Dec. 2nd Lecture Flashcards
How was the legal profession established?
With the development of legal systems
- expansion of legal system comes w extension of profession of law
Where can the creation of lawyers and the expansion of the law system be translated back to?
Rome
Jurists/ juris prudence
jurists are not juries they are ppl to go to for advice ab the law, they do not represent you but counsel you by what the legal system does and what to expect
evolution of law school and lawyers?
before actual lawyers it was a side job, the emergence of law school came about and evolution of sophisticated legal system
How do judges get their position?
Judges are lawyers first
what do judges have the power to do?
Judges have the power when it comes to using and interpreting law but also making changes to it- their role has increased over the law few centuries
during the middle ages, what were the 3 functions lawyers had?
- Advocate- lawyer who would assist clients in presenting a case, help client put together case by bringing in witnesses etc.
- Agent- someone would appear on behalf of someone else- rep you and your interests in court
- Jurisconsults- someone who provided legal advice and essentially acted as consultant in legal matters- tell you what the law says and how things go
Foote says the essential components of professionalization includes the possession of…
1) of a specialized technique support by a body of theory- medicine, finance, law (you have some technique of doing things that is backed up by evidence)
2) a career supported by an association of colleagues- bar association of ON lawyers have to be a member of this to practice in ON
3) of a status supported by community recognition- ppl in occupation of professional occupation this comes w status, prestige, these ppl in these jobs recognized as important in the community
what do people who want to practice law be a member of?
Ppl who join association, practice craft- to be lawyer in ON have to be member of Ontario bar
client- practitioner relationship
- not giving out info of patients,
- considerable autonomy in performing their tasks
ex: if you go to doc you assume they know what they are doing and this assumption they have gone to some training school (med school) and for them to be in med they are capable and deserving
- also involves licensing (national society of law etc.)- code of ethics to abide by (do minimal harm to clients, monopolize some sort of expertise and status comes w this)
What comes with professionalization?
social status, economic rewards, possibility for upward mobility (ppl in lower or working class if they can access resources through scholarships etc. This can help them climb social ladder and also get into law school)
central element of professionalization
Market control
- unchallenged authority over knowledge (legal authority over knowledge, if you go to law school you are taught by other lawyers)
stages of professionalization
- Become a full time occupation
- Training schools established/university affiliation of training schools
- Local professionals associations start AND national professional associations evolve
- State licensing laws implemented- practice law you need a license
- Formal codes of ethics were established- specific to each profession
where did the legal profession orgiinate?
England and France
what was the first legal profession to settle in France?
The first legal professional to settle in New France was Guillaume Audouart in 1649 (new lawyers)
as the need for more lawyers became evident, how had to appear in court?
As the need for more lawyers became evident, avocats were authorized to appear in the courtroom
principle function of the Notaries
The principal function of the notaries became to draft or receive acts and contracts
notarie
(person draft and sign off on marriage certificate or mortgage- specialized in non litigation)- some times on both sides- can rep the seller and buyers of contract
what was the focus of the advocat?
The avocat focused on areas of contention- plead cases in court, deal w conflict between parties, to be an advocat you have to be a member of the bar, involved in litigation, battling in court room
Law and society act
- In 1797 the Law Society Act was introduced and established the Law Society of Upper Canada as self governing body- up to them having exclusive authority in admitting ppl to the bar- could accept or reject ppl
- The Law Society created its own law school in 1862 – Osgoode Hall- out of york university- most prestigious law school in Canada
Osgood hall
Only recognized school until 1957 only Osgood hall could train lawyers and then other schools popped up
French Regime
Under the French regime, important posts in the army and the government were, by custom, granted only to men- women blocked out- this was outside of blocking ppl out bc of race
British Regime
Under the British regime, women were usually excluded by law from holding public office until the beginning of the 20th century- wasn’t until 1900s women granted personhood and seen as legit ppl and to be able to be appointed to office you had to be a person
when did women begin to become involved with the law as a job?
