Lawyer, one whose profession is to give advice and assistance in legal matters, and to prosecute and defend in the courts the causes of those who may employ him for the purpose. The designation comprehends the several classes known as attorneys, solicitors, proctors, counsellors, barristers, sergeants, and advocates, who with various privileges and in different capacities give aid in expounding, applying, or enforcing the law, or in the preparation of legal documents. In barbarous countries or under a despotism there could be little occasion for lawyers, and indeed they would scarcely be tolerated; but in civilized countries, where justice is administered in accordance with rules previously promulgated, the employment of persons familiar with these rules to assist in legal controversies those who were not, would be so natural a proceeding, that the establishment of such a practice would be anticipated as quite a matter of course. And such we find to have been the case, though the persons rendering such assistance have not always been set apart as a distinct profession, nor have they always made their legal services a means of support.
In Rome the patrician was expected to assist and protect his clients and dependents by his advice, and also when needful by open pleading of their causes before the tribunals; but this soon degenerated into a practice of hiring the aid, as advocates, of such patrons as by their oratory or their social position were specially influential. Many attempts were made by law to put a stop to the feeing of advocates, but without success; and at length lawyers became a recognized class, and the opinions or responses of the most eminent of them on questions arising under the customary law were accepted as authority. (See Civil Law.) In modern times lawyers have generally been divided into two classes: 1, those who draft legal documents, institute suits, bring them to an issue by proper pleadings, and prepare them for trial; and 2, those who give counsel in legal matters, and take charge as advocates of the causes which the other class have prepared for trial. The second class is regarded as superior to the other in dignity and importance. In England and Ireland the lower class are known as attorneys when their practice is in the courts of common law, solicitors when it is in chancery, and proctors in the admiralty and ecclesiastical courts.
They must be regularly admitted to practice by the courts upon an examination regarding their fitness, and are entitled to a compensation for their services from those who employ them. This compensation is according to a fee bill prescribed by law. The present requisite for an examination for admission as an attorney or solicitor is that the applicant shall have served an apprenticeship of five years with a practitioner, but this may be diminished two years if he has received a degree at one of the English universities or the university of Dublin. The second class are counsellors or advocates, and come to the bar through the inns of court. (See Inns of Court.) They are first called barristers, but after 16 years' admission may be advanced to the degree of sergeant. From the sergeants the higher judicial officers of the realm are chosen, and the attorney and solicitor general; and it is customary also to confer the title of queen's counsel upon eminent sergeants, who by accepting it are understood to be so far retained in behalf of the crown as not to be at liberty to take employment against it without special license.
An advocate makes no stipulation for compensation, but is nevertheless expected to perform no services until a fee is paid; and when a brief is sent him in a cause, the retainer accompanies it. In the recent union of all the courts of England in one supreme court, the practitioners in all the courts are made practitioners in the supreme court. Lawyers in Scotland are known as writers, solicitors, and advocates. The last named are admitted by the faculty of advocates, and may practise in all the courts and in the house of lords. Writers to the signet are a class of attorneys having some special privileges. On the continent, as in England, lawyers are divided into two classes, the higher of which embraces the advocates, and the lower perform the duties corresponding to those of attorneys. In France the practitioners in each court form a society or college, to which admission can only be obtained by their assent; and the same is the case in other countries where the Code Napoleon was introduced. - In the United States, each state has its own rules regarding the legal profession; but certain remarks may be made which will be of general application. No person is at liberty to hold himself out as a practitioner of the law without being duly licensed as such by some proper court.
A license granted by the highest court in the state gives authority to practise in all the courts. In some states inferior courts are permitted to grant licenses of like effect, but generally their jurisdiction in this regard is limited to granting admissions to practice in their own courts. In most of the states, perhaps in all, any one may manage his own case in person, and in some he may by special deputation empower any one, whether admitted to the bar or not, to act for him. The English designations of attorney, solicitor, proctor, and counsellor are nominally retained, but with no corresponding division of privileges and duties between the counsellor and the others; and if in any of the states any distinction exists between an attorney and a counsellor, the latter is only an attorney who becomes counsellor, or entitled to admission as such, by virtue of his practice for a certain period of time. In most of the states, to entitle one to apply for admission to the higher courts, he must present certificates showing that he has pursued the study of the law for a prescribed period in the office of a practising attorney or in a law school; and he is then examined as to his legal attainments either in open court or by a committee of the bar, and only admitted if the examination proves satisfactory.
