何家弘法律英语课件_第二课

1、Lesson TwoLegal Profession法律职业法律职业法律英语1Background 律师律师法官法官检查官检查官法学教师法学教师法律英语2法律职业法律职业变换频繁变换频繁 Harlan Fiske Stone法律英语3Part 1 The BarBar法庭中将公众与法官、律师法庭中将公众与法官、律师及其他诉讼参与人分隔开的及其他诉讼参与人分隔开的隔板隔板。后来用于通指法律职业或律师职业。后来用于通指法律职业或律师职业。法律英语4美国律师协会美国律师协会法律英语5律师律师美国美国LawyerAttorneyAttorney at-lawCounselerCounseler at-

2、law法律英语6英国英国Barrister诉讼律师诉讼律师大律师，出庭律师大律师，出庭律师Solicitor非诉律师非诉律师诉状律师，事务律师诉状律师，事务律师法律英语7The regulation of the legal profession is primarily the concern of the states, each of which has its own requirements for admission to practice. Q：Why is the concern of each state?admission to the bar授予职业律师资格；律师职业许可

3、（法院确认申请人的居住资格、公民身份、教育状况、道德品格等符合法定资格要求，授予申请人在其管辖区域内从事律师事务的特权或许可证）Most require three years of college and a law degree. Each state administers its own written examination to applicants for its bar. 法律英语8三年大学三年大学法律学位法律学位书面考试书面考试Three years of college and a law degreeIn the United States, a law school i

4、s an institution where students obtain a professional education in law after first obtaining an undergraduate degree.Law schools in the U.S. issue the Juris Doctor degree (J.D.), which is a professional doctorate, and for most practitioners a terminal degree. Although most law schools only offer the

5、 traditional three-year program, several U.S. law schools offer an Accelerated JD program.法律英语9Almost 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.法律英语10各州律师联考各州律师联考州综合问答题州综合问答题Th

6、e 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. 法律英语11A substantial fraction of all applicants succeed on the first try, and many of those who fail pass on a l

7、ater attempt. Translation:通过第一次考试的人很多，但通过第二次考试通过第一次考试的人很多，但通过第二次考试的人很少。的人很少。大部分人都能一次通过，即使没通过的在之后大部分人都能一次通过，即使没通过的在之后的考试中也能顺利通过。的考试中也能顺利通过。法律英语12In all, over forty thousand persons succeed in passing these examinations in their respective states. 每年各州有每年各州有4万多人通过律师考试。万多人通过律师考试。No apprenticeship is re

8、quired either before or after admission. Admission: admission to the barapprentice: a person who is learning from a skilled employer (lawyer), having agreed to work for a fixed period at low wages 法律英语13The rules for admission to practice before the federal courts vary with the courts,在在联邦法院执业联邦法院执业

9、的要求各州不同，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. 在在州最高法院执业州最高法院执业的人办理了一些的人办理了一些无关无关紧要的手续紧要的手续后可以在后可以在联邦法院联邦法院执业。执业。法律英语14before the court 出庭、在法庭上出庭、在法庭上Federal courts hear ca

10、ses involving 法律英语15the constitutionality of a law; cases involving the laws and treaties of the U.S.; ambassadors and public ministers; disputes between two or more states; admiralty law; and bankruptcy cases. The Highest CourtSupreme CourtA supreme court is the highest court within the hierarchy o

11、f many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, apex court, and highest court of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court.In a few places, the court nam

12、ed the Supreme Court is not in fact the highest court; examples include the Supreme Court of the State of New York and the former Supreme Court of Judicature of England and Wales. 法律英语16A lawyers practice is usually confined to a single community for, although a lawyer may travel to represent client

13、s, one is only permitted to practice in a state where one has been admitted. 律师通常在律师通常在一个固定地区一个固定地区执业执业可以代表当事人到其他州办理事务可以代表当事人到其他州办理事务只能在获准开业的州从业只能在获准开业的州从业法律英语17Practice of lawOnce admitted to practice by the highest court of a state (the state supreme court), a function sometimes administered by th

14、e states bar association, an American attorney may file legal pleadings and argue cases in that state court, provide legal advice to clients and draft important legal instruments such as wills, trusts, deeds and contracts.Arguing cases in the federal courts requires separate admission.法律英语18 It is c

15、ustomary to retain local counsel for matters in other jurisdictions. retain: 付定金聘定律师付定金聘定律师Local counsel: A lawyer licensed to practice law in a particular jurisdiction or before a particular court who assists a lawyer who is not licensed, but who has been given permission to provide advice and repr

