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Business Law Today

Volume 16, Number 3 January/February 2007

No, a paralegal is not a lawyer A few things to keep in mind

By Frances P. Kao

Let's face it: A paralegal can definitely represent added value for your legal practice. But beware the possibility of bumps in the road.

Many recent articles, books and seminars have used economic analyses to demonstrate the financial benefits that paralegals can bring to a law practice. Less frequently discussed are the ethical boundaries that lawyers working with paralegals must observe. These ethical rules are ignored at a lawyer's peril since violating them can bring significant financial and reputational harm to both the lawyer as well as the firm.

Potential pitfalls can arise starting from the hiring decision and throughout the duration of the lawyer-paralegal relationship. However, a lawyer's ethical obligations when working with paralegals are relatively straightforward and, with some care, need never be the cause of an unpleasant discussion between the lawyer and his governing bar disciplinary committee.

So you're gonna hire a paralegal.

Jane Hendrick, a lawyer with a five-person firm, has just hired Bob Worth, a paralegal, to assist with the firm's general nonlitigation work. Bob Worth is currently employed by Smith & Smith, another small firm in the same city. Prior to being hired by Jane Hendrick, Bob Worth had been supporting the lawyers at Smith & Smith in a small asset-purchase transaction on behalf of Atkins Co. The seller, Baily Ltd., is represented by none other than Jane Hendrick. At the time she hired Bob, Jane did not know that Bob had been working on the Atkins/Baily deal from the Smith & Smith side.

On Bob's first day, he hears that Jane is representing Baily and he tells her that he was the one that had been assisting the lawyers doing due diligence and had taken notes at several meetings between Atkins and the lawyers from the Smith law firm. Jane likes it that Bob already knows something about the transaction and tells him he can work on the deal with her. Having a general

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4/28/2019 No, a paralegal is not a lawyer: A few things to keep in mind

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understanding of the rules on ethical conflicts, Jane purposely assigns Bob to the task of finalizing and preparing the closing documents because this does not require that Bob make use of or otherwise disclose any privileged information that he received while working at Smith & Smith. How's Jane doing so far?

Guideline 1 of the ABA Model Guidelines for the Utilization of Paralegal Services (Utilization Guidelines) provides that "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 . . . ." In turn, Rules 1.7 through 1.10 of the ABA Model Rules of Professional Conduct (Model Rules) impose specific obligations on lawyers with respect to conflicts and imputations of conflicts.

Given that conflicts rules would prohibit a lawyer from working on the opposite side of a continuing matter, it is clear that a paralegal likewise may not do so. The paralegal also cannot work on a matter adverse to a former client for whom he previously worked if the two matters are substantially related and confidentiality may be jeopardized.

Most law firms would never take the risk of hiring a new lawyer without screening those lawyers for conflicts because the principle of vicarious disqualification imputes the potential new lawyer's conflicts to everyone in the firm — thereby, disqualifying the entire firm from a particular transaction or representation. However, many lawyers and law firms do not screen paralegals or other nonlawyers for conflicts even though the same principles of vicarious disqualification apply.

As a matter of good ethical practice, all potential new hires should be screened for conflicts at the time the firm makes an offer of employment and that offer should be contingent on the results of that conflict check. The paralegal should be asked to provide written detail of every individual or entity for whom the paralegal provided services. This disclosure would then allow the hiring firm to determine whether there are conflicts between the hiring firm's business and the paralegal's prior work.

Moreover, irrespective of size, all firms should have, and should rigorously enforce, written policies regarding avoidance of ethical conflicts, how to check for conflicts and, in the event of a potential conflict, the importance of setting up ethical walls to prevent the disclosure of confidential information.

Discovering potential conflicts early is critical because it gives the hiring firm several options. First, the firm can decide if it wishes to obtain consents or conflict waivers from the affected clients. Second, the firm can erect an ethical wall to protect against the communication of confidential information from the new employee to others in the firm. Third, the firm can just decide not to hire the paralegal with the conflict.

