第17回：資格～弁護士資格～（2022年12月19日）

英米法辞典
attorney: ... 3（アメリカの）法律家；法曹有資格者；弁護士□アメリカでは、イギリスと異なり、弁護士を2つの階層に分けるという制度は採られておらず、弁護士はすべて attorney とよばれる。また、この言葉は、広く法曹有資格者、法律家一般をさす用語として使用され、政府の法務官・検事も attorney である。官職名の一部になっているときなど特段の事情がないかぎり、lawyer (法曹有資格者)と同じ内容の言葉と考えてよい。▲1の用法［（代理人）］と区別する必要があるときには、attorney at law という表現が用いられる。

lawyer: 法曹有資格者; 弁護士; 法律家; 法曹; 法実務家□イギリスでは、barrister または solicitor の資格を与えられた者。アメリカでは、各州で所定の要件を満たして法律業務 (legal practice) を行う資格を与えられた者。資格を有する者はすべて lawyer であるが、実際に業として弁護士活動をする者であることをはっきりさせるために practicing lawyer (実務弁護士)という言葉が用いられることがある。

LawerEdu.org: https://www.lawyeredu.org/attorney-vs-lawyer.html
Attorney vs. Lawyer Definition
The terms attorney and lawyer are often used interchangeably in the United States. There is very little distinction made between the two. This difficulty to differentiate is a result of the fact that in the United States, unlike in other countries, this distinction is not made. However, a slight one does exist.

What Qualifies Someone as a Lawyer?
A lawyer is someone who is learned and trained in law. Yet, they may not actually practice law. They often give legal advice. By attending law school in the United States, one can be considered a lawyer. A student of law must pass the bar exam in their particular jurisdiction in order to practice law by providing legal representation. Otherwise, the opportunities to use their law education are limited.

Tenth Amendment to the United States Constitution
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
【参考訳】
本憲法が米国に委任していない権限及び本憲法が州に対して禁止していない権限は、それぞれの州又は米国市民に留保される。

英米法辞典
police power: ... 福祉権能; ポリス・パワー; 規制権限 □州が州民の健康 (health)、安全 (safety)、道徳 (morals) その他一般の福祉 (general welfare) を保護・向上させるために各種の立法を制定・執行する権限［。］アメリカの連邦制度のもとでは、連邦政府は合衆国憲法によって明示的・黙示的に与えられた権限のみを有し、残りの政府権限は州に留保されている（合衆国憲法第10修正 (Tenth Amendment)）［。］▲「警察権能」 という訳については、日本語の 「警察」 が、公共の福祉全般を示す police と比べるとその意味がかなりの程度において限定されていることに注意。

Court of Appeals for the Admission of Attorneys and Counselors at Law (amended, effective April 1, 2012)
Section 520.1 General.
(a) A person shall be admitted to practice law in the courts of the State of New York only by an order of the Appellate Division of the Supreme Court upon compliance with these rules. (Emphasis added).

Rules of the State Bar of California, Title 4, Division 1. Admission to Practice Law in California
Rule 4.1 Authority (effective September 1, 2008)
The California Supreme Court exercises inherent jurisdiction over the practice of law in California. The Committee of Bar Examiners ("the Committee") is authorized by law to administer the requirements for admission to practice law; to examine all applicants for admission; and to certify to the Supreme Court for admission those applicants who fulfill the requirements." (Emphasis added).

District of Columbia Court of Appeals Rule 46. Admission to the Bar
(k) Admission Order.
(1) The Committee shall file with the court a motion to admit the successful applicants by examination, or a certification of attorneys for admission by transferred UBE score or of attorneys for admission without examination, after successful completion of a character and fitness study. Each candidate shall be notified of the time and place for the taking of the oath.
(2) An applicant whose name is on an order of admission entered by the [District of Columbia Court of Appeals] or who is certified for admission by the [Committee on Admissions appointed by the District of Columbia Court of Appeals] without a formal hearing shall complete admission within 90 days from the date of the order or the certification by taking the oath prescribed and by signing the roll of attorneys in the office of the Clerk. (Emphasis added).

