Why does the term &quot;counsel&quot; typically refer to barristers rather than solicitors? It seems arbitrary that it seems to conventionally refer to one rather than the other, but is actually even more confusing that it refers to barristers rather than solicitors when one typically seeks advice from a solicitor by consulting them for their opinion of the legal position, and not from a barrister. By the time to instruct a barrister to appear in court on one's behalf, it seems that one is largely clear on one's position already and has rather to instruct the barrister on what they wish for them to represent to the court, rather than to seek their counsel. So, what is the basis for this nomenclatural convention?
The use of the word counsel for barristers has a long history. It was used in England before the modern legal profession developed. Baker, Counsellors and barristers: an historical study (1969) traces homo consiliarius back to the 13th century plea rolls: The sum of [a pleader or counsellor's] functions may be termed &quot;counselling&quot; in its widest sense, and the subject of the present study must be what the plea rolls call homo consiliarius, the counsellor. Even this compendious name can mislead. It eventually became synonymous with &quot;barrister,&quot; in the sense of &quot;jurisconsult,&quot; while some of the counselling came in fact to be done by attorneys and solicitors. Sense 8(a) of counsel (n.) in the OED (&quot;A body of legal advisers, engaged in the direction or conduct of a cause&quot;) is dated back to the Confessio Amantis (1393): Help, that I hadde counseil here Upon the trouthe of my matere. Sense 8(b) (&quot;A single legal adviser; a counsellor-at-law, advocate, or barrister&quot;) is first quoted in 1709, but seems also to cover sense 8(a)'s quotation of Greene's coney-catching pamphlets (1591), by distinguishing between counsel and attorney: [He] hath his mind so full of cares to see his counsell and to plie his Atorney. As barristers came to replace the serjeants at law, the association of counsel with barristers may have become entrenched with the appointment of Sir Francis Bacon as the first King's Counsel (1603). According to Holdsworth, A history of English law (1924), vol 6, p 472: It soon became clear that the king's attorney and solicitor could not by themselves do all the work which their office imposed upon them. It is to this cause that we must ascribe the rise of a body of &quot;king's learned counsel,&quot; who are the ancestors of our modern king's counsel. It would seem from D'Ewes that a body of persons so designated was known at the very beginning of Elizabeth's reign [1558 – 1603].
For question 2, there is a firm requirement on barristers to inform the client if different counsel would be called for. To quote the Bar Standards Board handbook: rC17 Your duty to act in the best interests of each client (CD2) includes a duty to consider whether the client’s best interests are served by different legal representation, and if so, to advise the client to that effect. The guidance specifically mentions that if something should be handled by more (or less) experienced counsel, there is an ethical duty to tell their client.
Usually these words refer to whether something (e.g. a law or government action) is or is not in accordance with the Constitution, including its amendments, as currently interpreted by US courts including the Supreme Court. So in view of Chaplinsky, the Constitution (as interpreted) does not protect "fighting words", and therefore a law that forbids "fighting words" is constitutional. As phoog points out in the comments, the word can also be used to refer to whether something is in accordance with the Constitution, as the speaker thinks it ought to be interpreted. So somebody might say that a certain law or action is (un)constitutional, even if a court has not considered it, if their own personal interpretation of the Constitution is (or isn't) consistent with it. Or, if a court has struck it down (or upheld it) but the speaker thinks they erred in doing so.
I've retracted and replaced my previous answer. It is a citation to legal authority. It is probably a reference to the book &quot;Hale, The History of the Pleas of the Crown Hale PC&quot; (originally published 1736 with later editions also printed) (see 4.2.3) with Hale abbreviated &quot;Hal.&quot;, &quot;pl.&quot; being an abbreviation for &quot;plea&quot; (see 4.2.2) and &quot;cr.&quot; being an abbreviation for &quot;crown&quot;. Standard citation form is to spell it out, but if it is cited repeatedly later instances might be abbreviated. The link is to a scanned version of the out of copyright historical legal treatise on criminal procedure and substantive criminal law. Wikipedia also discusses it as does a law library Wiki.
You can't normally ask the court to "recuse" an attorney, because "recusal" is normally restricted to the judge leaving the case. The more common term is moving to disqualify opposing counsel.
The scope of attorney-client (solicitor-client) privilege includes the advice received from the lawyer. As long as it &quot;arise[s] from communication between a lawyer and the client where the latter seeks lawful legal advice.&quot; If one could be compelled to reveal the advice received back from a lawyer (or if a lawyer could be compelled to reveal advice they provided to a client), that would effectively obliterate the privacy the privilege seeks to protect. The privilege belongs to the client, and the client may waive that privilege. In order for the communication to be privileged, it must arise from communication between a lawyer and the client where the latter seeks lawful legal advice. Where legal advice of any kind is sought from a professional legal adviser ... the communications relating to that purpose, made in confidence by the client, are at [the client's] instance permanently protected from disclosure by [the client] or by the legal adviser, except the protection be waived. (R. v. McClure, [2001] 1 S.C.R. 445). The scope of the privilege does not extend to communications: (1) where legal advice is not sought or offered; (2) where it is not intended to be confidential; or (3) that have the purpose of furthering unlawful conduct (Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809) The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. (R. v. Gruenke, [1991] 3 S.C.R. 263)
It is the lower courts' interpretation of a senior court's judgment&mdash;specifically the ratio&mdash;that determines what is the precedent. If a court doesn't want its opinion to bind lower courts, it can be clear in its judgment that this is not what was intended. For example, a court could say that this judgment turns on the particular facts of this case, and should be interpreted narrowly by lower courts. Alternatively, a previous precedent could be narrowed by a later judgment of a senior court if it was later felt that the ratio was being applied too widely. (I have read examples of the explicitly narrow ratio, but haven't been able to find any today)
The word argumentative can mean a number of things. However, when defined as in the passage quoted from Wikipedia, it is not the opposite of 'conciliatory.' It has nothing to do with whether the witness is cooperating with the lawyer examining them. In this context, an argumentative witness is one who gives evidence about a legal conclusion (that is, the answer to a legal 'argument'). This is not allowed, because witnesses must give evidence of fact and not opinion. Sometimes, the distinction is murky. The example given is 'was the driver negligent?' The answer could well be seen as 'conciliatory' if it is consistent with the case being advanced by the advocate. It is still an impermissible argumentative question, because it is a question of law for the court to decide, not a question of fact. Suppose the lawyer wants to prove that a driver was negligent. An eyewitness could give evidence about what he or she saw and heard. A qualified professional could give expert evidence about what can be inferred from the physical evidence or agreed facts (eg. whether anybody was speeding). In the unlikely event that the driver admitted fault but a trial was still necessary, the driver could give evidence that they were drunk or not paying attention. None of these witnesses can express an opinion as to whether or not the driver was negligent, because that is the argument that the court has to decide by drawing inferences from the witnesses' factual evidence. In this context, the opposite of argumentative could be admissible, factual, direct or non-opinion.