If no conflicts checks are ever made and the paralegal is hired, the lawyer or law firm runs the risk of being entirely disqualified from representing the client on the particular transaction. In this era of increasingly competitive law practice, this is certainly an unsettling prospect.

All in a day's work.

Jane wants to make good use of Bob's experience in drafting company bylaws, articles of incorporation, board minutes and the ministerial aspects of incorporating a company. She thinks that by giving Bob substantial responsibility and treating him as a full member of the legal team, she can increase Bob's job satisfaction. Bob appreciates Jane's trust in him and always does his best for all of Jane's clients.

Jack Jameson, the founder of Conrad Inc. and a potential new client, calls Jane's office to ask about forming a new corporate entity as a Conrad Inc. subsidiary. Jane is out of town but Bob invites Jack to talk things over. During the first in-person meeting between Jack and Bob, Bob is asked whether the corporation should be formed in Delaware or New York; Jack also tells Bob that speed is of the essence.

Bob tells Jack that the entity could be most quickly and efficiently formed in Delaware. Jack, impressed with Bob's professionalism, says "great, let's get it done." Bob tells Jack that he has to sign the form retention agreement for all new clients and Jack does so. Once Jack leaves the office, Bob drafts standard articles of incorporation and also fills in the form- book company bylaws and sends them directly to Jack for his approval. A day later, after Jack gives the nod to these documents, Bob electronically completes the necessary filings to incorporate the new entity. Bob's provided terrific client service and Jane should be very pleased, right?

Not exactly. All states prohibit the unauthorized practice of law and have an ethics rule like Rule 5.5 of the ABA Model Rules, which prohibits lawyers from aiding another person in the unauthorized practice of law. Although what constitutes the unauthorized practice of law differs in specifics from state to state, there are generally three things that every state — as well as Guideline 3 of the

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Utilization Guidelines — prohibits a paralegal or other nonlawyer from doing.

First, a paralegal may not establish the attorney-client relationship. Second, a paralegal may not give legal advice. Third, a paralegal may not appear in court on behalf of a client — and this prohibition covers the taking and defending of depositions and the signing of pleadings or other papers to be filed in court.

Limited exceptions to this third prohibition exist; for example, certain federal and state agencies, certain tribal courts and certain state courts under local rules permit nonlawyers to make appearance on behalf of clients.

In addition to these three hard and fast rules, it is incumbent on the lawyer, not the paralegal, to determine what constitutes the practice of law in her jurisdiction. Lawyers should keep in mind that, in some jurisdictions, any exercise of independent legal judgment constitutes the practice of law.

A lawyer avoids running afoul of the prohibition against aiding in the unauthorized practice of law through proper delegation and supervision of paralegals. Supervision is key because the lawyer is responsible for the actions of any paralegal that she employs and proper supervision gives both the lawyer and the client confidence that the paralegal is taking substantively and ethically proper actions.

Proper delegation and supervision begins when selecting qualified persons as paralegals. A paralegal can be qualified either by education (there are some several hundred paralegal education programs that are approved by the American Bar Association) or by experience or a combination of both. Second, proper delegation and supervision means that a lawyer should match the paralegal's skill set with the task that needs to be done. For example, one should not delegate real estate closing tasks to a litigation paralegal unfamiliar with real estate transactions or assign inexperienced paralegals to tasks without appropriate instruction. A lawyer can both ensure having qualified paralegals and provide proper supervision by providing orientation and continuing training programs, either formal or on-the-job, for the paralegal.

Third, a lawyer should properly guide the paralegals' work. This means that adequate instructions should be given when assigning a new project to a paralegal. Moreover, the lawyer should also monitor the progress of each assignment to ensure that the paralegal is proceeding on the right track.

