Author: TSA Press

The Trump administration spent the last year since Democrats took control of the House of Representatives insisting that congressional oversight is illegal. They refused to explain how Jared and Ivanka got security clearances when they couldn’t pass a background check. Bill Barr ordered Commerce Department officials to defy congressional subpoenas to testify about how the citizenship question wound up on the census. And the Justice Department is litigating half a dozen cases arguing that Congress has no right to demand Trump’s tax and business records, despite a non-discretionary statute saying that the Ways and Means Committee is entitled to see them upon request. And that was all before the House even launched its impeachment investigation and the president bragged they were “fighting all the subpoenas.”

But when it comes to investigating Joe Biden’s son, the executive branch is falling all over itself to cooperate with Congress. Or at least with the branch of it controlled by the president’s allies.

Yahoo News reports that the Treasury Department has begun producing a trove of information about “Hunter Biden, his associates, their businesses, and clients” in response to a request from Republican chairs of the Senate Finance, Homeland Security, and Judiciary Committees.

Despite massive arm-twisting, the Ukrainian president wouldn’t investigate Hunter Biden. And Bill Barr’s Justice Department looked at the insane nonsense Rudy Giuliani kept depositing on his doorstep and refused to touch it, either. But Lindsey Graham is burdened by no such scruples. He’ll make Joe Biden’s f*ck-up son into a mastermind of corruption if it’s the last thing he does!

Graham and his compadres Chuck Grassley and Ron Johnson are most interested in any Biden-related Suspicious Activity Reports (SARs), the alerts generated by banks when they spot a transaction that fits the pattern for money laundering or other serious financial crimes. These highly confidential documents are not subject to FOIA, and indeed there is an IRS agent in jail right now for leaking former Trump attorney Michael Cohen’s SARs to Michael Avenatti. Nonetheless, the Treasury is anxious to comply with the senators’ demand for information about a private citizen who has been credibly accused of breaking exactly zero laws.

(No, Rudy Giuliani’s lunatic rants do not count as “credible” allegations, a fact confirmed by Fox News’s internal analysts, even as their on-air personalities continued to flog them.)

While regular congressional requests for information on SARs can take months and months, the Treasury is treating the Biden query as a rush order.

“Applying a blatant double standard, Trump administration agencies like the Treasury Department are rapidly complying with Senate Republican requests — no subpoenas necessary — and producing ‘evidence’ of questionable origin,” said Ashley Schapitl, spokeswoman for Finance Committee Ranking Member Ron Wyden. “The administration told House Democrats to go pound sand when their oversight authority was mandatory while voluntarily cooperating with the Senate Republicans’ sideshow at lightning speed.”

Whether the “‘evidence’ of questionable origin” produced by Treasury is the gobbledygook dossier Giuliani has been shopping around the State and Justice Departments for seven months is unclear. Nor is it clear exactly what the senators hope to find out about Hunter Biden, other than something, anything to dirty him up and make it seem rational for Trump to have frozen military aid to Ukraine until it announced an investigation of both Joe and Hunter Biden.

The main thrust of Giuliani’s ramblings is that Joe Biden forced out a Ukrainian prosecutor to protect Hunter Biden’s business interests, a fact belied by the fact that the IMF, EU, entire national security establishment, and Ron Johnson himself was pushing for the prosecutor’s ouster. Giuliani has also made bizarre allegations about Biden laundering $7 billion of looted Ukrainian assets through Franklin Templeton sovereign wealth bonds, but even Lindsey Graham has his limits.

So what exactly are Grassley, Graham, and Johnson looking for in this fishing expedition?

In their letter to the Secret Service yesterday, Grassley and Johnson demanded information about “potential conflicts of interest posed by the business activities of Hunter Biden and his associates during the Obama administration.” They fail to specify how a private citizen can have “conflicts of interest” with the federal government where he is … not employed.

But everyone knows they don’t give a damn about Hunter Biden. They want something to beat Joe Biden over the head with if he’s the Democratic presidential nominee. The “conflict of interest” with Joe Biden’s work as Vice President is implied. And if they can’t find any, they’ll imply one as loud as they can throughout the entirety of this presidential campaign. Lucky thing they’ll have the entire apparatus of the federal government to help them do it!

