English has a number of different terms to describe a legal practitioner, including lawyer, attorney, barrister, solicitor and counsel. By contrast, Chinese only has one term: lüshi, although “legal consultant” (falü guwen) is also commonly used.
Of the terms in English， “lawyer” is the most generic. In the US, the term “attorney” is also used generically to describe a lawyer. The terms “solicitor” and “barrister” are perhaps the most difficult to translate into Chinese, since they reflect the unique historical evolution of the legal profession in England.
Barrister or solicitor?
It is difficult to understand the distinction between a barrister and a solicitor without an understanding of English legal history and the role of lawyers within the court system. The term “barrister” or “barrister at law” arose to describe lawyers who worked as advocates in court (i.e. lawyers who spoke or argued in court on behalf of parties). The term “solicitor” arose to describe lawyers who worked as advisers (i.e. lawyers who advised clients in relation to their personal and business dealings, drafted contracts and other documents and instructed barristers to appear on behalf of their clients in litigation).
Ever since the emergence of the legal profession in England, a distinction between barristers and solicitors has been recognised in common law jurisdictions, resulting in what is often described as a “divided profession” . Several work practices and customs have arisen to reflect this division. For example, barristers maintain separate offices from solicitors and work as individual practitioners, although they usually join with other barristers to lease offices (known as their “chambers” ) and to share resources. Solicitors, on the other hand, can form partnerships and employ other solicitors as personnel of their law firms. In addition, traditionally barristers could not approach clients directly and could not sue them to recover their fees (instead, they looked to the instructing solicitors for payment of their fees).
In some common law jurisdictions, the profession is now officially fused (i.e. lawyers are admitted by the courts to practise as both barristers and solicitors), but in practice a divided profession is still maintained.
Historically, barristers enjoyed a status that was superior to solicitors as they considered themselves to be members of an “honourable profession” , one in which they were “called to the bar” out of a sense of duty rather than for the purpose of making a living. Although barristers and solicitors now enjoy equal status, the superior status of barristers is still reflected in the ways in which “barrister” is translated into Chinese in some jurisdictions. In Hong Kong, for example, the term “senior lawyer” is often used to describe a barrister and the term “primary lawyer” is sometimes used to describe solicitors.
‘Attorney’ and ‘Counsel’
When the term “attorney” is used, care should be taken to distinguish between the situation in which it refers to a lawyer (or “attorney at law” ) and the situation in which it refers to an “attorney in fact”. An attorney in fact is a person who has been authorised by another person (pursuant to a power of attorney) to transact business and execute documents on behalf of another person. An attorney in fact does not need to be legally qualified.
Care should also be taken to distinguish the above from the situation where “attorney” is used to refer to a government lawyer, or where it appears in the compound “Attorney-General” to refer to the government’s principal legal adviser (often a minister of the Crown in common law jurisdictions).
The term “counsel” is used either in a broad sense to describe lawyers generally, or in a narrow sense to refer to a lawyer who acts as an advocate in court. When used to refer to a lawyer who acts as an advocate in court, the term is often further refined to “defence counsel”, “counsel for the plaintiff” or “counsel for the defendant”.
The term is also used to describe lawyers who work in the legal department of companies or other organisations, such as “corporate counsel” and “in-house counsel”. These terms are usually translated into Chinese as “gongsi falü guwen”, “qiye falü guwen” or “neibu falü guwen”. In addition, the term “fawu” is often used to describe legal counsel at state-owned enterprises in China. “General Counsel”, the term used to describe the head of the legal department, is usually translated into Chinese as “zong falü guwen” or “shouxi falü guwen”.
Terminology in China
The history of the legal profession in China is much shorter than in England and other common law jurisdictions. Attempts to build a distinct legal profession were first made towards the end of the Qing Dynasty (late 19th Century), but it was only in the Republican Period (1911-1949) that modern laws and regulations were issued to govern lawyers. The development of the legal profession fell off the agenda after the revolution of 1949 and did not re-emerge until the adoption of the modern economic reform programme in 1979.