Most important, proper supervision requires that the lawyer review the paralegal's work product. It is not enough that the paralegal has performed a particular task dozens of times and will likely again perform the task properly. The lawyer must review the substantive work and be available to the paralegal to provide guidance in even routine assignments. Permitting a paralegal to issue work product on a substantive assignment without a lawyer's review can constitute aiding in the paralegal's unauthorized practice of law.

As a general matter, lawyers should implement policies to avoid putting their paralegals into difficult positions relative to client demands. For example, lawyers should implement a policy requiring their paralegals to identify themselves to new callers or visitors as paralegals who are not licensed to practice law. For small firms, the firm may want to use the standard engagement letter to clearly identify the lawyers and the paralegals.

Paralegals should also be periodically reminded to defer all legal issues to the lawyers. These procedures would comport with Guideline 4 of the Utilization Guidelines that requires lawyers to take "reasonable measures" to ensure that clients, courts and other lawyers are aware that an individual working with the lawyer is a paralegal and not licensed to practice law.

For both the lawyer and the paralegal, there are practical ramifications to engaging in and aiding in the unauthorized practice of law. In most states, unauthorized practice of law is a misdemeanor offense. Accordingly, the paralegal can be charged with a violation of law. That means that the paralegal can be subject to an injunction against future conduct and, possibly, civil penalties.

For the lawyer, if the governing disciplinary organization determines that the lawyer failed to properly supervise or otherwise aided the paralegal in the unauthorized practice of law, the lawyer may be subject to penalties such as public censure, injunction, civil penalties, disgorgement of fees and even suspension and disbarment. Also, because a paralegal's work merges into and becomes the lawyer's work, a lawyer will be held liable for the malpractice of the paralegal working under his supervision. Being charged with malpractice is one of the most severe reputation blows that a lawyer can experience.

Silence is golden.

Bob is married and his wife, Carol, is also a paralegal. Carol has brought work home and has told Bob about a particularly tricky research project she has been assigned. Bob has done this type of research before in working with one of Jane Hendrick's clients and knows that the result is highly

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fact dependent. He tells Carol the important underlying facts of the matter that he worked on and also reveals the name of the client for whom he undertook the assignment.

He and Carol then share details of both his previous assignment and the areas of similarities with her current assignment. Bob thinks nothing of telling his wife the details that the client shared with him — he is confident that his wife will not share these discussions with anybody else.

The attorney-client privilege and the ethical obligation of client confidentiality extend to the paralegal and all nonlawyers working with the lawyer. Rule 5.3 of the Model Rules provides that lawyers who are partners in a firm, who have comparable managerial authority or who have supervisory authority over nonlawyers "shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." An analogous provision exists in Guideline 6 of the Utilization Guidelines.

The effect of Model Rule 5.3 is that lawyers are responsible for nonlawyers' violations of the ethical rules if they order or ratify the act, or are partners or supervisors of the nonlawyer and fail to take timely remedial action on the conduct.

As a practical matter, lawyers must implement policies to protect client information and to train their paralegals about the importance of client confidentiality. This obligation of confidentiality extends to all types of client information including documents, files and computer security. As an initial step in implementing confidentiality policies, the lawyer may want to ask that each paralegal sign a confidentiality agreement that prohibits the paralegal from revealing any client information and that sets forth penalties for breach of that commitment, including termination of employment.

Lawyers should also highlight issues arising from new technology including placing restrictions on sending electronic materials directly to opposing counsel and the implementation of measures to ensure that previous drafts of documents cannot be accessed. Key to this effort is the routine use of built-in software features or custom programs that eliminate meta-data or lawyer notations from electronic copies of documents.

Lawyers should further consider training paralegals on limiting the number of recipients of e-mail communications sent to clients and others to avoid wide dissemination and inadvertent disclosure of client information. Further, it is important to inform paralegals and other nonlawyers that client confidentiality should be a pervasive concept. For example, client matters should not be discussed on the elevator. After all, who else is in the elevator and might be listening in? Information from or about the client should not be discussed at home with a spouse or a significant other even if the person is confident to a moral certainty that the information will go no further.

