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Business Law Today

Volume 16, Number 3 January/February 2007

No, a paralegal is not a lawyerA 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 thepossibility of bumps in the road.

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

Potential pitfalls can arise starting from the hiring decision and throughout the duration of thelawyer-paralegal relationship. However, a lawyer's ethical obligations when working with paralegalsare relatively straightforward and, with some care, need never be the cause of an unpleasantdiscussion 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 withthe firm's general nonlitigation work. Bob Worth is currently employed by Smith & Smith, anothersmall firm in the same city. Prior to being hired by Jane Hendrick, Bob Worth had been supportingthe lawyers at Smith & Smith in a small asset-purchase transaction on behalf of Atkins Co. Theseller, Baily Ltd., is represented by none other than Jane Hendrick. At the time she hired Bob, Janedid 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 thathad been assisting the lawyers doing due diligence and had taken notes at several meetingsbetween Atkins and the lawyers from the Smith law firm. Jane likes it that Bob already knowssomething about the transaction and tells him he can work on the deal with her. Having a general

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understanding of the rules on ethical conflicts, Jane purposely assigns Bob to the task of finalizingand preparing the closing documents because this does not require that Bob make use of orotherwise 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 (UtilizationGuidelines) provides that "a lawyer is responsible for all of the professional activities of a paralegalperforming services at the lawyer's direction and should take reasonable measures to ensure thatthe paralegal's conduct is consistent with the lawyer's obligations under the rule of professionalconduct . . . ." 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 ofconflicts.

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

Most law firms would never take the risk of hiring a new lawyer without screening those lawyers forconflicts because the principle of vicarious disqualification imputes the potential new lawyer'sconflicts to everyone in the firm — thereby, disqualifying the entire firm from a particular transactionor representation. However, many lawyers and law firms do not screen paralegals or othernonlawyers 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 thetime the firm makes an offer of employment and that offer should be contingent on the results ofthat conflict check. The paralegal should be asked to provide written detail of every individual orentity for whom the paralegal provided services. This disclosure would then allow the hiring firm todetermine whether there are conflicts between the hiring firm's business and the paralegal's priorwork.

Moreover, irrespective of size, all firms should have, and should rigorously enforce, written policiesregarding avoidance of ethical conflicts, how to check for conflicts and, in the event of a potentialconflict, the importance of setting up ethical walls to prevent the disclosure of confidentialinformation.

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 confidentialinformation from the new employee to others in the firm. Third, the firm can just decide not to hirethe paralegal with the conflict.

If no conflicts checks are ever made and the paralegal is hired, the lawyer or law firm runs the riskof being entirely disqualified from representing the client on the particular transaction. In this era ofincreasingly 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 ofincorporation, board minutes and the ministerial aspects of incorporating a company. She thinksthat by giving Bob substantial responsibility and treating him as a full member of the legal team, shecan increase Bob's job satisfaction. Bob appreciates Jane's trust in him and always does his best forall of Jane's clients.

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

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 tosign 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 givesthe nod to these documents, Bob electronically completes the necessary filings to incorporate thenew 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 5.5of the ABA Model Rules, which prohibits lawyers from aiding another person in the unauthorizedpractice of law. Although what constitutes the unauthorized practice of law differs in specifics fromstate 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 notgive legal advice. Third, a paralegal may not appear in court on behalf of a client — and thisprohibition covers the taking and defending of depositions and the signing of pleadings or otherpapers 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 makeappearance on behalf of clients.

In addition to these three hard and fast rules, it is incumbent on the lawyer, not the paralegal, todetermine 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 lawthrough proper delegation and supervision of paralegals. Supervision is key because the lawyer isresponsible for the actions of any paralegal that she employs and proper supervision gives both thelawyer and the client confidence that the paralegal is taking substantively and ethically properactions.

Proper delegation and supervision begins when selecting qualified persons as paralegals. A paralegalcan be qualified either by education (there are some several hundred paralegal education programsthat 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 skillset with the task that needs to be done. For example, one should not delegate real estate closingtasks to a litigation paralegal unfamiliar with real estate transactions or assign inexperiencedparalegals to tasks without appropriate instruction. A lawyer can both ensure having qualifiedparalegals 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 instructionsshould be given when assigning a new project to a paralegal. Moreover, the lawyer should alsomonitor the progress of each assignment to ensure that the paralegal is proceeding on the righttrack.

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

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

Paralegals should also be periodically reminded to defer all legal issues to the lawyers. Theseprocedures 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 individualworking 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 inthe unauthorized practice of law. In most states, unauthorized practice of law is a misdemeanoroffense. Accordingly, the paralegal can be charged with a violation of law. That means that theparalegal 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 toproperly supervise or otherwise aided the paralegal in the unauthorized practice of law, the lawyermay be subject to penalties such as public censure, injunction, civil penalties, disgorgement of feesand even suspension and disbarment. Also, because a paralegal's work merges into and becomesthe lawyer's work, a lawyer will be held liable for the malpractice of the paralegal working under hissupervision. Being charged with malpractice is one of the most severe reputation blows that alawyer can experience.

Silence is golden.

Bob is married and his wife, Carol, is also a paralegal. Carol has brought work home and has toldBob about a particularly tricky research project she has been assigned. Bob has done this type ofresearch 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 andalso 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 withher current assignment. Bob thinks nothing of telling his wife the details that the client shared withhim — 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 theparalegal and all nonlawyers working with the lawyer. Rule 5.3 of the Model Rules provides thatlawyers who are partners in a firm, who have comparable managerial authority or who havesupervisory authority over nonlawyers "shall make reasonable efforts to ensure that the person'sconduct is compatible with the professional obligations of the lawyer." An analogous provision existsin Guideline 6 of the Utilization Guidelines.

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

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

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

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

Lawyers also need to stress that, in the event of inadvertent disclosure, be it through erroneouslysent e-mail, mislaid documents or otherwise, the paralegal needs to immediately inform the lawyerof 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 toremedy the problem including informing the receiving party of the inadvertent disclosure andrequesting the return of the disclosed materials.

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

Time is money.

Bob Worth is a terrific paralegal but is not a particularly organized record keeper. He often forgets tokeep a detailed record of the matters he worked on and the amount of time that he spent on specificmatters. 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 recallwhat 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. Justlike all professionals in the firm, a paralegal must follow careful procedures in keeping track of worktime 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 firmshould be fairly compensated for work performed on behalf of the client. Conversely, the clientshould only have to pay for work actually performed and time actually expended — clients shouldnever 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 timerecords and, in case lawyers think appropriate delegation is unimportant, courts will often disallowfees 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 beendelegated 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 thanhis agreed-on salary because he has worked a lot more hours than he originally anticipated when hecame 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 referredto Jane.

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

The fact that Bob is not a lawyer is critical to Jane's analysis. A lawyer may not split fees withnonlawyers. Moreover, referral fees are strictly prohibited. What can be done, however, is for lawyersto implement a compensation plan that includes bonuses or other amounts based on the individualnonlawyer'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 alawyer's practice more efficient and profitable. To enjoy these benefits, however, lawyers must focuson proper supervision. Supervision can result in early problem spotting, enhance the proper trainingof nonlawyers, and give comfort to clients that proper attention is being paid to their substantivework. 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, adequatelytrained, performs appropriate tasks, maintains high ethical standards and produces a competentwork product.

Resources

For more information about working with paralegals, visit the Web site of the American BarAssociation'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 theuse of paralegals.

Kao is a partner in the Chicago office of Skadden Arps Slate Meagher & Flom LLP. Her e-mail [email protected]. She was the chair of the ABA Standing Committee on Paralegals from 2004 to2006.

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