1、Lesson Two,Legal Profession,If there were no bad people, there would be no good lawyers. Charles Dickens, British novelist 倘若世上沒(méi)有壞人，也就不會(huì)有好的律師。 英國(guó)小說(shuō)家 狄更斯 C,Background,律師 法官 檢查官 法學(xué)教師,變換頻繁 Harlan Fiske Stone,Part 1 The Bar,Bar法庭中將公眾與法官、律師及其他訴訟參與人分隔開(kāi)的隔板。 后來(lái)用于通指法律職業(yè)或律師職業(yè)。,美國(guó)律師協(xié)會(huì),律師,美國(guó) Lawyer Attorney Att

2、orney at-law Counseler Counseler at-law,英國(guó) Barrister 訴訟律師 大律師，出庭律師 Solicitor 非訴律師 訴狀律師，事務(wù)律師,The regulation of the legal profession is primarily the concern of the states, each of which has its own requirements for admission to practice. 對(duì)法律職業(yè)的管制主要是州政府的事。各州都有自己的允許律師執(zhí)業(yè)的條件。,Most require three years of

3、college and a law degree. Each state administers its own written examination to applicants for its bar.,三年大學(xué)法律學(xué)位書(shū)面考試,Almost all states, however, make use of the Multistate Bar Exam, a day-long multi-choice test, to which the states adds a day-long essay examination emphasizing its own law.,各州律師聯(lián)考州綜合

4、問(wèn)答題,The Multistate Bar Examination (MBE) is a six-hour, two-hundred question multiple-choice examination covering contracts, torts, constitutional law, criminal law, evidence, and real property.,A substantial fraction of all applicants succeed on the first try, and many of those who fail pass on a l

5、ater attempt. 通過(guò)第一次考試的人很多，但通過(guò)第二次考試的人很少。,In all, over forty thousand persons succeed in passing these examinations to the bar in their respective states. 每年各州有4萬(wàn)多人通過(guò)律師考試。 No apprenticeship is required either before or after admission. 在進(jìn)入律師行業(yè)之前或之后不需要有學(xué)徒經(jīng)歷。,The rules for admission to practice before t

6、he federal courts vary with the courts, 在聯(lián)邦法院執(zhí)業(yè)的要求各州不同。 but generally those entitled to practice before the highest court of a state may be admitted before the federal courts upon compliance with minor formalities. 在州最高法院執(zhí)業(yè)的人辦理了一些無(wú)關(guān)緊要的手續(xù)后可以在聯(lián)邦法院執(zhí)業(yè)。,A lawyers practice is usually confined to a single

7、community for, although a lawyer may travel to represent clients, one is only permitted to practice in a state where one has been admitted. 律師通常在一個(gè)地區(qū)執(zhí)業(yè) 可以代表當(dāng)事人到其他州辦理事務(wù) 只能在獲準(zhǔn)開(kāi)業(yè)的州從業(yè),It is customary to retain local counsel for matters in other jurisdictions. 在其他管轄區(qū)保留當(dāng)?shù)芈蓭煹纳矸菔且环N慣例。 有些州曾把“本州居民”規(guī)定為申請(qǐng)律師資格的前

8、提條件。但聯(lián)邦最高法院在1985年裁定這種規(guī)定為非法。此外，在美國(guó)擔(dān)任律師的人并不必須是美國(guó)公民。,One who moves to another state can usually be admitted without examination if one has practiced in a state where one has been admitted for some time, often five years. 如果一個(gè)人已經(jīng)執(zhí)業(yè)5年以上，那么當(dāng)他移居到另外一個(gè)州的時(shí)候，通常不用再參加該州的律師資格考試就可以獲準(zhǔn)執(zhí)業(yè)。,A lawyer may not only pract

9、ice law, but is permitted to engage in any activity that is open to other citizens.,從事律師業(yè)務(wù) 參加任何其他公民可以參加的活動(dòng),It is not uncommon for practicing lawyer to serve on boards of directors of corporate clients, to engage in business, and to participate actively in public affairs.,在公司的董事會(huì)任職 從事商業(yè)活動(dòng) 積極參與公共事務(wù),A

10、lawyer remains a member of the bar even after becoming a judge, an employee of the government or of a private business concern, or a law teacher, any may return to private practice from these other activities. 律師在成為法官、受雇于政府或私營(yíng)企業(yè)或者成為法律教師以后，還保留著律師的身份。他們可以放棄其他活動(dòng)，回來(lái)再做律師。,A relatively small number of law

11、yers give up practice for responsible executive positions in commerce and industry. 有很少數(shù)量的律師為了從事工商業(yè)活動(dòng)而放棄律師業(yè)務(wù)。,The mobility as well as the sense of public responsibility in the profession is evidence by the career of Harlan Fiske Stone who was, at various times, a successful New York lawyer, a profes