New York Consolidated Laws, Judiciary Law
Section 478 Practicing or appearing as attorney-at-law without being admitted and registered.
"It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself or herself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself or herself out to the public as being entitled to practice law as aforesaid, or in any other manner, or to assume to be an attorney or counselor-at-law, or to assume, use, or advertise the title of lawyer, or attorney and counselor-at-law, or attorney-at-law or counselor-at-law, or attorney, or counselor, or attorney and counselor, or equivalent terms in any language, in such manner as to convey the impression that he or she is a legal practitioner of law or in any manner to advertise that he or she either alone or together with any other persons or person has, owns, conducts or maintains a law office or law and collection office, or office of any kind for the practice of law, without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath." (Emphasis added).

Section 485 Violation of certain preceding sections a misdemeanor
"Except as provided in section four hundred eighty-five-a of this article, any person violating the provisions of section four hundred seventy-eight, four hundred seventy-nine, four hundred eighty, four hundred eighty-one, four hundred eighty-two, four hundred eighty-three or four hundred eighty-four of this article, shall be guilty of a misdemeanor." (Emphasis added).

Section 485-A Violation of certain sections a class E felony
"Any person who violates the provisions of sections four hundred seventy-eight, four hundred eighty-four, four hundred eighty-six or four hundred ninety-five of this article is guilty of a class E felony when he or she: (1) falsely holds himself or herself out as a person licensed to practice law in this state, a person otherwise permitted to practice law in this state, or a person who can provide services that only attorneys are authorized to provide; and (2) causes another person to suffer monetary loss or damages exceeding one thousand dollars or other material damage resulting from impairment of a legal right to which he or she is entitled." (Emphasis added).

California Business and Professions Code (2017)
Section 6125
"No person shall practice law in California unless the person is an active licensee of the State Bar." (Emphasis added).

Section 6126(a)
"Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active licensee of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment. Upon a second or subsequent conviction, the person shall be confined in a county jail for not less than 90 days, except in an unusual case where the interests of justice would be served by imposition of a lesser sentence or a fine. If the court imposes only a fine or a sentence of less than 90 days for a second or subsequent conviction under this subdivision, the court shall state the reasons for its sentencing choice on the record." (Emphasis added).

⁴Sperry v. Florida, 373 U.S. 379, 383 (1963) ("We do not question the determination that, under Florida law, the preparation and prosecution of patent applications for others constitutes the practice of law.").

⁵The United States Constitution, Article VI ("[T]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding[.]").

Part 522 - Rules for the Registration of In-House Counsel
522.1 Registration of In-House Counsel
(a) In-House Counsel defined. An in-house counsel is an attorney who is employed full time in this State by a non-governmental corporation, partnership, association, or other legal entity, including its subsidiaries and organizational affiliates, that is not itself engaged in the practice of law or the rendering of legal services outside such organization.
(b) In its discretion, the Appellate Division may register as in-house counsel an applicant who:
(1) (i) has been admitted to practice in the highest law court in any other state or territory of the United States or in the District of Columbia; or (ii) is a member in good standing of a recognized legal profession in a foreign non-United States jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent and subject to effective regulation by a duly constituted professional body or public authority;
(2) is currently admitted to the bar as an active member in good standing in at least one other jurisdiction, within or outside the United States, which would similarly permit an attorney admitted to practice in this State to register as in-house counsel; and
(3) possesses the good moral character and general fitness requisite for a member of the bar of this State. (Emphasis added).

