Attorneys and Attorneys at Law

Factual Questions
1

Dear Cecil,
I would like to know if there is any difference between an attorney and an attorney at law. It appears that an attorney acts as an agent. If so, can someone act as an attorney at, say, health or medicine issues, or, for that matter at, say, music or economics? In other words, why the apparent necessity to specify “at law”? Can someone act as an attorney in any other field than law? Is it written somewhere, that, in order to be an attorney, one must have passed and been admitted to the bar? In essence, the question becomes whether there is a difference between an agent and an attorney. This also leads to another question: if an attorney must be a member of a bar, how is it that I can give someone who has not studied for or been admitted to the barpower of attorney? What is the difference, if any, among an attorney, a lawyer, a solicitor, a barrister, an advocate and a counselor? What is an attorney in fact? Must jurists (judges) be attorneys? Is there a distinction to be made between a District Attorney and an Attorney General? How about these questions as applied to or by the UCMJ and Courts Martial? Must someone acting as a defense counselor in a Court Martial be an attorney admitted to some bar?

Perhaps, I should have gone to law school, but I didn’t.

Thank you for any and all clarification you provide.

Sincerely,

David H. Hendon

2

An attorney is simply someone who has authority to bind someone else - to act in their place. The idea is captured in the notion of a “power of attorney” (if such a thing exists in your jurisdiction) where in anticipation of the possibility of ill-health and corresponding lack of contractual capacity, a person can appoint someone (usually a close relative) to act in their stead. Such appointments often authorise the making of decisions about health matters, and even end of life issues.

Legal attorneys are a subset of the more general concept of attorney, but they have come to be the most prominent example and the most common occasion for the use of the word, to the point where many people think attorney means lawyer.

3

Attorney at law is the full title in the US and some other jurisdictions, but is usually just shortened to attorney. The word comes from middle English (or maybe Norman French, I can’t decide) and means appointed.

When one can call oneself an attorney would vary by jurisdiction, but I would suspect in the US one must have passed the bar in that state and be licenced in some way.

There is a difference between agent and attorney - an attorney can be an agent, but all agents are not attorneys.

Someone who has power of attorney can be called attorney in fact, but is often called other things, such as donee or agent. Having power of attorney does not make you a lawyer - it means you are appointed (the base meaning of the word) as the person’s agent.

All attorneys are lawyers (other than the above mentioned donee being referred to as an attorney in fact.) Solicitors and barristers are lawyers, too. In the jurisdictions with which I am familiar, solicitor and barrister are used instead of the word attorney and they have different jobs, which come together in the American concept of lawyering, although that isn’t as much the case anymore as it was previously. Solicitors traditionally do work outside the court (NB: conveyancing, wills, etc.) and Barristers traditionally speak in court - so a solicitor who wanted to go to court on a matter would brief in a barrister to speak for him. Counselors and advocates are other names for lawyers. They may have specialist meanings in some jurisdictions.

In most cases, judges must be lawyers (attorneys). There may be specialist courts and tribunals which do not require this - in administrative bodies this is sometimes the case. This may also vary by jurisdiction.

The different between a district attorney and an attorney general is that usually, a DA represents the government and prosecutes on it’s behalf. An AG is usually the legal advisor to the government, and advises them on legal matters although in some jurisdictions, they take on the same responsibilities as the DA. And AGs job varies wildly by jurisdiction.

For the UCMJ and Courts Martial questions, I will leave those for an American currently living in the US to answer, and the Constitution here in Australia treats those courts quite differently.

4

it depends.

In most courts, yes.

In all courts, no. It will vary somewhat by jurisdiction.

The New York State court system has a system for rural towns, called the Town & Village Courts (collectively, the Justice Courts), and the judges there do not have to be attorneys. In the other state courts and even in the New York City tribunals for things like streetcart licenses, they do have to be attorneys, licensed to practice law in New York State.

5

By the way, it’s not likely that you’ll get a response from Cecil in this forum. You’ll have to make do with the rest of us.

As prior posters have said, traditionally an “attorney” is a representative who is empowered to act on your behalf. An “attorney at law” is someone who acts for you on legal matters. In almost all jurisdictions, an attorney at law must be a “lawyer” (someone licensed to practice law). The vast majority of attorneys are attorneys at law, but there are some cases in which attorneys need not be an attorney at law.

Lawyer - A person licensed to practice law

Advocate - A person who speaks on behalf of another person. In a court of law, your advocate will be your lawyer and will be an attorney at law. In English, “advocate” is a common synonym for “lawyer,” but rarely has any official meaning.

Counselor - A person who gives you advice. In English “counselor” is a common synonym for “lawyer,” but rarely has any official meaning. However, there is (or was) a state (South Carolina?), where the term “counselor” was an official title granted to senior lawyers, kind of like king’s/queen’s counsel in Britain. In fact, the Irish equivalent of a Q.C. is senior counsel. In court, a judge will address your lawyer/attorney as “counsel.”

Solicitor - In the British system, a solicitor is traditionally a lawyer who represents clients, but is not allowed to plead at the bar in the highest courts. (This has changed to a great extent, and solicitors now are able to argue in many courts.) A solicitor is called a “solicitor advocate” when arguing in court.

Barrister - In the British system, a barrister is a lawyer who may plead at the bar in the highest courts. Barristers may not take on clients directly. They are “instructed” by a party’s solicitor and are paid by the solicitor, not by the client. Barristers are not attorneys and may not act for a client other than arguing in court.

This solicitor/barrister split actually spawned varying terminologies in different courts (which I can’t remember exactly)–

Court of law (common law) – attorney at law/?
Court of equity (chancery) – solicitor/?
Admiralty/ecclesiastical/probate/divorce court – proctor/?
Scottish courts – solicitor/advocate

An agent. Someone who represents you and is not an attorney at law.

That’s up to the law of the specific jurisdiction. So far as I know, most common law jurisdictions require judges to be licensed lawyers. However, in civil law jurisdictions, I believe that lawyers and judges follow different paths of training.

6

As others have pointed out, it depends on the rules for the particular court. In the case of the US Supreme Court, no, there is no constitutional or other legislative requirement for the judges to be attorneys, though in practice all current and past appointees have been.

7

They’ve all been attorneys in the sense that they all practiced law. Not all were attorneys in the sense that they possessed law degrees. Stan Reed, who served until 1957, did not. In many US jurisdictions, a law degree was not a prerequisite for admission to the bar until the 20th century. Instead, “country lawyers” qualified essentially by apprenticing with licensed attorneys.

8

Having a legal degree does not make you an attorney in the US (except in wisconsin, for graduates of certain law schools). So this sentence

Is very misleading. When you graduate from law school you are not in any way an attorney, nor does the JD confer any privelege on its own - it is just as illegal for an unlicensed JD to practice law without a license as it is for anyone else. If you receive a license (also known as being “admitted to the bar”) by any means set forth in law, you are equally an attorney no matter how you got it.

BTW you can still apprentice in some states, including New York, after one year of law school, but the requirements sort of make it impossible in practical terms.

9

As someone else pointed out, the “attorney” or “agent” that you refer to for medical/financial decisions is commonly referred to as an attorney-in-fact and is a person or institution designated by a person to make decisions, enter into contracts, conduct business for them if they are unable to do so, etc.