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Legal Profession in Germany 2002

VIEWS: 3 PAGES: 60

  • pg 1
									      Welcome to
English Legal Terminology




                            1
            Informationen
         zu Teilnahmeschein
       und mündlicher Prüfung

• Zusatzausbildung Europäisches,
  Internationales und Ausländisches Recht:
  Setzt nach §§ 4 Abs. 1 lit. g i.V.m. 6 Abs. 1
  lit. b der Prüfungsordnung erfolgreiche
  Teilnahme an der mündlichen Prüfung
  voraus.
                                              2
• Fremdsprachenkompetenz nach
  §§ 3 Abs. 5, 9 Abs. 1 Nr. 3 JAPrO 2002:
  Regelmäßige Teilnahme ausreichend. Es
  wird eine Teilnahmeliste ausgelegt. Eine
  Abwesenheit bei einem Blocktermin steht
  der Erteilung einer Bestätigung über die
  regelmäßige Teilnahme nicht entgegen.



                                             3
• Anerkennung als Schlüsselqualifikation
  nach §§ 3 Abs. 5, 9 Abs. 2 Nr. 4 JAPrO
  ist aufgrund geänderter Verwaltungspraxis
  des Landesjustizprüfungsamts nicht mehr
  möglich.



                                          4
                 Course Plan

• The course plan will be available for
  download at

     www.jura.uni-freiburg.de/institute/izpr1/index.htm




                                                          5
            Course Materials
• For each class readings will be assigned from

  William Burnham, Introduction to the Law
  and the Legal System of the United States,
  2nd edition 1998.

• You can check out the Burnham treatise upon
  presentation of your student ID at the
  periodicals’ room (Zeitschriftenzimmer) in the
  law library.


                                                   6
• Further reading materials will be available
  for download at the aforementioned
  webpage upon special announcement.

• You are strongly encouraged to read the
  assigned materials.




                                                7
The powerpoint slides will be available for
download by next Tuesday afternoon,
6 p.m., at

  www.jura.uni-freiburg.de/institute/izpr1/index.htm


You will receive a password later tonight.




                                                       8
I will ask for volunteers tomorrow who are
willing to make a short oral presentation
on selected topics (book reviews, court
decisions, etc).




                                             9
   The System of Legal
   Education in the U.S.

The Legal Profession in the
     U.S. and in Europe
                           10
Legal Profession in Germany
           2004
   judges (2002)           20901


   attorneys              126793

   (including attorney-     8370
   notaries)

   notaries                 1654

                                   11
                   Judges



• Germany boasts a numerous, well
  educated and highly professional state
  and federal judiciary. All courts are staffed
  by trained, full time, professional judges. In
  fact Germany has more professional
  judges per capita than any other state of
  today’s world.

                                              12
• Judicial service is a highly respected form
  of public service in Germany. Judges are
  adequately but by no means excessively
  compensated. Judicial independence,
  guaranteed by the Federal Constitution, is
  maintained by laws and traditions
  insulating judges from political, economic
  and other external pressures or influences.




                                           13
• Every person who seeks to become a
  judge must have a full university education
  in law of at least seven semesters
  duration, usually lasting somewhat longer.
  The university education culminates in a
  statewide “first state examination” (erstes
  Staatsexamen) designed to assess basic
  knowledge of the law and its theoretical
  application to hypothetical cases.



                                            14
• The next stage is a two-year period of
  practical training (Referendariat)
  consisting of successive internships in
  state and federal courts, private law
  offices, state attorneys’ offices, federal or
  state administrative agencies and an
  elective internship at home or abroad. This
  period of practical training is followed by a
  second state examination which focuses
  more on practical legal issues.


                                              15
• Judges generally commence judicial
  service immediately following completion
  of their practical training and second state
  examination. Judges of the various state
  courts are typically appointed by the
  ministries of justice. The selection process
  for new judges is generally competitive
  resulting in candidates of higher than
  average academic attainment.



