On the positive side, legal advertising makes the public aware of current legal issues and lets people know that there are lawyers willing to assist them.. Supreme Court that lawyers may
Trang 1with his advisers and delivered Robbins to the British authorities Adams’s decision was extremely unpopular with the public, and his actions may have contributed to the defeat of his party in the subsequent presidential election
In 1803 Lee represented William Marbury against President Thomas Jefferson’s secretary
of state,JAMES MADISON(MARBURY V.MADISON, 5 U.S
(1 Cranch) 137, 2 L Ed 60 [1803]) Marbury was appointed by Adams, Jefferson’s predeces-sor, as aJUSTICE OF THE PEACE, but owing to the rush and confusion surrounding the eleventh-hour appointment, Marbury’s commission had not been delivered When Jefferson ordered Madison to withhold delivery of the commis-sion, Marbury filed suit Lee lost the case when the Supreme Court ruled that the act of Congress under which Marbury had been issued his commission was unconstitutional Signifi-cantly, Marbury established the federal judiciary
as the supreme authority in determining the constitutionality of law
Four years later, Lee was more successful in his defense of statesman and former vice president AARON BURR, who was tried and acquitted on charges of treason (a violation of the allegiance one owes to one’s sovereign or to the state) (United States v Burr, 25 F Cas 2 [1807]) In 1806 Burr had traveled west to promote settlement of land in the Louisiana Territory His intentions were suspect, and he soon found himself accused of treason for planning to initiate a separation of the western territories from the United States Lee had been
a longtime Burr supporter, and he took the case, winning an acquittal
Lee died June 24, 1815, in Fauquier County near Warrenton, Virginia
FURTHER READINGS Baker, Nancy V 1992 Conflicting Loyalties: Law and Politics
in the Attorney General’s Office, 1789–1990 Lawrence:
Univ Press of Kansas.
Elkins, Stanley, and Eric McKitrick 1995 The Age of Federalism: The Early American Republic, 1788–1800.
New York: Oxford Univ Press.
Nagel, Paul C 1992 The Lees of Virginia: Seven Generations
of an American Family New York: Oxford Univ Press.
Wilson, James Grant, and John Fiske, eds 1887 Appleton’s Cyclopaedia of American Biography Vol 3 New York:
Appleton.
CROSS REFERENCES Electoral College; Judicial Review.
LEE V WEISMAN Lee v Weisman, 505 U.S 577 (1992), repre-sented a major political blow for proponents of prayer in the public schools The decision came
as something of a surprise to many legal and political analysts, but was in keeping with precedents established by the Court in similar cases In Engel v Vitale (1962), the Court barred prayer in the public schools as an unhealthy union of church and state This position was affirmed and expanded in Abing-ton School District v Schempp (1963), in which the Court ruled that school-sponsored devo-tional activities and Bible readings were uncon-stitutional under the Establishment Clause The Court has continued to adhere to a rigorous interpretation of the Establishment Clause in cases including Board of Education of Kiryas Joel v Grumet (1994), where the Court found that the creation of a special school district to accommodate the needs of a community comprising entirely of Hasidic Jews was uncon-stitutional under the Establishment Clause Significantly, the Court also refused a direct request from the administration of President GEORGE H.W.BUSH to review the test for violation
of the Establishment Clause developed in Lemon
v Kurtzman (1971)
Amid what many people saw as increasing social disorder and lawlessness in the 1980s, a strong political movement emerged favoring a more prominent role for RELIGION within the public schools of the United States This movement particularly emphasized the sup-posed benefits of prayer in the public schools, believing that a renewed emphasis on religious teachings in a school setting would lessen the perceived waywardness of youth By the same token, many people feared that the introduction
of religion into the public schools would constitute a dangerous abridgement of the Establishment Clause of the U.S CONSTITUTION, which many interpret as calling for the complete separation of church and state Throughout the decade of the 1980s, conserva-tive presidentsRONALD REAGANand George H W Bush appointed new members to the Supreme Court, including SANDRA DAY O’CONNOR,ANTONIN SCALIA, DAVID H SOUTER, and CLARENCE THOMAS, who many hoped would vote to reverse earlier Court rulings barring the introduction of religious teachings or practices into the public schools A challenge to legal precedent was eagerly awaited by proponents of school prayer
258 LEE V WEISMAN
Trang 2For many years it was customary for the
principals of middle and high schools in
Providence, Rhode Island, to invite religious
