When someone says the word ‘Attorney’, images of American style TV shows such as ‘Law and Order’ or ‘Clueless’ may come to mind. You may have a general understanding of what they are but what specifically does an attorney do in the Australian court system? Can you employ an attorney for your own legal issue? This blog post will assist you in distinguishing between an attorney, solicitor, barrister and lawyer.
In the American legal system, an attorney is a lawyer who you would ordinarily engage for the provision of legal services. However, the term ‘attorney’ is not normally used in Australia to describe a lawyer. Rather, in Australia, lawyers are referred to a barristers or solicitors, depending on the relevant qualifications the lawyer has. When engaging a lawyer in Australia, a client will generally talk to a solicitor first. At this preliminary stage of your legal matter, a solicitor will provide you with legal advice and construct a legal strategy for your matter. Predominantly, and largely in the commercial sense, legal matters are resolved and settled at this stage by the solicitors.
However, when the dispute does not resolve itself between the parties, the legal matter can be heard by a judge in court. At this stage, solicitors may instruct a barrister to act on your behalf and present your case before the judge. Although solicitors can technically represent their clients in court, it is usually advised to engage a barrister for this purpose. Barristers spend the majority of their professional careers arguing cases in court, and as such their advocacy and representative skills in conjunction with their vast knowledge of their specialist areas, ensures clients get the most effective results at court. Barristers will present evidence and legal arguments in support of your case and will, if necessary, cross examine any witnesses or third parties. In a high stakes environment, such as court, it can be easily seen why barristers can be advantageous.
A client would usually talk to a solicitor or "attorney" first when engaging in legal action, and barristers are the lawyers who present in front of the judge and argue their clients' cases against the opposing barrister. These types of lawyers are represented in most legal dramas.. Despite the dramatic nature in movies and shows,most of a lawyers job is sitting in front of papers (or laptops nowadays) and trawling through documents and legislation. This work is predominantly completed by the solicitor who researches and advises on the legal issues which are brought to them. Barristers will formulate how each piece of evidence will work when applied to a trial setting. A lot of the time, solicitors will work with barristers in court in an advisory role, pointing out evidence which may be required for a particular claim made in their arguments and handing them documents to turn into evidence for the case..
The term Attorney does have some usage in Australia, most commonly is power of attorney, an issue raised in the succession area of law. Officially, it is when a person is given the power to act for another in matters such as property, financial and medical, should it arise. It is usually an issue when someone is ill or unable to reasonably make their own decisions and someone else is appointed (by the person who cannot make their own choices) to act in their interests. When someone is unable to make the decision or sign the document relevant to the situation, it is recognised that the person in question (the principle) ‘cannot act personally’. Not acting personally, as stated before, is when they can’t make their own choices to an appropriate degree, usually due to mental or physical impairment.
Another area where the term ‘attorney’ arises is in trademark or intellectual property cases (IP law). Lawyers in this area are sometimes known as ‘Trade Mark Attorneys’. This can become complicated as the rest of the profession refers to themselves as lawyers, solicitors or barristers and in this area, lawyers call themselves this. Ultimately, there is no real difference between the terms of barrister, solicitor or attorney in IP law.
The attorneys in America and the barristers and solicitors in Australia are driven by different laws, so principles which you may find in movies or on websites may not be transferable. A difference is the right to free speech, guaranteed in writing within the US Constitution, but not guaranteed to the same extent in Australia, however free speech is implicitly implied into our constitution when discussing political matters. Knowledge of this difference in legal principles can be crucial in making your initial research transferable to your own legal issue. It is generally not advisable to complete independent research and go to court or settle a dispute based on your sole research. Instead, employing a lawyer can assist you as lawyers have access to databases and cases designed for this legal research.
Another mention of the word ‘attorney’ is in governmental positions, such as the ‘Attorney general’, who is the highest ranked legal officer in parliament, specifically cabinet of the ruling party. The Attorney General overlookspolicy and legislation in terms of justice and other areas of law. This is different to a judge who makes law based on rulings within cases which then influences legislation, the Attorney General does the inverse of that. Whilst judges are appointed by cabinet from the pool of other barristers in the field, the Attorney General needs to be elected to parliament as a member of parliament (MP) of their federal seat in the state they take residence in. Additionally, they are usually involved in inquiries and senate hearings or royal commissions but judges are predominantly involved in cases which come before the courts, either at trial (first time the case is being decided) or on appeal (when it comes before the court again if an error of law is disputed).
A lawyer is not the same as a legal practitioner. A lawyer is someone who has been admitted in a state in Australia whilst a legal practitioner has their practicing license, but has not yet applied to be admitted. So when looking for legal advice, make sure that the lawyer you are speaking to has the practicing license so you have peace of mind in the fact that you and your legal advice have the protections the law affords it. Anyone can tell you what the law is, but ‘legal advice’ is only reserved to be given out by legal practitioners or lawyers. It's hard to define legal advice specifically but generally it is when someone directs you on what your best course of action is based on your specific legal situation. The practitioners are usually careful about this because there are harsh sanctions such as being struck off the practicing role, fines and jail time. Be aware that lawyers in different states have different rules since state laws are different. Further, barristers and solicitors are bound by different codes of practice, but it is unlikely you would be contacting a barrister since they are usually sought out by solicitors when they need to go to trial.
For many of the areas just covered, Legal Kitz are experts in helping clients achieve the results they need to keep their business functioning and let them thrive. Specifically, we help out in the areas of Commercial Law, Corporate Law, Employment and Industrial Relations, Litigation as well as Technology and Intellectual Property. If you require any assistance, book a FREE 30 minute consultation with our experienced solicitors, or call us at 1300 988 954. To learn more about business and Lawyers in Australia click here, to take you to another helpful Legal Kitz blog.
