Washington, finding in the new regulatory programs legal opportunities they lacked in private practice and hoping to fulfill the professional ideal of public service. Harvard law professor Felix Frankfurter channeled some of his most accomplished students toward government service in Washington. Many Depression-era lawyers became prominent figures in the Roosevelt administration, and later, some, such as Thurman Arnold, the head of the antitrust division at the Department of Justice, helped to found major Washington law firms.
Lawyers representing business interests faced a conflict: Their clients required them to oppose the New Deal's initiatives, and many elite lawyers did. Leaders of the American Bar Association regularly denounced the New Deal in terms that associated the New Deal with tyrannical regimes. The American Liberty League organized a lawyers' committee to provide legal support for constitutional challenges to New Deal programs. John W. Davis, a former solicitor general, 1924 Democratic presidential candidate, and a leader of the elite New York bar, led bar association attacks on Roosevelt's court-packing plan.
The New Deal's regulatory programs generated legal work on the business side because corporations needed advice about how to comply with the new statutes. In that sense, the New Deal created the modern corporate law firm. Corporate lawyers reconciled the conflict between their clients' interests and their own professional interests by developing legal theories that accommodated the new administrative agencies to traditional notions of the rule of law by fitting the agencies into a model based on court procedures. Based on those theories, elite lawyers proposed new statutes to regulate the agencies. Eventually their proposals were reshaped and then adopted in the Administrative Procedure Act of 1946, whose procedural code for administrative agencies encouraged the agencies to act like courts.
In response to attacks on the New Deal by the elite bar, leftist lawyers formed the National Lawyers Guild in 1936 as a vehicle for promoting progressive views within the legal profession. The public interest law movement of the 1960s was foreshadowed between 1931 and 1933 when the National Association for the Advancement of Colored People (NAACP) used a foundation grant to develop a strategic plan for challenging segregation. The plan as proposed was never carried out, but the idea of strategic litigation for social change eventually became an important component of the legal profession's understanding of its social role.
See Also: ARNOLD, THURMAN; FRANKFURTER, FELIX; SUPREME COURT "PACKING" CONTROVERSY.
Auerbach, Jerold S. Unequal Justice: Lawyers and Social Change in Modern America. 1976.
Irons, Peter H. The New Deal Lawyers. 1982.
Shamir, Ronen. Managing Legal Uncertainty: Elite Lawyers in the New Deal. 1995.
Legalese ★★½ 1998 (R)
Solid cast provides solid enjoyment in this skewering of tabloid journalists and the legal system. Celeb lawyer Norman Keane (Garner) doesn't take the case of actress Angela Beale (Gershon), who's accused of killing her brother-in-law. But he does recommend new kid attorney, Roy Guyton (Kerr), to take the heat while Keane works behind the scenes. This raises the antennae of tabloid TV anchorwoman Brenda Whitlass (Turner) who winds up with a video of Guyton getting up close and personal with fellow lawyer Rica Martin (Parker). Needless to say, ethics have very little to do with anything. 105m/C VHS . James Garner, Edward Kerr, Kathleen Turner, Mary-Louise Parker, Gina Gershon; D: Glenn Jordan; W: Billy Ray; C: Tobias Schliessler; M: Stewart Copeland. CABLE
le·gal·ese / ˌlēgəˈlēz; -ˈlēs/ • n. inf. , often derog. the formal and technical language of legal documents that is often hard to understand.
Slang; technical jargon used by attorneys that is often beyond the comprehension of the nonlawyer.
States enact "plain English" laws that require the translation of legalese into everyday language to permit consumers to understand thei insurance policies, deeds, mortgages, leases, credit card financing agreements, and other legal documents.