leaders to give nonsectarian prayers as
invoca-tions and benedicinvoca-tions at school-sponsored
graduation ceremonies The school system
had, in fact, prepared guidelines for clergy
delivering such prayers, to insure that the
prayers would not include any direct references
to specific deities or saints Despite this effort of
the schools to make the prayers innocuous and
all-inclusive, a middle school student, Deborah
Weisman, and her father, Daniel, objected to
the use of any prayer at her June 29, 1989,
graduation ceremony Four days prior to the
ceremony, the Weismans sought a temporary
restraining order from the U.S district court for
the District of Rhode Island to prohibit the use
of prayer at Deborah’s graduation This motion
was denied due to a lack of time to fully
consider the case, and the graduation ceremony
was conducted as planned Daniel Weisman
then filed for a permanent injunction against
the use of prayers at future graduation
ceremo-nies from the district court
The district court held that the use of prayer
at public school graduation ceremonies did
constitute a violation of the Establishment
Clause To reach its VERDICT, the district court
applied the three-pronged test for establishing
infringement of the Establishment Clause
de-vised in Lemon v Kurtzman The so-called
Lemon Test directed that any state-sponsored
program, in order to adhere to the
Establish-ment Clause, must: reflect a clearly secular
purpose; have a primary effect that neither
advances nor inhibits religion; and avoid
exces-sive government entanglement with religion
The district court did not comment on the
first or third stipulations of the Lemon Test, but
noted that the use of prayer at official public
school functions violated the second clause, in
that by having prayer of any kind at a state
function, the idea of religion in general was
advanced Robert E Lee, principal of the
Nathan Bishop Middle School of Providence,
Rhode Island, and representing the petitioners,
appealed the case to the U.S Court of Appeals
for the First Circuit The court of appeals
upheld the RULING of the district court, and
expanded its scope by stating that the practice of
using prayer at official school functions in fact
violated all three prongs of the Lemon Test The
petitioners then appealed the case to the
Supreme Court, which heard arguments on November 6, 1991
In its argument before the Supreme Court, the petitioners maintained that prayer represents
an appropriate and effective means to enable students and parents to seek spiritual guidance at important events such as school graduations The Court was unmoved by either this logic or the prevailing conservative political climate,
howev-er, and upheld the ruling of the appeals court by
a 5–4 vote JusticeANTHONY M.KENNEDY, writing for the majority, made a distinction between this case and Marsh v Chambers, when the Court had ruled that the use of a prayer to open a state legislature’s session did not constitute a violation
of the Establishment Clause Kennedy main-tained that the opening of a legislature, compris-ing entirely adults who are there of their own free will cannot be realistically compared to a school graduation, where numerous peer, parental, and social pressures for attendants exist The Court also noted that school children are particularly susceptible to coercion through the schools, and
as such the behavior of schools with regard to the Establishment Clause must be able to withstand especially careful scrutiny
Justices Blackmun, O’Connor, and JOHN PAUL STEVENSconcurred, adding that the Lemon Test was applicable and represented a straight-forward means of assessing compliance with the Establishment Clause Justices O’Connor, Sou-ter, and John Paul Stevens also wrote separately
to maintain that the Establishment Clause should not only be construed as prohibiting the government from favoring one religion over another, but also as barring government support for religion as opposed to nonreligion
JusticesWILLIAM H.REHNQUIST, Clarence Thomas, and BYRON R WHITE, in dissenting from the majority, noted the pervasive tradition of using prayers as invocations and benedictions at a number of nonreligious events, viewing such prayers as being essentially nonreligious in intent when used in this manner
FURTHER READINGS Biskupic, Joan, ed.1992 Supreme Court Yearbook 1991–1992.
Washington, D.C.: Congressional Quarterly.
Lawton, Kim A 1993 “Do Students Have a Prayer?”
Christianity Today (June 21).
Lehman, Devon M 2001 “The Godless Graduation Ceremony? The State of Student-Initiated Graduation Prayer after Lee v Weisman and Santa Fe Independent School District v Doe.” Univ of Colorado Law Review
72 (winter).
LEE V WEISMAN 259
Trang 3Pershing, Stephen B 1995 “Graduation Prayer after Lee v.
Weisman: A Cautionary Tale ” Mercer Law Review 46 (spring).
CROSS REFERENCE Religion.
