Wednesday, April 11, 2012

Attorneys

 
Recently I was speaking with a friend and client who has been resident in the US for quite a few years.  On a visit to Oz, she was following up on signing the acceptance of her appointment as an attorney under her father’s Power of Attorney.  For those not in the know, a Power of Attorney is a legal document by which a person appoints another, the Attorney, to manage the person’s legal and financial affairs.

There seemed to be some confusion when I explained her role as an Attorney under the Power of Attorney, her confusion and concern stemming from the fact that she had no legal qualifications.  Eventually we worked out that she was applying the American meaning of attorney as a lawyer, not as the person appointed under a Power of Attorney.

Back when I first became a solicitor Powers of Attorney were big, cumbersome documents with lots of long paragraphs and no punctuation except for the full stop at the end.  The document commenced with the words

“Know All Men by These Presents that I, [name], of [address] Send Greetings. 

Whereas ...”

The word dates from about 1300 from the Old French “atorner”, meaning to turn to or assign to. The past participle, “atorne”, was used as a noun for someone appointed, in much the same way as “appointee”.  From there the meaning became someone appointed to act as someone else’s agent, one appointed to represent another’s interests. 

Ultimately the term came to mean a legal agent, someone appointed to act for another in business or legal affairs, usually for payment.  In that context the person so appointed was commonly known as a “private attorney” or an “attorney in fact”. 

In contrast, an “attorney at law”, also known as a “public attorney”, was a qualified legal agent in the courts of Common Law who prepared the cases for the barristers.  Those barristers then pleaded the cases in the courts. 
 
 
The attorney was therefore the equivalent of the modern day solicitor, the Judicature Act of 1873 abolishing the position of attorney and merging it with solicitor.  The term “solicitor” had always been the title for those lawyers who practised in the courts of equity.
 
 
Attorneys were not highly regarded, as evidenced by Boswell’s 1791 quoting of Samuel Johnson:

". . . he did not care to speak ill of any man behind his back, but he believed the gentleman was an attorney."


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