Treasury Department sent information on Hunter Biden to expanding GOP Senate inquiry [Yahoo]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

There’s a pay-to-play admissions scandal that’s claiming the heads of high-ranking officials at Texas Southern’s Thurgood Marshall School of Law. In November, the university announced they were opening an investigation surrounding irregularities in admissions. Pretty soon, local media was reporting the investigation was about the law school. According to a statement by the university’s board of regents, at least two students were improperly admitted to the law school.

The former assistant dean for admissions and financial aid at the law school reportedly resigned after their role in the scandal was revealed. According to the board of regents, in one case the former assistant dean accepted $14,000 in cash from a law school applicant in exchange for admission and scholarship money. For another student, the the former assistant dean “facilitated a fraudulent” transfer application.

Now the scandal has led to the firing of Dr. Austin Lane, the now-former president of Texas Southern University. Lane, who had been at Texas Southern since 2016, was placed on leave January 10th due the the probe into the admissions scandal. On Wednesday, the board of regents voted 6-1 to propose terminating Lane, due in large part to his lack of oversight of admissions:

The Texas Southern University Board of Regents voted today to propose the termination of Dr. Austin A. Lane. This action is based on an audit committee’s finding that Dr. Lane violated his contract, including the termination for cause provision. His actions relate in part to failure to report to the board information relating to improper payments for admissions to the Thurgood Marshall School of Law and for the improper awarding of scholarships to students, which led in part to the initiation of a comprehensive investigation.

The termination letter also said that Lane and his assistant attempted to direct another former law school official to misrepresent LSAT data to the ABA. Additionally, the board said they found attempts by Lane to conceal excessive entertainment expenses to prevent scrutiny of them. The circumstances around these incidents remain under investigation. The board also indicated they hired three separate law firms to assist them in the investigation.

Lane has 30 days to dispute the board’s findings, and by all reports he’ll do just that. During the board meeting, Lane reportedly called out, “That is a lie!” while they were discussing the allegations against him. He also said he rejected a settlement offer from the board:

Lane said he and attorney Darryl Carter refused an hours-long attempt by the board to negotiate a buyout through an attorney.

“Why? Because we didn’t do anything,” Lane said. “So we’ll be back in 30 days.”

And he’s publicly said the fight over his termination will continue:

Regardless of the ultimate disposition of Lane’s case, the aftershocks of this admission scandal will linger.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. Olga founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. Olga also co-founded SunLaw, an organization dedicated to preparing women in-house attorneys to become general counsels and legal leaders, and WISE to help female law firm partners become rainmakers. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can email Olga at olga@olgamack.com or follow her on Twitter @olgavmack. 

The impeachment drumbeat kicked off as fodder for hot-take artists trying to sound edgy. There was a giddy exhilaration in going out there to argue that this is a rare moment in history that calls for drastic constitutional action. It spread to politicians looking to raise money from a base increasingly riled up by the constant impeachment talk. Nancy Pelosi seemed to be the only one out there pumping the brakes and no one was going on TV to defend her. Eventually the Ukraine allegations came to light, providing the House an abuse of power that dwarfed the lackluster Mueller allegations and the horse was fully out of the barn. Now, the impeachment trial everyone clamored for has come and gone. And what have we accomplished as a nation?

This seems like a good time to revisit my article from May of last year arguing that the fixation on impeachment was a terrible idea all along to see just how things turned out. Why go back to my old predictions? Well, as Jim Brockmire put it, “You think I’m the kind of guy that likes to say, ‘I told you so,’ but that’s not true. I love to say it, and I will be doing so in the days and months ahead at random moments when you least expect it.”

To recap the piece, my reticence to join the impeachment train was pretty clinical: if the goal of the political process was to ensure Donald Trump ceases to be president in either the short- or long-term, does impeachment accomplish either of those goals? I concluded it did not and could well do the opposite. So what happened?

Prediction 1 — Donald Trump Will Be Acquitted
Verdict: Confirmed

The most obvious prediction because only the most partisan fever dreams contemplated the Senate getting to 67 votes to convict. Some, like my intrepid podcast cohost, tried to chart a path to conviction but it was always a stretch. In any event, the impeachment failed to remove Trump from office in the short-term.

