Ethical Considerations Regarding Legal Terminology

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

Words are important. Paralegals spend hours conducting detailed analysis of legal language in statutes, cases, pleadings, agreements, and correspondence. We also spend time carefully considering and choosing the correct terminology and phrasing for the documents we draft. Paralegals are well aware of the ability of words to convince or dissuade, and to influence, either positively or negatively, the reader.

Language changes constantly. We are required by the rules of ethics and professional responsibility to keep up with statutes and case law, and we should extend that requirement to our use of legal terminology. In addition to working to retire outdated phrases such as “comes now” and “witnesseth” (a battle many of us have with our supervising attorneys), we should also stay current on legal vocabulary.

As technology and legal practice evolve, new terms may be coined to address new legal concepts or procedures. For example, we now use the terms “e-discovery” and “efiling,” words that were not commonly used by the legal community 25 years ago. At times, legal terms are changed and updated by the government. In 2016, President Obama signed bipartisan legislation to remove the terms “Negro” and “Oriental” from federal law.

Groups of people usually determine the term or terms they prefer to identify themselves. In the United States, the term “Native Americans” was considered appropriate, but now, many Native Americans now prefer the term “American Indians.” People of Latin American descent may use the terms “Latino” or “Hispanic” interchangeably, but some argue that while all Latinos are Hispanic, but not all Hispanics are Latinos. In the case of terms used to identify groups of people, it is better to do some research to determine which term to use. If referring to a specific person, such as a client, paralegals should use the term preferred by the client.

The situation is clearer in the case of the term “Chinese Wall.” Although the origin of the term is unclear and may not have been originally intended as derogatory, the term is obviously outdated and may be offensive. Further, terms such as “ethical wall,” “ethical screen,” “informational wall,” “informational barrier,” or “firewall” (borrowed from IT) are all more accurate and require less explanation to anyone unfamiliar with the terms.

A few legal terms may be more difficult to address. For example, while many are of the opinion that the correct term for people who are in the country illegally is “undocumented immigrant,” others are equally convinced that “illegal alien” is the proper legal term. People may have social and/or political reasons as the basis for their position that their preferred term is correct. Regardless, paralegals should use the term preferred by the court in which the matter is filed, the term used in the law at issue, or a similar authority. Although the paralegal may have strong feelings regrading which term is appropriate, unless the subject of the document is the distinction between the two terms, or a related issue, the best course is to use the term preferred by the relevant authority.

Because legal terminology transforms in response to technology, practice changes, the law, and societal changes, it is another area in which paralegals should make an effort to stay updated.

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.