What Is an Attorney?

What is an attorney, anyway? Strip away the theatrics and an attorney is at root an agent.

someone legally authorized to act on another person's behalf in legal matters, to speak for them, file for them, negotiate for them, and represent their interests before a court or an opposing party.

The word itself comes from the old French word, attorney, which is to appoint, to turn to.

An attorney is someone you've turned to and appointed to stand in your place.

In England, that function split in two by the medieval period.

Barristers who argued cases in court and then solicitors who handled client relationships, paperwork and preparation.

American law never fully adopted that split.

Here, one license, one attorney does both.

That fusion matters because it means that the same person who negotiates your plea deal in a conference room can also be the one cross-examining a witness in front of a jury.

But none of that tells us why a criminal defense attorney exists at all.

For most of legal history, in most of the world, defendants didn't get one.

The Long Drought.

No Right to Counsel.

Now here's something that surprises most people.

Under English common law, if you were charged with a felony, you were for centuries not allowed to have a lawyer speak for you at trial.

Misdemeanor defendants could have counsel, but felony defendants, facing the most serious punishment, often death, argued for themselves.

The logic, such as it was, the judge would act as the defendant's protector and letting a lawyer argue technicalities might let the guilty escape justice.

In practice, it meant that the person with the least legal knowledge and the most at stake faced the Crown's trained prosecutors completely alone.

England began loosening that rope in the Treason Act of 1696, granting counsel in treason cases and fully abolished the felony ban with the Prisoner's Counsel Act of 1836.

The American colonies were more generous from the start.

Several colonial charters and early state constitutions guaranteed a right to retain counsel, but you can hire a lawyer if you can afford one is a very different right from the state will give you a lawyer if you can't.

That second idea took another century and a half to arrive, and it arrived through a small number of Supreme Court cases that formed the real backbone of criminal defense as a profession.

Now, before we get to the case law, there are two pieces of foundational text that must be addressed.

First is the Sixth Amendment, ratified in 1791 as part of the Bill of Rights, states that in criminal prosecutions, the accused has the right to have the assistance of counsel for his defense.

Those six words would take almost 200 years of litigation to fully define.