522.4 Scope of legal services
An attorney registered as in-house counsel under this Part shall:
(a) provide legal services in this State only to the single employer entity or its organizational affiliates, including entities that control, are controlled by, or are under common control with the employer entity, and to employees, officers and directors of such entities, but only on matters directly related to the attorney's work for the employer entity, and to the extent consistent with the New York Rules of Professional Conduct;
(b) not make appearances in this State before a tribunal, as that term is defined in the New York Rules of Professional Conduct (22 NYCRR 1200.0 Rule 1.0[w]) or engage in any activity for which pro hac vice admission would be required if engaged in by an attorney who is not admitted to the practice of law in this State;
(c) not provide personal or individual legal services to any customers, shareholders, owners, partners, officers, employees or agents of the identified employer; and
(d) not hold oneself out as an attorney admitted to practice in this State except on the employer's letterhead with a limiting designation. (Emphasis added).

Part 521 - Rules of the Court of Appeals for the Licensing of Legal Consultants

Part 522 - Rules for the Registration of In-House Counsel
521.1 General regulation as to licensing.
(a) In its discretion the Appellate Division of the Supreme Court, pursuant to subdivision 6 of section 53 of the Judiciary Law, may license to practice as a legal consultant, without examination, an applicant who:
(1) is a member in good standing of a recognized legal profession in a foreign country, the members of which are admitted to practice as attorneys or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or a public authority;
(2) for at least three of the five years immediately preceding his or her application, has been a member in good standing of such legal profession and has actually been engaged in the practice of law in such foreign country or elsewhere substantially involving or relating to the rendering of advice or the provision of legal services concerning the law of such foreign country; ... . (Emphasis added).

521.3 Scope of practice.
A person licensed to practice as a legal consultant under this Part may render legal services in this State; subject, however, to the limitations that he or she shall not: ... . (Emphasis added).

⁶https://www.calbar.ca.gov/Admissions/Special-Admissions

⁷MBEは200問の択一式試験である。その試験科目は民事訴訟法（Civil Procedure）、憲法（Constitutional Law）、契約法（Contracts）、刑法＆刑事訴訟法（Criminal Law and Procedure）、証拠法（Evidence）、不動産法（Real Property）及び不法行為法（Torts）の7科目で、そのうち、民事訴訟法、憲法及び刑事訴訟法は連邦法、契約法のうち動産の売買については統一商事法典第2編（Article 2 of the Uniform Commercial Code）、そして、残りはいずれの州法でもないコモンロー上の原則（principles of common law）である。https://www.ncbex.org/exams/mbe/preparing/

⁸その他、職業有限責任会社（PLLC: Professional Limited Liability Company）の形態の特許法律事務所もしばしば見られる。

ABA Model Rules of Professional Conduct (2016)
Rule 5.4: Professional Independence of a Lawyer
(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (Emphasis added).

California Rules of Professional Conduct (Effective November 1, 2018)
Rule 5.4 Financial and Similar Arrangements with Nonlawyers
(b) A lawyer shall not form a partnership or other organization with a nonlawyer if any of the activities of the partnership or other organization consist of the practice of law. (Emphasis added).

⁹カリフォルニア州の職業行動規範規則は、たとえば、ABA模範規則1.14 (Client with Diminished Capacity), 規則5.7 (Responsibilities Regarding Law-related Services), 規則7.6 (Political Contributions to Obtain Legal Engagements or Appointments by Judges), 規則8.3 (Reporting Professional Misconduct)を採用していない。

D.C. Rules of Professional Conduct (Effective October 8, 2015)
Rule 5.4--Professional Independence of a Lawyer
    (b) A lawyer may practice law in a partnership or other form of organization in which a financial interest is held or managerial authority is exercised by an individual nonlawyer who performs professional services which assist the organization in providing legal services to clients, but only if:
        (1) The partnership or organization has as its sole purpose providing legal services to clients;
        (2) All persons having such managerial authority or holding a financial interest undertake to abide by these Rules of Professional Conduct;
        (3) The lawyers who have a financial interest or managerial authority in the partnership or organization undertake to be responsible for the nonlawyer participants to the same extent as if nonlawyer participants were lawyers under Rule 5.1;
        (4) The foregoing conditions are set forth in writing. (Emphasis added).

