What exclusive powers does an attorney have? It’s an interesting question, and it has been the subject of a number of intense controversies over the years. Why should an attorney have exclusive powers? Is there something special about an attorney? If so, why? Why does society confer special authority to someone just because we call them a lawyer? Why are they called that in the first place?
All fifty states have specific laws and regulations governing the practice of law. These laws are very similar to those governing the practice of medicine, public accounting, or being a financial advisor, insurance salesperson or real estate broker. They are in place primarily to prevent a situation where a member of the public mistakenly relies on the expertise of someone who is not who they claim to be.
What is an Attorney?
There are two things an attorney can do that nobody else can. One, they can represent a client in a legal proceeding. This is a power conferred on them by operation of law and their membership in something called a “Bar Association.” The state Bar is an organization that requires its members to have graduated successfully from an accredited law school and to have passed an examination demonstrating their general competency to conduct a legal practice.
The second thing is practicing law itself. The “practice” of law essentially means dispensing legal advice to an individual client. Questions like how to prepare a defense, how to prosecute a lawsuit, which motions to file and when and so forth are questions that require expertise and a duty of care, since the wrong advice can lead to considerable consequences for a client.
All power, however, comes with responsibilities.
An attorney has a legal duty to zealously advocate on their client’s behalf and to provide them appropriate legal counsel. Failing to perform either of these duties is called “malpractice” and can end an attorney’s career in exactly the same way botching a medical procedure could bring down a doctor.
Because of these interlocking powers and responsibilities, and the legal obligations that go with them, state legislatures grant attorneys and their Bar Associations a monopoly on the practice of law. This gives the Bar Association the legal authority to enforce membership with both civil and criminal sanctions.
The justification for this grant of monopoly is the protection of the public interest. Individual citizens would be completely unable to function in society if anyone could impersonate an attorney. Not only would inaccurate, untimely and unprofessional legal advice produce chaos, but those harmed by reliance on bad advice could be irreparably harmed.
By and large, offering legal advice to an individual without being a member of the Bar exposes a person to both civil and criminal sanctions. It is the crime of “impersonating an Attorney” or “practicing law without license.” This is true with one very important exception.
The First Amendment:
While it is illegal to offer legal advice to a person in what might be considered an “attorney-client relationship” offering general legal advice to an audience, especially in writing, is a perfectly legal practice under the First Amendment to the Constitution. It isn’t the practice of law, it is the practice of a free press.
If a writer advises his readers to avoid answering questions in a police interrogation, that would be considered legal advice offered to the general public, which is not practicing law. If a writer advises one person or “client” which questions to answer in an interrogation, that would be considered impersonating an attorney, which would land that writer in jail right next to his former client.
The best advice is to avoid any situation that might be seen as offering an individual or even a company legal advice they may rely on to their detriment. Not only could it tangle you in the problems of your supposed client, it could generate problems of its own.
Jay Sekulow is the Chief Counsel of the American Center for Law and Justice (ACLJ).