Published for Thomson Reuters Legal Executive Institute on May 19, 2015
It is time to stop using the term “non-lawyer” to refer to everyone who works in legal service who has not passed the bar exam. This may seem like a minor issue to some, but it is not. In fact, it reflects an outlook that impedes the ability of our profession to make the changes we need to make.
I first realized this problem more than 20 years ago when Norm Rubenstein joined Orrick as our Chief Marketing Officer. It was a big moment for the firm. We were embracing bold new ideas in the way we presented the firm to the market; Norm was joining us, along with a celebrated “dream team” he had recruited from other firms, to lead the effort. At the first partner meeting at which Norm unveiled our marketing mission he took me aside to share his disappointment that we referred to his team as “non-lawyers.” No one, he observed, wants to be defined in the negative. We had assembled some of the best people in their field only to define them in that way.
It was a true aha moment for me. One that has been with me ever since and affects my sense of how we should think about the talented people who work in our firms.
Fast forward to the present. Here we are in the 21st century, at a time we all claim is one of unprecedented innovation in law, driven in large part by advances in legal technology, and yet we are still calling half the people who work in legal service “non-lawyers.” If you have a degree in computer science from MIT and are leading the firm’s efforts to embrace technology, we call you a “non-lawyer.” If you have an MBA from the Harvard Business School and are the Chief Operating Officer, earning as much as most partners, you are still a “non-lawyer.” And certainly if you are the countless people who do the work of gathering facts and generating documents essential to the practice of law, you are “non-lawyers.”
In each of the last several legal service conferences in which I have participated (some of which I have written about here) the issue has surfaced. There is a growing recognition that we have a problem.
It is time to address it.
Here we are in the 21st century, at a time we all claim is one of unprecedented innovation in law, driven in large part by advances in legal technology, and yet we are still calling half the people who work in legal service “non-lawyers.”
In what other profession or industry are professionals defined in the negative? Not in medicine. Not in accounting. Not in architecture. Not in education. Not in any.
Why do we do it in law? I can’t think of a good answer. In part, it is linguistic tradition. But I fear it goes deeper. I suspect it has to do with a deep-seeded belief that only those who hold the title “lawyer,” with the education and licensing that it entails, are worthy to do the meaningful work in legal service. Arrogant and unfounded as that would be, I worry that it is the answer.
Whatever the answer, we need to do better. The “non-lawyer” nomenclature does a disservice to the people who work in legal service. Norm Rubenstein was right.
The “non-lawyer” label also impedes the progress we need to achieve, by reinforcing the narrow way we think about who can do the tasks that make up “legal service.” So long as we think that only lawyers can do the important work, we are reluctant to permit others to participate; our default assumption is that a lawyer must do the task. Today, nearly every observer recognizes that we need to go in the opposite direction; we need to disaggregate engagements into sensible parts and use a new and diverse talent model of professionals, who will deliver the desired quality with greater efficiency. We are less likely to reallocate the work effectively to professionals we denominate in the negative.
It also reduces our ability to attract new participants to legal service. To realize the promise of innovation, we need to attract intelligent, technologically savvy and ambitious people to careers in law. We know that the number of students enrolling in law school is plummeting. Beyond that, it will be difficult to attract other professionals to careers in which they are effectively labeled second-class citizens. Think about it. Would you want a career that defined you as a “non” something?
So, what should we call those who work in legal service? I suggest we call everyone who works in law “legal service professionals.” And then refer to each person by his/her specific role: lawyer, legal technician, system engineer, marketing manager, billing coordinator, et al. The key is to stop bifurcating the workforce into two categories and labeling one of them “non.” We are all in this together.