4 Annotations

David Quidnunc   Link to this

BRITISH LAWYERS: A GUIDE FOR AMERICANS
Solicitor/Attorney/Barrister/Counsellor

Unlike lawyering in the U.S., in Britain (and probably elsewhere), the profession is divided into barristers and solicitors. In Pepys's day, barristers appear to have been called "counsellors" and solicitors, "attorneys."

Some of the information below comes from Nick Sweeney's very informative annotation to the 1 February 1659/60 diary entry:
http://www.pepysdiary.com/diary/1660/02/01/#c1089
Other information is from an interview with a Crown prosecutor (a Connecticut Yankee in Queen Elizabeth's Courts) and some research I did on the Internet a year or two ago. I no longer know what web sites I used. Except where noted, the descriptions are of the *current* roles, not necessarily what they were in Pepys's day. If anything here is wrong, I hope someone will post a correction.

SOLICITOR (Modern):

Solicitors handle nontrial matters, such as wills and real estate transactions. They also can prosecute or represent clients in misdemeanor criminal cases. More serious cases are only initially prepared by solicitors, who then turn them over to barristers for trial.

A solicitor in the Crown Prosecutors' Service handles misdemeanor cases in court and helps out with more serious cases, including murders, doing much of the preparation for the case, even determining charges against the defendant. At trial, the solicitor sits behind the barrister, who then presents the case in court.

(Incidentally, neither barristers nor solicitors are allowed to speak with witnesses before they testify, my source told me. Instead, police provide written statements to the lawyers. Plea bargaining is not done with prosecutors because they have no say in suggesting punishment -- although, as in the U.S., a judge may come to a plea agreement with a defense lawyer.)

ATTORNEY (Pepys's day):

This job seems to have been much like that of today's solicitor, but possibly a bit different, according to this item at the "Online Etymology Dictionary":

"In English law, a legal agent in the courts of Common Law who prepares the cases for a barrister, who pleads them (the equivalent of a solicitor in Chancery). So much a term of contempt in England that it was abolished by the Judicature Act of 1873 in favor of solicitor."
http://www.etymonline.com/a7etym.htm

BARRISTER (Modern):

Barristers, but not solicitors, plead cases. They are trained at the Inns of Court. Barristers wear the traditional white wig, black gown and tie in English courtrooms.

Perhaps the most famous English barrister in America is Horace Rumpole, the fictional character in John Mortimer's books and the British television show "Rumpole of the Bailey." The movie "The Winslow Boy" also had a barrister as an important character.

In criminal court, they are hired for individual cases -- and can switch between the role of defense attorney or prosecutor. The government hires barristers as public defenders on a case-by-case basis, with no regular employees continually trying these cases. Barristers allowed to argue cases in front of the highest criminal court are appointed by the queen, are called "Queen's counsels," and get to put "Q.C." at the end of their names, as does "Rumpole" author John Mortimer, Q.C.

COUNSELLOR (Pepys's day):

"By comparison, OED defines 'counsellor' in the way that we'd now define 'barrister': 'One whose profession is to give legal advice to clients, and conduct their cases in court; a counselling lawyer, a barrister or advocate.' From the citations, that's certainly the term that was current during Pepys' life." (Nick Sweeney's note.)

Gordon Freeman   Link to this

Until the turn of the nineteenth century there was a higher class of lawyer above QC (or KC - King's Counsel). They were known as 'Sergeants/Serjeants-at-Law', and were regarded as the elite of the profession.

Their role was much like that of the QCs, but their title carried more prestige. 'The Canterbury Tales' by Chaucer (c1400) contains a Serjeant-at-Law in the General Prologue. For readers in the UK, and especially London, there is an exhibition at the Royal Courts of Justice (RCJ) that provides more detail.

Emilio   Link to this

Barristers/solicitors
As an American who works with lawyers, I'd like to mention that this distinction also exists over here, although it's not generally recognized outside the profession as it is in British law.
Small firms tend to focus on a type of law, so that they build up expertise in a particular area. Many focus on trying a particular type of case, but there are also various specialties that don't involve litigation. These include inheritance or real estate law, which like a British solicitor will specialize in drawing up documents or negotiating contracts. On the less reputable end, there are also the lawyers who specialize in sending debt collection letters, which is what a friend of mine did for a while.
Likewise, larger firms are divided into different departments. The litigators are generally in a department of their own, distinct from (say) the copyright or business lawyers.

Emilio   Link to this

Qualification: The previous note means to say only that litigators in the States are also generally distinct from those who deal with more mundane matters. From DQ's note it seems the roles of British barristers and American litigators are otherwise quite different.
That's what I get for not reading the annos closely.

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