Volume 19, Number 1
The Ethics of Working with Legal Assistants
By Therese A. Cannon
Paralegals play in an important and substantive role in law practice. They work directly with clients and others involved in client matters. They draft, summarize, and organize legal documents. They often have a large part in preparing cases for trial. Many paralegals work quite autonomously, exercising a good deal of independent judgment in performing their work. In carrying out their responsibilities, paralegals often encounter ethical issues and need skills in the following areas:
• Knowing the ethics rules.
• Identifying ethical dilemmas when they arise.
• Applying knowledge of the rules to the situation at hand.
• Solving ethical problems—knowing what to do in the immediate context and when to refer a problem on to a lawyer or someone else in the firm for resolution or further action.
• Accessing strong support for ethical conduct within the office, in the form of firm ethics policies and procedures and a culture of ethical conduct.
Nearly all states have adopted some version of Rule 5.3 of the ABA Model Rules of Professional Conduct, which outlines how lawyers are responsible for the ethical conduct of the nonlawyers they employ. This rule requires partners, lawyers with comparable managerial authority, and law firms "to make responsible efforts to ensure that the firm has in effect measures giving reasonable assurance" that paralegals’ actions are compatible with the lawyer’s ethical obligations. A lawyer is ethically responsible for misconduct if he or she ordered the action or ratified it with knowledge; or if he or she is a partner, has comparable managerial authority, or supervises the person, and knew of the conduct and failed to take remedial action at a time when its consequences could have been mitigated or avoided.
Delegation and Supervision
Developing good skills of delegation and supervision is critical to being successful in law practice and to ensuring that ethical and performance standards are met. Poor delegation and supervision can result in substandard work product, missed deadlines, dissatisfied clients, and possibly ethical breaches.
Delegating and supervising paralegals entails the following responsibilities:
• Selecting qualified persons with appropriate general education, paralegal education, and experience. Paralegals who have completed a formal paralegal education at an ABA-approved paralegal program have had ethics instruction, in both a specific course and the general context of studying various practice areas.
• Matching a paralegal’s skill set with the task that needs to be done. Assigning work to a paralegal who is not trained to do that specific work can be as ineffective and risky as hiring an unqualified person.
• Establishing orientation and training programs that teach paralegals about the firm’s policies, procedures, and performance. This includes ethics instruction, policies, and resources. At least 25 states have adopted guidelines for the ethical utilization of paralegal services. Many of these follow the ABA Guidelines for the Utilization of Legal Assistant Services, which were first adopted by the ABA in 1991. If your state has guidelines, these should be in your training materials. You may want to include the ABA guidelines as well. The two major paralegal associations, the National Association of Legal Assistants and the National Federation of Paralegal Associations, also publish codes of ethics.
• Outlining clear practices and procedures for delegating assignments to paralegals. A standard form e-mail or memorandum should be sent to the paralegal with each project. If the paralegal receives assignments verbally, adopt a standard form to which information concerning the assignment can be transferred for confirmation of the instructions. Among the items that should be covered in delegating work are the name of the client and matter and case number, if relevant; billing information or references; specific work that is being delegated; deadline for completion; estimate of the amount of time the task should take; references to resources or persons needed to complete the project; copies to others working on the client matter; and a special notation if the assignment is urgent.
• Reviewing the paralegal’s work. The degree and level of that review depends, of course, on the nature of the work and the paralegal’s qualifications to do the assigned work. If a paralegal is drafting a document with minor changes from a standard form, the lawyer does not have to read every word to determine that the document is properly drafted. But if a paralegal is drafting a complex document for the first time, a careful and thorough reading is needed.
• Evaluating through a formal process the quality of the paralegal’s work and general level of productivity. This should be done at least annually and can be greatly enhanced by reviewing the feedback provided regularly as work is done and projects are completed.
Unauthorized Practice of Law
Unauthorized practice of law is prohibited by law in nearly every state. And every jurisdiction has an ethics rule like Model Rule 5.5 of the ABA Model Rules of Professional Conduct, which prohibits lawyers from aiding in the unauthorized practice of law.
