Definition
CONSULTATION carries three distinct meanings in legal usage, ranging from a defunct English procedural writ to a modern term of art in administrative and professional contexts.
1. Writ of Consultation (historical English practice). A writ issued by a superior court returning a cause to an ecclesiastical or inferior court from which it had been wrongfully removed by prohibition. Where a party had obtained a prohibition transferring a matter out of ecclesiastical jurisdiction, and the superior court found the prohibition unwarranted — either because the suggestion supporting it was false or unproven — it issued a consultation directing the cause back to the original tribunal. The writ functioned as the procedural inverse of a prohibition, remedying improper removal rather than preventing improper exercise of jurisdiction.
2. Conference between counsel. A meeting of attorneys engaged in the same matter to discuss questions of law or strategy, review evidence, or settle the form of a document. Used in this sense, consultation is roughly synonymous with conference. The term carries a collegial connotation — counsel for the same client, or sometimes opposing counsel, working through the substance of a case together.
3. Attorney-client or professional consultation. The event or process by which a client seeks legal advice from counsel on a specific question. Broader professional usage extends the term to physician-patient and other expert-advisory meetings. This is the sense most frequently encountered in modern practice and in rules governing attorney-client privilege.
4. Statutory consultation (modern administrative law). A formal process required by statute in which agencies must coordinate before taking action affecting specified interests. The most prominent example is Section 7 of the Endangered Species Act, which requires federal agencies to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service before undertaking any action that may affect listed species or critical habitat. In this context, consultation is a defined, procedurally elaborate process with prescribed formal and informal tracks, fixed deadlines, and written outputs (biological opinions).
Common Language
Modern common usage (Wiktionary): The act of consulting; a conference for the exchange of information and advice; an appointment with a professional such as a doctor.
Historical common usage (Webster's 1913): The act of consulting or conferring; deliberation of two or more persons on some matter with a view to a decision; a council or conference of physicians or lawyers.
The common meaning and most legal meanings are closely aligned. The gap that matters to legal researchers is the administrative law usage: when a statute requires "consultation," the word names a formal, structured process with legal consequences for noncompliance — not merely a conversation. Webster's 1913 captures the collegial sense but predates the modern regulatory usage entirely.
Recognized Forms
/SUBTYPES
Writ of consultation. The historical English writ described in Definition 1. Largely obsolete; encountered only in pre-twentieth century English ecclesiastical and common law sources.
Informal consultation (ESA). Under Section 7 of the Endangered Species Act, a streamlined process used when an action is unlikely to adversely affect listed species. No biological opinion is issued; the process concludes with a concurrence letter.
Formal consultation (ESA). The full Section 7 process, triggered when informal consultation does not resolve adverse-effect concerns. Results in a biological opinion that may include an incidental take statement. Carries defined timelines and is subject to judicial review.
Attorney consultation. The initial or ongoing meeting between lawyer and client for purposes of legal advice. Relevant to privilege analysis — whether and when an attorney-client relationship is formed, and what communications fall within it.
Why It Matters in Research
Researchers face a layered ambiguity problem with this term. In pre-twentieth century English sources, consultation almost always refers either to the writ or to a collegial meeting of barristers. Neither meaning survives in modern American practice in significant volume. A researcher scanning historical treatises or digests for "consultation" expecting modern usage will find almost exclusively writ-related material.
The writ of consultation is easily confused with related procedural writs — particularly prohibition and procedendo — and the historical sources do not always sharply distinguish the writ from the underlying concept of jurisdictional return. Burrill's and Bouvier's entries are the most precise on the writ's mechanics; Black's 2nd edition is the most compact synthesis.
The administrative law usage is the most consequential for modern researchers and the one most poorly served by historical dictionaries, which predate the regulatory state. Section 7 ESA consultation has generated substantial agency guidance, judicial interpretation, and regulatory rulemaking that sits entirely outside the traditional dictionary sources. Researchers working in environmental or administrative law should treat the dictionary entries as background only and proceed directly to the ESA's text, implementing regulations, and agency biological opinions.
The attorney consultation usage intersects privilege doctrine in ways that require care: courts have differed on whether a preliminary or prospective consultation — before formal engagement — establishes the attorney-client relationship for privilege purposes. Dictionary definitions do not resolve this; privilege case law does.
Jurisdictional variation is most pronounced in the administrative law context: state analogues to federal consultation requirements vary considerably in structure, trigger conditions, and procedural formality.
Historical Dictionary Support
The historical dictionaries are consistent on the writ. Bouvier's, Burrill's, Rapalje & Lawrence, and both editions of Black's agree on the writ's function — returning a wrongfully removed cause to the ecclesiastical court — and on the mechanism by which it was triggered (a failed prohibition). Burrill's is the most technically precise, situating the writ as operating "in the nature of a procedendo." Rapalje & Lawrence briefly adds the collegial meaning — "a meeting between counsel to discuss a question or to settle a document" — and flags the cross-reference to CONFERENCE, which is useful navigational intelligence for researchers.
Black's 2nd edition is the most complete single entry: it covers the writ, the counsel-conference meaning, and adds a note on French law usage (the opinion of counsel on a submitted legal question), which the other sources omit. The French law meaning is a minor thread but could surface in civil law jurisdiction research or in historical Louisiana sources.
None of the historical dictionaries address the modern administrative law or statutory consultation usage. This is an expected gap given publication dates, but researchers should not infer from the absence that no legal definition exists — the opposite is true, and the modern administrative usage is heavily defined by regulation and case law.
Jurisdictional Note
The Section 7 ESA consultation requirement applies to federal agencies and is a matter of federal law; state agencies acting independently are not subject to it, though many states have parallel consultation or coordination requirements under state environmental statutes. The attorney consultation usage, particularly for privilege purposes, varies by jurisdiction and by whether the applicable privilege rule follows common law, the Federal Rules of Evidence, or a state codification.
Encyclopedia Cross-Reference
Endangered Species Act — Listing, Critical Habitat, and Section 7 Consultation (Law Mind Environmental & Energy Law Encyclopedia)
Endangered Species Act — Listing, Critical Habitat, and Section 7 Consultation (Law Mind Administrative Law & Government Encyclopedia)