Lawyers also need to stress that, in the event of inadvertent disclosure, be it through erroneously sent e-mail, mislaid documents or otherwise, the paralegal needs to immediately inform the lawyer of the inadvertent disclosure rather than ignoring the disclosure and hoping that no ill results follow. The earlier the lawyer learns of the inadvertent disclosure, the earlier that steps can be taken to remedy the problem including informing the receiving party of the inadvertent disclosure and requesting the return of the disclosed materials.

Finally, on termination of employment, lawyers should remind the departing paralegal of her continuing obligation to maintain the client confidences learned during the course of the paralegal's employment.

Time is money.

Bob Worth is a terrific paralegal but is not a particularly organized record keeper. He often forgets to keep a detailed record of the matters he worked on and the amount of time that he spent on specific matters. He routinely turns in a month's worth of time entries on the last day of the month and "estimates" the amount of time he thinks was spent on each client's matter.

He believes he tends to underestimate the time for each client and when he cannot exactly recall what task he performed, he writes in as a time description "attention to corporate transaction." Since Bob's estimates are fair, there is no concern for Jane, right?

Paralegals and lawyers should follow the same rules when it comes to time keeping and billing. Just like all professionals in the firm, a paralegal must follow careful procedures in keeping track of work time including making accurate daily time entries with a detailed description of the task undertaken.

Keeping track of working time is important for both the law firm and for the client. The law firm should be fairly compensated for work performed on behalf of the client. Conversely, the client should only have to pay for work actually performed and time actually expended — clients should never be billed for duplicate time, excessive time or "guesstimated" time.

Accurate time keeping and proper task description are particularly important for those lawyers who

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routinely file fee petitions. With respect to such petitions, courts mandate accurate and detailed time records and, in case lawyers think appropriate delegation is unimportant, courts will often disallow fees requested for paralegals for functions that are considered clerical or secretarial in nature. Also, some courts will lower the rate of compensation if a lawyer performs work that should have been delegated to a paralegal.

More rules about money.

At the end of the year, Bob approaches Jane and tells her he needs to be compensated more than his agreed-on salary because he has worked a lot more hours than he originally anticipated when he came to the firm. Also, during the course of the year, Bob had referred several new clients to Jane. He asks Jane to give him either a referral fee a share of the fees earned from the clients he referred to Jane.

Jane tells him she will think about it and indicates that she is in favor of such an arrangement. After all, Jane gives referral fees to other lawyers who refer clients to her — what is different about doing the same for Bob?

The fact that Bob is not a lawyer is critical to Jane's analysis. A lawyer may not split fees with nonlawyers. Moreover, referral fees are strictly prohibited. What can be done, however, is for lawyers to implement a compensation plan that includes bonuses or other amounts based on the individual nonlawyer's productivity or based on the firm's profitability. There is little doubt that a paralegal is a critical member of the legal team and helps to make a lawyer's practice more efficient and profitable. To enjoy these benefits, however, lawyers must focus on proper supervision. Supervision can result in early problem spotting, enhance the proper training of nonlawyers, and give comfort to clients that proper attention is being paid to their substantive work. Supervision is also central to avoiding malpractice and violating state law and ethics rules.

After all, it is the lawyer's obligation to ensure that the paralegal is properly screened, adequately trained, performs appropriate tasks, maintains high ethical standards and produces a competent work product.

Resources

For more information about working with paralegals, visit the Web site of the American Bar Association's Standing Committee on Paralegals (www.abaparalegals.org). Or, consult the very informative book, Concise Guide to Paralegal Ethics, by Therese A. Cannon (Aspen Publishers, 2006). Also, virtually all state and local bar associations have programs or sections relating to the use of paralegals.

Kao is a partner in the Chicago office of Skadden Arps Slate Meagher & Flom LLP. Her e-mail is [email protected] She was the chair of the ABA Standing Committee on Paralegals from 2004 to 2006.

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