The general rule is that a nonlawyer cannot do any of the following three
1. Appear in court on behalf of a client.
2. Establish the attorney-client relationship.
3. Give legal advice.
Court appearances. A nonlawyer cannot represent a client in a court of law. The prohibition on court appearances by nonlawyers specifies two important types of appearances:
• Depositions. A paralegal cannot take a deposition, even if armed with a set of lawyer-approved questions, and cannot represent the interests of a client at a deposition by advising a client whose deposition is being taken. Paralegals may attend depositions to assist lawyers and to observe (i.e., to assess the demeanor of a witness).
• Pleadings. A paralegal cannot sign a pleading on behalf of a client because the filing of a pleading constitutes an appearance.
The exceptions to the court appearance rules are confined to the following three circumstances:
• Federal law allows federal administrative agencies to set the qualifications of persons who appear before them as advocates. Some agencies require that representatives be lawyers; most do not. States are split; some follow federal practice, and others hold that administrative agency advocacy is "the practice of law" and therefore requires representatives to be lawyers. States that allow nonlawyer practice before state administrative agencies also allow a nonlawyer who is lawyer-supervised to act as an advocate at hearings.
• All states participate in practical training programs that allow qualified law students registered under the program to make court appearances with lawyer supervision.
• Some enlightened courts have established local rules that allow paralegals who are registered with the court to make nonadversarial ministerial appearances before them on behalf of local lawyers.
Undertaking representation. Neither a paralegal nor any other nonlawyer may establish the lawyer-client relationship by deciding whether the lawyer will undertake representation and/or by determining the fee arrangement. Lawyers have been severely disciplined for allowing paralegals to have clients sign retainer agreements without their having met the lawyer and without the lawyer’s having reviewed and assessed whether representation was appropriate.
Legal advice. Giving legal advice includes any of the following:
• Directing or recommending a course of action with legal consequences.
• Explaining to a person his or her legal rights and responsibilities.
• Evaluating the probable outcome of a legal matter.
• Interpreting statutes, decisions, and legal documents for a person.
• Preparing legal documents for someone by applying knowledge of the law to the specific situation.
Firm policies should clearly prohibit paralegals from discussing legal matters like those detailed above. If a client asks such a question, the paralegal should restate that they cannot give legal advice and will check with the lawyer for an answer. To avoid confusion, introduce the paralegal to the client early on in the legal process. Explain the nature of the paralegal’s involvement in the case, including the benefits to the client of working with a paralegal and the limits on the paralegal’s authority to give legal advice.
Paralegals do have a major role to play in dealing with clients despite these restrictions because most communication with clients does not require the dispensing of legal advice—a lot of the contact simply keeps the client informed about the status of the case. If a paralegal refers a client’s question to the attorney and later must relay an answer, the paralegal should be specifically delegated the task of communicating the advice to the client and must not alter or expand on the advice in any way. The paralegal should confirm this matter in writing in the file in the event that this delegation is made orally.
Paralegals may communicate with judges, court personnel, witnesses, employees of clients, opposing counsel, and even opposing parties. To avoid confusion, all paralegals, especially those involved with litigation, must be made aware of the restrictions on the nature and content of such communications. The following rules should be specifically incorporated into firm policies:
• Paralegals should not have ex parte communications with judges about the subject matter of an ongoing case.
• Paralegals who uncover such adverse controlling authority in research must report it to the supervising lawyer so it can be properly addressed in documents filed with a court.
• Paralegals must be aware of rules prohibiting the introduction of false evidence and unlawfully obstructing access to or destroying or concealing evidence or witnesses.
• Paralegals should not communicate with jurors before or during a trial.
• Paralegals must not mislead witnesses and unrepresented persons regarding whose interests the lawyer represents. They should refrain from advising anyone they come into contact with about their legal rights and responsibilities.
• Paralegals may not communicate with opposing represented persons unless the contact is for the purpose of getting a second opinion or seeking new counsel.
Protecting the confidentiality of client information is the responsibility of everyone in the law firm, particularly paralegals, who have so much access to client information. Policies to protect client information should be included in policy manuals and strictly adhered to.
In addition to standard procedures concerning files and computer security, firm policies should address issues arising from new technology, such as restrictions on sending electronic materials to opposing counsel and others; measures to ensure that previous drafts cannot be electronically accessed; restrictions on the recipients of e-mail communications sent to clients and others; and policies for forwarding confidential e-mails. Because of the major role paralegals have in document production, careful instructions should be given and oversight exercised in handling document productions to avoid the inadvertent disclosure of privileged documents. Paralegals should sign confidentiality agreements that prohibit them from revealing client information and set forth penalties for breach of that commitment, including termination of employment.