                                             16
                  Lawyers


• Lawyers play important roles in all aspects
  of justice in Germany. They advise their
  clients as to likely merits of their legal
  claims and defenses. They draft claims
  and defenses and organize and designate
  evidence in pleadings and oral
  presentations to the court. They argue
  issues of law and fact at all stages of the
  proceedings, orally and in writing.
                                            17
• German lawyers are educated in the same
  manner as German judges according to
  the model of the “Volljurist”. This high
  standard of education results in a high
  level of quality in German legal discourse.
  A lawyer is admitted to the bar following
  successful completion of the second state
  examination.




                                            18
                    Notaries
• Notaries are state-appointed officials who
  provide independent, impartial and
  objective advice for important legal
  transactions. In roughly two thirds of the
  country notaries practise as single-
  profession notaries. In the other areas,
  notaries exercise the profession as an
  additional office alongside with their
  activity as attorneys. However, the same
  professional rules apply to all notaries.
                                               19
• German notaries play a key role in real
  estate law, the law of mortgages, the law
  of contracts, corporate law as well as
  family and succession law. Within the
  German system of “preventive justice” the
  notaries’ function is complementary to the
  role of a judge. The intervention of a
  notary is required by the law in cases of
  important transactions with long-term
  effects and a particular economic or
  personal significance for the parties
  concerned.

                                           20
• Notaries act as independent, impartial and
  objective advisers to all parties to a
  transaction. They examine the intentions
  of the parties, draft the contracts and
  instruments necessary to carry out the
  intended transaction and ensure that the
  contractual provisions are in full
  compliance with the law.



                                           21
      Legal Profession in the U.S.
● One of society’s most influential professions
● 45 % of the framers of the constitution were lawyers
● Alexis de Toqueville:
  lawyers = American aristocracy
● profession in crisis?
● loss of cohesion




                                                     22
Lawyers = all persons trained in law
  who have a license to practise law
including   solo practitioners
            judges
            government lawyers
            in-house counsel for corporations
            public defenders
            associates on salary
            partners in law firms

                                                23
• ¾ work in private practice
• last 40 years: era of the law firm
  large corporate firms of more than 250 lawyers
• model of the lawyer has gone from that of the
  solo practitioner to that of the associate of a big
  law firm
• past: independent professional responsible for
        his own work
• present: employee responsible only for a portion

                                                        24
law practice = business?

    billable hours
    bringing in new clients
    „rainmaker“




                              25
            Legal Education
Past: „reading law“ & apprenticeship

ABA founded in 1878 as a private organization


Today: 179 law schools approved by ABA

43 of 50 states require bar examinees to
graduate from an ABA-approved law school

                                                26
required course of study to become
             a lawyer:
              7 years
 4 years college:
 undergraduate degree: business, economics,
                       history, political science
 3 years „law school“



                                                27
          Admission to law school

        two requirements are most important:

undergraduate grade-point   scores on the Law School
     average (GPA)            Aptitude Test (LSAT)



       determine whether applicant gets
      into law school and where he is
      admitted
                                                 28
29
30
31
32
  attempts to create or increase social or
              ethnic diversity
- recommendation letters
- work experience
- racial identification (Black, Asian or „Caucasian“)
- ethnic / geographical origin
- life experience

        admission is extremely competitive
                18 applicants per place
                                                    33
Women and Minority Issues:

Cost of Legal Education:
 Harvard $ 31.250 Tuition
          $ 19.900 Est. Living Expenses
 Loans
 Financial Aid
 Tuition Waiver

                                          34
          3 Years of Study
               Curriculum:

1 L:   Civil Procedure, Contracts, Property,
       Criminal Law, Torts, Legal Writing


2 L:   Constitutional Law, Corporations +
       Electives (Tax Law, Bankruptcy Law,
                  Legal Ethics…)

3 L:   Electives
                                               35
             Student Life

In class:

panel

Socratic Method (case method)
Langdell (Harvard dean in the 1870s)

                                       36
37
38
           Study Materials
course materials (distributed through the
law school copy center)
casebooks
hornbooks
outlines
Lexis Nexis or Westlaw


                                            39
             Examinations:
Take home
In-class          closed book
                  open book

drop out:         4,5 %

marks of success: good grades (A, A+)

membership on the editorial board of the law
review or law journal
                                               40
    Getting in Contact with the Legal
               Profession

•   clerk with a judge
•   summer internships
•   summer associate in law firm
•   law school career services
•   on campus interviews / job fair: J.D.

