What’s Wrong With “Nonlawyer”?

In the vast scheme of reinventing language to avoid offending anyone, David Lat raises a new problematic word being pushed out the law firm door: Nonlawyer.

Is it time to remove the term “nonlawyer” from the legal lexicon?

Earlier this month, two lawyers—Olga Mack, a fellow at the Stanford Center for Legal Informatics, and Damien Riehl, a vice president at the legal-tech platform vLex—published an online petition for the American Bar Association “to cease using the term ‘nonlawyer.’”

Together with around 20 “early advocates,” Mack and Riehl call upon the ABA to “engage in the work and dialogue to determine a more appropriate term that more accurately respects and acknowledges the wide range of contributions and roles of all legal professionals.”

As law firms expanded the scope of staff to include functions other than law, from paralegals to accountants to managers, all of whom contribute significantly to the performance of the firm while not having gone to law school, passed the bar or be admitted to practice law, the differentiation within firms has been to characterize staff as either lawyers or nonlawyers. Is this “disrespectful”? Does it diminish their dignity or worth? Does it dehumanize them?

What’s the case against “nonlawyer”? According to the petition, “this term perpetuates negative stereotypes and hierarchical structures, undermining our profession’s fundamental principles of inclusivity and respect,” and “implies a binary division between lawyers and others, inadvertently (or purposefully) marginalizing the invaluable contributions of our legal support professionals, paralegals, and other professional colleagues (e.g., COOs, CFOs, CTOs).”

Notably, the people arguing the point aren’t working as law firm support staff, nonlawyers if you will, but outsiders to firms who are righting their perceived injustice for the sake of others, who don’t seem to see enough of a problem that they don’t cash their paycheck.

In her first few legal jobs, [Olga Mack] worked with numerous non-attorney professionals who were “more senior, experienced, and indispensable” to their organizations than many lawyers,” but were referred to as “nonlawyers”—based not on what they are, but what they are not. She started asking herself, “Why are we using this term?”

Being a “nonlawyer” in no way suggests lack of experience, seniority or value to the firm. Why use the term? To differentiate the people in a law firm who are licensed to practice law from those who are not. After all, it’s a law firm. Clients don’t retain law firms because they have “indispensable” accountants, but for the lawyers. And when they sit down to discuss their case, the lawyer has an ethical duty to maintain client confidentiality. The accountant does not. Why? Because the accountant is a nonlawyer.

As Bryan Garner puts it, the term is only pejorative if one decides it is.

But Garner is a lawyer himself. Based on many of the comments on the petition, a fair number of nonlawyers have issues with this term. One client-support professional said it “creates an ‘us versus them’ divide that we have enough of already.” According to a legal-operations executive, “Given the unprecedented, critical importance of roles from pricing to BizDev to technology,” abandoning the term “should be a no-brainer.”

What is a “client-support professional,” or a “legal operations executive”? No doubt they serve a purpose or they would be working elsewhere, but the one thing that’s clear is that whatever it is they do, they are not lawyers. In a law firm, that matters.

Defenders of the term, who posted on the LinkedIn thread, said “nonlawyer” is accurate and efficient. Lawyer and legal commentator Carolyn Elefant, addressing the issue in a 2017 story on Above the Law, cited the heightened ethical duties of lawyers relative to others and said that speaking of lawyers versus nonlawyers is “not an insult, it’s a reality.”

There is a binary distinction in law for a reason. Clients deserve to know who, among the many folks wherein suits and ties, is qualified to render legal advice and who counts beans. There’s nothing insulting about being a nonlawyer. Indeed, as Bryan Garner notes, in many circles its the word “lawyer” that’s more pejorative.

But proponents analogize this rhetorical flourish to medicine.

Noting that lawyers appreciate precedent, Riehl pointed out a linguistic shift in another field: medicine. The many health-care professionals who aren’t doctors, including nurse practitioners and physician’s assistants, are increasingly referred to as “allied medical professionals,” rather than “nonphysicians’ or “nondoctors.”

The analogy is revealing, in that nurse practitioners and physician’s assistant are, indeed, licensed professionals authorized to practice many aspects of medicine that physicians do. They are professionals in the meaningful sense that they have educational, licensing and ethical requirements. If they violate their duties, they could lose their license to practice medicine, even if its more limited than a physician. They are very much “allied medical professionals.” Notably, the receptionist, the scheduler, the office manager and the biller are not. They may well be critical to the functioning of a medical practice, but they still can’t write scripts or conduct an examination.

Professor Bill Henderson of Indiana University Maurer School of Law, another well-known expert on the legal industry, similarly supports the petition.

“I applaud this effort,” Henderson said. “I am 100 percent certain that in the years to come, the term ‘legal professional’ will include many multidisciplinary roles, including data, process, technology, design, business operations, marketing, and much more. This issue is only going to get bigger.”

While “legal professional” may make the law firm marketing guy’s breast swell with pride, does it do anything to enhance any substantive notion of his function or clarify to clients whether he’s the guy to call to find out whether to sign the contract? More to the point, he is not a “legal professional” as a matter of definition. He may or may not be a professional, but the only “legal” think about him is that he works for a law firm. Tomorrow, he could be working for a construction company or Big Pharma, because they too use accountants and marketing guys.

If the construction company has a lawyer on staff, he’ll still be called the lawyer because he has the license that says so. But the accountant at the construction company will not be a “legal professional,” even if he worked for a law firm the day before. And there’s nothing wrong with that.

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