Why you should desist from giving your law savvy friend the coveted “counsel” title

It has become common to hear people refer to their friends and colleagues who are law students or practicing lawyers as “counsel”. Interestingly even among the law student community, it is not unusual to hear one student refer to another as “counsel” anywhere and at anytime in any circumstance. Is every lawyer “a counsel” as the common speak seems to suggest? To appreciate the depth of the problem with the title “counsel”, we need to look at all possible titles to a person whose professional attachment is the practice of law with particular regard to Ugandan legal practice.

A lawyer according to the 7th edition of the Oxford Advanced Learner’s Dictionary is a general term for a person who is trained and qualified to advise people about the law, to prepare legal documents for them and/or to represent them in a court of law. The Black’s Law Dictionary defines a lawyer as a person learned in the law. Mr. Francis Wazarwahi Bwengye writes in his book; Legal Practice in Uganda; The Law, Practice and Conduct of Advocates at page 16; “... there are notable lawyers who have not been advocates. These include law professors, corporation secretaries, business managers and others with academic qualifications in law. … These people have all the justification to call themselves lawyers.” My understanding of Bwengye’s view is that graduates of law can use the lawyer tag even when they are not advocates.

Who then is an advocate? An advocate according to the Advocates Act, Cap 267, Laws of Uganda, 2000, section 1(a) is any person whose name is duly entered upon the roll. The roll is according to section 1 (m), (l) and 7 of the Advocates Act, Cap 267 means the roll of advocates kept by the chief registrar of the High Court. One becomes an Advocate following the provisions of the Advocates Act, Cap 267 and compliance with such requirements, relating to instruction, examination and otherwise as to the acquisition of professional skill and experience as specified in regulations made for that purpose by the Law Council. The process of becoming an advocate is a long winding one but briefly, one must complete four years of university study thereby attaining the LLB qualification, and then pursue the one year postgraduate bar course at The Law Development Centre and the satisfy set requirements and go through elaborate procedures before they can have their name entered on the roll of Advocates of the High Court and issued with a practicing certificate.

There are individuals who have completed four years of university study and attained the LLB qualification only or have even completed the one year postgraduate bar course at The Law Development Centre but stopped there. They are lawyers but not advocates because to be an advocate, one must have their name entered on the roll of Advocates of the High Court of Uganda following the elaborate procedures and requirements set by the Law Council.

Before we address our minds to how problematic the apparent use of the title “counsel” is, let us first consider the title attorney and Esq. also in use in relation to legal professionals. The 6th edition of the Oxford Dictionary of Law states that an attorney is a person who is given power to act on behalf of another in business or legal matters. This is done by signing a power of attorney. An attorney according to the 7th edition of the Oxford Advanced Learner’s Dictionary is a lawyer especially one who can act for somebody in court. Thus, whereas in common speak, an attorney can mean a lawyer or advocate, in legal language, an attorney is the bearer of a power of attorney, not necessarily a lawyer. In the United States however, an attorney at law (or attorney-at-law) means a practitioner in a court of law who is legally qualified to prosecute and defend actions in court on behalf of clients.

Esq. is the title used after the name of a male or female lawyer according to the 7th edition of the Oxford Advanced Learner’s Dictionary. Wikipedia agrees that the suffix Esq. frequently used in the United States, most commonly designates individuals licensed to practice law, and applies to both men and women. Wikipedia adds that although many attorneys in the United States use the form of address Esq. when signing correspondence or filing documents with a court, it is usually used only when the reference is in the third person, such as addressing an envelope, making a formal introduction, or on business letterhead. Esq. is never used with any pre-nominal form of address, such as Dr., Mr. or Ms. Thus, Brian Bwesigye, Esq. or Mr. Brian Bwesigye would be correct, but Mr. Brian Bwesigye, Esq. would be incorrect.

Let us turn to the problematic title; “counsel”. The 7th edition of the Oxford Advanced Learner’s Dictionary defines Counsel as a lawyer or group of lawyers representing somebody in court. According to Wikipedia, the word counsel is used to mean either a single person who pleads a cause, or collectively, the body of barristers engaged in pleading a case. Barrister, a word in use in the United Kingdom means a lawyer in Britain who has the right to argue cases in the higher courts of law.

The word counsel is thus used during court proceedings to refer to the advocates in court who are arguing the case before court in that particular court session. Wikipedia notes that it is customary to use the third person when addressing a barrister instructed on a case: "Counsel is asked to advise" rather than "You are asked to advise". The word has no plural thus “counsels” in reference to more than one person does not exist.

It is important to emphasize a few things; firstly that in Uganda, only advocates argue cases before judges of the High Court and other superior courts, secondly, that the use of the word “counsel” is limited to a court session and to the advocates arguing the case. Out of the courtroom, the use of the word Counsel to refer to anyone is erroneous. Even in the courtroom, only advocates arguing a case are referred to as counsel. The law students should therefore relax and read harder, you are not yet qualified for the title of “counsel”, even when you become advocates, you shall only enjoy the reference when in court and arguing a case. My fellow bar course students, we should only savor the weekly moots when we get to argue mock cases, because then we are in imitations of real court proceedings and as “advocates” we qualify for the tag, “counsel”, but then, even then, it will be a mock title, like the moot is a mock case.

So, the next time you want to utter the word “counsel” to refer to a lawyer or law student, remember this. Those with non-law backgrounds might be forgiven for misusing the title, but how the law students and lawyers explain the abuse of the title is even worse than the non-law public. How unlearned!