Prediction 2 — Vulnerable Republicans Won’t Defect In Numbers
Verdict: Confirmed

I never bought the “retiring and purple state Senators will have to convict” line. Just because a Republican is retiring doesn’t mean they don’t still have to go home and not get egged by the MAGA hat electorate that put them there. Lamar Alexander still has to hob-knob with these people. Vulnerable Republicans aren’t as naive about triangulation as Democrats. While the liberals delude themselves into thinking everyone loves a moderate, the Republicans by and large understand that they win purple states by turning out the base. Whether they do it boldly or through winks and nods, they know they aren’t winning most of these states in landslides — they win those seats in tight, turnout-based elections where the right is engaged. Any feints to the middle are superficial at best and trying to remove the right’s favorite president would wildly alienate that base.

Prediction 3 — Any Republicans That Do Defect Would Actually Be Bad For Democratic Senatorial Aspirations
Verdict: Mixed

Where I whiffed was in predicting that purple state defections would actually be a disaster for Democrats, giving those Republicans a chance to have their cake and eat it too. I thought someone like Susan Collins might comfortably shift her vote to keep Trump in power while walking into reelection claiming that she “tried” to get him out. As it turned out, Collins decided she didn’t need to take the risk. Probably for the reasons detailed above.

But I’m giving myself partial credit on Mitt Romney. Not a purple state senator by any means, but he followed the logic of the argument: he voted to convict knowing that it wouldn’t matter and parlayed that into fawning coverage as a paragon of bipartisanship. Someone absolutely will spout off about making Romney the Democratic running mate on a harebrained “unity ticket.” For a senator whose goal is national relevance, it was the right play. He’s now going to pretend to be the arbiter of “the middle” and the press will largely let him get away with it.

Prediction 4 — Trump Declared Acquittal Provides “Finality”… And People Will Believe Him
Verdict: Still Early, But Appears Likely

When the Mueller report concluded that the Trump campaign was too stupid to realize that they were advancing Russian interests, Trump had his Attorney General lie about the report so the White House could claim he was “exonerated.” It strikes at what people don’t get about Trump: he doesn’t need to be cleared, he just needs these things to be over. He can make up whatever story he wants once the spectacle is in the can and through repetition he can get traction. As I put it in May:

A Senate trial may be rigged affair, but it would hand him the rhetorical flourish he desperately wants — “it’s over… they tried me and found nothing.” Trump would get to repeat this mantra twenty times a day for a year and a half. He gets to point and say “scoreboard” whenever anyone challenges him. For a candidate whose electoral success is entirely tied to exuding the appearance — deserved or not — of “winning” this is a tremendous risk for his opponents to invite.

Will the public believe him? Checking in on Trump’s approval rating post-acquittal we find that he’s… more popular than he’s ever been. A 49 percent Gallup result may still fall below 50 percent, but for the comparable week in 2012, Obama was only at 47 percent.

So the Democrats placed a speedbump on the path to Trump’s long-term removal. In my earlier piece and on podcasts touching on this topic, I’ve always held that marathon investigations would be far more successful than impeachment. Even with witnesses ducking subpoenas, the spectacle of hearing after hearing would rob Trump of the finality he craved to begin spinning his cover. Consider the years of substance-free Benghazi hearings trying to tie the embassy attack to Hillary Clinton somehow. There wasn’t even a whiff of smoke there on the evidence and it still played into a narrative that she was vaguely corrupt. Instead, Democrats took their shot and watched it sail into the stands.

Prediction 5 — Democrats Will Suffer From Setting Themselves Up To Fail
Verdict: Unknown

Sure the whole thing got donors to open up their wallets to give to Democrats, but it also whipped people into a delusion that this was all going to amount to something. Frustrated Dems might realize this was doomed from the start and redouble their efforts to win in November. But there’s something demoralizing about failing to meet the expectations you set. Does this leave the party with the narrative mark of “failure”? This one is too early to call.

But if this does end up weighing down the Democrats in November, it should be a sobering moment for all those who uncritically pushed this process for over a year. Unfortunately, sober self-reflection is hard to come by in the media these days.

Earlier: Impeachophilia: The Democrats’ Futile And Self-Destructive Attraction To Impeachment

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

One spying scandal, you can survive. Two, even. But three? Well, that starts to look like carelessness, either in setting up a far-reaching global surveillance apparatus to make sure that no suspect employees are screwing you over, or in not knowing that such an apparatus had been set up under your nose by your closest lieutenant. And that sort of carelessness is both very detrimental to one’s reputation, and also very unSwiss. And so, no matter how good a job Tidjane Thiam did turning Credit Suisse around (a fairly decent one, it has to be said) or how many major investors wanted a different human sacrifice, this was probably inevitable (even if we didn’t realize that earlier this week).

