The underlying problem here is that linguistic changes can't change underlying facts. When we have some kind of linguistic usage that tracks some abandoned distinction (or one reduced in importance) it can make sense to change it. But unless you first reduce the importance of that underlying distinction linguistic change is at best silly and at worst condescending and insulting.
The reason physicians are using these other terms is that it's no longer just physicians doing medical care. Nurse practitioners make diagnoses, prescribe medication recommend specialist visits etc etc. So it makes sense to use a broader term to incorporate everyone who does doctor like things. Note that they are still making a distinction between those who can practice medicine and those who can't -- if the president of your hospital is an MBA or PhD they still aren't a clinical provider or whatever even though they have way more status than a nurse.
If the legal profession wants to include non-lawyers than it needs to do the same thing doctors have done and start letting the non-lawyers either provide legal services, own the firm or the like. I'm not saying they should -- there are important considerations both ways -- but when you have a hard rule that intensively curtails what kind of responsibility they can have, what jobs they can do what kind of ownership interest they can have etc etc without becoming a lawyer than that necessarily remains an incredibly important and salient distinction that no verbal shift can erase.
I wasn't getting into that debate but, yes, I actually think it's incredibly important to open up the provision of legal services by non-lawyers. In so many situations the choice isn't between a lawyer and advice from a non-lawyer but between non-lawyer advice and no advice.
I'm educated, middle class and have multiple attornies in the family and I've still found myself faced with this problem multiple times [1] but it's deeply wrong (and I believe violates free speech principles even if not precedent) that in practice I can't pay someone who may not have passed the bar or a company that uses paralegals plus AI to reduce cost for some advice. I realize it might not be perfect advice but better than nothing.
1: Included just out of frustration. Absent being able to get advice about MI tenant law I couldn't even determine how much expense or risk I'd face trying to fight a 5k landlord attorney demand primarily for mold caused by their leaky foundation during the pandemic so I paid it. When my father died with no assets and serious debts and his apartment complex wouldn't let me access his personal effects without being appointed executor (likely requiring me to pay alot for an attorney to handle) or similar I couldn't get any information on legal exposure for those choices or other options (I bet, correctly it turned, they'd offer to let me take them before tossing them).
Agreed that that's a weirdly and frustratingly underserved niche. I wonder -- and this is totally speculation -- if one obstacle to offering basic advice on quotidian civil disputes on a low-cost, high-volume basis as a practice model is conflicts of interest. The per-engagement cost of keeping track of which building Peter Gerdes lives in, which contractor poured the leaky foundation and whether he came in last week for advice about the same underlying dispute, etc., might be high enough to make the economics not work. Especially if you're trying to be the one-stop-shop in a particular town, with local-law expertise across a wide variety of subject areas.
Again, no idea if that's actually part of the issue here. But either way, the bar's monopoly on doing the work certainly doesn't help!
To be clear, I 100% agree that lawyers should work harder not to treat non-lawyers as inferior. But, that's something that requires genuine everyday concern and empathy and isn't going to be fixed by a mere change in language. Of course if there was evidence this was being demanded by the non-lawyers at the firms then it would be different -- but doing something unasked for that they may not even want doesn't seem like a helpful move.
And given human nature, I tend to doubt that this status difference can be erased without giving non-lawyers greater power in the legal profession.
One way to help any group of people appreciate all that other people do to help them is to require the former to do without (or work alongside) the latter for a little while. Working directly with people and seeing how well they do their work promotes communication, appreciation and respect. Another approach that would help is actively teaching lawyers to be effective leaders.
Yes, I think that's probably true. Though I'm not sure appreciation is the same thing as social status or even renumeration and it matters which you care about.
Still, I think it's quite valuable to have people work together for better and politer office environment.
I'm struck by the extent to which the discussion -- at least as summarized here -- seems to center entirely on the legal profession's internal culture and workplace relations. I would've thought that the person whose interests are most at stake here is the *client* or prospective client.
