Trial Magazine

Under Model Rule of Professional Conduct 5.3, lawyers must ensure that paralegals and other nonlawyer staff members work in a way that is consistent with the ethics obligations placed on the lawyers.¹ Lawyers who directly supervise staff members “shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer,” while partners and other managerial lawyers must ensure the firm has measures in place that give “reasonable assurance” that all staff members’ conduct comports with the lawyers’ ethics obligations.²

In essence, if the ethics rules prevent you from doing something—such as misleading a potential witness about your identity and your role in the case—you cannot allow paralegals and other staff to do it either. You must educate and supervise employees on matters of law firm ethics, no matter how dependably professional and moral you already know them to be.

Some jurisdictions require paralegals to receive ethics training. Paralegals in California, for example, must meet certain credentialing and CLE requirements, including in ethics, as must nonlawyer practitioners licensed in Utah and Washington.³ Paralegals who choose to obtain voluntary certification or credentialing from organizations such as NALA-The Paralegal Association and the National Federation of Paralegal Associations (NFPA) also must take regular ethics courses.

In general, however, paralegals and other nonlawyer staff do not have to take an ethics exam to begin their careers, and state bars and professional conduct commissions cannot require them to attend regular ethics CLE programs. For this reason, lawyers must ensure staff are well versed on ethics responsibilities and boundaries.⁴ Making a basic ethics review part of the onboarding process or the topic of an occasional in-house lunch-and-learn can serve some of the same purposes as formal CLE courses and help satisfy your obligations under the Model Rules.

Here are some of the areas you may wish to include in an ethics orientation or refresher with staff. Broadly speaking, most of these topics relate to the two most important concepts guiding the work of nonlawyers: avoiding the unauthorized practice of law and protecting client confidentiality.⁵

1. Paralegals must avoid actions that constitute the practice of law, and when completing delegated tasks, they must meet the same ethics standards as the lawyer.

The key to understanding the ethical bounds on a paralegal’s job is that paralegals may not take any actions a lawyer would be prohibited from taking. They also may not take any actions a lawyer may not delegate to them, but they may perform any task lawyers are permitted to delegate.⁶

Paralegals must not establish attorney-client relationships, set fees, or engage in any act that could constitute the unauthorized practice of law, including giving legal advice or representing a client before a court or agency without proper authorization.

The ultimate responsibility to the client rests with the lawyer, so the lawyer must always have a direct relationship with the client. Paralegals generally may take a potential client’s intake information, perform the administrative task of preparing and sending fee contracts on the attorney’s instruction, speak directly (and frequently) with the client, and otherwise participate actively in case intake and management.⁷ But the lawyer must be the one to establish the attorney-client relationship and its terms (including determining the fee to be charged), review legal options with the client, and speak for the client before the tribunal.

To help staff understand what might be considered the unauthorized practice of law, review tasks that your state’s regulatory body does and does not allow to be delegated to nonlawyers. These vary somewhat from state to state but generally cover the following.⁸

Tasks that may be delegated generally include

• interviewing clients, witnesses, and other people with pertinent information
• conducting legal research and drafting pleadings, briefs, or legal documents for the attorney’s review, approval, and use
• drafting and signing routine correspondence with clients that does not involve legal knowledge or rendering legal advice
• investigating facts and reporting to the attorney
• scheduling
• billing and firm administration
• routine contact with opposing counsel on topics not affecting the merits of the cause of action or requiring the use or application of legal knowledge
• rendering specialized advice to clients on scientific or technical (not legal) topics within their areas of expertise (for example, a legal assistant who is also a registered nurse might be able to offer nursing advice).

Because these are lawyers’ tasks being delegated to nonlawyers, all the ethics standards that would have applied to the lawyer’s work must also apply to the paralegal’s work. For example, a paralegal cannot pressure a witness or conceal a damning document from production. A lawyer also must supervise the paralegal’s work, assume professional responsibility for it, and remain responsible to the client.

Nondelegable tasks generally include⁹

• drafting a pleading or legal document without review and approval by a lawyer
• contact with clients or opposing counsel that requires rendering legal advice
• appearing as a lawyer at any deposition, hearing, calendar call, tribunal, or similar meeting
• responsibility for making final decisions as to the ethical conduct of nonlawyer employees
• negotiating with opposing parties or counsel on substantive issues in expected or pending litigation
• contacting the opposing party or counsel in a situation in which the client’s legal rights will be asserted or negotiated
• signing pleadings, briefs, or other legal documents for submission to a court
• explaining a legal document to the client or the opposite party in any negotiation or litigation.