With the Tokyo games fast approaching, my mind wonders to the parallels between the practice of law and the Olympics, of which there are many. Both involve the culmination of copious amounts of preparation and a formidable work ethic coming to a head in a competitive setting. If you succeed in your endeavor you will likely become a hero (in the eyes of your client or country, respectively). And if you fail, you will likely fade into obscurity (unless you crash and burn, in which case you will live on in infamy). It’s no wonder that many former Olympians segue into the practice of law.

A large part of what makes legal proceedings, and the Olympics, so exciting is the build-up of labor that precedes the event itself. Then, after months and sometimes years of tedious preparation, all the chips fall in a flash. In complex cases, we dedicate countless hours to wrestling with every contingency and offshoot that could reveal itself. For the Olympics, athletes spend years and small fortunes to compete against the world’s best. A good showing in the games can change an athlete’s image much like a career case can cement the reputation of an attorney.

Nowadays, most cases settle, which makes me even more appreciative that I work at a firm that prides itself on not being eager to settle and that does not shy away from actually litigating cases it takes on. In private practice, experienced litigators are becoming increasingly rarified, which makes an environment where you get to litigate sophisticated matters all-the-more covetable.

Like with the Olympics, success in the practice of law requires preparation and a formidable work ethic. While preparation may be the ticket of entry to the soirée of litigation, technique is equally important. Last summer, I attended the U.S. Open Championship at Pebble Beach (golf was reintroduced at the 2016 Summer Olympics) and I was amazed at the technical abilities of all the golfers on full display during their warmups. Likewise, I was amazed when I realized the level of preparation  and the mechanics our firm takes in handling arguments. I was no stranger to preparing outlines and running through arguments with colleagues — but the commitment to the art of argument is second to none here — going so far as to hire members of the public to act as juries.

The process is the practice. So, with winter coming to a close and the summer games on the horizon, let’s all take a moment to pause and appreciate the intellectual Olympians our work forces us to be. Now, back to work for me. I hope I stick the landing.

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Timothy M. Lupinek is an attorney at Balestriere Fariello who represents companies and individuals in state, appellate, and administrative courts of Maryland. He focuses his practice on complex commercial litigation with thousands of hours of civil, criminal, and regulatory trial experience. You can reach Timothy at timothy.m.lupinek @balestrierefariello.com.

Paul Weiss, you can’t hide. We can see your greedy side.

As long as you work for Exxon, we won’t work for you.

— students at Yale Law School yelled these chants during a Paul Weiss boycott outside the firm’s first-year recruitment reception at the elite school yesterday. Students are targeting Paul Weiss for its representation of ExxonMobil, claiming that the firm has aided the oil and gas company in “decades of disinformation to obstruct climate action.” Last month, students at Harvard Law protested at a Paul Weiss recruitment event, demanding that the firm drop Exxon as a client.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

As you probably recall, Donald Trump has repeatedly talked about “opening up our libel laws” and making it easier to sue people for defamation “and win lots of money.” As we pointed out when he first raised this issue, while Trump cannot directly impact libel laws (which are state laws, not federal, and are bounded by the 1st Amendment, which he cannot change), he can have an impact in many other ways — from appointing judges to blocking any attempt at a federal anti-SLAPP law that would protect people from bogus defamation lawsuits.

So, back in the fall of 2018, we found it mildly amusing to see Trump himself using an anti-SLAPP law to successfully defeat a (highly questionable) defamation lawsuit from Stormy Daniels. Even more surprising was that Trump was represented in this case by lawyer Charles Harder, who has built up quite a reputation for suing media companies on behalf of the rich and powerful. As many people know, he was the lawyer in the case against us at Techdirt, in which he argued against the application of California’s anti-SLAPP law to get us out of the lawsuit and to award us legal fees. An old Hollywood Reporter profile of Harder described how he, too, hoped to change the standards for defamation and make it easier to sue:

“I think the actual malice standard is too stringent,” says Harder, perhaps previewing how a Donald Trump administration might approach the media and the laws governing it. “If you look at Justice [Byron] White’s opinion in a Supreme Court case 20 years after New York Times v. Sullivan, he wrote a dissent and said we all made a mistake, that it has gotten to a point where it has created huge problems for a public figure who is defamed to do anything about it.”

