How does Australia split its legal profession? I just got an interesting edit suggestion to my recent question by someone who just registered (perhaps for the purpose of this edit suggestion). It proposes that &quot;lawyer&quot; is replaced with &quot;junior barrister&quot; because: australia splits its legal profession, so &quot;lawyer&quot; is wrong It also injects a link to the professional profile of the person cited in the question. What is the deal with the splitting of the legal profession in Australia? Is that just barristers and solicitors, pretty much like in New Zealand? Or something else? Is it actually wrong to call members of the legal profession in Australia lawyers? I would guess that &quot;lawyer&quot; is just a general term, and the lack of specificity does not make it wrong. Am I wrong? (I presume the actual purpose of the suggested edit is to inject the link and could speculate on who the user is, but that is irrelevant to this question.)
In many Common Law nations, the distinction between solicitor and barrister is that the solicitors traditionally have direct access to clients and do much of the paperwork and discuss the planning with the clients. In some jurisdictions it was/is common practice that the barrister is not hired by the client but appointed by the judge. The barrister in turn works with the solicitor and presents the case in the court and has little to no access to the client. Historically, the division was much more stark, with solicitors working in the Court of Equity and barristers working in the Court of Common Law. Around the mid-1800s, the Court of Equity became defunct in the Common Law Legal system with the Court of Common Law fulfilling its duties and many Common Law nations changing how the split among lawyers now functions (often requiring separate tests to be a solicitor and a barrister). The split remains in England, Wales, Scotland, three states in Australia (New South Wales, Queensland, and Victoria), Ireland (both the Republic and Northern Ireland), and Hong Kong. In these jurisdictions, a lawyer will hold only one title. In jurisdictions where lawyers may, or even are expected to, hold both titles, the system is called a “fused system”. Here, lawyers start their careers as one of the two and pick up the license to act in the other capacity later if they choose. This covers the jurisdictions of Canada, Malaysia, Singapore, New Zealand, and the remaining Australian states. (Because Australia has a mix of fused and separated systems and state reciprocation, the three states with a separated system will reciprocate for states that allow for fusion. The reverse is not necessary, as fused states would only allow them for the license they already have.) The United States is fully fused and all lawyers are solicitor-barristers, for comparison’s sake. This is why the U.S. uses “attorney” and “lawyer” interchangeably despite the former being another term for barrister in certain jurisdictions (namely Scotland) while the latter term refers to solicitors and barristers collectively. The U.S. did previously have a separate system, but completely fused when Courts of Equity disappeared in the 1850s and, therefore, the term “solicitor” is still used in the legal profession, though these days it tends to be an artefact title for an office or position that predated the fusion (e.g., The Solicitor General of the United States a.k.a. the lawyer whose office represents the federal government in the Supreme Court). Modern usage of “solicitor” tends to refer to a government lawyer, and most of the states with Solicitor offices are one of the Original 13 States (not all of them, though). Only three states that were not part of the original 13 use the term (Ohio, West Virginia (likely a hold over from when it was part of Virginia, which no longer uses the term), and Oklahoma). It should be noted the average U.S. Citizens associate the word solicitor with traveling salesman or door-to-door evangelizers, and generally use the term in signage forbidding the practice on private property.
In a Bar exam hypothetical you are expected to discuss the merits of each party's cases. There are potentially many breaches here, you need to discuss them all.