LEGACY
A disposition of personal property by will
In a narrow technical sense, a legacy is distinguishable from a devise, a gift by will of real property This distinction, however, will not be permitted to defeat the intent of a testator—one who makes a will—and these terms can be applied interchangeably to either personal property or real property if the context
of the will demonstrates that this was the intention of the testator
A GENERAL LEGACY, a DEMONSTRATIVE LEGACY, and a specific legacy represent the three primary types of legacies
LEGAL Conforming to the law; required or permitted by law; not forbidden by law
The term legal is often used by the courts in reference to an inference of the law formulated
as a matter of construction, rather than established by actual proof, such as legal malice
LEGAL ADVERTISING Legal advertising is any advertising an attorney purchases or places in publications, outdoor installations, radio, television, or any other written
or recorded media
The pros and cons of legal advertising continue in the early 2000s to be widely discussed as the amount and variety of adver-tising continues to increase each year On the positive side, legal advertising makes the public aware of current legal issues and lets people know that there are lawyers willing to assist them Legal advertising also serves the practical purpose of informing people about the times when it may be necessary to consult a lawyer
On the negative side, legal advertising can be manipulated into something that is more slick than informative Guidelines and legislation have targeted that type of advertising
The roots of legal advertising can be traced
to England’s legal system However, current standards are based on Canon 27 of the
AMERICAN BAR ASSOCIATION (ABA) Canons of Professional Ethics Originally written in 1908, these guidelines were established to act as model rules for both state and local bar associations Canon 27, which addressed legal advertising, stated,“[S]olicitation of business by circulars or advertisements, or by personal communica-tions, or interviews, not warranted by personal relations are unprofessional.” In 1937 this rule was modified to allow attorneys to publish listings in legal directories and other publica-tions that were solely for those in the legal community The next year the ABA ruled that distinctive listings could also be placed in the white pages of public telephone directories However, thisRULINGwas overturned in 1951
In 1969 the ABA reclassified the canons and created the Model Code ofPROFESSIONAL RESPON-SIBILITY In 1983, in an effort to further codify standards of legal conduct, the ABA replaced the code with the Model Rules of Professional Conduct; Section 7 of the Model Rules deals specifically with lawyer advertising and solicita-tion According to Section 7, advertisements must be truthful and not deceptive or mis-leading The ABA has defined misleading advertisements as those that create unrealistic expectations of the lawyer’s ability; compare the lawyer’s service to the services of other lawyers, unless the facts can be substantiated; or contain any known MISREPRESENTATION Acceptable con-tent includes the lawyer contact information, including address and phone number, type of services offered, bases of fees, available credit arrangements, foreign language ability, refer-ences, and client names (with their prior consent) Acceptable media include newspapers, television, radio, phone and legal directories, outdoor installations, and other written or recorded media Lawyers are required to keep records listing the use and content of each advertisement, as a tool of enforcement The ABA periodically amends the model rules to make adjustments for evolving norms and changes in technology For example, in
1998 the ABA addressed the widespread use of the INTERNET by lawyers to advertise their businesses According to the ABA Commission
on Advertising,“The use of the Internet by legal service providers creates a wide range of ethical issues.”
A set of specific guidelines set forth by the ABA limits the ability of lawyers to state or
260 LEGACY
Trang 4Should Legal Advertising
Be Restricted?
Despite a series of rulings by the
U.S Supreme Court that lawyers
may advertise their services, the issue of
legal advertising remains controversial
Proponents of advertising contend that it
provides to consumers information
about their legal rights and allows those
in need of legal services a way to find an
attorney Opponents charge that
adver-tising demeans the legal profession
because promoting legal services through
print or electronic media tells the public
that lawyers are only out to make money
With the rise of the INTERNET, legal
advertising has moved into a new
medi-um, generating even more questions
about the need for restrictions on
adver-tisements
Opponents of legal advertising are
primarily concerned with maintaining
the law as a profession As members of a
profession, lawyers have pledged to serve
the public interest For much of U.S
history, lawyers have served as protectors
of CIVIL RIGHTS and democratic
institu-tions Those who oppose legal
advertis-ing argue that this historic role must be
preserved in the face of advertising that is
sometimes undignified and demeaning
to the profession
State bar associations and state
supreme courts have set standards for
the ethical conduct of attorneys
Oppo-nents of advertising believe that the
regulation of advertising properly falls
within the jurisdiction of these
institu-tions Though many attorneys may
object that regulation restricts theirFIRST
AMENDMENT right to freedom of
expres-sion, the U.S Supreme Court has never
ruled that states are without power to
police the legal profession
Opponents argue that even with the
restrictions currently imposed, too many
lawyers hurt the profession by
produc-ing radio and television advertisements
that create the perception that lawyers
are ambulance chasers If restrictions
were loosened, this group contends,
some lawyers would become even more
aggressive in soliciting business Public
dissatisfaction with lawyers and the legal system, which has grown considerably since the 1970s, would continue to increase
Opponents of advertising believe that purposeful competition between lawyers for clients is a great evil of the profession The legal profession must concentrate on public service rather than profits When lawyers advertise, they provide the public with a misleading picture of legal services, suggesting that legal issues can be solved as easily as a sink can be fixed Because the law is complex, the consumer cannot evaluate the quality of the offered services
Opponents also note that the high cost of advertising must be passed on to the consumer The financial burden of advertising may encourage a lawyer to pursue nonmeritorious litigation In ad-dition, if a lawyer works with a high volume of clients generated by advertis-ing, the lawyer may have little