After their earlier successes, women began to seek public office, and through the first half of the 20th century, a few women succeeded in being elected to the federal Parliament and the provincial legislatures.
who led the way for women to enter the legal profession?
Clara Martin (1897) led the way for women of the British Commonwealth to enter the legal profession.
how were women originally seen in the past?
women were not considered to be people in CAN
rise in women joining the legal profession
- Women have been slow to enter the legal profession.
- By the 1990s half the graduates from law schools are female, but they comprise only 20% of the practicing bar.
- They are noted for leaving the profession in higher proportion than men and working more for corporations and governments.
- In large firms they comprise a small proportion of the partners.
- Women form ab 19% of the law teaching faculty in the 19% of the law teaching faculty in the 19 Canadian law schools
- Ppl assume ppl are clerks, secretaries and not practicing lawyers
What was a recent study done on how women are seen in the system as lawyers?
- mistaken for non lawyers
- do clerk work
- less access to prime job assignments
- Penalized for assertive behavior esp in courtroom- happens in almost every occupation- man being jerk and ppl do not view this in authoritative way- more typical for assertive behavior to be associated w men and when women do it they are seen as bitchy etc.
- fewer promotions
- less pay gap between men and women
video on equity, diversity and inclusion
- women find it hard to navigate legal profession
- micro aggression- mistaken for clerk, registar
- telling person you are racialized gets application thrown away
- ppl leave houses in shield of armour if minority
- elite profession of lawyers is not inclusive- we should be upholding the profession to the community
- try to promote inclusion, diversity and equity
- to fix this issue it has to go back to earlier ages in school when looking at children of colour
- power structures are responsible for barriers minority’s are experiencing
legal profession today
- “Law has become one of the fastest growing of all professions in Canada”
- the more diverse society gets the more we rely on the law
- Many experienced lawyers plan to leave the field or change jobs- feeling being a lawyer was not what they signed up for
- status prestige and wealth at big firms esp
- in smaller firms groups are working together
- single practioniers working on their own
- Not a lot of shared experience- single practionier vs lawyer from mega firm- what they do does not look alike and there are lots of differences
- Culture in mega firm vs culture in single practionier office is going to look different
4 principal subgroups
-majority are sole practioniers or ppl working in small firms
- Lawyers in private practice
- Lawyers in government service- prosecutors that work for department of justice
- Lawyers in private employment- ppl working for firms, corporate lawyers
- The judiciary- lawyers becoming judges
private practice
- The majority of lawyers work in private practice in Canada
- Few engage in litigation
- Working on contracts
the functions private practice lawyers preform
- Counselling
- Negotiating- plea bargains
- Drafting- drafting legal docs for custody or divorce
- Litigation- specializing in litigation- not a lot of ppl do this
- Some also involved in investigation, research- gathering facts or data, reviewing doctrines
Differences between sole practitioners vs. large law firms?
BOTH:
- Some are generalists- doing all sorts of law- family, real estate, corporate and other lawyers specialize in specific sub set or branch of the law
INDIVIDUAL:
- Individual practioniers rarely called upon to be doing a specific skill- often not a general practionier
- individual lawyers have status
- Individuals more likely to violate ethical norms- if violating rights of clients they are more likely to be private practice lawyers- if your on your own what you do is invisible, people not keeping eye on you as there would be when working below others
LARGE FIRMS:
- Large profit clients- corporations (Walmart)
- Partners at top and other lawyers and staff below them
- members of large firms deal w repeat players
government lawyers
- Includes “acting as government advisors, conducting legal research, drafting legislation, and serving as counsel in litigation matters involving the government”
- many lawyers involved w provincial or federal government
- anyone wanting to be prosecutor or crown attorney- MOST COMMON**
- benefits and decent pay from government jobs
judiciary
- The judge is the court official appointed to try cases in a court of law and to sentence convicted persons.