Comment
    [3] As the demand increased for a broad range of professional services from a single source, lawyers employed professionals from other disciplines to work for them. So long as the nonlawyers remained employees of the lawyers, these relationships did not violate the disciplinary rules. However, when lawyers and nonlawyers considered forming partnerships and professional corporations to provide a combination of legal and other services to the public, they faced serious obstacles under the former rules.
    [4] This rule rejects an absolute prohibition against lawyers and nonlawyers joining together to provide collaborative services, but continues to impose traditional ethical requirements with respect to the organization thus created. Thus, a lawyer may practice law in an organization where nonlawyers hold a financial interest or exercise managerial authority, but only if the conditions set forth in subparagraphs (b)(1), (b)(2), and (b)(3) are satisfied, and pursuant to subparagraph (b)(4), satisfaction of these conditions is set forth in a written instrument. The requirement of a writing helps ensure that these important conditions are not overlooked in establishing the organizational structure of entities in which nonlawyers enjoy an ownership or managerial role equivalent to that of a partner in a traditional law firm. (Emphasis added).

Ethics Opinion 244
Inclusion of Name of Nonlawyer Partner in Firm Name
Assuming compliance with the requirements of Rule 5.4(b), the name of a nonlawyer partner may be included in the name of a law firm. However, the firm must make clear on firm stationery, business cards and professional listings that the nonlawyer partner is not a lawyer. (Emphasis added).

https://www.cand.uscourts.gov/attorneys/admission
United States District Court for Northern District of California
"Admission to Practice
Qualifications
Civil Local Rule 11-1 provides that the Bar of this court consists of attorneys of good moral character who are active members in good standing of the State Bar of California. Attorneys must also certify that they have knowledge of the Federal Rules of Civil and Criminal Procedure and Evidence, the Rules of the United States Court of Appeals for the Ninth Circuit and the local rules of this court. Furthermore, attorneys must possess familiarity with the Alternative Dispute Resolution programs of the court and an understanding and commitment to abide by the Standards of Professional Conduct of this court set forth in Civil Local Rule 11-4." (Emphasis added).

Federal Circuit Rule 46. Attorneys
(a) Eligibility. An attorney is eligible for admission to the bar of this court if that attorney is of good moral and professional character and is admitted to practice before and of good standing in:
(1) any of the courts listed in Federal Rule of Appellate Procedure 46(a) [(the Supreme Court of the United States, the highest court of a state, another United States court of appeals, or a United States district court (including the district courts for Guam, the Northern Mariana Islands, and the Virgin Islands))];
(2) the United States Court of International Trade;
(3) the United States Court of Federal Claims;
(4) the United States Court of Appeals for Veterans Claims; or
(5) the District of Columbia Court of Appeals. (Emphasis added).

35 U.S.C. 2 Powers and duties.
"(b) SPECIFIC POWERS.— The Office— ... (2) may establish regulations, not inconsistent with law, which— ... (D) may govern the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties before the Office, and may require them, before being recognized as representatives of applicants or other persons, to show that they are of good moral character and reputation and are possessed of the necessary qualifications to render to applicants or other persons valuable service, advice, and assistance in the presentation or prosecution of their applications or other business before the Office[.]"

37 C.F.R. 1.32 Power of attorney.
(a) Definitions.
(1) Patent practitioner means a registered patent attorney or registered patent agent under § 11.6. (Emphasis added).

37 C.F.R. 11.1 Definitions.
Attorney or lawyer means an individual who is an active member in good standing of the bar of the highest court of any State. A non-lawyer means a person who is not an attorney or lawyer. (Emphasis added).

