30 August 2012
Lately I’ve taken to reading Kevin Underhill’s blog, Lowering the Bar. Underhill, a lawyer, comments on the various humorous news stories about legal cases and the profession of law that arise. The blog rarely fails to give me a chuckle with my morning coffee.
His posting from yesterday is not one of the funnier ones (although it has its moments), but Underhill does raise the issue of how courts use the meanings of words in their deliberations. In the case in question, John Heurlin, a lawyer who had been suspended by the California Bar Association, continued to use the titles attorney and esquire and to represent clients. The case is the disciplinary proceeding against Huerlin.
In the proceeding, Heurlin argued that his use of esquire was justified because it does not necessarily mean “lawyer,” that it can mean many things, including property owner and a subscriber to Esquire magazine. The Bar Association, quite properly, counters with this:
This argument is unconvincing because we do not focus on a single usage of a particular word when determining [unauthorized practice of law]. Instead we consider the consider the context of the words and the general course of conduct. [...] Here, Heurlin affixed the label “Esq.” next to his name and included references to himself as “attorney” and “Law Offices of John M. Heurlin” in pleadings and correspondence to opposing counsel. As the Court of Appeal observed, this course of conduct may well have created “the misleading impression” that Heurlin presently is licensed to practice law and currently maintains a functioning law office. And Heurlin underscored his misrepresentations of his status as an attorney when he filed his declaration in the Court of Appeal attesting: “I am an attorney licensed to practice before the courts of the State of California....”
To which Underhill adds:
It’s also unconvincing because, for example, no human being on the face of the Earth would ever put “Esq.” after his name to indicate that he subscribes to Esquire. Let me know if I’m wrong about this, by all means. Yours sincerely, M. Kevin Underhill, J.D., Esq., Sci. Am., Nat. Geo., Sprts. Ill. (Swimsuit).
The 1989 second edition of the OED includes this usage note for esquire:
The designation of “esquire” is now commonly understood to be due by courtesy to all persons (not in clerical orders or having any higher title of rank) who are regarded as ‘gentlemen’ by birth, position, or education. It is used only on occasions of more or less ceremonious mention, and in the addresses of letters, etc.; on other occasions the prefix “Mr.” is employed instead. When “esquire” is appended to a name, no prefixed title (such as “Mr.,” “Doctor,” “Captain,” etc.) is used. In the U.S. the title belongs officially to lawyers and public officers.
Bryan Garner’s eighth edition of Black’s Law Dictionary defines esquire as “a title of courtesy commonly appended after the name of a lawyer.”
So it appears that the bar association is correct. While esquire is indeed used generally as a non-specific title of respect, in a legal context it carries the meaning of “lawyer,” and representing oneself as esquire or Esq. in court papers when one is not a lawyer does amount to misrepresentation (in more ways than one).
I also believe that Underhill is correct in that no human in history has ever applied titles to himself based on the magazines he subscribes to, although I wouldn’t put money on it. The world is a big place and anything you can think of, someone has probably has already done.