Prior to the late Qing Dynasty, litigants generally represented themselves in court and there was no distinct profession of lawyers or advocates who would appear and argue on behalf of litigants. For those who were illiterate or lacking in social connections, assistance was provided by “litigation agents” or “litigation scribes” (songshi), who would draft court documents, act as “go-betweens” between their clients and the courts and formulate strategies for winning the case. However, these agents were not required to hold any special qualifications and often adopted dishonest and unscrupulous methods to achieve their objectives (the English term for such people is “pettifoggers” ).
Interestingly, the modern term for lawyer in Chinese – lüshi – had previously been used as a polite expression for a Buddhist monk, since a monk was able to instruct others in religious rules or discipline. This usage has now fallen out of practice and the term is now used exclusively to refer to lawyers.
Holding out
The terms used to describe lawyers are important, since most jurisdictions prohibit people from referring to themselves as “lawyers” except where they are properly qualified and licensed to practise law. In most common law jurisdictions, the prohibition extends to the use of other terms for lawyers such as “barrister”, “solicitor” and “counsel”.
Most countries also impose restrictions on the terms used by foreign lawyers who practise in their jurisdiction. In China, for example, foreign lawyers are formally registered as representatives of ‘foreign law firm representative offices’ and article 6 of the 2001 Administration of Foreign Law Firms’ Representative Offices in China Provisions prohibits foreign lawyers from providing legal services in the name of a consulting company or in any other name.
There are additional restrictions under the 2002 Implementation of the Regulations on the Administration of Foreign Law Firms’ Representative Offices in China Provisions Implementing Regulations. Article 32(1) prohibits foreign lawyers from participating in litigation proceedings in China in the capacity of a “lawyer” . Similarly, Article 38 prohibits representatives and employees of foreign law firms from using the term “Chinese legal consultant”.
In terms of the restrictions on using the term “lawyer” in China, article 13 of the 2008 PRC Lawyers Law provides as follows:
A person who has not obtained a lawyer’s practising certificate may not engage in legal services business in the name of a lawyer and, except where the law otherwise provides, may not undertake litigation agency or advocacy work.
The PRC Lawyers Law applies to lawyers who have passed the PRC national judicial examination and obtained a practising certificate. As a result, it is the principal legislation governing the practice of law by PRC lawyers and domestic law firms in China.
The effect of Article 13 of the PRC Lawyers Law is that a lawyer who is qualified in a foreign jurisdiction and who does not hold a PRC practising certificate cannot be held out as a lawyer in China. This poses something of a dilemma for domestic law firms who employ foreign qualified lawyers, a trend that has increased significantly in recent times with some senior lawyers in foreign firms moving to domestic firms. The dilemma is this: what term should be used for such professionals? Since they do not hold a PRC practising certificate, they cannot be held out as a lawyer. In addition, since the regulatory framework does not formally recognise the status of foreign qualified lawyers who are employed within domestic law firms, they cannot refer to themselves as “foreign lawyers” or enter into partnership with Chinese lawyers. Instead, more general terms need to be used.
The websites of domestic law firms indicates that a range of terms are used to describe foreign lawyers who are employed within Chinese law firms. These include “international legal consultant” and “adviser”.
As domestic Chinese law firms develop multi-jurisdictional practices and become more competitive, the pressure to recognise and regulate foreign qualified lawyers who practise within such firms will grow. This is likely to prove challenging for China’s current regulatory framework, which has separate rules for domestic law firms and foreign law firms, and regulates the latter by reference to the registration of law firms rather than the registration of individual lawyers. This will no doubt need to be considered as part of the wider debate concerning the regulation of foreign law firms in China.
(Readers who are interested in a detailed analysis of this debate are referred to a recent article 对于此讨论的详细分析感兴趣的读者请参见作者最近发表的文章: Andrew Godwin, “The Professional ‘Tug-of-War’: the Regulation of Foreign Lawyers in China, Business Scope Issues and Some Suggestions for Reform” (2009) 33 Melbourne University Law Review 132.)
A former partner at Linklaters Shanghai，Andrew Godwin teaches law at Melbourne Law School and is an associate director of its Asian Law Centre.