- Judge is gatekeeper to anything that happens in court room
- in jury judge is trier of law and the jury is trier of fact
- judge instructs jury
- if there is no jury the judge does terier of fact and law
- A judge has to be a lawyer
jury
- trier of fact
- Jury looks at evidence if person is guilty beyond reasonable doubt
justice of the peace
A Justice of the Peace is a court official who has less authority than a judge but can issue warrants and perform other judicial functions
- Justice of peace does not have to be lawyer
who are judges at provincial court appointed?
Judges at the provincial court level are appointed by provincial governments
- List of ppl suitable and if a job comes up someone from list is submitted
how are judges in superior court appointed?
Judges of the superior courts are appointed by the federal government- committees w members of legal profession to create a list of candidates and the list forwarded to justice and this would be debated in cabinet
regional committee
regional committees composed largely of members of the legal profession and community members appointed by Ottawa, create lists of candidates that are forwarded to the Department of Justice and debated in cabinet
how are judges of supreme court appointed?
Supreme court of Canada judges appointed by governor, prime minister makes this choice- governor is a formality
what does supreme act say ab judges
Supreme act says judge has to be judge in provincial court or they have to be a lawyer for 10 years or more
how do judicial appointments work in terms of keeping the position?
Judicial appointments are for life at each level- do not have to worry ab losing their job or position
- Position on the bench guaranteed for life- this is so they can make their decision without any bias
- Appointments are for life so that, once on the bench, judges need not consider the career implications when making controversial decisions.
how are provincial, territorial and federal court judges guided
Provincial, territorial, and federal court judges are guided by ethical principles that are set out in various provincial and territorial documents and, for federally appointed judges, by the Canadian Judicial Council.
how do judges have to act off bench?
- in accordance w ethics
- centre on integrity in personal and professional conduct
- highlight impartiality and objectivity
- A duty to follow the law- keep own beliefs and values out of it
- the importance of appropriate personal conduct
The role of judicial independence
judges should not be subjected to intimidation, influence etc. - only should look at what the law says, not feeling pressure
complaints ab judges
- Complaints ab judges arise from remarks, inappropriate conduct on or off the bench (religious bias, discrimination, cultural insensitivity)- grounds for complaint
- If complaints are made you could be removed from bench but rare, take leave of absence, go to educational workshops, resign
- Taking bribes (corruption), taking drugs, DV
what happens if judges act in unethical ways?
If judges act in unethical ways it is hard for them to get off bench, so rare bc they are garunteed for life
first woman to be appointed in CAN
In 1916 Emily Murphy was appointed a magistrate by the Alberta government, the first woman to be appointed to the Bench in the British Commonwealth.
what did the National Association of Women and the Law (NAWL) warn?
That a ‘full understanding’ of the Canadian people necessary for the judiciary to play its role would not be possible with only one sex represented
who was appointed as the first woman of supreme court of CAN?
1982 Bertha Wilson appointed as first woman of supreme court of CAN
What does lawyers earning money look like?
- Large disparity in the amount of money that is earned by lawyers
- misconception of lawyers making lots of money- some do but not all, it is glamorized that everyone makes 6 figures or more but in reality the amount made is a big range
Ex: someone in TO as a partner makes lots but one in a small community private would not
-There is not a fee for specific service
So, what do the professional rules say about how much money they can be paid or how much they should charge?
Fees be fair and reasonable- but there is written nowhere what this means- if they are over charging fees there is no where to protect them unless client has been cheated or deceived
- Nothing anywhere saying how much a lawyer should charge just has to be fair and reasonable
Ex: lawyer gives quote for 2,000 and client agrees and then they get their bill of 25,000 this is deciving
how do contingency fees work for lawyers obtaining profit?
lawyer giving a % of damages collected
Ex: malpractice suit where you have surgery and want to sue doctor and make 1M dollars- lawyer charges client in installments and not upfront if they win the damage fees (1M)
- You only get money as a lawyer if you win but if you win the payout can be huge
how does a firm approach taking on clients?
