Spring 2002, pg. 106. An attorney's professional responsibility for non-lawyer staff and consultants: Beware!.


Maine Bar Journal


Spring 2002, pg. 106.

An attorney's professional responsibility for non-lawyer staff and consultants: Beware!

Maine Bar JournalSpring 2002An attorney's professional responsibility for non-lawyer staff and consultants: Beware!JEFFREY A. THALERParalegals have become an essential and predictable element in the practice of law only in the last twenty-five or so years. Virtually every Maine attorney in public or private practice, solo or with dozens of partners, employs a legal assistant. Yet few attorneys have thought through their potential ethical liability for mistakes or misconduct of their professional assistants. Of even less general knowledge is an attorney's professional responsibility for the conduct of non-employees; this includes such typical independent contractors as private investigators, consultants, or expert witnesses.

It is hard enough for Maine attorneys to monitor their own compliance with the Maine Bar Rules; to be ethically liable for the actions or omissions of others is a significantly unrecognized risk for practitioners. This article is a wake-up call for law firms and attorneys who need to educate their non-lawyer assistants into the obligations and duties imposed by the Bar Rules.

  1. Authoritative Guidelines Relating to Legal Assistant Services

    In 1999 the Maine Legislature adopted the 1997 American Bar Association definition of paralegal and legal assistant: "a person, qualified by education, training, or work experience, who is employed or retained by an attorney, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which an attorney is responsible" (emphasis added). 4 M.R.S.A. §921(1). This statute and the Bar Rules govern attorney responsibility for the "substantive legal work" performed by paralegals and secretaries, and provide important guidance for the attorney-staff team on such important issues of confidential and privileged information, conflicts of interest (including commencement of representation), ex parte communications, the unauthorized practice of law, and assessment and collection of legal fees and costs.

    Authoritative rules and guidelines governing the professional responsibility issues related to paralegals and legal assistants include the Maine Bar Rules, ABA Model Rules of Professional Conduct, ABA Model Guidelines for the Utilization of Legal Assistant Services, Opinions of Maine's Professional Ethics Commission, and the Model Disciplinary Rules of the National Federation of Paralegal Associations, Inc. (hereinafter NFPA).

    The most relevant of these authorities is Maine Bar Rule 3.13, which provides:

    "With respect to a non-lawyer employed or retained by or associated with a lawyer:

    (1)A partner in a law firm shall 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;

    (2)A lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

    (3)A lawyer shall be responsible for conduct of such a person that would be a violation of the Code of Professional Responsibility if engaged in by a lawyer if:

    (i)the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

    (ii)the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

    The accompanying note of the Supreme Judicial Court's Advisory Committee on the Code of Professional Responsibility (chaired by this author in 1997) predicted that Rule 3.13(c) would most likely impact the preservation of confidences and secrets, as well as communications with represented and unrepresented parties. The note also referenced the "limited Maine counterpart" in Bar Rule 3.6(h)(2), which requires a lawyer to exercise reasonable care to prevent employees and others "from improperly disclosing or using confidences or secrets of a client."

    Maine adopted by reference the following ABA Comments to the parallel Model Rule 5.3:

    Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

    Although these Comments provide general advice, they raise unanswered questions. What does it mean to make "reasonable efforts" to have measures "giving reasonable assurance" of compatibility? An attorney who supervises a nonlawyer associate is not required to guarantee no "incompatible" conduct, yet failure to take any precautionary steps is a violation of Rule 3.13(c) regardless of whether the nonlegal associate misbehaves. See Office of Disciplinary Counsel v. Ball, 618 N.E. 2d 159 (Ohio 1993) (failure to establish safeguards and to supervise work of office manager resulted in missed deadlines and misappropriation of client funds). Also see In re Kaplan, 1993 W.L. 330653 (Cal. Bar Ct 1993) (lawyer unaware that office manager was "screening out" communications from disfavored clients.)

    In 1991 the American Bar Association adopted "Model Guidelines for the Utilization of Legal Assistant Services." While the state of Maine has not adopted these Guidelines per se, the ten Guidelines are intended to encourage lawyers to utilize legal assistant services effectively and to do so in a fashion that is compatible with the lawyer's own professional conduct rules.(Fn1)

    Last, while most attorneys are familiar with their own responsibilities under the Maine Bar Rules, they should also be aware of the National Federation of Paralegal Associations (hereinafter NFPA) Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement. This Model Code contains detailed ethical considerations, and is also accompanied by 9 NFPA Ethics and Disciplinary Opinions.(Fn3)

  2. Confidential, Secret and/or Privileged Communications

    Maine Bar Rule 3.6(h) generally prohibits the disclosure, in the absence of consent or specified exceptions, of a client's confidences and secrets.

    Unfortunately, the Code of Professional Responsibility does not provide a definition of "client," in this context, and thus the presentation or confidences and secrets hinges on when a person becomes a "client," as opposed to a prospective client. The current Code also does not define "commencement of representation" of a client. These gaps are especially significant in light of recent tactics of some prospective clients, who interview different law firms before settling on a final choice, or deliberately contact a lawyer or legal assistant, provide information and then attempt to conflict out the law firm based upon the initial phone contact.

    A 1997 Opinion of the Professional Ethics Commission illustrates this issue. In Opinion No. 156, the Commission stated that if adversaries merely contact the same lawyer and request representation, that initial contact could, under certain conditions, disqualify the lawyer from representing either party. Existing Rule 3.6(h)(1) protects not only a client "confidence"(Fn3) but also a "secret of the client;" a "secret" is not limited to the content of a communication, but could include the mere attempt to communicate with an attorney about a possible divorce.

    The Commission, in a lengthy footnote, did identify several instances in which the "client" will not be deemed to have communicated a...

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