In ancient Athens, a litigant had to plead his case in court with two pleadings. A friend or relative was allowed to support one of these parties as an "advocate" or synegor (ancient Greek συνήγορος synēgoros). Those who sought professional help could describe their case to a logographer. The logographer would then compose a speech, which the litigant would memorize and recite in court. The logographers differed from the synegors in that their task was limited to writing the plea and they worked for pay, which was forbidden to the synegors. Lawyers in the modern sense did not exist. Rhetoric was of outstanding importance in the democratic Athens of the fourth century B.C., especially in the popular assembly and in the courts, which were staffed by lay judges chosen by lot. Teachers of rhetoric were numerous, and manuals of rhetoric began to appear. The Greek philosopher Aristotle distinguished rhetoric into three genres:
- Judicial speech (gr. γένος δικανικόν (génos dikanikón), lat. genus iudiciale).
- Deliberative speech; political decision speech (Gr. γένος συμβουλευτικόν (génos symbouleutikón), Lat. genus deliberativum).
- Eulogy and festive speech (Gr. γένος ἐπιδεικτικόν (génos epideiktikón), Lat. genus demonstrativum or genus laudativum).
He defined rhetoric as "the ability to consider what is possibly persuasive (pithanon) in any matter". Aristotle already criticized contemporary teachers of rhetoric for neglecting argumentation and aiming exclusively at arousing emotions, for example through behaviors such as whining or bringing the family to the court hearing, which prevented the judges from making a factual judgment. An impressive testimony to how rhetoric and legal arguments could also interact, however, can be found in the speeches of Demosthenes and Aeschines in the trial report on On the Wreath of Honor.
Since it was not everyone's cup of tea to find the right words in court, professional orators were later allowed to speak in court, but their knowledge of the law was of secondary importance. Rather, they only had to master the art of rhetoric in general to influence the judge's decision.
The Roman Emperor Augustus granted individual jurists the right to issue legal opinions or responses. It can be assumed that these opinions, which were endowed with the highest consecration, had the character of a judgement and that the corresponding jurists therefore had a very great almost legislative competence. For the first time, lawyers became a recognized and protected, state-controlled, socially uniformly organized professional group. Previously free from this as mere private individuals, the Princeps could now intervene and regulate. In jury courts, before which every citizen could accuse with the popular complaint, the accused was allowed to have Advocati (similar to lawyers but not advocates) appear for him. As a field of activity, besides the assessors in court (Assessores) and the activity of the responding lawyer, the activity of the orator in court came into consideration. These Advocati were probably of a different quality than the pure Respondierjuristen. While the latter were certainly theorists and specialists, the advocati were often quite pragmatic defenders of their client. Often they were merely trained orators with, again, legal advice on their part or rather little legal education. These were called not only advocati, but also togati (toga-clad), because they had to wear the ancient garment of the toga in late Roman times. Whether they were orators or had a professional education can only be conjectured. A decree of the emperor Leo from the year 460 A.D. decreed an education as a lawyer as a prerequisite for such activities, but apparently referred only to the highest court.
Little is known about the historical beginnings of the legal profession in Germany.
Sachsenspiegel, Schwabenspiegel
Some of this can be gleaned from the Sachsenspiegel. This was written around 1220-1233 by Eike von Repgow. Eike von Repgow emphasizes that the Saxons were able to enforce some regulations against Charlemagne's right of occupation. Therefore, many regulations of the Sachsenspiegel were not only valid since 800, but also in the pre-Christian centuries. Scattered throughout the Landrecht of the Sachsenspiegel are some regulations that reveal the Germanic roots of lawyerly activity. These are the Vorspreke. In some Swiss cantons, the professional title of advocate has survived. Originally, however, it was not so much a matter of interceding on behalf of another person as of advocating on his or her behalf. Procedural formalities had similar, if not greater, importance then than they do today. Every free man had the right to plead his own cause in court. If he misspoke, the error was irremediable. Therefore, there was the option of having another speak instead of himself. The advocate had to be male. He was not allowed to be a clergyman, legally incompetent, incapable to stand trial, or in imperial suspicion. The judge was obliged to ask the party whether he wanted to accept the words of his advocate against him. The party could confirm, deny or ask for time to consider. If a party did not confirm the words of his advocate, they were not to be considered. Every man of judicial capacity was obliged to accept the office of advocate if the judge appointed him to do so. Exceptions applied to designated cases of conflict of interest. In the case of sexual offences, the judge had to provide for a guardian of the injured party to represent her in court if no member of her clan was available.