                                            41
           Graduate Studies
Advanced Degrees:
• Master of Laws (LL.M.)
• Doctor of Science in Law
     (S.J.D.)

  to “launder“ oneself with an LL.M. from a
  prestigious law school
  one year of LL.M. studies will enable you „to
  take the bar“ in 11 states including N.Y. and CA.
                                                  42
43
How to Become a Law Teacher:
- assistant professor
- writing 3 or 4 law review articles
- surviving 4 to 6 years in the classroom

- tenure track: associate professor

  2 or 3 more years teaching & writing
  eligible for full professor


                                            44
 Why Do People Want to Become
       a Law Professor?

influence on the development of the law

appear on TV

on campus life is less stressful than work in
a „fat cat“ law firm.

• Pay (full professor): $ 100.000-200.000

                                                45
       Law School Funding
• HLS has assets worth nearly 1 billion $
• private fund raising and donations
• campaigns
• Alumni Clubs (membership promotes your
  career and your business contacts and
  helps your university to raise funds)
• Links between business, academics and
  culture
                                        46
47
           Admission to the Bar

State law rather than federal law governs
• the admission to the practice of law
  (requirements vary from state to state)
• membership in the State Bar Association
  is usually mandatory to practice
• all states but one require applicants to the
  bar to take a bar examination

                                             48
            Bar Examination

       two-part written examination
           offered twice a year
             July & February


     1st part:               2nd part:
  Multi-State Bar       essay questions
Examination (MBE)      concerning the law
   multiple-device    of the particular state
                                            49
             Preparation
bar review: 6 weeks
particularly important for the state law part
since most law schools only teach general
doctrines and concepts, not the law of the
particular state
pass/fail rates vary significantly from state
to state


                                            50
    Multijurisdictional Practice
• You are allowed to practise law only in the
  state where you are admitted to the bar
• Take bar exams in other jurisdictions
• Admission on motion
• Admission pro hac vice
• Work as foreign legal consultant
• (Commitment to open the legal services
  under the GATS)
                                            51
  Criticism of Legal Education:
concentration on the skill of analyzing the
legal doctrine in cases

Workshops: TAW, Negotiation Workshop
Clinical Education
Mootcourt Competitions


                                              52
Issues in the Regulation of Practice
 U.S. citizenship
                        unconstitutional
 domicile


 Mandatory Bar Membership
 and Dues
 are only to be used for the purpose of
 regulating the profession or improving
 the quality of legal sciences

                                           53
          Regulation Issues
            (continued)
• Minimum fee schedules may violate
  Antitrust Law (Goldfarb Decision)
• UPL
• Advertising
  „commercial speech doctrine“




                                      54
          Types of Practice
I.   Private Practice
      a) Solo practitioners and small firms
          Personal Injury Lawyers
          „Ambulance Chasing“
          Contingency Fees
          Read: Harr: A Civil Action
                Grisham: The King of Torts



                                             55
b) Large firms

 corporate law, tax law, antitrust law
 securities law
 associate / partners
              partner decision after 5
               to 7 years
 billable hours
 lock-step system
 prestige and influence


                                          56
57
Large firms continued
Recent difficulties: splits and lay offs

salaries:
     N.Y. > $ 100.000 (Wall Street Firms)
     Boston $ 75.000
c) In House counsel
                                            58
II. Government Services
    Federal
    State

III. Public Interest Practice
    Representation of indigent
    defendants in criminal cases

                                   59
     The Duties of an Attorney
1. Attorney-client relationship
   - duty of competent representation
   - duty to consult and abide
   - duty of diligence
   - duty of loyalty and conflicts of interest
   - duty of confidentiality
2. Attorneys’ duty to the “Administration of
   Justice”
   - perjury
                                                 60

								
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