People often used the term lawyer and attorney interchangeably in the United States to denote people who work as legal professionals. Most do so without giving much thought as to why our profession has two labels for the same legal job. These terms have slightly different meanings. (And not just because lawyer jokes tend to use the word lawyer and not attorney.)
You might also know other terms or phrases used to reference lawyers or attorneys such as counselor, solicitor, barrister, attorney at law, attorney and counselor or special counsel.
In this country these terms generally have no specific legal meaning. At one point in our legal history these terms all meant something different. (There are a few special terms like solicitor general and attorney general that refer to specific government officials who act as legal counsel for the government entity. We do not use these terms to refer to any other attorneys or lawyers in this country.)
Today’s post will discuss the difference between lawyer and attorney and how they relate to the American legal system.
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The difference between lawyer and attorney in Texas
Colloquially even attorneys use these terms interchangeably without regard for the slight difference in meaning applied by the American Bar Association and various other bar associations around the country. You can get by in life without ever needing to know this difference but you clicked on this post so you obviously want to know. Here are the actual meanings of these terms:
A lawyer is a person with legal education. In the United States this almost always means receiving a Juris Doctor from a law school.
An attorney is a person with a license to practice law by passing a bar examination and satisfying all other licensing requirements in the jurisdiction. To take a bar examination an individual must first obtain a Juris Doctor although some states allow a person to qualify for the bar exam by reading the law (studying the law under the tutelage of an attorney).
Under these definitions all attorneys are lawyers but not all lawyers are attorneys. An individual can be a lawyer by virtue of attending law school but not an attorney without passing a bar exam.
In practice the distinction is less meaningful. In legal proceedings the term attorney means the lawyer has a license to practice law in that jurisdiction. Although an unlicensed lawyer is by definition a lawyer, the legal ethics rules in each state tend to prohibit an individual not licensed in that state from referring to themselves as either a lawyer or attorney in marketing materials.
A person who has a juris doctor from law school may always identify the degree no matter where that person holds license. When you see the term lawyer or attorney you can likely assume the terms mean the same thing due to these ethics rules.
The origins of the terms attorney at law and lawyer in the United States
If you’re still interested in understanding why these almost similar terms are used in our legal system then you have to go back into the history of our judicial system to understand where the terms attorney and lawyer arise, along with their companion terms like counselor, solicitor and barrister.
Our legal system is based almost entirely upon the English judicial system although simplified in many ways. (Louisiana state courts are a little different because they developed under the French civil law system while Louisiana was a French colony.) So to understand why these separate terms exist we must travel back in time to our nation’s founding as English colonies and then further back into England’s history.
In the U.S. a bar admission allows that attorney to practice as a litigator, prepare transactional documents, or provide legal advice.
A license issued by the Texas bar allows me to go to court on a divorce or wrongful termination and advise on a consumer debt with no additional licensing. There are few areas of law exclusively adjudicated by federal law in which my state license allows me to provide legal advice but not appear in court on behalf of a client without separate admission for the federal bars that oversee those areas of law.
Otherwise bar admissions in the U.S. are general in nature.
The English judicial system, like many other European systems, divides the roles of lawyers by expertise. This division is historical and some parts of this history remain with our legal system.
English origins of attorney and lawyer
In the twelfth century the English judicial system went from a disconnected system to a nationalized legal system. The king ruled the new system. He set out a single set of laws–what became the common law–and procedure for the courts. These courts delivered justice by making a liable defendant pay the plaintiff for the harm suffered. They evolved into primarily jury trial courts with complicated procedural rules.
A second set of courts arose later: courts in equity. In these courts judges ruled out of fairness rather than what the common law required. They were less technical although these judges had the power to order a party to do or not do something, what we today call an injunction. The courts at law typically dealt with claims that arose after a body or asset harm had been suffered. By contrast the courts in equity typically dealt with the powers and rights of contracts and other legal documents.
A group of lawyers arose in each court: solicitors in courts in equity and attorneys at law in courts at common law. Among the attorneys a separate group emerged. These were barristers, given the right to appear in the appellate courts at law as expert litigators. In the early eighteenth century the division between the courts began to dissolve until England formally merged to two together.
The position of attorney dissolved largely into the solicitor role and the remaining difference among lawyers were solicitors and barristers. Solicitors handled small claims of all types, drafted documents and provided legal advice. They may have prepared claims for trial in more powerful courts.
Barristers exclusively litigated claims and were usually hired by solicitors to litigate their claims rather than citizens hire barristers directly. Barristers may also identify as counsel (but not counselors). Over time the English system merged these roles together.
While the English courts were merging together and before solicitors and barristers began overlapping work, colonization of America began. The patchwork of English, Dutch, French and Spanish colonies left state courts that followed a variety of judicial systems. Many states had separate courts at law and in equity.
Due to small populations in many communities it was not practical to continue to divide solicitors and barristers. These roles merged generally into lawyers who performed all legal services within the community. Over the nineteenth and early twentieth centuries most states evolved merged courts of law and equity. Some states continue this division and Louisiana has retained the civil law system from France.
People referred to attorneys as lawyers in most parts of the country into the twentieth century. In some areas the term solicitor had use. Counselor became a popular title for lawyers who litigated. It continues to be a popular choice of title for judges to reference attorneys in court. Attorney at law became a popular designation in this country as a way of distinguishing oneself as a litigating attorney. It shares no direct connection with the original English term.
Similarly, counselor has no particular legal meaning in this country. We could have adopted solicitor or lawyer as the appropriate designation for a licensed lawyer.
Other uses for the word attorney in the legal system
We use the term attorney in two other ways in our legal system. First is an attorney ad litem. An attorney ad litem is a licensed attorney at law who represents a party unable to represent itself. An attorney ad litem typically represents children, mentally incompetent individuals and unlocatable parties. The attorney ad litem must follow the requirements of any court order assigning the ad litem plus applicable statutory duties.
Second, an individual may be an attorney-in-fact for another party by having the latter party grant a power of attorney to the attorney-in-fact. An attorney-in-fact does not need to be a licensed attorney.
The attorney-in-fact does not become a lawyer by virtue of a power of attorney. Instead the term attorney-in-fact refers to the original meaning of attorney: one who stands in the place of another. An attorney-in-fact acts as the agent of the individual who granted the power of attorney.
He or she can do anything the power of attorney grants that the grantor could legally do himself or herself. The attorney-in-fact cannot act as an attorney-at-law in any capacity.