“Attorney” in the Old Sense
by Justice Jim Moseley
Barry Sorrels has identified “Honoring the Profession” as the central theme of his tenure as President of the Dallas Bar Association. As he references in his inaugural speech (printed elsewhere in this publication), there are a number of ways we can accomplish this. However, one precept is essential to any serious effort to bring honor to what we do. Simply put, to honor our profession we must—as best we can—be attorneys in the old sense.
An “attorney” means “one who is designated by another to transact business for him/her.” It is derived from the word “attorn,” meaning “one who is put in place of another.” This derivation arose during medieval times, when a party appearing in court had to stand and speak on his own behalf. Because of the formal and strict rules of pleading, a mistake in how a party worded his claim or defense could be fatal. As a result, litigants sought the advice of those more knowledgeable about the law and its procedures. Eventually the courts permitted such advisors to be “attorned” to the case—to stand and speak in the place of the party.
When my daughter (now a third year law student) was young, she asked me what I did for a living. I told her I was a lawyer and, in response to her quizzical expression, explained that I helped people who had problems. During playtime several days later I overheard her proudly announce to a friend: “My daddy is a lawyer. When people fall down, he helps them get up.”
That child-like understanding expresses the core purpose of our profession. Clients seek out attorneys because they have problems and need help. In a sense, they have “fallen down” (or fear they might fall) and are looking for assistance. Our profession exists to provide that help, to stand in place of our clients, to steady them and help them back to their feet. Our purpose is to be—in the old sense—attorneys.
The mostly commonly thought-of role of an attorney arises from the literal, historical meaning. An attorney stands in court on behalf of her client, who may be inarticulate or unpopular (or both), and make the best arguments that party has as best they can be made. It is also understood that an attorney stands in place of his clients when he provides them advice or negotiates or drafts agreements on their behalf. Within the context of these roles, we honor our profession by performing our services to the best of our ability and within the bounds of honesty and ethics. And we honor our profession by explaining to others what our role is and where those bounds of honesty and ethics lie.
But to achieve the full honor of what our profession should be, we should understand that we also need to be attorneys for our legal system—to stand in its place and speak on its behalf.
Our legal system insures—as best any system has to date—that the powers of government are limited, that individual rights are honored, and that disputes as to those rights are resolved based on the law and not the identity of the parties. These are honorable things. They are honorable because they enable persons—whether acting individually or through legally recognized organizations—to protect their rights. They are honorable because they recognize the worth and dignity of persons, enabling them (within the boundaries of the law) to arrange their own affairs as they see fit.
However, our system is under constant change. Legislative bodies—federal, state and local—enact new laws, the courts modify procedural rules, and the common law changes and develops. Society itself changes, placing new and different demands on a legal system designed to enforce and protect the rights of its members. Moreover, even if our society were static, our legal system is not—and has never been—perfect.
As attorneys, our training and experience give us a unique understanding as to both the strengths and shortcomings of our legal system. We bring honor to our profession by using that training and experience to explain how our legal system works, to defend it from unfair attack, and to advocate ways to make our system better.
To bring honor to our profession, we should stand in the place of our clients individually and in the place of our legal system as a whole. We should speak on their behalf and help both of them when they fall or are in danger of falling. In short, we should be attorneys in the old sense.
Jim Moseley is a Justice on the Fifth District Court of Appeals. He can be reached at email@example.com.