A whole panoply of special rights and duties is activated when the person a client is interacting with is a "lawyer." Attorney-client privilege, for instance, covers communications "to or to assist" a lawyer or someone the client "reasonably believes to be a lawyer." (That doesn't exclude talking to a lawyer's agent "to assist" the representation, but it does require there to be a lawyer and not some other kind of professional at the other end of the line.) A strong linguistic norm of distinguishing between "lawyers" and "nonlawyers" might be seen as a rule to aid prospective clients in forming that reasonable belief.
Put another way, lawyer/nonlawyer refers not to a real difference in nature but to a real difference in law. And that body of law is meant to operate in favor not of lawyers or other legal workers but of members of the public who depend on them.
Fair point but the attorney-client privilege is far more nuanced than many clients likely would realize. The mere fact that an attorney is receiving the communication definitely doesn't necessarily make a communication privileged. And speaking with someone who is not an attorney but is helping an attorney provide legal advice very well may be privileged.
That's certainly true. But however difficult privilege law might be to understand and apply when the categories of "lawyer" and "nonlawyer" are themselves stable and clearly delineated, the challenge is multiplied when it's not obvious on which side of the line a particular individual falls. Now you have complexity on two dimensions, not just one.
And privilege is just one of several areas where the lawyer/nonlawyer distinction has potential legal significance for clients. E.g., lawyers are by definition fiduciaries of their clients, whereas other providers of professional services may or may not be depending on the circumstances.
From my perspective, there are two problems with the use of the word "nonlawyer" in the typical context in which it's seen (lawyer dismissing the opinions/contributions of business professionals as "nonlawyers", creating a "them vs. us" dynamic):
- It is inaccurate. Many business professionals at large law firms are, in fact, lawyers who no longer practice law directly for clients. Knowledge management, practice management, learning + development, business development, pricing/finance - all are functions that have lawyers working in business capacities. As a lawyer who no longer practices, I maintain an active license because (surprise!) some of the work that I do in L+D requires me to be in good standing with my state bar. CLE! Performance management issues on which I act at the behest of the GC! Doesn't make me less of a lawyer (I have the law school debt to prove it).
- It is archaic. If you are not living under a rock, you will look to the horizon and see the wave of an innovation tsunami heading in our direction as a profession. One of the many, many changes that will happen is moving away from the billable hour and toward a project-based pricing model with value-added services billed out along with legal services, similar to the way other professional services firms operate. Today, I regularly partner with lawyers at my firm to provide clients with training, policy-related advice and business advice (particularly those in the ed tech space) - and we may someday charge for that service. Meanwhile, many more junior lawyers will no longer be billed to the client because AI will be able to do that work at a fraction of the cost/time. In other words, someday quite soon, "they" will be *you*.
As a side note, as someone married to a doctor - I have never heard him or any of his colleagues use the term "non-doctor" or "medical professional". They use the term "clinician" and that includes all people with a clinical degree - doctors, nurses, PTs, NPs, LCSWs, respiratory therapists, etc. Doctors have ENORMOUS respect for the non-MD clinicians and support team members (PCAs, etc) on their teams because that is their institutional culture and also because there is too much work, and the pace is too fast, for doctors to do it all themselves without compromising patient safety. The few doctors who treat non-MD clinicians poorly find themselves ushered out of employment (if they are an attending) or demoted to doing prostate exams until they learn their lesson (if they are trainees). Perhaps a model we should consider for our lawyer colleagues?
But the reason doctors use the term clinician is that they **do** let people who aren't doctors practice medicine.
Note that the term clinician is very much still distinguishing those people who can offer medical services (prescribe drugs, recommend care, make diagnoses, refer out) from other people at the organization, e.g., receptionists, IT people, CFOs etc.
I agree the legal profession **should** move in this direction but it's not the language that is holding it back. It is all those rules you reference which effectively ensure that non-lawyers are severely limited in what kinds of work they can do.
Until you let people without the bar license take on more duties the term non-lawyer is perfectly accurate even if not all lawyers are doing legal work because non-lawyers are effectively unable to fill many of those positions. Even when that's not formally true it is often effectively so, eg, no matter how much value they offer rules about lawyer ownership limit offering ownership interests/partner as compensation, or just because it makes it harder to prove it's not protected communication.
Change the rules first then change the term. Changing the term without charging the rules doesn't help.
