Who regulates lawyers

Who regulates lawyers

A key difference among countries is whether lawyers should be regulated solely by an independent judiciary and its subordinate institutions (a self-regulating legal profession), or whether lawyers should be subject to supervision by the Ministry of Justice in the executive branch.

In most civil law countries, the government has traditionally exercised tight control over the legal profession in order to ensure a steady supply of loyal judges and bureaucrats. That is, lawyers were expected first and foremost to serve the state, and the availability of counsel for private litigants was an afterthought.

Even in civil law countries like Norway which have partially self-regulating professions, the Ministry of Justice is the sole issuer of licenses, and makes its own independent re-evaluation of a lawyer's fitness to practice after a lawyer has been expelled from the Advocates' Association.

Brazil is an unusual exception in that its national Order of Advocates has become a fully self-regulating institution (with direct control over licensing) and has successfully resisted government attempts to place it under the control of the Ministry of Labor.

Of all the civil law countries, Communist countries historically went the farthest towards total state control, with all Communist lawyers forced to practice in collectives by the mid-1950s.

China is a prime example: technically, the People's Republic of China did not have lawyers, and instead had only poorly-trained, state-employed "legal workers," prior to the enactment of a comprehensive reform package in 1996 by the Standing Committee of the National People's Congress.

In contrast, common law lawyers have traditionally regulated themselves through institutions where the influence of non-lawyers, if any, was weak and indirect (despite nominal state control).

Such institutions have been traditionally dominated by private practitioners who opposed strong state control of the profession on the grounds that it would endanger the ability of lawyers to zealously and competently advocate their clients' causes in the adversarial system of justice.

However, the concept of the self-regulating profession has been criticized as a sham which serves to legitimize the professional monopoly while protecting the profession from public scrutiny.

Disciplinary mechanisms have been astonishingly ineffective, and penalties have been light or nonexistent.

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