Lawyers and attorneys / Anwälte, vor allem in Kanada

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Aus Stephan Handschug, Einführung in das kanadische Recht:

bq. In Kanada … hat diese Unterscheidung [zwischen Barrister und Solicitor] nur noch historische Bedeutung. Zwar findet sich die Differenzierung nach wie vor auf den Briefköpfen der meisten Anwaltskanzleien wieder. Dies hat allerdings vor allem traditionellen Gründe, da jedes Mitglied einer Rechtsanwaltskammer der jeweiligen Provinz sowohl die Tätigkeit eines Barristers als auch diejenige eines Solicitors ohne Einschränkungen wahrnehmen darf.

Recently, on a mailing list, a translator who rarely does legal texts asked the meaning of ‘have your signature witnessed by a lawyer or attorney or member of the town council’ (that wasn’t an exact quote). She knew there are two kinds of lawyers in England and Wales and wondered if these were them.

I don’t think I will now define all these terms: lawyer, attorney, barrister, solicitor, advocate, jurist, paralegal, legal executive and what have you.

Suffice it to say that the English division between barristers and solicitors (‘the divided legal profession’) was followed by some former colonies. Some didn’t follow it, some dropped it.

In Canada, there is now no distinction, but all lawyers can call themselves ‘barrister and solicitor’ – I’ve even seen ‘barrister, solicitor and attorney’. This is really confusing. So now I’ve found a picture of one and would like to link it as a reminder. It comes from the weblog of a Canadian lawyer the daily snivel (admirable cat content in the latest entry). Here it is, entitled Barrister and Solicitor.

bq. I’m pictured above in my legal robes, which are required court attire in the Superior Court and every appeal court, and you can’t be Called to the Bar without them. While some people simply borrow or rent theirs, I know I’ll be needing them sooner or later, and I wouldn’t feel like a proper lawyer if I didn’t have them ready for an unexpected trip to the Supreme Court (as happened to one of my mentors within a week of his first being Called). They cost me $500, all told, but I think they’re worth every penny scrimped and borrowed to afford them.

Legal text with punctuation problems/Probleme wegen überflüssigem Komma

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Rogers Communications Inc. hatte einen Vertrag mit Aliant Inc, der wegen einem Kommafehler im Vertrag viel früher gekündigt werden konnte, als vorgesehen.

globeandmail.com reports that a comma too many in a contract meant it could be terminated five years earlier than intended.

Rogers thought it had a five-year deal with Aliant Inc. to string Rogers’ cable lines across thousands of utility poles in the Maritimes for an annual fee of $9.60 per pole. But early last year, Rogers was informed that the contract was being cancelled and the rates were going up. Impossible, Rogers thought, since its contract was iron-clad until the spring of 2007 and could potentially be renewed for another five years.

What the contract said:

The agreement “shall continue in force for a period of five years from the date it is made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party.”

What it should have said:

The agreement “shall continue in force for a period of five years from the date it is made, and thereafter for successive five year terms unless and until terminated by one year prior notice in writing by either party.”

The suggestion that lawyers should avoid commas so they can’t be used to change meaning is a fallacy engrained in popular consciousness, and finding an example is like suddenly discovering the eskimos really do have more than three words for snow.

So who better than Mark Liberman at Language Log to consider the language of the contract. He argues that the contract should have been phrased better so the problem didn’t arise.

Given the importance of such ambiguities of interepretation, in construing laws and judicial orders as well as contracts, I’ve always been puzzled that lawyers aren’t routinely educated in basic practical syntax and semantics. In olden times, lawyers would have acquired (an approximation to) these skills in the course of learning dead languages. These days, I suppose that few of them get any educational help at all in such matters, and have to fall back on their native wit, such as it may be.

I found the original report (in nos. 27-30, the Commission refers to more arguments than just the comma).

LATER NOTE: I should have said that it would have been better to draft the clause so that a comma would make no difference. I found a discussion of how to redraft this particular clause at Wayne Schiess’s Legalwriting.net.

I’d simply like to suggest you can make the five-year term clear without worrying about commas–if you’re willing to write in short sentences:

* This agreement continues in force for five years from the date it is made. After the first five-year term, it continues in five-year terms unless either party terminates it by one-year’s prior written notice.

I will probably write up this site in a separate entry, but meanwhile, have a look at it if you’re interested in drafting. The comments suggest that Professor Schiess does not often have time to post.