Assistant Alert

• Author: David L. Hudson Jr.
• Pages: 24-25

Assistant Alert

Supervision is key to e ective employment of paralegals

By David L. Hudson Jr.

Attorney usage of para legals and

legal assista nts is a respected reality

in today’s legal climate . The Bureau

of Labor Statistic s reports there will be

a 15 percent increase in par alegal jobs

from 2016 through 2026—a rate it lists as “much fas ter

than average” compared to other profes sions.

Paralegals perfor m a litany of tasks—including draft-

ing documents, preparing att orneys for

trial and organ izing client fi les. The U.S.

Supreme Court also has weighe d in, writing

in Missouri v. Jenkins, a 1 989 school deseg-

regation case, that pa ralegals provide the

“cost-e ective delivery of legal service s.”

However, attorneys must be aware of

ethical issues t hat can arise from using

paralegals and lega l assistants. Perhaps

the most direct ru le on point is Rule 5.3:

Responsibilities Regar ding Nonlawyer

Assistance i n the ABA Model Rules of

Professiona l Conduct. Among othe r

requirements, the rule ex plains that

lawyers must make rea sonable e orts

to ensure those working under them

comply with “professional obligations.”

The rule also expla ins that a lawyer who

has supervis ory authority over nonlawyers

is responsible for the ethical v iolations

committed by such nonlaw yers. Comment

2 to Rule 5.3 explain s: “A lawyer must give

such assistants appropri ate instruction

and supervision concer ning the ethical

aspects of their employment, pa rticularly

regarding the obligation not to disclos e

information relating to repres entation

of the client, and should be responsible

for their work product.”

JUGGLING ACT

Some ethics exper ts identify delegating

too much work to paralegals a s the No. 1

ethical concern for at torneys. The key is

to maintain a dequate supervision over

nonlawyer employees.

“The biggest minefi eld I see is

overworked or inattentive law yers

failing to provide adequ ate direc-

tion and supervision, leav ing the

paralegal to fi gure things out

on [their] own,” says Salt Lake

City lawyer Keith A . Call, who

has writt en about ethical issues involving paralega ls in

the Utah Bar Journal.

The process of delegating things th at are hard for

attorneys to fi gure out themselves is espe cially danger-

ous, Call says. “Under Rule 5.3, a law yer can be person-

ally responsible for the unethic al conduct of his or her

paralegal. A nd all too often, overworked or careless

lawyers can be t empted to dump too much responsibility

on the paralegal and fa il to follow up with

adequate superv ision,” he says.

A related concern is that at torneys might

give too much work to paralega ls or not real-

ize the paralegal s are actually practicing law.

Case reporters a re fi lled with complai nts

in which attorneys fa ced discipline—some-

times very serious di scipline—for allowing

their paralegals t o engage in the unauthorized

practice of law.

“While I thin k there is a problem with attor-

neys delegating to and not adequately super-

vising paralega ls, I think the bigger concern is

paralegals conducti ng themselves in ways that

could be considered the practice of law a nd

attorneys not reining th at in,” says Kellyn O.

McGee, a professor at Savanna h Law School.

“Paralegals have great k nowledge in the

areas of law that they work in,” she says,

adding that “it’s easy for them to g ive advice

or otherwise cros s the line and either not

realize that the y shouldn’t be doing it or

attorneys might believe it’s har mless.”

A specifi c variant of this problem in some

fi r ms is paralegals signing up clients. “Some

law fi r ms allow paralegals to sign up new

clients,” says ethics exper t Peter A. Joy, a

law professor at Washington University

in St. Louis. “ This can be a big prob-

lem because paralega ls cannot exercise

the independent legal judgment necessar y

to sign up a client, and sometimes par ale-

gals may be crossing the line by solic iting

cli ents .”

Joy points out another area of concern

—lawyers allowing pa ralegals to sign legal

documents.

“One area that some lawyers ig nore

both with para legals and with

other support sta is permit-

ting someone other than a

lawyer to sign a pleadi ng or

any other court fi ling,” he

Ethics

24 || ABA JOURNAL JANUARY 2018

“I THINK

THE BIGGER

CONCERN IS

PARALEGALS

CONDUCTING

THEMSELVES

IN WAYS THAT

COULD BE

CONSIDERED

THE PRACTICE

OF LAW.”

— KELLYN McGEE

PHOTOGRAPH COURTESY OF SAVANNAH LAW SCHOOL

Practice