Effective and Ethical Use of Legal Assistants

JurisdictionColorado,United States
CitationVol. 15 No. 4 Pg. 659
Pages659
Publication year1986
15 Colo.Law. 659
Colorado Lawyer
1986.

1986, April, Pg. 659. Effective and Ethical Use of Legal Assistants




659


Vol. 15, No. 4, Pg. 659

Effective and Ethical Use of Legal Assistants

by Terence P. Fagan

To maintain an efficient and economical law practice, lawyers increasingly are using legal assistants. Both large firms and many sole practitioners or small offices greatly benefit from trained legal assistants. The Colorado Bar Association's Legal Assistants Committee has recently proposed broad guidelines for the various tasks that legal assistants may perform subject to attorney supervision.(fn1) While the scope is broad, attorneys still remain ethically and professionally responsible for the work of legal assistants, which involves dealing with clients and opposing counsel.

This article sets forth guidelines for establishing systems of supervision and provides ground rules for client and opposing attorney contacts.


Defining the Unauthorized Practice of Law

Legal assistants may perform many functions; however, they must not engage in the unauthorized practice of law. Courts usually define the practice of law to involve the exercise of legal judgment and application of legal analysis as follows:

1) Advice to another person about their rights and duties in relation to a third person.

2) Preparation or selection of a legal document which will affect the rights and duties of the person.

3) Representation of a person before a court or decision-making body which has the power to make decisions about the rights and duties of the parties.

The rationale for allowing only lawyers to practice law is to protect the "public from being advised and represented in legal matters by unqualified and undisciplined persons over whom the judicial department of the government could exercise slight or no control. . . . It is essential to the administration of justice and the proper protection of society that unlicensed persons not be permitted to prey upon the public by engaging in the practice of law."(fn2)

Colorado prohibits by statute any persons without a license from the Supreme Court to advertise, represent or hold out in any manner that they are an attorney.(fn3) In the landmark case of Conway-Bogue Realty Investment Co. v. Denver Bar Association,(fn4) the Colorado Supreme Court held that non-lawyers may not prepare or give advice with regard to instruments or documents that define, set forth, limit, terminate, specify, claim or grant legal rights.

The Supreme Court may enjoin and hold in contempt any person who engages in the unauthorized practice of law. In addition, the non-lawyer must forfeit any fees received for the services plus pay a penalty.(fn5)


Avoiding the Unauthorized Practice of Law

Although legal assistants may perform tasks setting forth or limiting clients' legal rights, attorney supervision prevents this performance from becoming the unauthorized practice of law. The following general guidelines may help attorneys and legal assistants to avoid the unauthorized practice of law.

1. At the very...

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