In California, UPL has a flexible definition and is analyzed situationally, as is the formation of an attorney-client relationship. The shorthand definition for UPL is usually given as something like "doing what lawyers do." When your "help" goes beyond "studying law" and begins to deal with applying that law to a particular legal matter, you're definitely in the neighborhood. If you're encouraging people to compensate you monetarily, even on the sly (or perhaps especially on the sly) that's just going to make it shadier. There's no clear line that divides "assistance" from "advice" or "information" from "counsel." You're not going to find a statute or professional rule that helpfully explains just how close you can get to UPL through wink-wink-nudge-nudge "unofficial-but-maybe-you-should-still-pay-me" legal "information-but-not-advice" before liability attaches, which seems to be the drift of the question (although I understand it was edited). People v. Merchants Protective Corp., 209 P.363, 365 (1922) 'As the term is generally understood, the practice of the law is the doing or performing services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.' Quoting In the case of Eley v.Miller, 7 Ind. App. 529, 34 N. E. 836. Baron v. Los Angeles, 2 C.3d 535, 86 C.R. 673, 469 P.2d 353 (1970). "(T)he Legislature adopted the state bar act in 1927 and used the term 'practice law' without defining it. [FN7] The conclusion is obvious and inescapable that in so doing it accepted both the definition already judicially supplied for the term and the declaration of the Supreme Court (in 'Merchants') that it had a sufficiently definite meaning to need no further definition. The definition above quoted from People v. Merchants' Protective Corp. has been approved and accepted in the subsequent California decisions (citations), and must be regarded as definitely establishing, for the jurisprudence of this state, the meaning of the term 'practice law." (People v. Ring (1937) supra. 26 Cal.App.2d Supp. 768, 772, 70 P.2d 281, 283.) For comparison, the Texas Bar's UPL Committee has a digest of the applicable statutes and rules here (they also provide a few appellate decisions that might interest you). In terms of legitimately paid non-attorney help with preparing documents and the like, here's a long discussion on avoiding UPL from a Legal Document Assistant trade association site. Realistically, UPL is investigated in retrospect, mostly in response to complaints. The proper context to analyze this hypothetical is to envision the non-client furious at the non-lawyer after the case has been lost. If everything goes well the non-lawyer probably gets his "gift" and the State Bar is none the wiser. (Although I suppose there's the further wrinkle that if the non-client wins and doesn't provide the "gift" then the non-lawyer likely has no good remedy).
Yes lawyers do this. quite often in fact. There are professional and publicity reasons of course, that should suffice to not give bad advice and harm your career. But there is also a legal reason. Lawyers are responsible for the advice they give (as most professionals). If they give bad advice, they may be liable for damages!
Why is it against the law to practice law without a license? Most, if not all, jurisdictions have decided to implement a law that requires such a licence (or similar) to ensure that practitioners are properly authorised, regulated and competent in the best interests of the administration of justice and to maintain a high standard of professionalism. Any shortcomings can then be addressed either by law or the relevant regulating body.
Most advice that a lawyer gives is subjective; facts are objective but opinions are always subjective. What a lawyer does when they advise a client is typically called a "legal opinion". The reason it is subjective is that, as Dale M said, there are numerous variants that go into an opinion, and reasonably trained professionals (attorneys) can disagree as to the outcome of a specific factual predicate. Often times, case outcomes will differ based on the application of the facts to the law, so much so that the case outcome can differ based on the choice of words a witness uses, or even the way a judge interprets the law. This is why unlike truly objective discipline such as mathematics, where there is a right and wrong answer, no lawyer can ever say a case will definitely go one way or another. It will always be dependent on perception, which is the very definition of subjective. So, whoever indicated that lawyers don't give subjective advice was simply misinformed. They do. What they try not to do is make value-judgments, saying that things are good or bad; rather, they are trained to indicate whether something is illegal or not, or likely to get you sued or not. However, these are all legal opinions.
