A paralegal is a critical member of the legal team and can greatly enhance a firm’s efficiency and productivity. But to ensure that an ethical relationship is maintained, a lawyer must provide a paralegal with proper supervision, adequate training, appropriate tasks to perform, and perhaps most importantly, high standards to strive for.
The process of delegating things that are hard for attorneys to figure out themselves is especially dangerous, Call says. “Under Rule 5.3, a lawyer can be personally responsible for the unethical conduct of his or her paralegal.
However, there are jurisdictions where paralegals have historically been allowed to practice outside of an attorney’s supervision, usually in the role of aiding in document preparation.
To promote the effective and ethical use of paralegals, highlight the key ethical matters that come into play when a nonlawyer is involved in the delivery of legal services, such as unauthorized practice of law, confidentiality, conflicts, and fee splitting. What are the ABA Model Guidelines for the Utilization of Paralegal Services?
If paralegals breach legal ethics, serious sanctions can result, including suspension or revocation of your paralegal license, a fine, loss of your job, or, if there was criminal activity, referral to the appropriate authorities. Legal ethics for paralegals are similar to those for lawyers.
A lawyer is someone who has studied law and has the authority and qualification to practice it whereas a paralegal can work for an attorney but cannot practice law. Paralegals can research cases, file documents and help prepare legal reports for the lawyer they work for.
These are requirements of Competence, Diligence, and Professional Integrity, requirements of Client Confidentiality, rules concerning Conflicts of Interest, responsibilities of supervisory lawyers' regarding nonlawyer assistants; and prohibitions concerning the Unauthorized Practice of Law.
researching, interpreting, and applying legal principles of the most complex nature within the assigned work area. Reviews, edits, analyzes, discusses, and provides final approval for written work of attorneys, as well as work product including charging decisions and case resolution.
The paralegal plays an important role on any legal team. They help support lawyers during trial and to prepare for cases. The paralegal is the heart of a law firm as they are taking on more duties formerly given to legal secretaries and entry-level lawyers.
How can a paralegal provide support to both the attorney and client when a matter is referred? Paralegals must understand the legal problem involved which must be referred. Paralegals should ensure to obtain all the necessary required information before referring the case to the attorney.
What should a paralegal do if his or her supervising lawyer does not carefully review his or her work? The paralegal has an obligation to discuss the matter with the lawyer to encourage more careful review.
Here are five ethical dilemmas that paralegals encounter in their work:Unauthorized Practice. ... Maintaining Confidentiality. ... Supervising Attorney Reviewing the Paralegal's Work. ... Role of Technology. ... Conflicts of Interest.
A paralegal shall preserve and protect the confidences and secrets of a client. Many of us have worked on high-profile matters. In those situations, everyone involved is often given strict instructions on how to maintain confidential information about the case and who may answer questions from outside the firm.
(a) An attorney supervising or directing another attorney who is appearing and practicing before the Commission in the representation of an issuer is a supervisory attorney. An issuer's chief legal officer (or the equivalent thereof) is a supervisory attorney under this section.
To qualify as a Legal Aid Supervisor, an individual must meet one of the following criterion: Have supervised in the relevant Category of Law and/or Class of Work at least one full-time Caseworker (or equivalent) for at least one year in the five-year period prior to application.
Ethical considerations for attorneys working with paralegals. Lawyers who employ paralegals have certain ethical obligations as well, and the failure to observe them could result in significant financial as well as reputational harm to themselves and their firm.
The attorney’s ethical obligations regarding client-lawyer relationship s and confidentiality extend to paralegals as well as all non-lawyers working with the client. This obligation of confidentiality covers all types of client communication, including documents, files, phone calls, email communications, in-person conversations, posts on social media, and even discussions at home with a spouse or significant other.
Ethical rules for paralegals and their supervising attorneys. Paralegals bring many benefits to a legal practice, and with benefits come many ethical responsibilities. These responsibilities involve not only the manner in which paralegals should conduct themselves but also the ethical considerations that the lawyers who supervise them need to make.
According to Guideline 1 of the ABA Model Guidelines for the Utilization of Paralegal Services, “a lawyer is responsible for all of the professional activities of a paralegal performing services at the lawyer’s direction and should take reasonable measures to ensure that the paralegal’s conduct is consistent with the lawyer’s obligations under the rule of professional conduct.”
If a paralegal is hired without being screened, the firm runs the risk of being disqualified from representing a client or being involved in a particular matter, should a conflict come to light later on.
Appropriate supervision is key because a lawyer is ultimately responsible for all the actions of any paralegal under their employ.
A paralegal is a critical member of the legal team and can greatly enhance a firm’s efficiency and productivity. But to ensure that an ethical relationship is maintained, a lawyer must provide a paralegal with proper supervision, adequate training, appropriate tasks to perform, and perhaps most importantly, high standards to strive for. ***. ...
Attorney usage of paralegals and legal assistants is a respected reality in today’s legal climate. The Bureau of Labor Statistics reports there will be a 15 percent increase in paralegal jobs from 2016 through 2026—a rate it lists as “much faster than average” compared to other professions. Paralegals perform a litany of tasks—including drafting ...
Paralegals perform a litany of tasks—including drafting documents, preparing attorneys for trial and organizing client files. The U.S. Supreme Court also has weighed in, writing in Missouri v. Jenkins, a 1989 school desegregation case, that paralegals provide the “cost-effective delivery of legal services.”
