Episode 48: January 12, 2008
by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Today I will discuss some legal nomenclature. Joley wrote:
I watch Law & Order quite frequently, and I was wondering if you could address a question of mine on your podcast. What is the difference between a prosecutor, an attorney, and a lawyer?
The short answer is that these are all names of people licensed to practice law in a given jurisdiction, but with different powers.
First I will address the difference between a lawyer and an attorney. Practically, these two words mean the same thing, and can be used interchangeably. Both words refer to someone who is trained and licensed to give legal advice.
But technically, there appear to be some differences. It seems that an attorney is someone who acts as your agent in court, while a lawyer is someone who has legal training.
The word “attorney” has French origins, and once referred to “a person acting for another as an agent or deputy.” A person with the legal capacity to act on behalf of another is an “attorney-in-fact.” An attorney-in-fact does not need formal legal education and does not need to be licensed. So, you can designate your spouse as your attorney-in-fact to make health care decisions about you if you are incapacitated, even though your spouse has never set foot in a law school. But, many states refer to those people who are licensed to practice law as “attorneys” or “attorneys-at-law.”
The word “lawyer” has Middle English roots and refers to anyone who is trained in the legal field and gives legal advice. So, a person who has graduated from law school, but who has not yet taken or passed the state bar exam, might call himself a lawyer because he has legal training and can give legal advice, but he is not an attorney-at-law because he is not licensed by the state to do so. Well, we all convinced ourselves of this distinction while enduring the excruciating four-month gap between taking the bar exam and getting our results.
That said, if someone calls my office and tells me he is either the lawyer or the attorney for the other side, I assume that person is licensed to practice law.
A prosecutor is a legal officer who represents the state or federal government in criminal proceedings. In the United States, only a government entity can bring criminal charges against an accused. The attorney who represents the state or federal government is the prosecutor. In some counties, the chief prosecutor is called the “district attorney,” and the attorneys that work with him are called “deputy district attorneys.” In federal cases, a “United States Attorney” brings criminal proceedings against an accused. A “special prosecutor” generally is an attorney from outside the government appointed by an attorney general or Congress to investigate a government official for misconduct while in office.
On the other side of a criminal trial is defense counsel. When defense counsel is paid for by the government, that attorney is called a “public defender.”
Just for fun, I also point out the British distinction between a “solicitor” and a “barrister.” A solicitor is an attorney who does not appear in a courtroom, but gives legal advice in other matters. So, people who draft wills and negotiate real estate closings are solicitors. A barrister is a person who is licensed to appear in court (in a wig, including women). In the U.S., we have abandoned this distinction. Any person licensed to give legal advice is licensed to appear in the courts of that state.
So Joley, have fun watching Law & Order and showing off all your new knowledge!
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