On rare occasion, when a friend addresses me and wishes to do so in a somewhat joking fashion, they'll use the term "Barrister", basically thinking it a fancy term for lawyer. It really isn't, or isn't completely, as a barrister is a type of lawyer in the English system. It's interesting, however, that the term is so widely recognized, if inaccurately, in the US.
It's also interesting that in this age of increasing certification, which is also an age in which there is concern about the future of legal practice in professional organizations, that this reflects an early division between the practice of law in the United States and that in the United Kingdom. Except for Louisiana, the US uses English Common Law but we've largely, if not completely, done away with much of the high degree of separation in legal fields that England's legal system featured, and still somewhat does. This probably reflects the pioneer nature of the country early on, as the high degree of separation, both in terms of members of the general occupation of "lawyer" and in terms of specialized courts themselves, just didn't work well in an era when most lawyers and most judges had to "ride a circuit" in connection with their occupations. Indeed, the ongoing use of the term "Circuit Court" or "judicial circuit" reflects this early horse powered era. The use of the term "circuit" was meant to be literal. Court's were not occupied year around by any means, but only periodically, with the lawyers and the jurists arriving at an appointed date, after riding in and taking up all the local lodging.
Morrill County Courthouse, Bridgeport Nebraska. A typical circuit courthouse.
Under the English system, lawyers fall into two groups, barristers and solicitors. Solicitors are lawyers who work on wills, contracts, and the like. They are not allowed, however, to appear in court. Barristers are lawyers who argue cases in court. Interestingly, at least under the traditional system, which I understand to have somewhat decayed in recent years, barristers are not allowed to form law firms, while solicitors are. Solicitors firms are not allowed to hire barristers to work in their firms, but when they have a case for court, they may associate with a barrister. Interestingly, the term "Solicitor", rather than barrister is actually used in the American system, but not in regards to special licensure. Rather, the term is retained by certain governmental agencies that have specialized legal duties. So, for example, the legal office of the Department of the Interior is the Solicitor's Office, not the Attorney's Office, reflecting the fact that the attorneys' in that office have a largely advisory role.
At least, anyhow, this is how it worked up until relatively recently.
British Solicitor and politician, the Right Honorable Frederick Edwin Smith, First Earl of Birkinhead. Smith was a very well known solicitor, who did act as an advocate.
This system largely does not exist in North America, with the interesting exception of Quebec. Quebec, which might retain some influence of pre Napoleonic French law, retains a position which is analogous to solicitor, that being Notary. This type of Notary is a Civil Law Notary, not a Public Notary. Civil Law Notaries are a type of lawyer that only does contractual and estate drafting work. They are much like solicitors.
Also of some interest, perhaps, Australia, which we sometimes think of as being similar to the American West in some ways, did retain the English system, although I don't know if they still do. The lawyer who famously was assigned by the English Army to defend, in their court-martial, Harry Morant and his fellows, was a Town and Country Solicitor serving as an Australian officer during the Boer War. While by all accounts he gave a good and very spirited defense, he would have had no court time back in Australia at all.
Well, I don't know that this entry has any particular point, other than to discuss the terms that sometimes come up, and what they meant, but I will note that it is an interesting aspect of our current world that we find ourselves in the age of certified specialization, but this has not really re-entered the legal world, and I doubt very much it will. There are many occupations that now require certification or licenses that once did not. Indeed, when I graduated with a geology degree there was no such thing as a Professional Geologist with state certification, but now there is. American legal practice has sort of gone in the opposite direction, however, starting off being based on a system in which the term "lawyer" applied generally to two separate types of lawyers, one of which was "called to the bar", and the other which was not. We never used that system, in so far as I know, and apparently there's been some retreat from it in the UK. This isn't to urge the creation of such a system here by any means. It merely notes the uniqueness of this particular set of developments.
No comments:
Post a Comment