That profile also noted that Harder was well aware of the different anti-SLAPP laws in different jurisdictions:

In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases. The Hogan suit took place in Florida, where a jury might be friendlier to a local celebrity. The Heard case was in Nevada before it was dropped. Melania’s lawsuit is proceeding in Maryland, which some legal experts speculate is because of its plaintiff-friendly rules that won’t require her to pay the Daily Mail’s legal bill if she loses.

In the case against us, Harder argued that the use of words like “liar” and “fake” constituted defamation. However, as Trump’s lawyer defending him from Daniels’ claim of defamation, Harder noted:

It does not matter that the President used strident language (“nonexistent,” “con job,” and “fake news”) in expressing his opinion doubting the veracity of Plaintiff’s allegation rather than using more genteel terminology. Rhetorical hyperbole is not actionable as defamation…. Courts throughout the United States have routinely held that terminology similar to that used by the President is constitutionally protected opinion and non-actionable.

[….]

Indeed, since the founding of our republic, politicians have often expressed their opinions by branding their opponents as “liars.” Doing so does not subject every such politician to a defamation claim. President Trump himself has expressed his opinions regarding multiple adversaries, sometimes referring to his opponents by colorful names such as “Lyin’ Ted” and “Crooked Hillary.” A defamation standard that turns typical political rhetoric into actionable defamation would chill expression that is central to the First Amendment and political speech.

And… in that instance, I completely agree with Harder and Trump, even though it would seem to contradict his argument in the case against us. But, hey, I guess zealous defense of your clients doesn’t always require consistent arguments.

Along those lines, the case between Daniels and Trump continues, and Harder is now in the position of singing the praises of California and Texas’s anti-SLAPP laws, because that’s what helped Trump succeed against Daniels.

A key issue that has come up in the Daniels/Trump suit is one that various courts have differed on over the years: whether or not state anti-SLAPP laws can be used in federal courts. The various circuits are split on this issue, with some arguing that anti-SLAPP laws are procedural, and state laws cannot regulate federal rules of civil procedure, while others ague that the law is substantive, and thus can be applied in federal court. What makes things even more tricky is that while the Daniels/Trump suit is taking place in California, the anti-SLAPP law used was the Texas Citizens Participation Act (TCPA). And while the 9th Circuit (which covers California) has said that state anti-SLAPP laws (like California’s) are substantive and thus can be used in federal court, just recently the 5th Circuit went the other way, and said that the TCPA is procedural, and thus cannot be applied in federal court. I think this is a bad and problematic ruling, which at the very least shows us the need for a federal anti-SLAPP law.

Either way, this leaves the Daniels case in a weird sort of nowhere land — and on appeal Harder needs to argue that the TCPA can apply in federal court in California, even if it can’t in Texas. And his argument is to point to 9th Circuit precedent regarding California’s anti-SLAPP law:

At the hearing (see the video recording here), Harder called Texas’ anti-SLAPP statute a “substantive” change (rather than a procedural one), and added it was virtually identical to California’s anti-SLAPP statute, which has repeatedly been affirmed by the Ninth Circuit. He then quoted Wardlaw in Makaeff v. Trump University when she wrote, “Through anti-SLAPP laws, the legislatures of Arizona, California, Guam, Hawaii, Nevada, Oregon, and Washington have decided to impose substantive limitations on certain state law actions. Refusing to recognize these limitations in federal court is bad policy. If we ignore how states have limited actions under their own laws, we not only flush away state legislatures’ considered decisions on matters of state law, but we also put the federal courts at risk of being swept away in a rising tide of frivolous state actions that would be filed in our circuit’s federal courts.”

It’s pretty incredible to have Harder making that argument, but hey, Charles, welcome to team pro free speech and against frivolous defamation lawsuits. The more, the merrier.

The appeals court panel did point out to Harder that if the case had been brought in Texas federal court, under the recent 5th Circuit ruling, he wouldn’t be allowed to use the TCPA, and Harder’s response was basically that since the case was filed before that ruling, perhaps the 5th Circuit would have ruled otherwise if it was a different case (or this case) up for review:

“The only reason is, had you brought this case in Texas federal court, you would not have this motion available to you, right?” asked Wardlaw.

