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Johnny Shearman, Professional Support Lawyer, discusses in Legal Week the use of the term ‘non-lawyer’ in the legal sector.

Johnny’s article was published in Legal Week, 16 November 2020, and can be found here.

I have heard the term non-lawyer used throughout my career but recently I have found its use jarring. Here is someone that is often vastly more qualified than me in their chosen field and who has spent years in the legal industry but is first described to me as a non-lawyer. It is a level of clarification which, in my view, is unhelpful, unnecessary and often derogatory.

However, before dissecting the term non-lawyer further, it is important to delineate here that I do not condone someone holding themselves out as being authorised to provide legal services when they are not. It is a criminal offence to do so and such strong repercussions are needed to maintain confidence in the legal profession. It follows that I am not talking about the public at large in this instance. I am talking about a term which is used within the legal industry and one which I question whether we can do without.

What is a lawyer?

A lawyer is commonly thought of as someone that practices law. However, in this jurisdiction, although the term is used generally, it is not in and of itself a recognised title denoting that a person is authorised for the provision of specific legal activities.

In England and Wales, there are two prominent roles that are typically referred to as lawyers. The first is the solicitor, authorised and regulated by the Solicitors Regulation Authority. The second is the barrister, authorised and regulated by the Bar Standards Board. There are a number of other roles that are similarly authorised such as legal executives, licensed conveyancers, patent and trademark attorneys, costs lawyers and notaries.

Why use the term Non-lawyer?

Along with a generalised use of the word lawyer to describe people in a wide range of roles, the term non-lawyer has become widely used by the “lawyers” themselves to describe, well, everyone else.

This is evidenced by the introduction of Alternative Business Structures (ABSs) under the Legal Services Act 2007. ABSs were widely reported as allowing “non-lawyers” to own or have an interest in a law firm. However, at no point, does the legislation use the term non-lawyer. The correct term, and the one which is referenced in the Legal Services Act is “non-authorised person”. Whilst a bit clunky, this wording makes sense as it is the authorisation of an individual by a specific body which determines whether they can perform specific legal services.

However, it is not just where ABSs are concerned that the term non-lawyer gets used. Many other specialisms now operate symbiotically with the legal profession. For example, the eDisclosure industry provides an invaluable service to the litigation market and does so often from within law firms. The term non-lawyer is used to separate the “lawyers” from those that are part of this service offering.

However, at no point, when someone is introduced to me as a forensic technologist do I feel the need to question whether they are authorised in that role to practice law. These individuals are however skilled in what they do and to refer or identify them as a non-lawyer now appears disparaging to me. This is especially the case when, arguably, lawyers lack the skills these individuals are able to provide.

To provide some context, it is difficult to think of another industry which adopts a similar practice of identifying persons by something they are not. So far as I am aware, a nurse practitioner is not referred to by a doctor as a non-doctor. While the suggestion can be made that a doctor’s status is evident by the use of the title “Dr”, surgeons typically revert to using Mr or Ms (due to tradition dating back to the medieval times) but are similarly qualified.

Therefore, I question whether the legal industry needs the term non-lawyer in its collective vocabulary. The answer may be, in this jurisdiction at least, that we should stop using the general term of “lawyer”, which is used in my job title even though I am a solicitor. Either that or perhaps we need to start referring to “lawyers” as everything that they are not.