Paralegals and Legal Ethics
AN ATTORNEY'S RESPONSIBILITIES
Jason T. Vail
is a staff attorney-legal editor with the Sargent Shriver National Center on Poverty Law in Chicago, Illinois, and has taught paralegals at Highline Community College in Seattle, Washington.
Until I had the opportunity to teach a legal ethics course for an American Bar Association-accredited paralegal studies program, I had only the vaguest idea of how ethics rules applied to the paralegals and legal assistants in my office. In retrospect, I should have known more. After all, working with paralegals and legal assistants is an integral part of most attorneys’ practices, and, as it turns out, an attorney bears a significant duty to ensure compliance by his or her paralegal or legal assistant with ethics rules. Failure to meet this obligation can result in serious consequences for the attorney.
While attorneys are bound by the Model Rules of Professional Conduct (MRPCs), paralegals are not regulated by their own set of ethical rules. In 1991, the ABA adopted Model Guidelines for the Utilization of Legal Assistant Services and in 2003 substantively revised and renamed them Model Guidelines for the Utilization of Paralegal Services ( http://www.abanet.org/legalservices/paralegals
). The Model Guidelines are a code, like the MRPCs, and they pertain directly to paralegals. A few jurisdictions have adopted these Model Guidelines, and a few states regulate paralegals or rezquire licensure. The National Federation of Paralegal Associations (NFPA) and National Association of Legal Assistants (NALA) are the two primary national professional paralegal associations, and membership in either is voluntary. Both organizations have codes of ethical conduct for their members that address similar issues as the ABA Model Guidelines.
The lack of a mandatory ethics code for paralegals means that it is incumbent upon attorneys to ensure their paralegals comply with the MRPCs. Under MRPC 5.3, an affirmative duty is imposed upon attorneys to ensure that any “nonlawyer employed or retained by or associated with a lawyer” engages in conduct that is consistent with the lawyer’s own professional obligations, including conformity with the MRPCs. The rule imposes an affirmative duty on lawyers to supervise nonlawyers to make certain that the nonlawyer complies with the MRPCs. Should the paralegal violate any MRPC at the direction of the lawyer, or if the violation is ratified by the lawyer, or if the lawyer fails to take proper remedial action once the violation is known, the lawyer may be held responsible under the MRPCs. In a somewhat related rule, the lawyer also has a responsibility, under MRPC 5.5, to avoid assisting a nonlawyer in the unauthorized practice of law.
If the paralegal is not adequately supervised by the attorney and the paralegal engages in the unauthorized practice of law, thereby causing injury to a client, it is a matter of state law. In Washington State, the question of whether the paralegal acted negligently while engaged in the unauthorized practice of law will be measured against an attorney’s standard of competence, even though the paralegal is not an attorney. Further, the legal negligence of the paralegal may be intertwined with a finding of legal negligence on the part of the attorney, and both may be found jointly liable for payment of damages. Note that your state’s legal definition of “practice of law” may include exceptions for certain activities that paralegals can undertake without implicating unauthorized practice of law.
So remember that you may have a responsibility to ensure that your paralegal not only follows the same ethical rules that you do, but also avoids the unauthorized practice of law. If your paralegal has graduated from an ABA-accredited paralegal studies program, he or she will likely have taken a course in legal ethics and will understand the duties imposed by the MRPCs and the kinds of conduct that are ethically permissible. Still, caution is in order and every attorney should carefully supervise paralegals and support staff.
This article appeared in a different form in the February 2006 De Novo , published by the Washington Young Lawyer Division.