“At the time we filed it, the Klocke decision had not come about,” answered Harder. “If our case had preceded the other one, perhaps the Fifth Circuit would have been persuaded otherwise. I don’t know.”

And then, as the Hollywood Reporter notes, Harder defended strong anti-SLAPP laws in federal court, warning that otherwise lawyers might go forum shopping (?!?):

Harder then made the point that without federal court application of anti-SLAPP statutes, plaintiffs would “forum-shop” their suits into such jurisdictions in order to gain advantage. Said Harder, “This court correctly recognized that if the legislature wants to get rid of SLAPP suits, you apply the SLAPP statutes everywhere they can be applied including in federal courts. Klocke wasn’t looking at forum shopping. I think it missed an important point.”

Remember, this is the same lawyer who keeps charts of different forum rules and has a history of filing his lawsuit strategically — frequently in places with no or weak anti-SLAPP laws.

Anyway, as I noted when Harder/Trump initially won this ruling, I think it’s the right ruling and I’m actually happy to see that Harder and Trump find themselves in a position of supporting free speech and good, effective, anti-SLAPP laws — though I’m skeptical if they believe it applies beyond situations in which they, themselves, have immediate benefit.

Pigs Fly As Charles Harder And Donald Trump Support Anti-SLAPP Laws (When They Protect Trump, Of Course)

More Law-Related Stories From Techdirt:

Google Says Clearview’s Site Scraping Is Wrong; Clearview Reminds Google It Scrapes Sites All The Time
Federal Court Ignores Journalist Privilege For Reporting On Court Documents; Allows Bullshit Defamation Suit To Proceed
Transparency Report Shows Ancestry.com Rejected A Warrant Demanding Access To Its DNA Database

At this year’s Legalweek, ATL editor Kathryn Rubino carried out a series of interviews with some of our Evolve the Law members exhibiting at the show. Check out our conversations about innovation, new legal technologies, and… rom coms!

We talked with Litera about transition management evolution and their new anonymize launch.

ThoughtRiver told us how to read a contract without reading it.

We chatted with ContractPodAI about digital transformation in the industry.

AbacusNext talked to us about integration of flagship and automation driving firm profitability.

We chatted with Mitratech about the future of legal ops.

Worldox told us about innovative document management solutions.

We talked with HighQ about the new relationship with Thomson Reuters and upcoming enhancements to HighQ.

Until next year!

Stop the presses! A bunch of people on the internet passionately disagree about something! I know it’s hard to believe, but hear me out, because this time the debate raises important and provocative questions that go to the heart of the legal profession’s evolving identity.

It started with a post on LinkedIn by Julie Savarino that begins “Let’s all stop using ‘NON-LAWYER!’” I recommend taking a few minutes to read the post and the comments it spawned. The basic gist is that the term non-lawyer is “implicitly insulting and offensive” and ought to be stricken from our vocabularies.

As one might expect from a proposal to change the way other people speak, the discussion got heated. Many commenters enthusiastically agreed with Savarino, and they shared their own stories of times they felt derisively written off as a “non-lawyer” despite their substantial training, education, experience, and contributions. Others scoffed at her proposal as PC gobbledygook. “Non-lawyer,” they pointed out, is a facially neutral and descriptive term, and anyone offended by it needs to get over their own insecurities.

Within a week the post had been viewed over 73,000 times, with the likes and comments piling on top of one another. Clearly, Savarino struck a nerve with her followers. The post certainly made me think, as the phrase is relatively common in the industry. After reading Savarino’s proposal, I spent several days talking to my colleagues about it to get their perspectives.

A Necessary Distinction?

Most of the attorneys I spoke to tended to oppose Savarino’s idea — at least initially. Some of it, I think, comes from the impression that Savarino is trying to erase a legally, ethically, and factually important distinction. Governing ethics rules require lawyers to pay attention to the difference on a daily basis. Just this week, I had the opportunity to speak on a panel about whether there’s a legal tech VC bubble at Legalweek in New York City, and the conversation migrated to state ethics rules that limit law firm ownership to licensed attorneys. In that instance, the distinction between lawyers and others was critical for discussing how and where venture capital can flow. Similarly, lawyers are duty-bound to think about the distinction to avoid the unauthorized practice of law.