Paralegals must take great care to make sure that confidential client data is not transmitted to the other side or to third parties.
But lawyers must take their duty of supervision for legal employees seriously to ensure ethical compliance.
Confidentiality extends to conversations about cases. Call cautions that lawyers should “train paralegals to avoid talking about confidential matters with family members and friends.” Paralegals might not have the same level of training on confidentiality as attorneys, who have the concept “drilled into them in law school, bar exams and CLE programs,” he says.
Paralegals sometimes switch law firms, just like attorneys do. Law firms must have proper screening mechanisms in place to guarantee that paralegals have no conflicts of interest. A classic textbook case is In re Complex Asbestos Litigation (1991), in which the California 1st District Court of Appeal ruled that a law firm was disqualified from asbestos litigation because the firm hired a paralegal who had worked on the same case with the law firm on the other side. The firm failed to properly screen the paralegal, leading to the disqualification of the law firm from nine related asbestos lawsuits.
Kellyn McGee: “I think the bigger concern is paralegals conducting themselves in ways that could be considered the practice of law.” Photo courtesy of Savannah Law School.
The belief that licensing can provide paralegals with greater autonomy to provide legal services directly to consumers and clients who were otherwise restricted access to them on economic grounds. Therefore, the central idea is that licensing paralegals on a more widespread basis could benefit the standards and availability of the law.
A direct advantage of removing attorney supervision, is that those that are for licensing and against mandated attorney supervision, is that it can open up the level of legal care available to lower class, lower income parties.
An argument for this is that licensing can do a far better job regulating the standard of paralegals entering into the industry, allowing this improved standard of paralegal services to be able to operate more autonomously.
Since paralegals are often unlicensed, and thus unregulated, they are usually defined in somewhat reductive terms, mainly in the means by which their actions in the legal industry are restrained and restricted.
However, there are jurisdictions where paralegals have historically been allowed to practice outside of an attorney’s supervision, usually in the role of aiding in document preparation. Very few jurisdictions have gone on to license independent paralegals, with California being the main example in its licensing of Legal Document Assistants, ...
The central belief behind this mandate is that attorneys are licensed, having passed a local bar exam, and are ultimately responsible for the strategy implemented that directs paralegals, and who must ultimately place their name on any work completed by a paralegal, thus giving them a level of ownership by oversight.
In the mid- to late 1800s, state and local bar associations began to gain strength, and the first unauthorized practice of law (UPL) statutes were passed. These laws prohibited court appearances by anyone not licensed as an attorney, prohibited the practice of law by court personnel such as bailiffs, and made it illegal for an unlicensed person to hold himself or herself out as an attorney and for a nonlawyer to form a partnership with a lawyer.
The unauthorized practice of law is a misdemeanor in more than 30 states and subjects a person to civil contempt proceedings in more than 25 states.
The paralegal may communicate advice so long as it is the advice of the attorney . It must be the exact legal opinion of the attorney, however, without expansion or interpretation by the paralegal.
Distributing self-help materials does not constitute the unauthorized practice of law as long as the materials are not distributed in conjunction with direct personalized assistance in completing the forms or procedures by nonlawyers.
No one definitiv e list of activities constitutes the practice of law.
The facts reported in the opinion indicate that there was information contained in several of the files that should have alerted the lawyer that the wrong person was being pursued. What appears to have troubled the Appellate Division panel was that the conduct occurred despite the existence of contrary information contained in the attorney’s files.
Four charges were made against the collection law firm and its principal attorney in 2008 stemming from multiple matters, all involving debt collection. The facts outlined in the opinion noted instances where the wrong person was sued and, in some cases, the debt was previously satisfied. Another grievance concerned a satisfaction of judgment that had not been timely filed.
Debt collection attorneys are often (and in some cases routinely) subject to lawsuits brought against them by the very persons they are retained to pursue and so have implemented procedures designed to avoid transgressions.
Donald Maurice provides counsel to the financial services industry , successfully litigating matters in the state and federal courts in individual and class actions. He has successfully argued before the Third, Fourth and Eighth Circuit U.S. Courts of Appeals, and has represented the financial services industry before several courts including as counsel for amicus curiae before the United States Supreme Court. He counsels clients in regulatory actions before the CFPB, and other federal and state regulators and in the development and testing of debt collection compliance systems. Don is peer-rated AV by Martindale-Hubbell, the worldwide guide to lawyers. In addition to being a frequent speaker and author on consumer financial services law, he serves as outside counsel to RMA International, on the governing Board of Regents of the American College of Consumer Financial Services Lawyers and on the Governing Committee of the Conference on Consumer Finance Law. From 2014 to 2017, he chaired the ABA's Bankruptcy and Debt Collection Subcommittee. For more information, see https://mauricewutscher.com/attorneys/donald-maurice/
There is no single solution for all law firms. Procedures must be tailored to the particular operations of each firm and the skills of the supervised persons. Mistakes are inevitable and there is no way to avoid them, but there is a way to avoid discipline when mistakes do happen. Notes:
It does not appear that the principal attorney personally handled any of the matters that were the basis for discipline. But the opinion largely faults the principal attorney for the conduct even if he lacked personal knowledge of the transgressions.