In the US, we have lawyers and attorneys. AFAIK, they are the same thing.
In Britain, they have barristers and solicitors. Do both of these terms have the same meaning, or is there a distinction between a barrister and a solicitor?
Thanks in advance for shedding light on this.
Barristers are those who appear in court, at least the high courts. Solicitors do extra-judicial work, i.e., lawyers’ stuff other than litigation. They are also the ones who instruct the barristers: If you have a lawsuit to litigate you would hire a solicitor, who would then go on and hire a barrister to plead in court. In lower courts a solicitor could appear without a barrister.
At least that’s what it used to be like. There were legal reforms which granted right of audience (ie., the right to appear in higher courts) to solicitors, and gave the clients direct access to barristers without a solicitor. But these are recent reforms. Whether that will become commonplace, or whether people will stick to the old habits, remains to be seen.
In other words, American “attorneys-at-law” combine the functions of barristers and solicitors.
By the way, attorney and lawyer in American usage are not the same thing. A lawyer is someone with a legal education. An attorney is someone who provides legal advice to others for money. All attorneys are lawyers, but not vice versa; a judge, for instance, would be a lawyer but not an attorney.
Barristers specialise in courtroom advocacy but solicitors do a much wider variety of legal work, most of which doesn’t involve entering a courtroom.
“attorney” is not much used here, except for the Attorney-General. Dickens uses it in his works, but it seems to have dropped out of use after that.
I have never before heard that a person with a legal education is a lawyer. A person with a standard U.S. law degree is a “juris doctor” or, more commonly, just “someone with a law degree.” As a practical matter, “lawyer” and “attorney” mean the same thing in the U.S.
Generally, a person can call themselves a lawyer only after they have been admitted to the bar. For example, in California, it’s a misdemeanor punishable by 90 days in jail if you hold yourself out as a lawyer without having been admitted to the bar. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=06001-07000&file=6125-6133. The system is generally the same in other states.
An “attorney” is any person legally appointed to act on another’s behalf. “Attorney” in this sense doesn’t have to mean a lawyer – it can also include anyone with a power of attorney. That means there are two categories of attorneys: (1) any schmoe with the power of attorney for some other person (referred to as an “attorney-in-fact,” or archaically, as a “private attorney”); and (2) a lawyer with the power to act for another person, i.e., a client (known as an “attorney-at-law” or a “public attorney.”) However, in the U.S., essentially no one refers to people acting under a power of attorney simply as “an attorney” – they are called attorneys-in-fact. In contrast, essentially everyone talking simply about an “attorney” without qualification is referring to an attorney-at-law. So, for all practical purposes, there is no real distinction between a lawyer and an attorney (when referring to an attorney-at-law) in the U.S.
There is one potential distinction based on these definitions between “lawyer” and “attorney-at-law,” but I’ll admit that I don’t know anyone who actually holds to this. Using the definitions above, a lawyer is anyone licensed to practice law even if they are unemployed and have no clients, whereas attorneys-at-law would include only lawyers with a client to represent. Again, this is not a distinction I’ve ever heard real lawyers draw.
It’s kind’ve complicated, but for a typical Crown Court case (possibly roughly analogous with a felony case), a defendant would hire a solicitor who would probably be their at their police interview and do a lot of the initial work in the case and the solicitor would hire a barrister for the case who would be the advocate in court and also do the more of the later legal work.
That said, especially these days, there is quite a crossover between the two roles, but barristers tend to be much more focused on advocacy.
For most criminal cases, a barrister would rely entirely on the ‘brief’ provided by the solicitor. They would probably not meet the client until just before they were due in court.
Barristers are self employed but work in ‘chambers’, where they share facilities and employ administrators. Chambers would employ a clerk whose job it is to find work for the barristers. They are not allowed to advertise.
And then there’s Canadian usage, where lawyers are both barristers and solicitors, but rarely use the term “attorney.”
I’ve seen that advanced before on these boards, but I wonder if there’s a cite for it?