16、esent a client in an action in that jurisdiction or before that court, with matters regarding the application and interpretation of the local laws as well as with the local court customs, practices, and rules.有些州曾把有些州曾把“本州居民本州居民”规定为申请律师资格的前提条件。规定为申请律师资格的前提条件。但联邦最高法院在但联邦最高法院在19851985年裁定这种规定为非法。此外，在美年

17、裁定这种规定为非法。此外，在美国担任律师的人国担任律师的人并不必须是美国公民并不必须是美国公民。 法律英语19One 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. 如果一个人如果一个人已经执业已经执业5 5年以上年以上，那，那么当他移居到另外一个州的时候，么当他移居到另外一个州的时候，通常通常不用再参加该州的律师资格

18、考不用再参加该州的律师资格考试试就可以就可以获准执业获准执业。 法律英语20A lawyer may not only practice law, but is permitted to engage in any activity that is open to other citizens.法律英语21从事律师业务从事律师业务参加任何其他公民可以参加的活动参加任何其他公民可以参加的活动It is not uncommon for practicing lawyer to serve on boards of directors of corporate clients, to engage

19、 in business, and to participate actively in public affairs. 法律英语22在公司的董事会任职在公司的董事会任职从事商业活动从事商业活动积极参与公共事务积极参与公共事务A 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, and may return to private practice from

20、 these other activities. 律师在成为律师在成为法官法官、受雇于政府受雇于政府或或私营私营企业企业或者成为或者成为法律教师法律教师以后，还以后，还保留保留着律师的身份着律师的身份；从事上述职业的人，；从事上述职业的人，也可以再回到律师行业。也可以再回到律师行业。法律英语23 A relatively small number of lawyers give up practice for responsible executive positions in commerce and industry. 很少有律师为了工商业界的很少有律师为了工商业界的重要管理重要管理职位职

21、位而放弃律师职业。而放弃律师职业。法律英语24The mobility as well as the sense of public responsibility in the profession is evidenced by the career of Harlan Fiske Stone who was, at various times, a successful New York lawyer, a professor and dean of the Columbia School of Law, Attorney General of the United States, and

22、 Chief Justice of the United States. 法律英语25律师律师教授教授院长院长总检总检察长察长首席大首席大法官法官法律英语26Harlan Fiske Stone1872- 1946Distinguished jurist Harlan Fiske Stone was born on October 11, 1872 in Chesterfield, New Hampshire. 著名法理学家著名法理学家After graduating from Amherst College in 1894, he continued on to Columbia Unive

23、rsity from which he received his law degree in 1898. The next year he was admitted to the New York bar. 加入纽约律师协会加入纽约律师协会法律英语27In 1910 Stone became the dean of the Columbia Law School. In 1924 he was appointed by President Coolidge to be Attorney General. 哥伦比亚大学法学院院长哥伦比亚大学法学院院长司法部长（总检察长）司法部长（总检察长）法律英

24、语28In 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.最高法院法官最高法院法官罗斯福新政罗斯福新政最高法院首席大法官最高法院首席大法官法律英语29These is no formal divis

25、ion among lawyers according to function. 美国没有律师职业的划分。美国没有律师职业的划分。法律英语30英国：英国：Barristers：出庭律师出庭律师、大律师、诉讼律师大律师、诉讼律师Solicitors：诉状律师诉状律师、小律师、非诉律师小律师、非诉律师 Barristers: a person called to the bar and entitled to practise as an advocate, particularly in the higher courts.Solicitors: a member of the legal pr

26、ofession qualified to deal with conveyancing, the drawing up of wills, and other legal matters. A solicitor may also instruct barristers and represent clients in some courts.法律英语31there is no branch of profession that has a special or exclusive right to appear in court, nor is there a branch that sp

27、ecializes in the preparation of legal instruments. 法律英语32美国：美国：出庭代理诉讼出庭代理诉讼准备法律文书准备法律文书attorneyAn exclusive right is the power or, in a wider sense, right to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. The t

28、erm is restricted for use for official state or sovereign (i.e., constitutional) powers. Exclusive rights are a form of monopoly.Exclusive rights can be established by law or by contractual obligation, but the scope of enforceability will depend upon the extent to which others are bound by the instr

29、ument establishing the exclusive right; thus in the case of contractual rights, only persons that are parties to a contract will be affected by the exclusivity.法律英语33Legal instrument is a legal term of art that is used for any formally executed written document that can be formally attributed to its

30、 author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or right, and therefore evidences that act, process, or agreement. Examples include a certificate, deed, bond, contract, will, legislative act, notarial act, court writ or process, or any law

31、 passed by a competent legislative body in municipal (domestic) or international law.法律英语34 The American lawyers domain includes advocacy, counseling, and drafting. Furthermore, within the sphere broadly defined as the “practice of law” the domain is exclusive and is not open to others. 代理诉讼，出庭辩护；代理

32、诉讼，出庭辩护；咨询服务；咨询服务；起草文书；起草文书；律师实务律师实务法律英语35 In the field of advocacy, the rules are fairly clear: any individual may represent himself or herself in court but, with the exception of a few inferior courts, only a lawyer may represent another in court. 出庭辩护：出庭辩护：当事人本人当事人本人代理律师代理律师法律英语36Self-representat

33、ion / Pro se legal representationPro se legal representation means advocating on ones own behalf before a court, rather than being represented by a lawyer. This may occur in any court proceeding, whether one is the defendant or plaintiff in civil cases, and when one is a defendant in criminal cases.