Conflicts of Interest
The conflicts rules generally apply to paralegals and other nonlawyers in much the same way they apply to lawyers. Therefore, a paralegal cannot work on opposite sides of an ongoing matter and cannot work on a matter adverse to a former client if the two matters are substantially related and confidentiality is therefore jeopardized. Conflicts also can arise for paralegals as a result of familial relationship with lawyers and other paralegals or as a result of their owning stock or having other business interests in a client’s business.
In addition, through the principle of vicarious disqualification, most kinds of conflicts are imputed to everyone in the firm, thereby disqualifying the whole firm. However, the principle of vicarious disqualification has been applied more flexibly to paralegals.
The following preliminary steps should be taken when a paralegal is being hired:
• Paralegals should be screened for conflicts at the time that the firm makes an offer of employment.
• When a potential conflict is discovered, the firm must decide how to address the situation in a way that protects client confidentiality and prevents disqualification of the firm. The options include obtaining consent from the affected clients, erecting a screen to protect against the communication of confidential information, and not employing or retaining the paralegal who has the conflict.
Nearly all states allow the screening of paralegals in situations where the screening of a lawyer would not be allowed. Setting up a screen involves:
• A written agreement signed by the paralegal, indicating that he or she will not reveal any confidential information about the matter in question.
• Written communications to lawyers and all other personnel advising them about the screen and admonishing them not to discuss the matter with the affected paralegal.
• Obvious markings on client files that indicate the existence of the conflict, restrictions on access to the files, and comparable limits on access to electronic records.
• Storage of affected files in a secure place, possibly not in the usual file room.
• Restricting the paralegal from working on the team assigned to the case, or in the same physical area, if possible.
The state of Nevada does not allow the screening of paralegals if a lawyer could not be similarly screened under the rules. Case law in Kansas has also been interpreted this way. A 1988 ABA ethics opinion and the proposed new comment to ABA Model Rule 1.10 suggest that screening of nonlawyers, including paralegals, should be permissible in such cases.
Timekeeping and billing. Like others in the law firm, paralegals must follow careful procedures in keeping track of their time so that clients are not overbilled, billed for duplicate or excessive time, and the like.
Client funds and property. In small law firms it is common for the paralegal to handle client trust accounts. If this is the case in your firm, be sure that paralegals are informed about jurisdictional rules regarding client trust accounts, including the prohibition on commingling client and lawyer funds and the requirements for records. Some states do not allow nonlawyers to sign on client trust accounts. Paralegals who might be handling client property must be aware of their duties to keep property safe and to turn over property to clients promptly.
Paralegal compensation. Lawyers may not split fees with paralegals but may have a compensation plan that includes bonuses or other amounts based on productivity and firm profitability. Referral fees are also strictly prohibited, as are partnerships between lawyers and nonlawyers for the practice of law.
Fee petitions. Under the landmark case Missouri v. Jenkins (491 U.S. 274 (1989)), the U.S. Supreme Court upheld a statutory award of attorney fees that included market rate compensation for paralegal time. Since Jenkins, hundreds of cases have been decided in which fees for paralegal time were considered, giving guidance as to what must be included in a fee petition:
• The credentials of the paralegal. This includes formal college and paralegal education; voluntary certifications by the National Association of Legal Assistants (Certified Legal Assistant, Certified Legal Assistant Specialist) and National Federation Paralegal Associations (PACE Registered Paralegal); years of legal experience; and areas of expertise.
• Accurate and detailed time records.
• Information on market rates.
It should also be noted that courts often disallow fees requested for functions that are considered clerical or secretarial in nature or that are duplicative of work performed by someone else in the firm. Additionally, some courts will lower the rate of compensation if a lawyer does work that should have been delegated to a paralegal.
Therese A. Cannon is a lawyer and associate dean of the College of Extended Learning of San Francisco State University. She is the educational consultant to the ABA Standing Committee on Legal Assistants. She is the author of Ethics and Professional Responsibility for Legal Assistants , 3d ed., and A Concise Guide to Paralegal Ethics , published by Aspen Law & Business.