opportuni-ty to communicate with a client or fully analyze a legal issue brought to the lawyer
Those who support fewer restrictions
on legal advertising contend that bar associations and bar leaders are out of step with the realities of U.S society
First, they argue that bar associations were organized in the late nineteenth century to ensure that lawyers were self-regulated This meant that aBAR ASSOCIA-TION could control the behavior of its members and find ways to preserve the monopoly over legal services These supporters suggest that the public has not been well served by this system
Though law is a profession, the need
to make money has always been ac-knowledged Supporters of advertising argue that it is, therefore, disingenuous for well-heeled lawyers to lament the introduction of competition They point out that bar leaders have generally come from large corporate law firms, which have no need to advertise for clients but compete for profitable corporate retai-ners These firms, they contend, have not provided public service but have
concentrated on making profits If cor-porate firms had helped with the unmet legal needs of society, perhaps advertising would not be necessary
Proponents of advertising do not believe that professionalism, public ser-vice, and commercialism are mutually exclusive They contend that lawyers can provide the public with a service by advertising Much of legal advertising is educational, instructing consumers on what their legal rights are and where they may consult an attorney for free or for a minimal charge Advertising reaches peo-ple who would not otherwise know what
to do or where to go with a legal problem Proponents of advertising argue that placing the legal profession in the marketplace is not demeaning but dem-ocratic Legal advertising breaks down the elitist notion that lawyers are some-how superior to others in the workforce Lawyers provide services, many of which are simple Competition helps to drive down the costs of legal services rather than increase them Advertising does cost money, but innovative law firms have learned how to use forms, computers, and the services of legal assistants to reduce operating costs In most cases, the quality of legal services has not suffered
As with any business, if consumers are unhappy with the service they receive, they will not return Proponents contend that the brisk business done by law firms that advertise is evidence of the quality of work they produce
Those who favor legal advertising generally are convinced that advertise-ments provide consumers with informa-tion about legal services As long as promotional material is not misleading
or false, legal advertising should be subject to minimal restrictions Propo-nents note, however, that most lawyers either refrain from advertising or do it in the most conservative way, so as to avoid censure by their bar associations As of
2009, there appeared to be no driving force at work within the legal profession that would change the status quo
LEGAL ADVERTISING 261
Trang 5imply that they have special knowledge in a particular field of law, such as patent law or admiralty law Because potential clients do not typically have a way to verify that a lawyer is a qualified specialist, this guideline protects them from deception However, in In re R M J (455 U.S 191, 102 S Ct 929, 71 L Ed 2d 64[1982]), the Supreme Court ruled that lawyers have the right to advertise their area of practice if they use “unsanctioned, non-misleading language.”
Simply stating that they practice a specific type
of law—for example, DIVORCE law—is accept-able; stating that they are specialists in that type
of law is not
Although these guidelines have been helpful
in establishing higher standards in legal adver-tising, several problems have arisen The major problem is that the guidelines are the creation of the ABA; therefore, the legal profession is responsible for enforcing them As with any
type of self-regulation, this has led some critics
to claim that enforcement standards are some-times lax and that inadequate punishment only encourages other lawyers to engage in inappro-priate or unethical behavior
The second main problem is that because state associations can create their own legisla-tion based on the ABA guidelines, what is acceptable legal advertising in one state may be unacceptable in a neighboring state This discrepancy can lead to confusion and violation
of ethics codes, as well as image problems for the legal profession
Several landmark cases set the standards for legal advertisements in the early 2000s In Bates v State Bar of Arizona (433 U.S 350, 97
S Ct 2691, 53 L Ed 2d 810[1977]), the Supreme Court ruled that legal advertising in newspapers
is protected by the FIRST AMENDMENT and that state professional or disciplinary codes cannot
“Spamming” the Net
L
B
egal advertising has found its way into the
phone books and onto radio and television
With the growth of the Internet as an information
and communication resource, lawyers and law
firms have established home pages on the World
Wide Web to provide legal information and
adver-tise their services Their doing so has created new
opportunities and new problems
In April 1994 Laurence Canter and Martha A
Siegel, of the Phoenix, Arizona, law firm of Canter
and Siegel, sent an email message to thousands of
Internet news groups, advertising their immigration
law practice, in the hope of gaining new clients The
subject line, however, announced information on a
lottery News groups are electronic bulletin boards
where people post messages concerning a very
specific topic They have millions of subscribers
Canter and Siegel’s direct mailing to the news
groups cost them virtually nothing compared with
the cost of a conventional hardcopy mailing In
sending their advertisement, they used a process
called spamming, which allows a message to be
sent to every news group in existence, regardless of
whether a particular group might be interested in the content of the message
The spamming set off a tidal wave of protests from readers of news groups who were angry that the law firm had violated Internet etiquette As many
as 6 million people received the message Most people simply deleted the message but about 20,000 sent angry responses Canter and Siegel’s Internet provider terminated their account after these messages crashed its server 15 times The law firm switched to another provider, which also terminated service The couple published a book in 1995 on how to market on the Internet using “guerilla”
techniques They divorced in 1996
Though the Internet community and members of the legal community voiced their displeasure at the spamming, the Canter and Siegel advertisement was legal at the time The federal CAN-SPAM Act of
2003 made such email advertisements illegal, as it bans deceptive subject lines
CROSS REFERENCES E-mail; Internet.