Usually a firm will only take on clients who they think will win
ex: In one example, lawyers who represented residential school survivors of residential abuse received the largest payment ever recorded for a Canadian class action: $80 million. While individual survivors received $30,000, Merchant Law Group (Regina) received $40M- bc this was their contingency fee (50%)
who utilizes lawyers?
- 26% of ppl have never consulted a lawyer- using lawyers dependent on social class and income unless it is a lawsuit, the higher your income the more likely you can pay for a lawyer and a good one
what if you need a lawyer and cannot afford one?
as of 1967 legal aid is the main option
- Legal aid plans are usually funded by combining government funds, lawyers’ subsidy, and client contributions. Here, lawyers who accept legal aid accept a significantly reduced fee for their services- this is not free to everyone
- Lawyers are not guaranteed to ppl- even ppl qualifying for legal aid
- More criminal cases for legal aid- 55%
where does some of the money go if client receives a settlement?
If they get settlement in case they have to pay their lawyer out of this
Two major types of legal aid exist in Canada: some provinces have both and some only have one
- Judicare model- ppl who need a lawyer apply for a legal aid certificate and this would say the government would back them and fund their legal rep or part of it, then take legal aid certificate to a lawyer on legal aid panel- this shows clients approval of legal aid
- Public defender model- lawyers on salary for legal aid cases- diff communities might have these or have an office specializing in legal aid cases
no mans land
too poor to not pay for lawyer but not poor enough to qualify for legal aid
- most Canadians stuck in this
Steps for law school application
- LSAT = law school admission test- multiple choice and writing section- test designed to evaluate reading, analytic and logic skills- scored on scale of 120-180, average student admitted to law school has LSAT score of at least 160- score is not raw score on test it is how you perform comparatively to others who also took it- if you take it w low performance students and do well your score would be pre good- it all depends on the group writing on each block (4 blocks to write test)- some law schools take best LSAT mark and others will average all your scores
- Law schools may also consider academic records, volunteer experience, work experience, extra circulars, being solid member of community
- You need personal statement and letter of recommendation
- Diff law schools weigh things differently
Ex: GPA vs LSAT weighed the same
how to become a lawyer
- Complete high school
- Complete an undergraduate degree (generally)- degree can be anything
- Write and score high on the LSAT exam
- Study at a law school for 3 years- some schools have diff specialties
- Enter a clerkship/articleship- done in summer after second year-working w practicing law professional- its like a trade, you have to do it for awhile before being certified- in ON you may have to complete upper law society program consists of 4 months each of training and work placement
- Study for and pass bar exams- most difficult part, then you have to be licensed and become member of bar
- Bar tests knowledge on all types of law, solicitor exam tests contract things, business law, wills and trusts, estates etc,
- Each part is 7 hrs long
- If you pass ON bar then you can practice law - Become a lawyer!
Using the Socratic method the purpose of law school is two fold
- To instruct students in the substantive rules of law
- To develop in the student a cognitive restructuring in the style of analysis OR teaching them how to “think like a lawyer”- focus of the 1st yr of law school and then gets more into substantive rules of law- this can cause aggression, hostility in classroom, shows law professor as authority figure to show respecting authority power
- Students learn how to think like a lawyer and not being a lawyer- not taught to push back against laws that do not make sense
what do critics suggest on how lawyers are trained?
Some critics suggest students learn to think like a lawyer BUT not how to actually BE a lawyer
how to get into the bar
to get into bar students need to be considered of good moral character and must swear in oath to uphold standards of moral integrity- cannot have criminal record
what does The Canadian Bar Associations “Code of Professional Conduct do for law students?