34、 Pro se is a Latin phrase meaning for oneself or on ones own behalf. Most U.S. states have a constitutional provision that either expressly or by interpretation allows individuals to represent their own causes in the courts of that state.法律英语37Nonlawyers are authorized to represent others in formal

35、proceedings of a judicial nature before some administrative agencies.非律师也可被授权代理其他人参与行非律师也可被授权代理其他人参与行政机关的一些司法性质的政机关的一些司法性质的正式程序正式程序。 法律英语38The 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 acco

36、unting in the field of federal income taxation. 咨询服务与起草法律文件之间的划分不咨询服务与起草法律文件之间的划分不明确。明确。就联邦所得税，律师执业与会计执业划就联邦所得税，律师执业与会计执业划分不清。分不清。法律英语39the lines of demarcation: the dividing lineIn its most general sense, the practice of law involves giving legal advice to clients, drafting legal documents for clie

37、nts, and representing clients in legal negotiations and court proceedings such as lawsuits, and is applied to the professional services of a lawyer or attorney at law, barrister, solicitor, or civil law notary. However, there is a substantial amount of overlap between the practice of law and various

38、 other professions where clients are represented by agents. These professions include real estate, banking, accounting, and insurance.法律英语40 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 coun

39、try but not in New York is prohibited from giving legal advice to clients in New York, even though the advice is limited to the law of foreign country where the lawyer is admitted. 美国大多数法院都采取了如美国大多数法院都采取了如纽约最高法院纽约最高法院规规定的定的一项严格措施一项严格措施：在外国而不是在纽约取：在外国而不是在纽约取得执业资格的律师，得执业资格的律师，不得为纽约的当事人提不得为纽约的当事人提供法律咨询

40、供法律咨询，即使该律师提供的咨询范围仅，即使该律师提供的咨询范围仅限于允许其执业所属国家的法律。限于允许其执业所属国家的法律。法律英语41One of the biggest traps for lawyers is MJP multi-jurisdictional practice. The ABA Model Rule of Professional Conduct 5.5 prohibits the practice of law where lawyers are not licensed, as well as the aiding and abetting of it: A “la

41、wyer shall not: (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (b) assist a person who is not a member of the bar in the performance of activity that constitutes an unauthorized practice of law.”法律英语42A foreign lawyer may be

42、 admitted to the bar of one of states and may, even without being admitted, advise an American lawyer as a consultant on foreign law.外国律师可以被一个州的律师协会外国律师可以被一个州的律师协会接接纳为会员纳为会员，甚至在没有被接纳的情况，甚至在没有被接纳的情况下，下，作为外国法律顾问作为外国法律顾问向美国律师咨向美国律师咨询询。法律英语43RULES OF THE SUPREME COURT OF THE STATE OF NEW HAMPSHIRE ADMIN

43、ISTRATIVE RULES 35 TO 59 Rule 42D. Licensing and Practice of Foreign Legal Consultants.(1) General Regulation as to LicensingIn its discretion, the supreme court may license to practice in this United States jurisdiction as a foreign legal consultant, without examination, an applicant who:(a) is, an

44、d for at least five years has been, a member in good standing of a recognized legal profession in a foreign country, the members of which are admitted to practice as lawyers or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted profession

45、al body or a public authority;(b) for at least five of the seven years immediately preceding his or her application, has been a member in good standing of such legal profession and has been lawfully engaged in the practice of law in the foreign country or elsewhere substantially involving or relatin

46、g to the rendering of advice or the provision of legal services concerning the law of the foreign country;(c) possesses the good moral character and general fitness requisite for a member of the bar of this State, as required by Rule 42(5); and(d) intends to practice as a foreign legal consultant in

47、 this jurisdiction and to maintain an office in this jurisdiction for that purpose.法律英语44Part 2 Lawyers in private practice独立开业的律师独立开业的律师Among these fifteen lawyers in practice, nine, a clear majority, are single practitioners .在独立开业的律师中，大多数在独立开业的律师中，大多数（9/15）是）是单独开业者单独开业者。法律英语45Single practitionerP

