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Are you an “Attorney” or a “Lawyer”? Probably Both.

| Jan 21, 2021 | The SoapBox |

If you Google the difference between the terms “lawyer” and “attorney” you will get any number of websites with various explanations of the two terms origins and meanings.  Generally, the etymology of the two words comes down to one being of from Middle English (lawyer) and the other being introduced into the English vernacular by way of Norman French (attorney) — you know, 1066 and all that.

The curious thing is that the meaning of the two terms has varied over time so that today a “lawyer” is more properly an “attorney” and an “attorney,” at least in its original sense, is probably not a lawyer at all.  Here’s how it works out: in Anglo-Saxon times a “lawyer” was a person trained in the law — generally by apprenticeship, though sometimes at one of the medieval universities  — who could draft legal documents and represent others in court (such as they were, as this usually meant a proceeding on a market day in the “courtyard” before the crown in the person of the local ranking noble or his designee — often the “shire reeve” or sheriff).  Contrary to a popular misconception, these were not “hustings courts,” as that term is of Germanic origin and the term was not widely used in English until the 18th century; it is also unclear whether the “Court of Husting” in the City of London derived its name from the German term or from some other unrelated source.

An “attorney,” by contrast was anyone who acted as an agent for another, whether in court or otherwise, and was not necessarily trained in the law.  Even today we still have “attorneys-in-fact” who have the “power of attorney” but who are not necessarily (in fact are rarely) “attorneys-at-law.”

Then, 1066 and all that.  Suddenly speaking in French was all the rage and all the best people were doing it.  While the Anglo-Saxons continued to hold their informal judicial proceeding with base “lawyers,” official proceedings were carried out by “attorneys” for the crown (hence the “K.C.” and, later, “Q.C.” in British courts) and others authorized to act on behalf of the parties.  It’s the same reason that we raise “cows” (ME Ku) but eat “beef” (Nor. Fr. boeuf) — the quality didn’t herd them, and the peasants couldn’t afford to eat their meat.  Because “attorneys” were required to write not just in French, but also in Latin, they were often deacons, priests, or monks and so wore black vestments — the forerunner of the British barrister’s robe.

In the US, the term “lawyer” subsequently became associated with someone who was studying or had studied law (usually as an apprentice, but more and more commonly at a college or university and eventually at a “law school”), while “attorney” was someone who was admitted to “the bar” and, thus, was permitted to appear in court.  The “bar exam” was originally an oral quizzing by the local judge and a few other attorneys, but subsequently became the formal written exam we all know of dreaded.  The term “passing the bar,” however, predates the written exam and refers to the “lawyer” who was permitted on the other side of the rail that separated the gallery from the well of the court before the bench, thus being recognized as an “attorney.”

Lawyers could act as attorney’s clerks (what we might today call paralegals) and hold various government posts, and draft deeds, wills and other legal documents and were notaries.  The also often served as the Clerk of Court, a position that in times past had far more authority when “circuit riding judges” were not often to be found in rural counties.

Eventually, the role of “lawyer” was by practice and later statute taken over by “attorneys” so that in the US today the terms are generally treated as being equivalent.  There is one exception, however, and that is that a person who had his license to practice law revoked is a “disbarred attorney,” not a “disbarred lawyer.”  In effect, disbarment renders an “attorney” who can practice law a “lawyer” who, though trained in the law, cannot.

Now let’s talk about the difference between being an “Attorney” and a “Counsellor” . . . well, maybe some other time.