Sometimes, the distinction between admitted and not admitted (to practice law before a particular court) would be more accurate and relevant than lawyer and non-lawyer. But I believe the discussion really is about being better about not making people who aren't lawyers feel like second class citizens.
I agree that's what is important, but I tend to think that changing terminology alone tends to make people feel virtuous and like they've done something without actually making meaningful changes.
If you want people not to treat non-lawyers like second class citizens I doubt you can do better than just asking people to do that. Tricks like this just create the impression you don't have to actually put in the hard work of changing the cultural or how you treat people. Just slap a terminological bandaid over it and forget about it.
Allow me to add my voice to those that oppose using the term "nonlawyer." I agree that it's hierarchical and archaic. If such a distinction needs to be drawn, there's undoubtedly a better way to do it. Lawyers speak for a living, and many strive to speak better. This should be seen as part of that.
My experiences learning law and practicing law only confirmed that merely having studied law for three years in law school or having been admitted to practice law in a court is weak support for any sense of superiority. In my first year of law school, I learned a good bit about the Constitution and federal law from outstanding lawyers, esp. Laurence Tribe and Alan Dershowitz. But I learned far more from people who never were admitted to practice law before any court. Some never even went to law school.
That includes Yale Professor Akhil Amar (who did go to Yale Law School) and Andy Lipka (who never went to law school, but clearly knows an amazing amount about the supreme law of the land). Together, they host a podcast (Amarica's Constitution) that I listen to religiously. And Professor Amar's writing is far better and more insightful than any SCOTUS opinion I've ever read. The same goes for the writing of James Madison (the Father of the Constitution), who never went to law school and never even sought to practice before any court. The same goes for the writing and speaking of Abraham Lincoln, who never went to law school, and who is famous (and should be better known) for how he construed and applied our foundational documents, including to reverse one of the worst SCOTUS decisions (and multiple opinions) ever written (Dred Scott).
The underlying problem here is that linguistic changes can't change underlying facts. When we have some kind of linguistic usage that tracks some abandoned distinction (or one reduced in importance) it can make sense to change it. But unless you first reduce the importance of that underlying distinction linguistic change is at best silly and at worst condescending and insulting.
The reason physicians are using these other terms is that it's no longer just physicians doing medical care. Nurse practitioners make diagnoses, prescribe medication recommend specialist visits etc etc. So it makes sense to use a broader term to incorporate everyone who does doctor like things. Note that they are still making a distinction between those who can practice medicine and those who can't -- if the president of your hospital is an MBA or PhD they still aren't a clinical provider or whatever even though they have way more status than a nurse.
If the legal profession wants to include non-lawyers than it needs to do the same thing doctors have done and start letting the non-lawyers either provide legal services, own the firm or the like. I'm not saying they should -- there are important considerations both ways -- but when you have a hard rule that intensively curtails what kind of responsibility they can have, what jobs they can do what kind of ownership interest they can have etc etc without becoming a lawyer than that necessarily remains an incredibly important and salient distinction that no verbal shift can erase.
Totally fair points. You’re starting to see a little of this, but only in a handful of states (see link below).
https://www.americanbar.org/groups/paralegals/blog/how-states-are-using-non-lawyers-to-address-the-access-to-justice-gap/
I wasn't getting into that debate but, yes, I actually think it's incredibly important to open up the provision of legal services by non-lawyers. In so many situations the choice isn't between a lawyer and advice from a non-lawyer but between non-lawyer advice and no advice.
I'm educated, middle class and have multiple attornies in the family and I've still found myself faced with this problem multiple times [1] but it's deeply wrong (and I believe violates free speech principles even if not precedent) that in practice I can't pay someone who may not have passed the bar or a company that uses paralegals plus AI to reduce cost for some advice. I realize it might not be perfect advice but better than nothing.
1: Included just out of frustration. Absent being able to get advice about MI tenant law I couldn't even determine how much expense or risk I'd face trying to fight a 5k landlord attorney demand primarily for mold caused by their leaky foundation during the pandemic so I paid it. When my father died with no assets and serious debts and his apartment complex wouldn't let me access his personal effects without being appointed executor (likely requiring me to pay alot for an attorney to handle) or similar I couldn't get any information on legal exposure for those choices or other options (I bet, correctly it turned, they'd offer to let me take them before tossing them).
