We often see the terms ‘lawyer’ and ‘attorney’ used interchangeably in television shows, books and films. However, they are significantly different both in what they actually do and where the terms apply. This article will discuss what the difference between what a lawyer and an attorney is.
Lawyers in Australia
In Australia, the term ‘lawyer’ refers to any person who has been admitted to the legal profession as a barrister or solicitor. The term ‘lawyer’ describes both barristers and solicitors. However, solicitors and barristers are very different in practice. A solicitor advises clients and prepares documentation. By contrast, barristers are experts in advocacy and preparing cases for trial. Barristers will appear in Court and present their client’s case before a Judge. Although confusing, solicitors can also appear in Court however, barristers are normally hired to present cases of a more complex nature. Although not common in Australian terminology, ‘attorney’ in Australia tends to refer to solicitors rather than barristers. It is just a synonym for the word ‘solicitor’, which has developed due to it’s common use in American lexicon.
Power of attorney
It’s important to note that a Power of Attorney has no relation to legal practice in Australia. A power of attorney is where one person appoints another to manage their financial affairs. This person does not have to be a lawyer, but is usually someone the appointer trusts such as a family member. An Enduring Power of Attorney is where this appointment lasts where the appointer loses mental capacity.
In the United States
The term ‘attorney’ does not have the same meaning as it does within the United States legal system. In the United States, the term ‘attorney’ is very different to what Australians consider a solicitor or barrister. Within the United States legal system, ‘attorney’ is short for an attorney at law. It refers to an individual who is able to prosecute, and defend cases in a Court of law. In essence, this means you can only be an attorney if you have passed the bar exam, and have permission to practice in a jurisdiction. Unlike Australia, the United States does not draw a distinction between barristers and solicitors, meaning that any lawyer in the United States can be considered an attorney.
Trademark/Patent Attorney: An exception?
A Trademark Attorney is the exception to the rule within Australia. Those who are qualified to represent clients in matters of intellectual property law, adopt the official title of ‘attorney’. They are represented by organisations, such as The Institute of Patent and TradeMark Attorneys of Australia, who also acknowledge that this is the official title for those working in intellectual law. But remember even if they hold this title of ‘attorney’ for all intents and purposes, they are solicitors, and barristers.
Lawyer versus Attorney
‘Lawyer’ is the correct term to use in Australia for both a barrister and solicitor. However, people occasionally use the term ‘attorney’ when referring to patent or trademark attorneys. In the United States, the term ‘attorney’ refers to lawyers who both deal with documentation and present cases in Court. Australia’s legal system is largely descended from the United Kingdom’s, meaning that many of the terms which apply in the UK have become common in Australia as well.