South Carolina Lawyer
SC Lawyer, July 2009, #4.
Ethical Obligations in Using Paralegals
South Carolina LawyerJuly 2009Ethical Obligations in Using Paralegals Almost everything in life that is valuable can also be harmful. And so it is with one of the most valuable assets in the practice of law-an excellent paralegal. Most lawyers use paralegals to perform a wide variety of tasks, both in litigation and transactional matters. As a paralegal becomes more experienced, a lawyer may increasingly rely on the paralegal and feel confidence in the ability of the paralegal to perform assigned tasks. But the use of paralegals can be dangerous. New paralegals may be unaware of important ethical obligations of lawyers; even experienced paralegals can become overconfident in their ability and exceed their authority. What steps should lawyers take to protect themselves against ethical problems caused by their paralegals?
Rule 5.3 of the Rules of Professional Conduct provides three levels of ethical obligations in the use of paralegals and other nonlawyer employees (such as secretaries, investigators, or office managers). First, a partner or person having similar managerial authority in the firm or legal organization has an obligation to "make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer." SCRPC 5.3(a). I refer to this as the structural obligation. It requires the firm's partners to make sure the firm has in place policies and procedures designed to give reasonable assurance that nonlawyers comply with the rules of professional conduct. See comment 2 to SCRPC 5.3. (SCRPC 5.1 imposes similar obligations with regard to the conduct of subordinate lawyers.) Second, a lawyer who has direct supervisory authority over a nonlawyer has an obligation to "make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." SCRPC 5.3(b). Supervisors must implement and monitor compliance with the policies and procedures established by the firm and deal with problems that may arise. Finally, a lawyer is ethically responsible for the conduct of a nonlawyer if the lawyer orders the conduct, ratifies the conduct, or fails to take remedial action when the consequences of the conduct can be avoided or mitigated. SCRPC 5.3(c)...