The Lawyer vs. Nonlawyer Debate Rages On
This dated term misses the mark in the current legal landscape
No one would ever refer to Elon Musk, the CEO of SpaceX, as a non-astronaut. It would be rude to call an amazing nurse a non-doctor. Yet in the law firm world, no one gives a second thought to referring to everyone without an Esq. after their names as a nonlawyer. From the mail clerk to an executive director, or in my own case a legal technologist with a $70 million dollar book of business, everyone in a law firm that is not a licensed attorney is lumped into this vague and slightly dismissive category of nonlawyer.
Not surprisingly, as the practice of law has evolved to include a broader spectrum of highly qualified and integral team members with expertise outside of law, many of these talented individuals have begun to bristle at this term. As I found from a recent LinkedIn poll with over a thousand votes, the level of contention this term evokes is impressive.
Former Big Law associate turned legal technologist and TikTok star, Alex Su of Evisort summed it up nicely: “Although I’ve been guilty of using this label in the past, I believe it absolutely needs to go. Some of the most valuable contributors to law firms and corporate legal departments are not licensed to practice law.”
Ben Weinberger, another Big Law alum turned legal technologist, took it a step further: ”I never use the term ‘non-lawyer’, nor do I use the term ’support staff’ or ‘lawyer support.’ Those only serve to reinforce the caste system and do nothing to foster a sense of appreciation or respect for each person’s contribution to the team. Lawyers who use those terms are either insecure about their own standing or clueless about their impact on others.”
Shifting sands for the practice of law
So why the heck are law firms identifying a broad swath of their employees by a qualification they lack to begin with? The delineation comes from both state bar ethics guidelines and rules of professional responsibility that have historically prohibited “nonlawyers” from performing certain tasks that require licensure and from having ownership in a law firm.
Recently, with the proliferation of legal technology and the increasing scale and sophistication of law firms, some state bar associations are openly wondering if these prohibitions still make sense. While the prohibition of nonlawyers from practicing law was designed to safeguard clients, the proliferation of technology is flipping the script in some cases. As noted by the California State Bar, “Trained non-lawyers, or certain forms of technology, may be able to provide accurate legal advice in faster, cheaper, and more innovative ways than lawyers can.”
The Utah Supreme Court has gone a step further than pondering, and issued a sandbox program in August 2020 that allows firms to “propose and execute new business structures and methods of service delivery that are currently illegal or deemed unethical, while under the watchful eye of regulators.” The first nonlawyer-owned Utah law firm launched just this month!
The Arizona’s Supreme Court’s Task Force on the Delivery of Legal Services voted unanimously to allow nonlawyers to have an ownership stake in law firms. Replacing Rule 5.4, which had long prohibited nonlawyers from having an economic interest in a firm, the new rule took effect on January 1, 2021. The report noted “no compelling reason exists for maintaining ER 5.4 because its twin goals of protecting a lawyer’s independent professional judgment and protecting the public are reflected in other ethical rules which can be strengthened.”
California, New Mexico, Washington State, and Illinois are all at various stages in evaluating the use of non-attorney legal professionals for certain legal tasks as well.
For me, it is less a question about the types of tasks and law firm ownership options people without JD have and more about how they are treated within the firm and what the term connotes. Within many firms the nonlawyers find themselves as a second class citizen, with different compensation and benefits packages, less access to training and often without a seat at the leadership table no matter how senior their role. Some have even weaponized the term to take away the voice of those lacking the requisite JD — and that is where I take umbrage.
Despite running a program that rivaled any rainmaker’s book of business and having a role that was one step removed from the C-suite, I had to be deferential even to summer associates interning at the firm and my insights carried less weight than a first year associate who was on their first case. And I was not alone.
From veteran paralegals to business executives and legal technologists, many highly skilled professionals have faced the struggle of being lumped together in a group and identified as lacking by law firms with an antiquated idea of the practice of law. Many people completely forego the law firm route as a non-attorney because they fear facing this very caste system. To attract the best and brightest in the increasingly competitive talent market, law firms will have to change their tune.
Break down the caste system
From an ethical standpoint and a clarity of roles standpoint, it most certainly makes sense to have some sort of distinction in roles that legally can perform certain tasks. But, given the long and not so pleasant history of the misuse of the nonlawyer category. Simply put by Jared Coseglia, an industry veteran in legal, referring to fellow professional humans and nonlawyers simply isn’t cool. “Not only is it demeaning to, well, everyone, but it can also be the source of an unhealthy culture between lawyers and their legal staff.”
Debbie Reynolds, the Data Diva and all around expert on all things legaltech and privacy, summed it up perfectly: “The very fact that you call someone a ‘non’ anything connotes a disregard for the individual and the value that they bring to organizations. ‘Non’ needs to go bye-bye!”
While it is clear we must find a new way of categorizing people working in law without a J.D., there remains some debate about what the best path forward is for what that naming convention is. Alternatives that some of the hundreds of legal professionals that chimed in with included:
- The person’s actual name
- The person’s actual title
- Legal Professionals
- Subject Matter Experts
- Business Executive
- Legal Technologists
Beyond words and phrases
In addressing the debate about jettisoning archaic, meaningless, and potentially confusing terms like nonlawyer from the legal guild, the core challenge is really resetting the us vs. them mindset where it is perceived as okay to treat a class of critically important legal business professionals and technologists as less-than because they bill in a different category than a lawyer, or are part of supporting the business of a law firm.
Because the term nonlawyer is so tainted, a fresh start with a new titling or categorizing system is a good start but will not fully solve the problem. Julie Heller, VP, Knowledge Management & Information Governance for AIG noted, “this [debate] is more of a cultural bias than a naming convention issue. Regardless of the label, those of us who are ediscovery, legal technology and legal operations professionals are an integral part of the legal ecosystem and it’s important to ‘know your value’ regardless of how a 25-year-old lawyer may speak to you.”
At the end of the day, the issue is so much less to do with the actual title or categorization, or even the phrase nonlawyer, and more to do with the elitist bias and desire to say you’re not part of the cool club. If we can change that underlying elitism and ascribe value to these new and impactful legal professionals, I think that whatever term we use for the people without esquire after their name won’t matter as much.