Agreed that that's a weirdly and frustratingly underserved niche. I wonder -- and this is totally speculation -- if one obstacle to offering basic advice on quotidian civil disputes on a low-cost, high-volume basis as a practice model is conflicts of interest. The per-engagement cost of keeping track of which building Peter Gerdes lives in, which contractor poured the leaky foundation and whether he came in last week for advice about the same underlying dispute, etc., might be high enough to make the economics not work. Especially if you're trying to be the one-stop-shop in a particular town, with local-law expertise across a wide variety of subject areas.
Again, no idea if that's actually part of the issue here. But either way, the bar's monopoly on doing the work certainly doesn't help!
To be clear, I 100% agree that lawyers should work harder not to treat non-lawyers as inferior. But, that's something that requires genuine everyday concern and empathy and isn't going to be fixed by a mere change in language. Of course if there was evidence this was being demanded by the non-lawyers at the firms then it would be different -- but doing something unasked for that they may not even want doesn't seem like a helpful move.
And given human nature, I tend to doubt that this status difference can be erased without giving non-lawyers greater power in the legal profession.
One way to help any group of people appreciate all that other people do to help them is to require the former to do without (or work alongside) the latter for a little while. Working directly with people and seeing how well they do their work promotes communication, appreciation and respect. Another approach that would help is actively teaching lawyers to be effective leaders.
Yes, I think that's probably true. Though I'm not sure appreciation is the same thing as social status or even renumeration and it matters which you care about.
Still, I think it's quite valuable to have people work together for better and politer office environment.
I'm struck by the extent to which the discussion -- at least as summarized here -- seems to center entirely on the legal profession's internal culture and workplace relations. I would've thought that the person whose interests are most at stake here is the *client* or prospective client.
A whole panoply of special rights and duties is activated when the person a client is interacting with is a "lawyer." Attorney-client privilege, for instance, covers communications "to or to assist" a lawyer or someone the client "reasonably believes to be a lawyer." (That doesn't exclude talking to a lawyer's agent "to assist" the representation, but it does require there to be a lawyer and not some other kind of professional at the other end of the line.) A strong linguistic norm of distinguishing between "lawyers" and "nonlawyers" might be seen as a rule to aid prospective clients in forming that reasonable belief.
Put another way, lawyer/nonlawyer refers not to a real difference in nature but to a real difference in law. And that body of law is meant to operate in favor not of lawyers or other legal workers but of members of the public who depend on them.
Fair point but the attorney-client privilege is far more nuanced than many clients likely would realize. The mere fact that an attorney is receiving the communication definitely doesn't necessarily make a communication privileged. And speaking with someone who is not an attorney but is helping an attorney provide legal advice very well may be privileged.
That's certainly true. But however difficult privilege law might be to understand and apply when the categories of "lawyer" and "nonlawyer" are themselves stable and clearly delineated, the challenge is multiplied when it's not obvious on which side of the line a particular individual falls. Now you have complexity on two dimensions, not just one.
And privilege is just one of several areas where the lawyer/nonlawyer distinction has potential legal significance for clients. E.g., lawyers are by definition fiduciaries of their clients, whereas other providers of professional services may or may not be depending on the circumstances.
From my perspective, there are two problems with the use of the word "nonlawyer" in the typical context in which it's seen (lawyer dismissing the opinions/contributions of business professionals as "nonlawyers", creating a "them vs. us" dynamic):
- It is inaccurate. Many business professionals at large law firms are, in fact, lawyers who no longer practice law directly for clients. Knowledge management, practice management, learning + development, business development, pricing/finance - all are functions that have lawyers working in business capacities. As a lawyer who no longer practices, I maintain an active license because (surprise!) some of the work that I do in L+D requires me to be in good standing with my state bar. CLE! Performance management issues on which I act at the behest of the GC! Doesn't make me less of a lawyer (I have the law school debt to prove it).