In some states applicants are entitled to examination for admission without making any showing as regards previous studies. Practitioners in the highest courts of the several states are admitted to practice in the federal courts on motion, without examination. In courts not of record, license to practise is not required. The wig and gown which are always worn by the judges of the superior courts and the advocates in England when in the discharge of their duties, are not made use of in this country, with the single exception that the gown is worn by the judges of the federal supreme court. Lawyers, by virtue of their admission to practice, are entitled to certain privileges and subject to certain restrictions. 1. They are officers of the court in which they are admitted to practice, and are subject to summary trial and punishment as such for any misconduct in suits or proceedings therein. Their license to practise may also be revoked for specific misconduct in suits, or even for other misconduct, if of a character rendering them unfit to be intrusted with their responsible office. 2. They are exempt from service on juries, and also from arrest on civil process during their attendance upon court engaged in or awaiting the trial of causes. 3. In the United States attorneys and counsel alike are entitled to a compensation for their services, which in the absence of specific agreement as to amount will be such as evidence may establish to be reasonable.
Formerly they were not allowed to engage in suits for a share of the money or profits that should be recovered in the event of success, and an agreement to that effect would now be held illegal at the common law in some of the states, while in others it seems admissible under the statutes, and in still others it is doubtful what the rule would be held to be. But reputable attorneys seldom make such contracts, and they are generally regarded as unprofessional. Fee bills, whether by statute or rule of court, are now almost unknown in the United States, except as regulating the recovery of the successful party from his opponent. 4. The relation of attorney and client is regarded as confidential. The attorney cannot as a witness be compelled to disclose any communication his client may have made to him in order to obtain his advice or assistance; and as this exemption is for the client's benefit and protection, the attorney will not even be permitted to disclose, if willing to do so, unless the client assents.
But this privilege would not extend to matters foreign to the client's own business, nor to any disclosure of intended misconduct, such for instance as confiding to counsel the purpose to commit a crime; in other words, it would not extend to anything not within the reason of the privilege, which is to throw the protection of secrecy over all communications between client and attorney which are necessary or proper to put the latter in possession of the facts to enable him to give the former intelligent advice regarding his legal rights and liabilities. While the relation exists the law regards with some degree of suspicion any other dealings of the attorney with the client, and contracts between them may be set aside on the application of the client if they appear to be one-sided or unfair, on the presumption that the attorney's influence growing out of the relation has been improperly employed to obtain them. - Of the ethics of the legal profession but little can be said in this place. By the large majority of the profession a high standard is sought to be maintained, and city, county, and sometimes state societies are formed having this object chiefly in view.
In the lower courts, however, a class of practitioners is met with who rely for their success upon pettifogging practices and trickery, some of whom solicit business, and especially the defence of persons accused of crime, with little or no intention to perform valuable service in return. This last class are often called " shysters." And it is not to be disguised that men of eminent ability are sometimes met with at the bar who are as unscrupulous in their practice in the higher courts as are the pettifoggers and shysters in the lower. In this country it is always understood that certain officers will be members of the legal profession, such as judges of the higher courts, masters in chancery, or commissioners performing corresponding duties, attorneys general of states, public prosecutors of counties, and the like; and it is sometimes provided by law that no other persons shall be eligible. - Until recently women have not been admitted to practice as lawyers. An application for admission in Illinois having been denied on the ground that the statutes on the subject embraced males only, an appeal was taken to the supreme court of the United States, where the position was taken by counsel that the decision was in conflict with the new amendments to the federal constitution.
This position, however, was declared untenable by that court. Afterward a statute was passed in Illinois which permitted women to be licensed to practise, and by statute or decision of courts they may be admitted in several of the other states. Very few, however, have hitherto availed themselves of the permission. The court of claims has recently decided that women are not entitled to practise in that court.