The Sachsenspiegel does not explicitly state that there were people at that time who regularly acted as intercessors and received money for it. But there are two indications for it. If both parties wanted the same man as their advocate, the decision lay with the judge. Either the advocate had to be known to the court or be wealthy, or he had to furnish the judge with sureties for the fines that might be imposed on him personally before he was allowed to act. Even with family ties, it seems doubtful that one would want to be liable for another's lawsuit themselves. This risk of liability will have been adequately paid for by the advocate.
In Art. 87 of the Schwabenspiegel, essential points of the lawyer's professional law had already been regulated since the late Middle Ages. The advocate was only supposed to represent the one who, according to his conviction, was right. If he helped his party in a case of fraud, he had to pay high penalties personally to the judge and the aggrieved party. The judge could order the advocate to represent a poor party free of charge. Finally, the lawyer's duty of confidentiality and the prohibition of representing conflicting interests were already known.
Modern Times
With the reception of Roman law in Europe from the High Middle Ages onwards, court proceedings were professionalised and functions were created that were filled by trained lawyers. In this process, a profession of professional lawyers emerged who represented a party in the trial before the court, the so-called procurators. In addition, there were other lawyers who maintained contact with those seeking justice, advised clients and also provided them with legal assistance in extrajudicial transactions, the so-called advocates. The advocates prepared the legal case legally and provided the procurator with the written preparation. However, this separation between advocates and procurators existed in some countries only in the highest courts.
In Germany, this division was known in the southern German territories, which had originally been under Roman administration. In the land law of the Schwabenspiegel, which was first recorded around 1275, a distinction was made between the advocate, who represented in court, and the counselor. Both could demand money for their work. In the case of the advocate, there was a prohibition on agreeing a contingency fee, similar to today. However, he could demand separate reimbursement of his travel expenses. In contrast, the advisor was not paid for bad advice and was liable for any resulting damage. This is probably the origin of the saying "Good advice is expensive". Since the regulations of the Sachsenspiegel and the Schwabenspiegel that followed it applied to court proceedings held by the king himself or under the king's ban, the division of the lawyer's duties was later limited to proceedings before the Imperial Court or the Imperial Chamber Court.
Since the end of the 16th century, the dichotomy of the legal profession in continental Europe was increasingly loosened and largely eliminated with the legal reforms of the Napoleonic period, so that in the course of the 19th century the professional image of a uniformly active lawyer emerged. Initially, in Prussia during the reign of King Frederick II, advocates became state officials as "court and assistant councillors". From 1780 onwards, "judicial commissioners" were introduced for the areas of voluntary jurisdiction, execution and bankruptcy and for the notarial system. In 1793 Prussia abolished the assistant councils and in 1849 linguistically transformed the judicial commissioners into "lawyers" who initially remained state officials until the Lawyers' Act (RAO) of 1878 made the legal profession a free profession independent of the state. The 20th century was characterized by an increasing specialization of the legal profession, which continued in the 21st century with the introduction of further specializations.
The two-tier system still exists today in Spain, where the traditional terms "advocate" (abogado) and "procurator" (procurador) persist, as well as in the legal systems of England, Wales and other Commonwealth countries, which are influenced by the common law tradition, where the procurators in litigation are called "barristers" and the non-judicial advocates "solicitors".
