Good enough for government work

What is the difference between an attorney, a lawyer, and counsel?

In ordinary American professional usage, rather less than you might imagine. All three generally describe someone qualified and licensed to provide legal advice or representation. “Counsel” can also describe a particular job, such as a company’s general counsel. It is not a halfway house for someone who is not yet fully qualified as an attorney.

You will find people arguing that a law graduate is a lawyer and only someone admitted to practice is an attorney. Before relying on that fine distinction, however, it is worth knowing that, regardless of how terms are used in casual conversation or social media, the American Bar Association describes a lawyer as a licensed professional, also known as an attorney or counsel.

Ordinarily, qualifying involves completing the required legal education, passing the relevant examinations set by the state, satisfying a character assessment and being formally admitted to the bar. Requirements vary by state. Admission in one does not automatically authorize unrestricted practice in all the others, although arrangements exist for experienced lawyers to gain admission elsewhere.

In California, the hurdles include passing the bar examination and a separate professional responsibility examination. The university supplies the degree that makes candidates eligible to sit the exams, but it does not supply the license any more than a driving school provides a driver’s license.

Which brings us to Katie Zacharia, whose brief experience of government employment as Donald Trump’s White House press secretary has provided an unexpected public seminar on professional qualifications for government jobs. Reuters reported on October 16 that she had been fired, or in White House lingo ‘transitioned’ after less than a week on the job. (Most of us would still have been in new employee orientation at this point.)

Trump had introduced her to the wider world as an attorney. She had indeed frequently described herself as a lawyer on TV appearances as a political commentator. Unfortunately, questions arose about the missing link between the university graduation photograph and permission to practice law.

Her law degree from Pepperdine University is real, no question about it. She graduated in 2011. The difficulty is that she did not pass the subsequent California bar examination. She failed it.

There is no disgrace in failing a very difficult examination. Plenty of capable people fail and try again. Charlie Larga failed his first attempt at a driver’s test in London in 1968, but bounced back, took a few more lessons, and then drove various cars, trucks, motorbikes, and tractors, in several countries for the next 50 years without a single accident unless you include running over a possum.

But it gets awkward when the professional description appears to have overtaken the professional qualification.

In a YouTube video discussing the affair, British psychiatrist Dr. Raj Persaud draws attention to her account of asking Pepperdine how she should properly describe herself when appearing on the telly. According to Zacharia, the university president advised her that she could call herself a lawyer, but not an attorney.

Charlie finds the consultation rather wonderful. After years at law school, she apparently needed further legal advice from the president of the university on what she could call herself after failing the bar exam. Really? One wonders whether the university president had a form letter already prepared to send to Pepperdine law school grads who failed the bar, or whether this was an unusual request.

To be fair, we only have her account of the advice. That does not settle whether the distinction was appropriate, or precisely what was asked, how it was asked, and whether she received a reply in writing, and if so whether she still has it in her files

There was also a very plausible explanation for the disappointing examination result. She had been planning her wedding and preparing to move to China, where her fiancé worked for an American private equity firm. After all those years of study and the no doubt considerable expense of a legal education, wedding preparations had apparently taken priority over revising for an exam.

Charlie understands. A lawyer may find that negotiating a seating plan for a wedding reception can generate more bitter disputes than a commercial contract. Nevertheless, the bar examiners seem unlikely to award extra credit for time spent negotiating peace between relatives.

Then came the question about when she had passed the bar. Standing behind the president, she answered: “When I moved to China.” China is an ambitious answer to a question about an American state.

She subsequently explained that helicopter noise had caused her to mishear the question. She thought she was being asked where she went for the honeymoon.

China also introduced another problem, because Chinese nationality is required for qualification as a mainland Chinese lawyer, alongside the other requirements. An American seeking that qualification would therefore have to apply for Chinese citizenship first. Fortunately no one has yet asked her if she has ever taken out a Chinese passport.

Foreign employees can apparently work in Chinese law firms in various capacities. Employment at a law firm there does not, by itself, establish admission to practice Chinese law. Zacharia said she had worked on “international transaction law.” This sounds very impressive, although no one seems to know what it actually means, so it still leaves the question of the precise role assigned by Chinese law firms to brand new US law school grads.

International transactional work is real enough: contracts, investments and business deals crossing national borders. An unlicensed graduate would probably not arrive with expertise in this specialty, but might assist with research or drafting, translating, potentially doing work overlapping with some paralegal duties. Charlie, as a former expat himself, knows that rules for employing the spouses of foreign workers are often more relaxed, and that sitting at home all day in a foreign country is very boring. A local law firm may well have found a useful role for a new graduate with nothing else to do, whatever the title said.

Charlie initially wondered whether international transaction law meant advising Temu on the legal consequences of sending him XXXL shorts that are still three sizes too small, but that is entirely Charlie’s little joke.

Dr. Persaud also discusses a moment when Zacharia apparently substituted the president for her husband while speaking. This takes us into Freudian slips, those moments of verbal incontinence which supposedly let the unconscious sneak past reception.

Perhaps. Or maybe a nervous person at a lectern simply said the wrong word. Charlie would be reluctant to have every malapropism he has ever uttered admitted as evidence of a secret desire.

Dr. Persaud’s more useful question concerns the people powerful leaders choose to surround themselves with. Admiration and loyalty may be agreeable, but a leader also needs someone willing to tell the truth to the taxpayers who fund their position.

That applies in Washington, Quito and anywhere else an impressive title can discourage a sensible question.

For those of us in Quito or Cuenca hiring professional help, the practical lesson is modest: ask what the qualification is, where it was obtained and whether the person is authorized to do the work.

And if you need a lawyer, ask where they are admitted. If the answer begins with wedding arrangements, they may well be more qualified to help with choosing flowers for your funeral.