- It is archaic. If you are not living under a rock, you will look to the horizon and see the wave of an innovation tsunami heading in our direction as a profession. One of the many, many changes that will happen is moving away from the billable hour and toward a project-based pricing model with value-added services billed out along with legal services, similar to the way other professional services firms operate. Today, I regularly partner with lawyers at my firm to provide clients with training, policy-related advice and business advice (particularly those in the ed tech space) - and we may someday charge for that service. Meanwhile, many more junior lawyers will no longer be billed to the client because AI will be able to do that work at a fraction of the cost/time. In other words, someday quite soon, "they" will be *you*.
As a side note, as someone married to a doctor - I have never heard him or any of his colleagues use the term "non-doctor" or "medical professional". They use the term "clinician" and that includes all people with a clinical degree - doctors, nurses, PTs, NPs, LCSWs, respiratory therapists, etc. Doctors have ENORMOUS respect for the non-MD clinicians and support team members (PCAs, etc) on their teams because that is their institutional culture and also because there is too much work, and the pace is too fast, for doctors to do it all themselves without compromising patient safety. The few doctors who treat non-MD clinicians poorly find themselves ushered out of employment (if they are an attending) or demoted to doing prostate exams until they learn their lesson (if they are trainees). Perhaps a model we should consider for our lawyer colleagues?
But the reason doctors use the term clinician is that they **do** let people who aren't doctors practice medicine.
Note that the term clinician is very much still distinguishing those people who can offer medical services (prescribe drugs, recommend care, make diagnoses, refer out) from other people at the organization, e.g., receptionists, IT people, CFOs etc.
I agree the legal profession **should** move in this direction but it's not the language that is holding it back. It is all those rules you reference which effectively ensure that non-lawyers are severely limited in what kinds of work they can do.
Until you let people without the bar license take on more duties the term non-lawyer is perfectly accurate even if not all lawyers are doing legal work because non-lawyers are effectively unable to fill many of those positions. Even when that's not formally true it is often effectively so, eg, no matter how much value they offer rules about lawyer ownership limit offering ownership interests/partner as compensation, or just because it makes it harder to prove it's not protected communication.
Change the rules first then change the term. Changing the term without charging the rules doesn't help.
Sometimes, the distinction between admitted and not admitted (to practice law before a particular court) would be more accurate and relevant than lawyer and non-lawyer. But I believe the discussion really is about being better about not making people who aren't lawyers feel like second class citizens.
I agree that's what is important, but I tend to think that changing terminology alone tends to make people feel virtuous and like they've done something without actually making meaningful changes.
If you want people not to treat non-lawyers like second class citizens I doubt you can do better than just asking people to do that. Tricks like this just create the impression you don't have to actually put in the hard work of changing the cultural or how you treat people. Just slap a terminological bandaid over it and forget about it.
Thanks for these excellent insights from the world of medicine—very interesting!
Allow me to add my voice to those that oppose using the term "nonlawyer." I agree that it's hierarchical and archaic. If such a distinction needs to be drawn, there's undoubtedly a better way to do it. Lawyers speak for a living, and many strive to speak better. This should be seen as part of that.
My experiences learning law and practicing law only confirmed that merely having studied law for three years in law school or having been admitted to practice law in a court is weak support for any sense of superiority. In my first year of law school, I learned a good bit about the Constitution and federal law from outstanding lawyers, esp. Laurence Tribe and Alan Dershowitz. But I learned far more from people who never were admitted to practice law before any court. Some never even went to law school.
That includes Yale Professor Akhil Amar (who did go to Yale Law School) and Andy Lipka (who never went to law school, but clearly knows an amazing amount about the supreme law of the land). Together, they host a podcast (Amarica's Constitution) that I listen to religiously. And Professor Amar's writing is far better and more insightful than any SCOTUS opinion I've ever read. The same goes for the writing of James Madison (the Father of the Constitution), who never went to law school and never even sought to practice before any court. The same goes for the writing and speaking of Abraham Lincoln, who never went to law school, and who is famous (and should be better known) for how he construed and applied our foundational documents, including to reverse one of the worst SCOTUS decisions (and multiple opinions) ever written (Dred Scott).