262 LEGAL ADVERTISING
Trang 6prohibit it However, reasonable restrictions
can be placed on deceptive, false, or misleading
advertisements
The Supreme Court addressed the issue of
in-person legal solicitation in Ohralik v Ohio
Bar Ass’n (436 U.S 447, 98 S Ct 1912, 56 L Ed
2d 444 [1978]) An Ohio BAR ASSOCIATION
regulation stated, “A lawyer shall not
recom-mend employment, as a private practitioner, of
himself, his partner or associate to a non-lawyer
who has not sought his advice regarding
employment of a lawyer” (Ohio Code of
Professional Responsibility, DR 2-103[A]
[1979]) The Supreme Court ruled that
in-person solicitation has very limited First
Amendment protection and, therefore, left its
regulation up to the individual states
The issue of direct-mail solicitation was the
focus of Shapero v Kentucky Bar Ass’n (486 U.S
466, 108 S Ct 1916, 100 L Ed 2d 475[1988])
The Kentucky Bar Association had a statute that
prohibited attorneys from using direct-mail
solicitation to attract clients The Supreme
Court held that the law violated the First
Amendment The ensuing direct-mail standard
was that truthful and nondeceptive ads could be
targeted at people with known legal problems
Some states during the early 2000s have
approved amendments to rules that apply to legal
advertising New York, for instance, approved
rules in 2007 that allow a lawyer to refer to
publications and professional ratings in the
lawyer’s advertising However, the rules limit
the lawyer from including certain testimonials
and endorsements as well as advertisements that
feature legal documents The New York rule
changes, as well as those in other states such as
Florida, have been the subject of controversy In
fact, in Alexander v Cahill (No 5:07-CV-117,
2007 WL 2120024 [N.D.N.Y July 23, 2007], a
New York federal district court struck down
several provisions of the New York rules, holding
that the rules violated the First Amendment
FURTHER READINGS
American Bar Association 1998 A Re-Examination of the
ABA Model Rules of Professional Conduct Pertaining to
Client Development in Light of Emerging Technologies.
Chicago: ABA.
Dobrowalski, Lauren 1994 “Maintaining the Dignity of the
Profession: An International Perspective on Legal
Advertising and Solicitation.” Dickinson Journal of
International Law 12 (winter).
Hansen, Mark 1994 “Lawyers’ Internet ad Angers Users.”
American Bar Association Journal (July).
Helbling, Christian J 1998 “Internet Advertising by Lawyers: An Analysis of the Salt in the Sea of Cyberspace ” West Virginia Journal of Law & Technology (February 14).
Lynch, Thomas E., III 2001 “Ethical Problems with Legal Computer Advertising and Affiliations ” Maryland Bar Journal 34 (November-December): 11–4.
Peltz, Robert D 1989 “Legal Advertising—Opening Pan-dora ’s Box?” Stetson Law Review 19 (fall).
Rotunda, Ronald D 2007 Legal Ethics in a Nutshell 3d ed.
St Paul, Minn.: Thomson/West.
Siegel, Martha A 1994 Letter American Bar Association Journal (September).
Thier, Whitney 1991 “In a Dignified Manner: The Bar, the Court, and Lawyer Advertising ” Tulane Law Review 66.
Zacharias, Fred C 2002 “What Lawyers Do When Nobody’s Watching: Legal Advertising as a Case Study of the Impact of Underenforced Professional Rules ” Iowa Law Review 87 (March): 971–1022.
CROSS REFERENCES Ethics, Legal; Freedom of Speech; Legal Specialization;
Professional Responsibility.