48、roprietorships 个体业主个体业主Proprietorships are not separate legal entities法律英语46A practitioner is someone who engages in an occupation, profession, religion, or way of life.Practitioner may refer to:Medical practitionerJustice practitionerThe remaining six practice in law firms, which are generally orga

49、nized as partnerships. 剩下的剩下的6个人组成律师事务所，一般采用个人组成律师事务所，一般采用合伙制。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个人中有个人中有4、5个是律师合伙人个是律师合伙人；其余的是受雇律师，他们受雇于律师事务所或其其余的是受雇律师，他们受雇于律师事务所或其他律师，领取工资。他律师，领取工资。par

50、tnershipsA business enterprise entered into for profit which is owned by more than one person, each of whom is a partner. A partnership may be created by a formal written agreement, but may be based on an oral agreement or just a handshake. Each partner invests a certain amount (money, assets and/or

51、 effort) which establishes an agreed-upon percentage of ownership, is responsible for all the debts and contracts of the partnership. http:/ trend toward group practice is relatively recent origin. 法律英语49合伙开业合伙开业Throughout most of nineteenth century, law practice was general rather than specialized,

52、 its chief ingredient was advocacy rather than counseling and drafting, and the prototype of the American lawyer was the single practitioner. 律师业务是一般化的，而不是专业化的律师业务是一般化的，而不是专业化的主要业务是出庭辩护，而不是提供咨询和起主要业务是出庭辩护，而不是提供咨询和起草文书草文书美国律师的原型是单独开业者。美国律师的原型是单独开业者。法律英语50 Marked specialization began in the later part

53、 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世纪后期，在金融中心附近的大城市，出世纪后期，在金融中心附近的大城市，出现了显著的现了显著的律师专业化律师专业化。律师为客户提供律师为客户提供专业咨询和起草文书专业咨询和起草文书

54、，以防止和解决争议。以防止和解决争议。法律英语51The best lawyers were attracted to this work 最好的律师最好的律师被吸引来做这些事。被吸引来做这些事。 leadership of the bar gravitated to persons who rarely if ever appeared in courts and who were sought after as advisors, planners, and negotiators. 律师界的领导人物多为那些律师界的领导人物多为那些极少出庭极少出庭即即使确曾出庭的话使确曾出庭的话的人，和那

55、些作为的人，和那些作为顾问、顾问、计划者和谈判者计划者和谈判者而深受欢迎的人。而深受欢迎的人。法律英语52Move towards Today the lawyer regards it as sound practice to be continuously familiar with clients business problems and to participate at all steps in shaping of their policies. 目前律师们都认为不断地熟悉目前律师们都认为不断地熟悉当事人的当事人的经营问题经营问题，并，并参与商业决策形成的每一参与商业决策形成的每

56、一个步骤个步骤是较为是较为合理的执业合理的执业惯例惯例。法律英语53Part 3 House Counsel 受雇于某公司而非独立开业的律师受雇于某公司而非独立开业的律师Out of every twenty lawyers, two are employed by private business concerns, such as industrial corporations, insurance companies, and banks, usually as house or corporate counsel in the concerns legal department. 20

57、个律师中有个律师中有2个受雇于个受雇于私人企业私人企业，如工业，如工业企业、保险公司、银行。企业、保险公司、银行。 专职法律顾问，公司法律顾问专职法律顾问，公司法律顾问法律英语54 the growth of corporationsthe complexity of businessthe multitude of problem posed by government regulation法律英语55firms to have in their employ persons with legal training非常了解企业的非常了解企业的特殊问题和条件特殊问题和条件The general

58、 counsel (总法律顾问总法律顾问) An officer of the companyServe on important policy making committeesServe on the board of directors. 法律英语56公司管理人员公司管理人员重要决策委员会重要决策委员会董事会董事会In large corporations the legal department may number 100 or more.House counselremain members of the bar 保留律师协会会员身份保留律师协会会员身份entitled to ap

59、pear in court有资格出庭进行诉讼有资格出庭进行诉讼An outside lawyer is retained for litigation.法律英语57House counselHowever, it is the house counsels skill as advisor rather than as an advocate that is a valued asset. 专职律师的专长是专职律师的专长是法律顾问法律顾问而不是而不是辩护律师辩护律师，这是个珍贵的财富。，这是个珍贵的财富。法律英语58Constantly in touch with the employers

60、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.专职律师一直接触雇主的问题，他们专职律师一直接触雇主的问题，他们理当致力于理当致力于预防性的法律预防性的法律，并应该建，并应该建议公司为公共事务和国家承担议公司为公共事务和国家承担更多的更多的义务义务。法律英语59Part 4 Lawyers in