Coming to terms with lawyers, advocates

Quite often, people wonder as to the difference between lawyers and advocates.
The use of the term “advocate” has become confusing. The question that arises is which lawyer is an advocate and which is not?
To start with, in ordinary language, an advocate is a person who speaks on behalf of another. From that viewpoint, therefore, one does not really need to be a lawyer to speak on behalf of somebody else.
But in a court of law, he who speaks on behalf of another has to be a lawyer.
In Zimbabwe, a lawyer is also known as a legal practitioner. In the UK and Australia, they use the term solicitor whereas in the US, they use attorney.
However, whatever label might be used, a lawyer is a person who is legally learned.
In our jurisdiction, a lawyer only assumes the title “advocate” by virtue of a certain division in the legal profession I shall show.
Otherwise, it is accurate to say that in a legal sense, an advocate is a lawyer who specialises in legal proceedings that are usually contested, better known as litigation. He is a specialist in the skill of advocacy, that is to say, presenting cases before the courts on behalf of others.
The relationship between a lawyer and an advocate may be likened to that which subsists between a doctor who runs a medical practice as a general practitioner, and a doctor who is a specialist.
In short, a lawyer who does not operate on a referral basis is just that, a lawyer or an attorney, whereas an advocate is a lawyer who operates on referral.
All over the world, there are many lawyers who concentrate on legal work that does not necessarily involve appearing in court and as such, there will be no need for anyone to speak on behalf of another person.
Such other legal work may range from conveyancing to registration of patents and trademarks, will writing, administration of deceased estates, notarial practice and so on.
You might be surprised to know that some lawyers have never seen the inside of a court room.
That these kind of lawyers do not appear in court does not make them any less lawyers but strictly speaking, such lawyers are not “advocates”.
An important distinction between “advocates” and lawyers is that the first are forbidden from taking instructions directly from the client, that is to say, they operate on a referral basis.
They take their instructions from the lawyer and that is why you get to hear things like “Advocate X appeared in court on behalf of the accused person, instructed by Mr Tomtom of Chakatachakata Legal Practitioners”.
The result is that in effect, the client ends up paying for two lawyers in the sense that apart from paying the lawyer, Mr Tomtom, he also pays Advocate X for the specialist services being for the in-depth research and specialised advocacy in court.
Obviously, this sort of set up naturally makes legal services expensive but this is really the client’s choice.
Prior to 1981, the legal profession in Zimbabwe was a divided vocation according to the law in place at that time.
On the one hand, there was what was called the Advocates’ Bar which was some sort of a club that was comprised of experienced lawyers who specialised in litigation work or advocacy. They had the sole privilege or right of audience in both the High Court and the Supreme Court.
In addition, they also had access to all other courts in Zimbabwe. On the other hand, there were the rest of the lawyers who ran or were employed in the various law firms. These lawyers had no right of audience in both the High Court and the Supreme Court as that was a preserve for the Advocates as I have already pointed out.
In terms of court appearance, these other lawyers were limited/restricted to the Magistrates’ Courts and any other courts subordinate to it. Further, for one to be appointed as a judge of the High Court, one had to be a member of the Advocates’ Bar, be it the Bulawayo or Harare Chambers.
In those old days, Zimbabwe’s legal landscape was, to a very large extent, dominated and controlled by white personnel at least in so far as lawyering, advocacy and judgement were concerned.
So it was that soon after Independence in 1981, Government sought to even things up by ensuring that black lawyers also had the right of audience in the superior courts. Consequently, the division as to advocates and lawyers was removed.
This entitled every registered lawyer to also have the right to argue cases in the higher courts. To that extent, one might say these lawyers then also became, as it were, “advocates” of the High and Supreme courts.
The public also benefited in that there was no longer need to pay for the services of two legal minds to do the same work where one would do.
You might pose the question, but if the earlier division was removed, how come today you still get to hear of such Advocates as Lewis Uriri, Richard Fitches, Thabani Mpofu,Thembinkosi Magwaliba and many others operating on the referral system?
How is it that they still operate on pretty much the same lines as when the profession was still divided?
Well, the answer is that although the profession has now been fused, it does not mean that the Advocates’ Bar was banned or discontinued.
No.
What happened is that those lawyers who previously could not appear in the superior courts were conferred the right to do so.
The Advocates’ Bar was left untouched.
What is critical, however, is that both lawyers and advocates are still governed by the Legal Practitioners Act and subject to regulation by the Law Society of Zimbabwe.
The issue is that being an advocate is a matter of choice but there are stringent requirements that he who wishes to practice law as an advocate must meet.
A lawyer does not just wake up and Christian himself an advocate.
There are many reasons why one may opt to pursue a career as an Advocate as opposed to being an ordinary lawyer.
Some of these are that an advocate is forbidden to operate a trust account. Also, an advocate operates largely as a one-man band which means his operating costs are lower.
He also tends to have more time to research cases as he does not interact or confer directly with clients.
By not taking instructions directly from the client, the advocate is spared and or avoids the emotional attachment to the case that may come with direct interface.
That way, the advocate is able to deal with the matter much more independently which tends to benefit all litigants as well as the court.
Among advocates themselves, some are general practitioners whereas others specialise in certain aspects of the law.
Further, instructions from the instructing lawyer are received through written submissions meaning the lawyer would already have done much of the ground work.
So, it is up to a client to have a lawyer or a lawyer and an advocate.
In complex cases, it is wise to engage an advocate who is known to be strong in the area of law in question.
As they say, four shoulders are better than two.
Advocates remain an integral part of our legal system and can never be dispensed with.
All in all, in today’s legal context and practice, the term “advocate” is reserved only for those lawyers who are members of the Advocates’ Bar and no other.