Defining Our Terms: Why We Call Ourselves “Legal Counsel”
Most civil disputes in British Columbia do not go to a trial. The fraction of law suits that are resolved by a judgment after trial have in recent years been less than 3%. There is room for debate whether the small portion of claims that are formally tried is a good thing or a bad thing. But there is no room for debate that the overwhelming majority of cases that are brought are not tried, but are settled. Any particular lawyer in British Columbia who tried the majority of his or her cases and could thus claim to be a “trial lawyer” would thus be a rare statistical outlier. The term “trial lawyer” then is not accurate for lawyers who conduct civil disputes in British Columbia.
Nor is the term barrister accurate in its historical sense. This is a title which we can properly claim. All lawyers qualified in British Columbia are “barristers and solicitors.” We are so described in the formal record of lawyers qualified to practice law – “the barristers and solicitors roll” which is kept by the Law Society. In England and Wales, which is the historical source of our use of the term barrister, barristers are a separate legal profession from solicitors and their main role is limited to advocacy in court, and not even the necessary gathering and organization of evidence for court, which is the one of the functions of solicitors there. For a fuller discussion, see: http://en.wikipedia.org/wiki/Barrister#Differences
Thus the term “barrister” even in the different sense it has been used in Canada speaks to a function of representation in court.
The term “litigation lawyer” is also implicitly tied to representation of clients in law suits.
But many claims are resolved without litigation – by negotiation, mediation or arbitration.
Lawyers qualified to practice law in British Columbia must be members of the Law Society of British Columbia.
The functions that are restricted to members of the Law Society [from the definition of “practice of law”, section 1 (1)] include:
a) appearing as counsel or advocate,
c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,
e) giving legal advice;
These core functions of a lawyer engaged to act in a civil dispute are well-captured in the term “legal counsel.” They are an advisory function to the client and a representative function in dealing with other parties. The term does not refer only to the court process.