12、sor and dean of the Columbia School of Law, Attorney General of the United States, and Chief Justice of the United States.,Harlan Fiske Stone 1872- 1946,Distinguished jurist Harlan Fiske Stone was born on October 11, 1872 in Chesterfield, New Hampshire. 著名法理學(xué)家,After graduating from Amherst College i

13、n 1894, he continued on to Columbia University from which he received his law degree in 1898. The next year he was admitted to the New York bar. 加入紐約律師協(xié)會(huì),In 1910 Stone became the dean of the Columbia Law School. In 1924 he was appointed by President Coolidge to be Attorney General. 哥倫比亞大學(xué)法學(xué)院院長(zhǎng) 司法部長(zhǎng)（

14、總檢察長(zhǎng)）,In 1925 he was nominated to the Supreme Court. While on the Court, Stone was a strong supporter of President Roosevelts New Deal legislation. Roosevelt appointed Stone Chief Justice in 1941. Stone died in 1946 at the age of 73. 最高法院法官 羅斯福新政 最高法院首席大法官,These is no formal division among lawyers a

15、ccording to function. 美國(guó)沒(méi)有律師職業(yè)的劃分。,英國(guó)： Barristers：出庭律師、大律師、訴訟律師 Solicitors：訴狀律師、小律師、非訴律師,there is no branch of profession that has a special or exclusive right to appear in court, nor is there a branch that specializes in the preparation of legal instruments.,The American lawyers domain includes adv

16、ocacy, counseling, and drafting. Furthermore, within the sphere broadly defined as the “practice of law” the domain is exclusive and is not open to others. 代理訴訟，出庭辯護(hù)； 咨詢服務(wù)； 起草文書(shū)； 律師實(shí)務(wù),In the field of advocacy, the rules are fairly clear: any individual may represent himself or herself in court but,

17、with the exception of a few inferior courts, only a lawyer may represent another in court. 出庭辯護(hù)： 當(dāng)事人本人 代理律師,The lines of demarcation are less clear in the areas of counseling and drafting of legal instruments, as for example between the practice of law and that of accounting in the field of federal

18、income taxation. 咨詢服務(wù)與起草法律文件之間的劃分不明確。 就聯(lián)邦所得稅，律師執(zhí)業(yè)與會(huì)計(jì)執(zhí)業(yè)劃分不清。,However, the strict approach of most American courts is indicated by a decision of New Yorks highest court that a lawyer admitted to practice in a foreign country but not in New York is prohibited from giving legal advice to clients in New

19、York, even though the advice is limited to the law of foreign country where the lawyer is admitted. 紐約最高法院規(guī)定，在外國(guó)而不是在紐約取得執(zhí)業(yè)資格的律師，不得給紐約的當(dāng)事人提供法律咨詢，即使咨詢?cè)谠撀蓭熢试S執(zhí)業(yè)的國(guó)家是被允許的，美國(guó)大多數(shù)法院都采取了這一嚴(yán)格的措施。,A foreign lawyer may be admitted to the bar of one of states and may, even without being admitted, advise an Americ

20、an lawyer as a consultant on foreign law. 外國(guó)律師可以被一個(gè)州的律師協(xié)會(huì)接納為會(huì)員，甚至在沒(méi)有被接納的情況下，作為外國(guó)法律顧問(wèn)向美國(guó)律師咨詢。,Part 2 Lawyers in private practice獨(dú)立開(kāi)業(yè)的律師,Among these fifteen lawyers in practice, nine, a clear majority, are single practitioners . 在獨(dú)立開(kāi)業(yè)的律師中，大多數(shù)（9/15）是單獨(dú)開(kāi)業(yè)者。,The remaining six practice in law firms, which

21、 are generally organized as partnerships. 剩下的6個(gè)人組成律師事務(wù)所，一般采用合伙制。 Four or five of these six are partners and the others are associates, a term applied to salaried lawyers employed by a firm or another lawyer. 6個(gè)人中有4、5個(gè)是合伙人； 其他1、2個(gè)是合作者，他們受雇于律師事務(wù)所或其他律師，領(lǐng)取工資。,This trend toward group practice is relative

22、ly recent origin.,合伙開(kāi)業(yè),Throughout most of nineteenth century, law practice was general rather than specialized, its chief ingredient was advocacy rather than counseling and drafting, and the prototype of the American lawyer was the single practitioner. 律師業(yè)務(wù)是一般化的，而不是專業(yè)化的 主要業(yè)務(wù)是出庭辯護(hù)，而不是提供咨詢和起草文書(shū) 美國(guó)律師的原