Well, Juris Doctor is the name of the degree, but not the generic term for someone with a legal education. You can have a legal education without having a JD; you can, for instance, have a foreign legal degree (which, of course, would not necessarily mean you’d be allowed to practice law; but you’d still be considered to have a legal education), or you can have an American LL.B. from the time before law schools switched to JDs. Think of the analogy in other disciplines: If you have, say, an M.Sc. in economics then your degree is a Master of Science, but the generic term for someone with your background would be economist.
That’s because people say “I’m going to ask a lawyer” when they go consult an attorney. Which is not wrong, since attorneys are necessarily lawyers; but lawyers are not necessarily attorneys.
If you read that provision carefully, it doesn’t prohibit the use of the term “lawyer” per se; it prohibits it only in ways “that imply that the person is an attorney”. So what is banned is creating the impression that you’re an attorney, including in ways of using the word “lawyer”. If you call yourself a lawyer in a manner that does not create the impressionthat you’re an attorney, that is not illegal.
For instance here: http://www.lawyeredu.org/attorney-vs-lawyer.html
That also seems to be the case in many states of Australia. Barristers and solicitors are, in theory, distinct professions, but most practicing lawyers have an admission as both, so that the disctinction doesn’T really matter. Still, they wouldn’t call themselves attorneys.
If I could cabbage a related question onto this one: in a criminal matter, is the defendant required by law to have representation appointed to him?
Also, could a plaintiff appear in court on her own behalf, or is she required by law to have representation? What about small claims?
There’s a little bit of correct in all of these.
Strictly speaking:
— A lawyer is someone who is empowered by the courts to practice law (i.e., to give legal advice)
— An attorney is someone who is empowered to act on another person’s behalf, in other words, an agent
— An attorney-at-law is someone empowered to act on another person’s behalf in legal matters
As a practical matter, these terms are used pretty much interchangeably, because for the most part, your lawyer is your attorney is your attorney-at-law.
Personally, I like to preserve the distinction in this sense:
— “X is a lawyer.”
— “X is Y’s lawyer/attorney.” where Y is a specific, identified person or entity.
— *“X is an attorney.” Naaaah, nope. You can only be someone’s attorney.
This may be true: the relaxation of the rules mostly would affect people younger than me and my friends.
But, FWIW, I’ve never met a person qualified as a barrister who was working as a solictor. And after the relaxation, the only ones I’d heard of were criminal law.
Also, tangential: Maristrate did not use to require a law degree, or experience working as a solictor or barrister, although the Chief Magistrate would have that kind of qualification. And Prosecuter did not use to require a law degree or experience working as a solcitor or barrister, and still does not in some circumstances, but … there are a lot more under-employed law graduates to choose from now.
In Canada, they’re not separate professions. I’m called as both a barrister and solicitor.
It is not required that you should be legally represented, and an increasing feature of civil litigation (and sometimes criminal too) is ‘litigants in person’ who slow the trial process down to a crawl and probably cost the public purse more than if they had got free legal representation.
Small Claims Court - normally neither side will be legally represented.
Also, because British English has its own diversity, it should be noted that in Scotland we have advocates rather than barristers.
I believe that pretty much everything said above about barristers applies to advocates, except that advocates retain almost exclusive rights to appear in the higher courts.
Bit of trivia:
It used to be in the English system that law courts, equity courts, and admiralty courts had separate nomenclatures for what is now the solicitor/barrister distinction —
Court of Law – attorney/barrister
Chancery Court (Equity Court) – solicitor/attorney
Admiralty and other courts – proctor/attorney
And, if I recall correctly, in at least one state (South Carolina?), there is an extra title somewhat similar to King’s/Queen’s Counsel—once you achieve a certain degree of experience and acclaim, the judges address you as “counsel,” which, in other states, is an ordinary form of address for a lawyer appearing on behalf of a client.
Oh, I’ve mentioned these before:
I would just comment that “counsellor” strikes me as an American term. We don’t use it on Canada.
We do have Queen’s Counsel", but that’s not a general term. One must be appointed Queen’s Counsel by the government.