The distinction between advocates and attorneys

RUKUDZO KACHAMBWA / FUNGAI CHIMWAMUROMBE

A question we often hear is: “What is the difference between an advocate and a lawyer?”

This is a common query, especially among those unfamiliar with superior court litigation, where an advocate might need to be briefed. When people ask this, what they usually mean is: “What is the difference between an advocate and an attorney?”

Many even refer to most attorneys as advocates and in today’s practice, attorneys often make little effort to correct the misconception.

However, it’s important to understand that not all lawyers are advocates.

Here’s why.

Advocates and attorneys (barristers and solicitors in the UK) are both lawyers by virtue of being trained in the law.

Lawyer, in Zimbabwe’s case, is therefore the blanket term for anyone trained in the law and admitted into practice by the High Court of Zimbabwe.

The major difference is how both operate.

Whereas attorneys are general practitioners, advocates are usually specialized court practitioners.

This means that the advocate’s job is specifically to argue and prosecute matters in court, while the attorney’s job is to do, well, ‘lawyer’ things.

This could mean drafting of wills and affidavits, consulting with clients and so forth.

This is not to say that attorneys do not appear in court to argue matters, just as it does not mean that advocates do not engage in legal drafting. In fact, advocates are often responsible for drafting complex legal documents. However, their specialty is litigation. This usually means prosecution of matters in the superior courts, such as, the High Court & Supreme Court.

In some countries, only advocates can appear in superior courts, while attorneys appear only in lower courts such as the Magistrates’ Court.

This specific distinction, however, no longer applies in the Zimbabwean jurisdiction and has since been abandoned post-independence.

Before 1981, the profession was divided into advocates (who had the right of audience in superior courts) and attorneys (who were generally restricted to magistrates’ courts). Through the Legal Practitioners Act of 1981, the profession was merged, thereby calling all practitioners “legal practitioners” and granting them the right of audience in all courts of law in Zimbabwe.

This means that both attorneys and advocates in Zimbabwe currently enjoy audience in both the lower and superior courts, though most advocates, by choice, restrict themselves to superior court litigation.

Another key difference is in how advocates and attorneys handle clients. While attorneys can consult with clients and take instructions directly, an advocate cannot take instructions directly from a client.

Instead, it is the attorney’s duty to brief an advocate once s/he determines that the matter requires one.

This could be due to complexity, urgency, or other reasons. Advocates, therefore, get their work from attorneys, who are not only responsible for instructing them but also paying them. In a sense, the attorney becomes the advocate’s client, and this position hasn’t been changed by the fusion of the two roles post-independence.

In a sense, one can say that all lawyers are advocates.

By virtue of the two offices being fused, the distinction has largely become confined to how attorneys and advocates handle clients. In practice, attorneys in Zimbabwe are free to litigate in any court in the land, just as advocates in Zimbabwe are free to do the same.

Surprisingly, it is common to even find some advocates and attorneys referring to each other as ‘advocate’, knowing fully well that one is yet to be admitted to that office.

Perhaps it is a foreshadowing of what’s to come. Or perhaps it is time that lawyers, too, are reminded that attorneys and advocates are not all the same.

 Rukudzo Kachambwa  is a legal Associate at Zenas Legal Practice.Can be contacted on +263 77 731 9739 or rukudzo@zenaslegapractice.com

Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Zenas Legal Practice and can be contacted for feedback at fungai@ zenaslegalpractice.com and WhatsApp 0772 997 889.