Lays the groundwork for the duties, obligations and responsibilities that a lawyer has as:
- A representative of clients
- An officer of the legal system
- A public citizen
- It also includes information and guidelines on fees, confidentiality, conflicts of interest, safekeeping property, unauthorized practice of law, advertising, and reporting professional misconduct
lawyers reporting misconduct
- When it comes to misconduct its enforcement is that it does not happen often and if it does like a lawyer acting unethical the sanctions only imposed for serious conduct
- Lawyers obligated to reprot things that are violating- 7/10 would report outside of their firm and 6/10 said they would report someone in their firm
2 approaches to the study of rule making
- Consensus: law defines crime and agreement- we all agree certain things should be outlawed and the law applies equally to everyone- us the law abiders vs the law breakers
Ex: murder is wrong we all agree on this
- Conflict: society characterized by conflicting groups and social classes and in the past the law has been used as a tool for privileges and crime is politically defined where politics has an impact on legislation and the law has been a tool to control the under class or the dangerous classes (Marx)
Ex: ppl in diff groups or statuses treated a certain way
-Not a lot defined in legislation beside fraud
consensus vs conflict approach
consensus: laws represent the agreement of most of the people in society that certain acts should be prohibited by criminal law
conflict: laws are passed by members of the ruling class in order to maintain their privilege position by keeping common ppl under control
*both are ideal types and both contain truth
sociologists and the rule of law
- this means that every dispute will be settled by a peaceful means namely by due process in the courts before appointed judge
- due process rights
- These concepts exist and are not guaranteed
-Some ppl more likely to be targeted by justice system and others above the law - a principal of justice stating that the law is necessary to regulate society that is applies to everyone equally and that ppl are not governed by arbitrary power
due process rights
Due process rights is guarantee person has rights to fair application of the law- certain process to follow and abide by
what group is more tough on crime?
conservatives
in what case are ppl less likely to be involved in crime?
if we have tougher policies
conservatives
prime value: law and order
historical influences: classical crim deterrence
reason for crime: social disorder and leniency
how to stop crime: reestablish social order, increase cost of crime- traditional values
focus of corrections: victim society, free will
strengths: role of free will, maintain social order
liberals
prime value: doing justice, doing good
historical influences: positivist crim
reason for crime: social injustices, lack basic human needs
how to stop crime: social order through reform, social programming, humane/ just CJS, rehabilitation
focus of corrections: focus on individual offenders
strengths: situational, environmental factors, rehab
radical group
prime value: equality
historical influence: Karl Marx- conflict/ critical crim
reasons for crime: capitalism
how to stop crime: eliminate capitalism to new social order
focus of corrections: CJS repress lower classes- focus on system
strengths: influence of power in CJS, race and class
social problem perspective
crime is manifestation of social problems (symptom of something else- poverty, mental illness)- we have to address those things to address crime, left wing
social responsibility perspective
crime is social responsibility- more crime controlled based, more right wing
social context of crime
- things we criminalize are from culture
- Lots of things in criminal code now are reflection of something else now
- when crime is committed it happens in social space between more than one person
- We have all entered into social contract- we all get along, not take from others etc.- if we do those things we are punished for them
- how one stands relative to others- comparing yourself to others- crime is carried out by violent circumstances and when crime occurs it is often the same race of people (intra racial- both ppl same race) vs it often not being two ppl of diff races
- crime is a social construction
- crime embraces the concept of social relativity
2 characteristics of crime
- crime is a social event
- crime is a social construction
The “proper” role of sociologists in the study of law
-Understanding social processes and objectively describing and explaining social phenomena- making sure we are looking at patterns of growth and change, how culture changes bc we are a diverse pop, how do groups interact, what does com look like
-Criticize social systems and processes- we need to be critical of existing laws as they pertain to social structures- if we know we live in capitalist world based on consumerism but also there is poverty how can we go ab understanding the law without understanding these things- we need to be critical of processes
-Praxis- turn all the stuff we know into practice- applying or using the knowledge we have for something tangible or real- more practical side of profession- how can we take what we know for studying and use it for the real world- we can push for changes when it comes to things like social policy
social policy vs policy making
social policy: refers to purposive legal measures that are adopted and pursued by representative of government who are responsible for dealing w particular social conditions in society
policy making: refers to the process of identifying alternative courses of action that may be followed and choosing among them- if we all got together and agree that the 1 predictor of crime is poverty we cannot just get rid of poverty but we can come up w policies that may aim ppl I poverty to access better resources for these ppl and come up w these proposals to make a difference for ppl in poverty
pure vs applied science
pure: pure is the search for knowledge- we don’t care what we use this knowledge for- oh poverty is an issue, who knew?