LEGAL AGE The time of life at which a person acquires full capacity to make his or her own contracts and deeds and to transact business or to enter into some particular contract or relation, such as marriage
In most states a minor attains legal age at 18, although for certain acts, such as consuming alcoholic beverages, the age might be higher; for others, such as driving, the age might be lower
Legal age is synonymous withAGE OF CONSENTor AGE OF MAJORITY
LEGAL AID
A system of nonprofit organizations that provide legal services to people who cannot afford an attorney
In the United States, more than 1,600 legal aid agencies provide legal representation with-out cost or for a nominal fee to people who are unable to pay the usual amount for a lawyer’s services These agencies are sponsored by charitable organizations, lawyers’ associations, and law schools, and by federal, state, and local governments In some states legal aid services are partially funded from the interest earned in law firm trust accounts
The first U.S legal aid agency was founded
in 1876 in New York City by the German Society The agency assisted German immi-grants with legal problems Beginning in the late nineteenth century, lawyers’ associations took
LEGAL AID 263
Trang 7the lead in providing low-cost legal services In
1911 the National Alliance of Legal Aid Societies was established to promote the concept of legal aid to people who were poor The alliance, now known as the National Legal Aid and Defender Association, publishes information and holds conferences dealing with legal aid issues
Legal aid agencies handle civil cases, includ-ing those concerninclud-ing adoption, BANKRUPTCY, DIVORCE, employment issues, and LANDLORD AND TENANT disputes These agencies may not use federal funds to handle criminal cases The criminal counterpart to the U.S legal aid system
is called the public defender system Public defenders are funded through state and local agencies and federal grants
Legal aid agencies are run by attorneys and administrative support staff They are often supplemented by law students, who participate
in legal aid clinics that give students opportu-nities to work with indigent clients In addition, many private attorneys volunteer their time to assist these agencies In some jurisdictions the court may appoint private attorneys to handle legal aid clients Despite these pro bono (donated) services, legal aid agencies typically have more clients than they can serve When they do, they may exclude complicated matters, such as divorce, from the legal services they provide
The scope of legal aid widened dramatically
in 1964, when President LYNDON B JOHNSON established the Office of Legal Services This agency organized new legal aid programs in many states, then suffered budget cuts in the early 1970s In 1974 Congress disbanded the office and transferred its functions to the newly created LEGAL SERVICES CORPORATION (Legal Ser-vices Corporation Act of 1974, 88 Stat 378[42 U.S.C.A § 2996]) The corporation is a private, nonprofit organization that provides financial support to legal aid agencies through the distribution of grants It also supports legal aid attorneys and staff through training, research, and technical assistance
CROSS REFERENCES Pro Bono; Right to Counsel.
LEGAL ASSISTANT
A legal assistant is a person, working under the supervision of a lawyer, qualified through
education, training, or work experience to perform substantive legal work that requires knowledge of legal concepts and is customarily, but not exclu-sively, performed by a lawyer A legal assistant is also known as a paralegal
Legal assistants, or paralegals, help attorneys deliver legal services Although they assist attorneys in very technical areas of the law, they are prohibited from practicing law without
a license Legal assistants cannot represent a client or give legal advice All work performed
by legal assistants must be done under the supervision of an attorney, who is subject to disciplinary procedures for ethical violations committed by the legal assistant
The legal assistant profession emerged in the 1960s, as law firms hired persons, usually women, to help lawyers prepare complex or highly detailed cases These persons typically worked in specialties such as BANKRUPTCY, probate and estate planning, real estate, and civil litigation, where they organized docu-ments, completed forms, and prepared cases for trial
In 1968 theAMERICAN BAR ASSOCIATION(ABA) created the Special Committee on Lay Assistants for Lawyers The committee worked to develop the training of nonlawyer assistants, and the utilization of their services to enable lawyers to perform their professional duties more effec-tively and efficiently In 1973 the ABA approved the Guidelines for the Approval of Legal Assistant Education Programs, and in 1975 it approved the first eight legal assistant training programs under those guidelines In 1996 there were 206 ABA-approved education programs in the United States
A drive for professional standing led to the establishment of two legal assistant organiza-tions The National Federation of Paralegal Associations (NFPA) was founded in 1974 The NFPA is a federation of sixty member associa-tions that works to improve the educational and professional standing of legal assistants In 1975 the National Association of Legal Assistants (NALA) was formed
Both the NFPA and the NALA have worked
to increase the educational requirements for becoming a legal assistant In the 1960s legal assistants learned on the job In the 1970s a variety of educational options became available: certificate programs, two-year associate of arts degrees in paralegal studies, and four-year
264 LEGAL ASSISTANT
Trang 8Bachelor of Arts degrees in paralegal studies In
the 1990s, postbaccalaureate programs started
to appear
The demand for legal assistants has
contin-ued to grow since the 1960s By 2006 there were
238,000 legal assistants, with a projected growth
rate of 22 percent by 2016 Most legal assistants
are women A Bureau of Labor Statistics study
found that in 2005 almost 14 percent of legal
assistants were men, yet the percentage had
increased by 2 percent since 2004 Besides
work-ing for law firms, legal assistants are employed
by corporations, banks, government agencies,
and insurance companies The demand for legal
assistants is highest in large cities
The profession has continued to explore ways
to improve its status For example, the NALA
offers a certified legal assistant credential This
credential is based on a two-day examination that
includes legal research, legal terminology, ethics,
communications, and four areas of substantive
law chosen by the candidate It must be renewed
every five years by attending continuing
educa-tion programs The NALA also offers specialty
examinations to those with advanced knowledge
in substantive areas of the law
The regulation of legal assistants has been
addressed by numerous state legislatures, state
BAR ASSOCIATION committees, and state supreme
court task forces None of these entities has
implemented regulation, whether it be
registra-tion, licensure, or certification
FURTHER READINGS
Kligerman, Susan D 1996 “Perspectives on the Paralegal
Tradition ” National Federation of Paralegal
Associa-tions Available online at www.paralegals.org (accessed
April 6, 2010).
