For a profession that can literally live or die by the comma, the word “non-lawyer” is tossed about to describe anyone without (or in some cases with) a JD working in any capacity within a law firm. Yet “non-lawyer” isn’t a word.
Not only is it not a word, it is not a labor category via the EEOC.
Not only is it not a labor category, I can’t find it as a job title via Monster.com or CareerBuilder.
Yet, time and time again, those of us working in the legal industry as business professionals are lumped together as “non-lawyers.”
Once again this “non-lawyer” has reared its ugly head, this time with the Texas Center for Legal Ethics’ Opinion 642.
I wrote about the opinion on Friday, Dammit. We’re a BUSINESS, Texas Center for Legal Ethics. Not just a profession, and you need to know about this whether or not you are a lawyer or a “non-lawyer,” and whether or not your firm has offices in Texas or not.
In short, Opinion 642 bans all references to “officers” in titles, and bans any type of bonusing based on fees generated.
This is a serious issue, which could have dramatic unintended consequences, yet humorous in a sad way. As captured by 3 Geeks and a Law Blog’s Ryan McClead in The Depths T’Which Ethics Reaches: or, The Origin of Opinion 642:
Dewey said to Cheatum, “What ever shall we do?
Our book is getting slimmer and I haven’t got a clue
How to run a proper business, you know, one that still makes money?
We can’t just raise our rates… stop your laughing. It’s not funny!”
“Oh silly Dewey, how you worry!” chortled Cheatum through his drink.
“There’s no problem we can’t tackle with a good and proper think.
We’re the brightest and the smartest and by far the best paid too,
We’ll just put our heads together and we’ll figure what to do.”
The business of law has far surpassed the profession of law. From the recently released 2014 AmLaw 100 results, each of the top 23 firms’ revenue was between $1 billion and $2.5 billion. This is no small profession, but a full industry to be supported by educated and well-trained professionals in their specialized departments.
For my department, marketing, the industry “standard” is to hire a full-time, in-house professional by 40 attorneys, and then another FTE for every 20-40 more. Even at that size of a firm, we’re oftentimes looking at businesses with revenues of $50 million or more. Once again, not a small business to be run without full-time, sophisticated, professional assistance.
The whole “non-lawyer” topic reminds me of an article written by Jeffrey Brandt at the beginning of this year: “Name Shame. You don’t need a bar ticket to be a legal professional.”
Jeffrey was objecting to a legal consultant’s use of the term “nonprofessionals” in a Legal Technology News article, “Culture Shift, Technology Lead to Staff Cuts,” to describe, well, people like me:
Boston-based legal consultant Jeff Coburn was quoted as saying, “The ratio of nonprofessionals to professionals is going to continue to go down. It’s all part of law firms becoming businesses.”
I’m not going to debate that culture and technology are impacting job roles inside law firms. I’m not going to comment on whether ratios are changing or should change (at least not now). But I am certain that I am not the only reader who took issue — severe issue — with the term “nonprofessionals.” Even without the context, I knew exactly who Coburn was referring to — the nonlawyers. Other less offensive phrases in the post included “traditional clerical functions,” “nonlawyer staff,” and “support staff.” As part of my disclaimer, I should say I don’t know Jeff Coburn. I sincerely hope it was just a poor choice of words on his part and not representative of an attitude or belief that he holds.
The new normal is changing the way law firms do business. The article itself argues that culture, technology, desire for greater efficiencies and higher profits are changing the roles of law firm employees. But last time I looked, in addition to lawyers, law firms require technologists, Help Desk staff, library specialists and researchers, litigation support teams, marketing personnel, financial experts, paralegals, secretaries, human resource staff and other administrative experts in order to run.
Merriam-Webster defines “nonprofessional as “being such only for recreation” or “lacking or showing a lack of expert skill.” It offers up synonyms of amateur and unskilled. It goes on to define professional as “relating to a job that requires special education, training, or skill.”
I could kiss you, Jeffrey.
Lawyers practice law. Something I do not do. But unless they are a solo with no support at all, their business operations are being handled by professionals. The CFO with a finance degree from UCLA. The COO who is a Harvard Business School grad. The CMO with an MBA from Wharton. The CTO from MIT. Not to mention all the non-practicing lawyers who are running and managing these multi-million or billion dollar operations.
So can we please retire the term “non-lawyer”? But, at the same time, we need to recognize the sophisticated nature of the business side of the business.
One of the fears raised by the Texas Center for Legal Ethics is that it will be misleading to provide a “non-lawyer” with a title that includes “officer.” That by tying compensation to revenue you would create an environment where the non-lawyers would interfere “with a lawyer’s independent judgment in practicing law.”
Once again, if you can show me where a non-lawyer was able to interfere with a lawyer’s “independent judgment in practicing law,” we need to have a conversation. If you can show me one situation where a client was misled that a Chief Operating Officer or Chief Marketing Officer or Chief Diversity Officer was a practicing attorney working their files, there’s a comment section below.
Every one of our clients’ top executives receive bonuses based on revenues and performance. I don’t think these non-lawyers and lawyers running these Fortune 500 companies really care how the COO, CMO, CTO, CDO are compensated. They really just care that their bills are timely, and that they receive value for the money that they spend. Something over which we “non-lawyers” have little control, and, when we do have influence, it is in the clients’ best interest. We WANT our firms and lawyers to provide better services at a better value.
I will say that the business environment of many, many law firms keep the best and brightest business professionals away. If this latest ruling, and our inability to move past “non-lawyer” when discussing executive professionals within the legal industry, prevents us from recruiting the best and brightest of the business world to our firms, then that is truly the unethical business practice.
That very day they wrote the rule that Howe had recommended.
Though sometimes even good ideas have pieces unintended.
Their non-attorney staffers all packed up and walked away.
Leaving Dewey alone with Cheatum to await their dying day.