applied science: how can we use that knowledge to solve practical probs- what can we do w poverty being an issue to reduce it?- praxis- theoretical applications to come up w policies to make them easy to understand
Imperasism
having data
3 sociological impacts on sociology
- the use of soc concepts that can provide new or unique perspectives on social conditions
- ppl do not want to reflect on, inconsistent w what our policies say - prescription for policy are sometimes suggested by the findings of soc research undertaken primarily to advance scientific understandings of society
- sometimes something starts out as pure science where we want to know something but this can be taken and something can be done w that - the use of soc methods and techniques of research obtains info ab important questions
Ex: looking at hate crimes finding motivation for hate crime- where did it start, how has the media impacted it
- this is common for most sociologists
sociology and research/ impact studies
- sociology can play a vital role and contribute to the area of evaluation research and conducting impact studies
- government officials make lots of choices on costs, benefits and not evidence based research- so when evaluations are done and sociologists have taken unbiased approach we can learn if these things have worked or not - systemic evaluation of programs- when you develop new program you have objectives you want to meet- these studies tell us if objectives have been met or not
Ex: program and policy part of degree by only taking these classes
difference between evaluation vs other types of research conducted by sociologists
- evaluation research use deliberately planned intervention of some IV
ex: you have actual program or actual policy- did this intervention acc make a difference - Evaluation looks at how this program is brought ab, the signs that change is recognized (ppl staying sober or going to meetings as outlined in program)
- Evaluation research is conducted for a client opposed to other research- researcher deals w client questions vs doing research on your own- clients aloud to ask questions and change course of evaluation, possibility of conflict
- the program is assessed based on the assumption that one objective or goal as desirable
ex: if we look at evaluating rehab center and the goal or objective is to go to this program are better off when they leave then when they went in there- how do we know If they are abstinent for good?- trying to assess goals or objective of program- these have to be specific and countable - attempts to determine the extent to which this goal or objective has actually been reached
ex: follow the ppl that went through rehabilitation center and if they did what did this look like and what was the success rate
what is key in evaluation vs other types of research conducted by sociologists?
Key is studying objectives and whether objectives have been met
when is social policy essential?
Social policy evaluation is essentially concerned with attempts to determine or measure the impact of policy in real-life conditions as opposed to theoretical ones- what does this look like in real world- we have to be specific in what is measured in outcomes
why can studying the impact of law or policy be complicated?
by the fact that they might have effects on different groups or situations other than what those they are directed at- if we looked at anti-poverty program we have to look at the ppl affected by program (single moms, children etc.) the intended effect would be something positive would happen for this group, the intended effects need to be specified depending on program,
spillover effects
programs and policies impacting other groups even tho that is not their intention (neighborhood ex above)
-passing line but just barely
Nucance laws
homeless ppl being removed from certain areas, dislocating them- you telling them to leave isn’t going to do anything
how are legal norms or social patterns of behavior created?
legal norms or social patterns of behavior are creations of human will- reflection of the ppl it serves- constructed on time, culture, political system- all these things impact what the law looks like and how it is practiced
what can the law be a tool of?
the law can be a tool of social control or agent of social change but the opposite can be true where social change first them the law catches up to be this
- legal norms actually determine human behavior in society and human behavior can impact the law
difference between how lawyers vs sociologists view the law
lawyers and jurists analyze the law as doctrine in validating the law
sociologists are more concerned w the behavior, causes and consequences of law
- sociology has a good potential to play an active role in the formulation, instrumentation and evaluation of social policy
- just bc we know things and recommend them does not mean change will be reflected here- at the very least it is important to reflect on themes
Ex: in ideal world we would not have racism- be critical of these things