National Association of Legal Assistants Available online at
www.nala.org (accessed April 6, 2010).
LEGAL CAP
Long stationery with a wide left-hand margin and
a narrow right-hand margin, used by attorneys
The trend of the courts is to move away
from permitting a document of this size to be
filed Courts presently recommend or require
the use of standard size paper
LEGAL CAUSE
In the law of torts, conduct that is a substantial
factor in bringing about harm, which is
synony-mous with proximate cause
LEGAL CERTAINTY
A test in civil procedure designed to establish that
a complaint has met the minimum amount in controversy required for a court to have jurisdic-tion to hear the case Under this test, if it is apparent from the face of the pleadings, to a “legal certainty” that the plaintiff cannot recover or was never entitled to the amount in the complaint, then the case will be dismissed
For example, the existence of federal diversity jurisdiction on the part of a federal district court–one aspect of which is the pre-sence of an AMOUNT IN CONTROVERSY in excess
of $75,000–is a threshold question of law, or one which must be determined by the judge at the start of the action by applying the legal-certainty test
FURTHER READINGS Gessner, Volkmar, and Ali Cem Budak 1998 Emerging Legal Certainty: Empirical Studies Aldershot, Hamp-shire, England: Ashgate.
Glannon, Joseph W 2008 Civil Procedure: Examples and Explanations 6th ed Frederick, MD: Aspen.
Kane, Mary Kay 2007 Civil Procedure in a Nutshell 6th ed.
St Paul, MN: West Law School.
CROSS REFERENCES Amount in Controversy; Dismissal; Jurisdiction.
LEGAL DECISION SeeCOURT OPINION
LEGAL DETRIMENT
A change in position by one to whom a promise has been made, or an assumption of duties or liabilities not previously imposed on the person, due to the person’s reliance on the actions of the one who makes the promise
CROSS REFERENCES Consideration; Contracts.
LEGAL EDUCATION There were no law schools in colonial America
Those who sought a legal career had several options They could embark on a self-directed course of study; they could serve as an assistant
in a clerk of court’s office; or they could travel
to England to study at the INNS OF COURT The most common method of obtaining a legal education, however, was through the appren-ticeship system
LEGAL EDUCATION 265
Trang 9The apprenticeship system that allowed men (it was generally unavailable to women) to acquire education and experience by working under an experienced practitioner Ideally, an apprentice would spend several years learning both the law and the practical aspects of a law practice The quality of apprenticeships varied greatly, however, depending on the administer-ing attorney’s skill and attention Some appren-ticeships were merely a source of cheap labor
THOMAS JEFFERSON once commented that the services he was expected to render as an apprentice were worth more than the instruc-tion he received
In 1779 Jefferson helped found the first chair of law, at William and Mary College, and appointed his mentor, GEORGE WYTHE, to fill it
Yale, Columbia, the University of Maryland, and Harvard followed suit The positions they established were part of the general university curriculum and were typically filled by practi-tioners rather than academicians This early movement to emphasize the scholarship of law
gained little momentum because most lawyers believed that apprenticeships provided sufficient legal training In 1784, however, proprietary (for-profit) law schools began to spring up, which spurred the transformation of legal education
Proprietary law schools were essentially specialized and elaborate law offices The first and most famous was Connecticut’s LITCHFIELD LAW SCHOOL Its 14-month course provided instruction in subjects such as property, con-tracts, procedure, master-and-servant, and com-mercial law—similar to the subjects of some modern first-year law school classes Litchfield graduated about 1,000 students in its 49-year history, including 2 future vice presidents, 101 congressmen, 28 senators, 14 governors, and scores of distinguished state jurists
The advent of law professorships, proprie-tary schools, and bar associations brought some standard of form to legal education These standards deteriorated, however, thanks in part
toANDREW JACKSON, who was elected the seventh PRESIDENT OF THE UNITED STATESin 1828 Jackson,
a lawyer, considered himself to be a champion
of the common person State legislatures quickly followed his lead, eschewing anything elitist and reasserting authority formerly dele-gated to bar associations Bar admission stan-dards declined Nearly anyone who could show
“good moral character” was permitted to practice law, regardless of any knowledge of the field Bar examinations, if required at all, were usually perfunctory
Standards dropped even at Harvard Law School, which was founded in 1817 as the first academic law school By the end of the 1820s, students who were denied admission to Harvard College could go directly into the law school; the school also quit giving exams In 1829, however, Justice JOSEPH STORY of the U.S Supreme Court became a Harvard Law profes-sor and augured Harvard’s emergence as the first modern law school In 1870 CHRISTOPHER COLUMBUS LANGDELL became dean of Harvard Law School, essentially launching the modern era of legal education
Langdell believed that law could be taught as
a science Rather than listening passively to lectures and reading treatises, Langdell’s stu-dents dissected reported case decisions Using a technique known as Socratic dialogue, profes-sors bombarded their students with questions,
Law Degrees Conferred, 1960 to 2007
Year
Law degrees conferred to women Law degrees conferred to men
SOURCE: U.S National Center for Education Statistics, Digest of Education Statistics,
2008.