23、型是單獨(dú)開(kāi)業(yè)者。,Marked specialization began in the later part of that century in the large cities near the financial centers. the work of the lawyer accommodated itself to the needs of clients for expert counseling and drafting to prevent as well as to settle disputes. 19世紀(jì)后期，在金融中心附近的大城市，出現(xiàn)了顯著的律師專業(yè)化。 律師為客戶

24、提供專業(yè)咨詢和起草文書(shū)，以防止和解決爭(zhēng)議。,The best lawyers were attracted to this work 最好的律師被吸引來(lái)做這些事。 leadership of the bar gravitated to persons who rarely if ever appeared in courts and who were sought after as advisors, planners, and negotiators. 律師界的領(lǐng)導(dǎo)人物多為那些極少出庭即使確曾出庭的話的人，和那些作為顧問(wèn)、計(jì)劃者和談判者而深受歡迎的人。,Today the lawyer re

25、gards it as sound practice to be continuously familiar with clients business problems and to participate at all steps in shaping of their policies. 目前律師們都認(rèn)為一直了解客戶的商務(wù)問(wèn)題，并參與商業(yè)決策形成的每一個(gè)步驟是理想的活動(dòng)。,Part 3 House Counsel,受雇于某公司而非獨(dú)立開(kāi)業(yè)的律師 Out of every twenty lawyers, two are employed by private business concer

26、ns, such as industrial corporations, insurance companies, and banks, usually as house or corporate counsel in the concerns legal department. 20個(gè)律師中有2個(gè)受雇于私人企業(yè)，如工業(yè)公司、金融公司、銀行。 專職法律顧問(wèn)，公司法律顧問(wèn),the growth of corporationsthe complexity of businessthe multitude of problem posed by government regulation,The g

27、eneral counsel (總法律顧問(wèn)) An officer of the company Serve on important policy making committees Serve on the board of directors.,公司管理人員重要決策委員會(huì)董事會(huì),House counsel,remain members of the bar 保留律師協(xié)會(huì)會(huì)員身份 entitled to appear in court 有資格出庭進(jìn)行訴訟,House counsel,However, it is the house counsels skill as advisor rat

28、her than as an advocate that is a valued asset. 專職律師的專長(zhǎng)是法律顧問(wèn)而不是辯護(hù)律師，這是個(gè)珍貴的財(cái)富。,Constantly in touch with the employers problem, house counsel is ideally situated to practice preventive law and may also be called upon to advise the company on its broader obligation to the public and the nation. 專職律師一直接

29、觸雇主的問(wèn)題，他們理當(dāng)致力于預(yù)防性的法律，并應(yīng)該建議公司為公共事務(wù)和國(guó)家承擔(dān)更多的義務(wù)。,Part 4 Lawyers in Government,Two out of twenty lawyers are now employees of the federal, city, county, and municipal governments, exclusive of judiciary. 20個(gè)律師中有2個(gè)受雇于聯(lián)邦、都市、縣和地方政府，這中間還不包括法官。,Many of those entering public service are recent law graduates 許多

30、加入公共服務(wù)的是剛畢業(yè)的法學(xué)大學(xué)生。 who find government salaries sufficiently attractive at this stage of their careers 政府薪水有足夠的吸引力 seek the training that such service may offer as a prelude to private practice. 鍛煉自己，作為私人開(kāi)業(yè)的前奏,Limitation on top salaries discourage some from continuing with the government. 最高薪水的限制使一些

31、人不再為政府工作。,The majority serves by appointment in legal departments of a variety of federal and state agencies and local entities. 大多數(shù)的政府律師在聯(lián)邦、州政府和地方機(jī)構(gòu)的法律部門任職。,The United States Department of Justice alone employs more than two thousand, and the Law Department of the City of New York more than four hu

32、ndred. 美國(guó)司法部2000多人 紐約司法局400多人,Others are engaged as public prosecutors. Federal prosecutors, the United States attorneys and their assistants, are appointed by the President and are subordinate to the Attorney General of the United States. 其他政府律師是檢查官。聯(lián)邦檢查官、美國(guó)政府律師和助理檢查官由總統(tǒng)任命，受命于美國(guó)總檢察長(zhǎng)（司法部長(zhǎng)）。,Attorney

33、 General總檢察長(zhǎng)，司法部長(zhǎng)John Ashcroft 約翰阿什克里夫特,The Attorney General, as head of the Department of Justice and chief law enforcement officer of the Federal Government, represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive dep

34、artments of the Government when so requested. The Attorney General appears in person to represent the Government before the U.S. Supreme Court in cases of exceptional gravity or importance.,States prosecutors, sometimes known as district attorneys, are commonly elected by each county and are not under the control of the state attorney general. 州檢查官，又叫地區(qū)檢查官，一般