Part of becoming a lawyer is being trained in the difference that being a licensed lawyer makes. It’s not surprising, then, that lawyers tend to view disallowing terms like “non-lawyer” as functionally difficult, and maybe altogether unworkable. So is the term nothing more than a necessary tool to ensure compliance with controlling ethics rules? Do people just need to get over it?

A Deep History Of Jerkiness

In sharp contrast to lawyers, the legal colleagues with whom I spoke who do not hold JDs almost universally despised the “non-lawyer” phrase. Several suggested it contributes to classism within the legal industry — diminishing their value and contributions. Others viewed it as simply another way lawyers can remind themselves and everyone else of their greatness.

Ego almost certainly plays a part in this discussion. As attorneys, we earn an “Esq.” after our names, and we rarely hesitate to show it off. Being a lawyer makes us feel important in a way we otherwise wouldn’t be. We’re a proud, frankly arrogant, profession that has historically enjoyed a lot of social and professional privileges. And to the privileged, calls for equal treatment of others can sometimes feel like calls for oppression.

The most powerful comments on Savarino’s posts I read were the stories from legal personnel of the outright disrespect the attorneys with whom they work showed for them. Some commenters recalled being divided not just into attorneys and non-attorneys, but also “fee earners” and “non-fee earners,” or even worse, “fee burners.” There’s nothing implicit about that distinction; it flatly characterizes non-attorneys as either adding nothing to the firm’s bottom line, or actively dragging it down.

I’ll add my own story to the pile. I unfortunately once heard an attorney refer to a firm staff member simply as “the overhead.” That’s right, a hard-working human being was referred to the same way we might refer to pens, staplers, or a copy machine. Hopefully most of my fellow attorneys would be aghast to hear a colleague speak like that, but there are sadly probably more than a few in our industry that might nod their heads in approval.

The culture of law is based on a deeply hierarchical, nearly feudal social structure. Lawyers sit at the top, whether they have 30 years of experience or just passed their bar, and everyone else is down somewhere below. That’s how it’s been within the living memory of the profession. When a system has been around that long, it’s easy to internalize it and assume that’s how things always have to be. It’s especially easy to internalize a system when you’re at the top of it.

Liberté, Égalité, Fraternité

It doesn’t have to be this way, and it shouldn’t. Sorry lawyers, like it or not, without the many allied legal professionals with whom you work, you wouldn’t have a job or drive that fancy Mercedes. What’s more, every day, creative “non-lawyer” founders are launching and building legal businesses, and many of our clients are lining up saying they prefer their legal work to ours.

I might be a partner today, but my first job at my firm was as a file clerk. The work I did then contributed to my firm’s success, just the same as the work I do today.

I’m proud of the strides my firm has made toward a more egalitarian structure. The firm used to hold separate holiday parties, one for attorneys, one for staff. We’ve combined them into one. When one of our offices recently relocated, we did away with separate attorney and staff lounges and built one place for everyone to relax in, regardless of job title. Across the industry, there’s been expected resistance to changes like these from some attorneys. I’ve also heard stories of vocal resistance from staff members who prefer not having to deal with attorneys on their downtime. But we’re all on one team, and I don’t think any of us should tolerate a system that creates second-class citizens. Regardless of education, licensure, experience, or history, everyone in a law firm is contributing to serving clients.

While the internet debate about the viability of Savarino’s specific proposal rages on, the emotional heart of her idea is inarguably true. As a profession, we have a long way to go to root out our arrogance and to better value and respect the professionals that allow us to serve clients. Sometimes identifying that someone is not an attorney is appropriate and essential. Plenty of other times, it’s just some narcissistic lawyer being a jerk.

Stop, Think, Act

There’s a sign on a door at grade school my children attend. It says, “Stop, Think, Act.” The advice may be intended for preschoolers, but it applies equally to lawyers. This debate is about much more than just a hot-button phrase; it’s about a defining characteristic of the industry. So, whatever words we use, let’s consider what we’re saying, why we’re saying it, and how we say it.

If the toddlers are expected to do it, so should we.

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James Goodnow is an attorney, commentator, and Above the Law columnist. He is a graduate of Harvard Law School and is the managing partner of NLJ 250 firm Fennemore Craig. He is the co-author of Motivating Millennials, which hit number one on Amazon in the business management new release category. As a practitioner, he and his colleagues created a tech-based plaintiffs’ practice and business model. You can connect with James on Twitter (@JamesGoodnow) or by emailing him at James@JamesGoodnow.com.