0
5,000
10,000
15,000
20,000
25,000
30,000
35,000
40,000
45,000
1960
230
9,010
1970
801
14,115
1980
10,754
24,893
1990
15,406
21,079
2000
17,514
20,638
2007
20,709
22,777
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
266 LEGAL EDUCATION
Trang 10forcing them to analyze the facts, reasoning, and
law in each case In addition, Langdell grouped
related cases together, devoting separate books
to different topics Langdell’s method of
instruction through dialogue and case-study is
standard in law schools in the early 2000s
Langdell also instituted tighter admission
standards, expanded the program from two to
three years, and raised graduation requirements
Other university law schools soon began to
adopt some of Harvard’s lofty standards
The AMERICAN BAR ASSOCIATION (ABA),
founded in 1878, along with the Association
of American Law Schools (AALS), formed in
1900, worked to consign apprenticeships to the
pages of history In 1917, 36 out of 49
jurisdictions still required a period of
appren-ticeship, but future lawyers could substitute law
school In the last half of the nineteenth
century, a high school graduate could enter
most law schools, but the ABA and the AALS
worked to steadily increase admission
stan-dards By 1931, 17 states required two years of
college before admission, and 33 had a
three-year law curriculum Just eight three-years later 41
states required at least two years of college In
the early 2000s law schools require prospective
students to have a four-year degree from an
accredited college or university As of 2009 there
were 200 ABA-approved law schools A few
states, including California, allow graduates of
schools not approved by the ABA (usually for
profit schools) to sit for theBAR EXAMINATION
Criticism of the Langdell model of legal
education has grown since the 1980s, but few
law schools have sought to break from it
However, in 2006 Harvard Law School changed
its first-year curriculum, which consisted of
contracts, torts, CIVIL PROCEDURE, criminal law,
and property The school introduced courses on
legislation and regulation, international and
comparative law, and problem solving As of
2009 it remained to be seen whether other law
schools would modify their first-year classes
Professional legal development continues
throughout a lawyer’s career In 1975
Minne-sota was the first state to mandate CONTINUING
LEGAL EDUCATION for practitioners, requiring 45
hours of approved legal study every three years
Since then, the majority of states have established
rules that require some form of mandatory
continuing education, although requirements
vary by state Continuing education is also
required for attorneys who wish to be board certified as specialists in a certain area of law Certified legal specialist programs are of-fered in many states and are accredited by the ABA
The law profession, like many others, was slow to open up to women The first woman lawyer in the United States was Arabella Mansfield (1846–1911), who became a member
of the Illinois bar in 1869 Mansfield studied in her brother’s law office and was admitted to the bar despite the fact that Illinois legislation required any person applying for bar admission
to be white, male, and over 21 years of age Ada Kepley (1847–1925) was the first woman in the United States to earn a law degree She graduated from Union College of Law (now Northwestern University Law School) in 1870
By 1930 most U.S law schools were admitting women, but not Harvard Law School The school remained closed to women until 1950
Although women were finally accepted into law schools, the number of women who attended was scant Until the mid-1960s less than
3 percent of law students were women Those numbers surged during the 1970s 1n 2009 women made up almost 50 percent of U.S law school admissions
Desegregation of law schools came no more quickly than it did to other educational institutions, despite the pivotal role lawyers played in the desegregation process Since the 1960s minority enrollment in law schools has increased, but the numbers still remain low In
1960 about 1 percent of law school students were African American By the late 1990s that number had grown to only 8 percent In response, a number of schools began active recruitment programs to help ensure greater diversity in their student body However, by
2009 admission statistics showed only minimal improvement in recruiting African Americans students
When schools use race as a factor in the admissions process, however, critics charge that they are violating constitutional rights Such charges have led to a number of controversial cases, including GRUTTER V BOLLINGER (539 U.S
306,123 S Ct 2325, 156 L Ed 2d 304[2003]),
in which a prospective white student contended that she was denied admission to the University
of Michigan Law School because the school uses race as a deciding factor in admissions In a 5–4 opinion, the Supreme Court ruled that the
LEGAL EDUCATION 267