Passing the bar exam allows one to get a license to practice law. It is to some extent like a certification exam. It is in all US states a crime to practice law without a license. Exactly how &quot;practice law&quot; is defined varies a bit, but holding yourself out as a lawyer, opening a law office, or taking money for representing people in court is petty much always included. Other related things are often included also. Even if one has passed law school and thus earned a law degree, it is a crime to practice law without a license, and one cannot obtain a license without passing the bar exam. In some states it is possible, but hard, to pass the bar without a law degree, in some a degree is required. so the main thing a law student cannot (legally) do that one who has passed the bar exam can is practice law. Legal Sources I found this definition of the practice of law on an official Maryland web page: The “practice of law” is defined in the Maryland Code as follows: (1) “Practice law” means to engage in any of the following activities: (1) (i) giving legal advice; (1) (ii) representing another person before a unit of the state &gt; (1) &gt; &gt; &gt; (1) (iii) performing any other service that the Court of Appeals defines as practicing law. (2) “Practice law” includes: (2) (i) advising in the administration of probate of estates of decedents in an orphans court of the state; (2) (ii) preparing an instrument that affects title to real estate; (2) (iii) preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; or (2) (iv) giving advice about a case that is or may be filed in a court Md. Code Ann. Bus. Occ. &amp; Prof. § 10-101(h). The Court of Appeals has interpreted the practice of law to include “utilizing legal education, training, and experience [to apply] the special analysis of the profession to a client’s problem.” Kennedy v. Bar Ass’n of Montgomery County, Inc., 316 Md. 646, 662 (1989). In addition, meeting with potential clients may constitute the practice of law. Id. at 666. The practice of law is “ ‘a term of art connoting much more than merely working with legally related matters.’” Attorney Grievance Commission v. Shaw, 354 Md. 636, 649 (1999) (citations omitted). “ ‘Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer.” Id. Therefore, the Court of Appeals ruled that a bar applicant who had served as a hearing examiner for the Maryland Department of Employment &amp; Training was not engaged in the practice of law, and therefore not eligible to take the attorney’s examination. In re Application of Mark W., 303 Md. 1, 4-6 (1985). “The hallmark of the practicing lawyer is responsibility to clients regarding their affairs, whether as advisor, advocate, negotiator, as intermediary between clients, or as evaluator by examining a client’s legal affairs.” In re Application of R.G.S., 312 Md. 626, 632 (1988). Also relevant is RULE 19-305.5. UNAUTHORIZED PRACTICE OF LAW; Law Students Under Supervision Some comment mentioned assistance in pro bono work by law students. I found Maryland Rule of Professional Conduct 19-220 - Legal Assistance by Law Students which provides in pertinant part, omitting the definitions of terms: (b) Eligibility. A law student enrolled in a clinical program or externship is eligible to engage in the practice of law as provided in this Rule if the student: (b) (1) is enrolled in a law school; (b) (2) has read and is familiar with the Maryland Attorneys' Rules of Professional Conduct and the relevant Maryland Rules of Procedure; and (b) (3) has been certified in accordance with section (c) of this Rule. (c) ... The certification shall state that the student is in good academic standing and has successfully completed legal studies in the law school amounting to the equivalent of at least one-third of the total credit hours required to complete the law school program. ... (d) Practice. In connection with a clinical program or externship, a law student for whom a certification is in effect may appear in any trial court or the Court of Special Appeals, or before any administrative agency, and may otherwise engage in the practice of law in Maryland, provided that the supervising attorney (1) is satisfied that the student is competent to perform the duties assigned, (2) assumes responsibility for the quality of the student's work, (3) directs and assists the student to the extent necessary, in the supervising attorney's professional judgment, to ensure that the student's participation is effective on behalf of the client the student represents, and (4) accompanies the student when the student appears in court or before an administrative agency. The law student shall neither ask for nor receive personal compensation of any kind for service rendered under this Rule, but may receive academic credit pursuant to the clinical program or externship. This page about the Univeristy of Maryland School of Law's public Servie program describes the program as: &quot;one of the region’s largest public interest law firms&quot; and states: Working alongside faculty, students provide 75,000 hours of free legal service annually to Maryland citizens in need[.] This is obviously a widely recognized and approved activity.
The question should not include France and Germany, and should be limited to common law jurisdictions that are similar to India, because the function of judges differs starkly between adversarial vs. inquisitorial systems. The adversarial model pits two parties against each other, with the judge serving as the decider (of law, and perhaps of fact). The parties can offer witnesses, who can be compelled to respond to questions, and the attorney asking the question gets to control the question asked (subject to a possible objection by the other party, to be ruled on by the judge). The judge can rule on requests (which are not questions) i.e. petitions by either party. Otherwise, the judge sits there more or less mute, soaking up the argumentation being presented. Appellate proceedings are somewhat special in that the justices may address questions to the attorney, in order to better understand the logic of the proffered argument. The burden is on the attorney to make the case. There is no direct burden on the justice to &quot;make a case&quot;. The &quot;court of public opinion&quot; may be relevant in a jurisdiction where the justice is an elected office or is appointed for limited time. Or, the contrary opinion of a higher court may have some influence on a justice's rulings – this is not the case with a Supreme Court. In other words, it would be highly dysfunctional within the adversarial system for a party to be allowed to interrogate a judge. Formal petitions are allowed, as long as you follow proper form.