Legal ethics

To “Non” or not to “Non”?

Is currently sort of a question it seems. It is not the world’s most pressing question, but it is a discussion topic in the world of the practice of law getting some extensive media scrutiny in legal publications. For example, here, here, and here.

For those not fully enmeshed in the topic already, the issue is … well there are actually two ways to frame what the issue is.

The first is whether it is somehow offensive or demeaning for lawyers to refer to people who are involved in assisting with the delivery of legal services but who are not actually lawyers as “non-lawyers.”

The second is whether having to use that language is a necessity in order to accurately define and address important topics under the rules of professional conduct themselves.

When the issue is framed in the first fashion, I am somewhat sympathetic with the people who are clamoring for lawyers to use different language. I have tried for the last several years when speaking at seminars and other public engagements to strive to use some other term to refer to people who aren’t lawyers. I usually try to settle on “regular people” as my preferred term of art. (I admittedly do that in part as a way of taking a shot at myself and lawyers generally because we really aren’t all that regular when it comes to being people.)

When I first introduce that concept in any given talk — it usually involves paraphrasing the language of a rule that uses the term “non-lawyer” and making the point that doctors, for example, don’t walk around referring to other people as “non-doctors” and so it just smacks as a bit of an egotistical phraseology. (Depending on the room, I might then quip about how the medical option of “lay people” probably won’t work for lawyers for reasons that might be content that is “too” blue for certain rooms.)

But even in my eyes, the reason for trying not to use the term isn’t that it demeans the regular person being referred but as I haven’t been a “non-lawyer” for more than 25 years now I figure I’m not the best person to evaluate whether getting called that is offensive or insulting.

The level of offense taken, of course, can also vary depending on whether the term is being applied to someone involved in helping and working with the lawyer who is a paralegal, or a private detective, or a bookkeeper, or someone who has been given some sort of quasi-legal title in a jurisdiction that allows for “non-lawyers” to do some of the same things that only lawyers can otherwise do.

And that last fact is nice segue into why it is so hard to come up with a term other than “non-lawyer” to use in the context of the rules of professional conduct because of how well that term works to encompass all of the kinds of people who could assist a lawyer in delivering legal services and need to be comprehensively accounted for in certain of our ethics rules.

Tennessee’ RPC 5.3: Responsibilities Regarding Nonlawyer Assistance (which is patterned on the ABA Model Rule) is our primary rule for addressing the obligations of lawyers with respect to the people that work or assist them but who do not have law licenses, and, in the context of the rule as a whole, you can see why using “nonlawyer” is so easy and effective:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the nonlawyer is employed, or has direct supervisory authority over the nonlawyer, and knows of the nonlawyer’s conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

You could try rewriting such a rule to say “regular person” instead of nonlawyer, I guess. But you might have to go to the trouble of defining that term to exclude lawyers to be 100% clear. Or you could go with “person without a law license.” But someone can have a law license but have it in an inactive status and thus be a “nonlawyer” for these purposes. You could also try to use a term that captures the notion that the people in question are people who are otherwise outside the regulatory power of the Tennessee Supreme Court because they aren’t licensed lawyers but that will get extremely wordy. It also wouldn’t necessarily capture the fact that this rule also can, and will, be interpreted to bring within its reach AI programs that may come to be used to replace regular people altogether.

There are, of course, other ethics rules where the term “non-lawyer” is used to, for example, prohibit law firm ownership or the sharing of fees, and it is somewhat equally difficult to find an appropriate replacement term or terms. Of course, from my perspective, the better answer is just deleting those rule prohibitions altogether but that is a much longer conversation.