Office of Bar Counsel, 0620 WYBJ, Vol. 43 No. 3. 100

AuthorMark W. Gifford, Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming.
PositionVol. 43 3 Pg. 100

Office of Bar Counsel

Vol. 43 No. 3 Pg. 100

Wyoming Bar Journal

June, 2020

Supervising Nonlawyer Staff From a Distance: Rule 5.3 in the Time of the Pandemic

Mark W. Gifford, Wyoming State Bar Office of Bar Counsel Cheyenne, Wyoming.

The Wyoming Rules of Professional Conduct, like the ABA Model Rules upon which ours are based, impose particular duties upon lawyers when it comes to training and supervising nonlawyer assistants. Rule 5.3 requires lawyers who manage a law firm or directly supervise nonlawyers to make reasonable efforts to ensure that nonlawyers employed or retained by the lawyer or firm conduct themselves in a manner consistent with the lawyer’s ethical obligations. The rule also requires partners, managers and direct supervisors to take prompt corrective action when they learn of misconduct by a nonlawyer assistant. The ABA’s Model Guidelines for the Utilization of Paralegal Services provide broad guidance that is equally applicable to all non-lawyer staff, not just paralegals.

The Guidelines recognize that a lawyer may delegate to a nonlawyer any task normally performed by the lawyer except those tasks proscribed to a nonlawyer by state, court rule or other controlling authority, provided that the lawyer maintains responsibility for the work product. A lawyer may not, however, delegate to a nonlawyer (1) responsibility for establishing an attorney-client relationship; (2) responsibility for establishing the amount of a fee to be charged for a legal service; or (3) responsibility for a legal opinion rendered to a client.

Rule 5.3 emphasizes the importance of training nonlawyer assistants regarding the lawyer’s ethical duties. “A lawyer must give such assistants appropriate instruction concerning the ethical aspects of their employment particularly regarding the obligation not to disclose information relating to representation of the client and should be responsible for their work product.”[1]

The pandemic has thrust law firms of all sizes into a new reality, one where lawyers with supervisory responsibilities must constantly weigh the duty to provide competent, diligent service to clients against the desire to protect staff from unnecessary exposure to health risks. Like offices of all types throughout the nation, many Wyoming law firms have ventured into the remote practice of law on a scale few have experienced before.

Tough working from home has its fans as...

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