37 C.F.R. 11.6 Registration of attorneys and agents.
(a) Attorneys. Any citizen of the United States who is an attorney and who fulfills the requirements of this part may be registered as a patent attorney to practice before the Office. When appropriate, any alien who is an attorney, who lawfully resides in the United States, and who fulfills the requirements of this part may be registered as a patent attorney to practice before the Office, provided that such registration is not inconsistent with the terms upon which the alien was admitted to, and resides in, the United States[.]
(b) Agents. Any citizen of the United States who is not an attorney, and who fulfills the requirements of this part may be registered as a patent agent to practice before the Office. When appropriate, any alien who is not an attorney, who lawfully resides in the United States, and who fulfills the requirements of this part may be registered as a patent agent to practice before the Office, provided that such registration is not inconsistent with the terms upon which the alien was admitted to, and resides in, the United States[.] (Emphasis added).

37 C.F.R. 11.9 Limited recognition in patent matters.
(a) Any individual not registered under §11.6 may, upon a showing of circumstances which render it necessary or justifiable, and that the individual is of good moral character and reputation, be given limited recognition by the OED Director to prosecute as attorney or agent a specified patent application or specified patent applications. Limited recognition under this paragraph shall not extend further than the application or applications specified. Limited recognition shall not be granted while individuals who have passed the examination or for whom the examination has been waived are awaiting registration to practice before the Office in patent matters. (b) A nonimmigrant alien residing in the United States and fulfilling the provisions of § 11.7(a) and (b) may be granted limited recognition if the nonimmigrant alien is authorized by the United States Government to be employed or trained in the United States in the capacity of representing a patent applicant by presenting or prosecuting a patent application[.] (Emphasis added).

37 C.F.R. 11.10 Restrictions on practice in patent matters.
(a) Only practitioners who are registered under § 11.6 or individuals given limited recognition under § 11.9(a) or (b) are permitted to prosecute patent applications of others before the Office; or represent others in any proceedings before the Office.

¹⁰日本の法体系は全国一律であり、連邦法及び州法が併存する米国と直接には比較できないが、その点を差し置いてあえて比較をすれば、米国では、州の弁護士資格の保有者であっても、特許弁護士として登録されていない者は、原則として、米国特許商標庁に対する特許手続の代理資格を有さないのに対し、日本では、「弁護士は、当然、弁理士［の］事務を行うことができる」（弁護士法（昭和24年法律第205号）3条2項）とされている点で、日米の弁護士・弁理士制度は大きく相違する。

37 C.F.R. 11.14 Individuals who may practice before the Office in trademark and other non-patent matters.
(a) Attorneys. Any individual who is an attorney as defined in §11.1 may represent others before the Office in trademark and other non-patent matters. An attorney is not required to apply for registration or recognition to practice before the Office in trademark and other non-patent matters. Registration as a patent practitioner does not itself entitle an individual to practice before the Office in trademark matters.
(b) Non-lawyers. Individuals who are not attorneys are not recognized to practice before the Office in trademark and other non-patent matters, except that individuals not attorneys who were recognized to practice before the Office in trademark matters under this chapter prior to January 1, 1957, will be recognized as agents to continue practice before the Office in trademark matters. Except as provided in the preceding sentence, registration as a patent agent does not itself entitle an individual to practice before the Office in trademark matters.
(c) Foreigners. Any foreign attorney or agent not a resident of the United States who shall file a written application for reciprocal recognition under paragraph (f) of this section and prove to the satisfaction of the OED Director that he or she is registered or in good standing before the patent or trademark office of the country in which he or she resides and practices and is possessed of good moral character and reputation, may be recognized for the limited purpose of representing parties located in such country before the Office in the presentation and prosecution of trademark matters, provided: the patent or trademark office of such country allows substantially reciprocal privileges to those permitted to practice in trademark matters before the Office. Recognition under this paragraph shall continue only during the period that the conditions specified in this paragraph obtain.
(d) Recognition of any individual under this section shall not be construed as sanctioning or authorizing the performance of any act regarded in the jurisdiction where performed as the unauthorized practice of law.
(e) No individual other than those specified in paragraphs (a), (b), and (c) of this section will be permitted to practice before the Office in trademark matters on behalf of a client. Any individual may appear in a trademark or other non-patent matter in his or her own behalf. (Emphasis added).