The best way to avoid the unauthorized practice of law is to err in favor of seeking an attorney’s review and approval, even when the paralegals have been entrusted with a great deal of responsibility and autonomy to perform their delegated tasks. Always remember that, just as a lawyer is never not a lawyer, a paralegal is never not a law firm employee. Even if paralegals don’t bring up their firms’ names or tell lawyers about their prohibited activities—such as helping with a family member’s divorce or appearing in traffic court for a friend—there is a significant possibility that someone involved in the proceeding will make the connection and the paralegals’ employers will find themselves embroiled in the situation nonetheless. So no matter what, paralegals must assume they always represent their employers and comport themselves accordingly.

2. Paralegals must exercise discretion and professional judgment and leave independent legal judgments to lawyers.

Paralegals must act prudently when determining how much assistance they can render to a client without the presence of an attorney. Clients often have frequent contact with paralegals, provide them with regular updates on medical or family situations, and exchange documents back and forth with them. For this reason, clients might naturally call paralegals first when they have questions about a term in a proposed release, the scope of a conservator’s responsibilities, whether to involve law enforcement in a domestic matter, or any number of other issues that could create potential pitfalls. “Discretion” and “caution” should be the watchwords guiding a paralegal’s work. When in doubt, the paralegal should always ask for an attorney’s input or patch the attorney into the phone call with the client.

3. Paralegals must not engage in any conduct that would assist or involve the attorney in an ethics violation or give the appearance of professional impropriety.

Think of this as the “our staff can save us from ourselves” principle. Paralegals must avoid any conduct that could directly or indirectly involve the lawyer in an ethics violation. They also must refuse to follow a lawyer’s instruction if they believe they would be assisting the lawyer in an ethics violation, such as engaging in improper ex parte communications or knowingly inflating billable hours.

Work to foster an environment in which staff members can raise concerns about potential ethics pitfalls without fear of repercussions. Stress to your staff that you want everyone to be invested in upholding ethical standards and encourage employees to speak honestly about any qualms they might have. Offer sincere thanks and positive reinforcement when an employee comes to you with an ethical concern, regardless of whether you think the concern is warranted. If you disagree with the employee’s assessment, do not merely brush it off—use it as an opportunity to explain your thinking and educate them about the ethical standards in play. And if you realize the employee has a good point, don’t forget to tell them so, thank them, and explain to the greatest extent possible how you intend to fix the problem.

4. At the outset of any professional relationship, paralegals must disclose their status as non-attorneys.

A client, court clerk, or member of the public could easily mistake a paralegal for a lawyer and assume incorrectly that the paralegal was speaking as the client’s lawyer or from a position of legal authority. To avoid even inadvertently giving the impression that they are engaging in the practice of law, paralegals should always identify themselves as such at the start of any professional interaction.

5. Paralegals must protect attorney-client privilege and client confidentiality.

Beyond simply reminding paralegals not to speak outside the firm about settlement information, client confidences, or other privileged matters, consider asking them to serve as a check on the firm and its social media presence. Encourage paralegals to keep an eye on what the firm is posting and raise any concerns if they believe there may be a confidentiality or professionalism problem the lawyers have failed to notice.

As paralegals often have the most direct client contact, they should be enlisted in helping the client understand how best to protect attorney-client privilege. Paralegals should encourage clients to use only private, personal accounts for emailing and texting the firm; not to bring third parties into privileged meetings; and not to post about the case or their injuries on social media to avoid creating a situation that breaks privilege and exposes any attorney-client communications to discovery.

6. Paralegals must disclose any potential conflicts of interest to the firm.

When working through conflict checks for new matters, do not neglect the staff members’ potential conflicts, such as personal or business relationships with those involved or prior work on behalf of potential defendants or the defendants’ law firm. This includes checking conflicts during the hiring process, especially for any particular matters the firm already intends to assign to the new employee. For a typical small firm, this may be accomplished simply by asking the staff member to review a list of the firm’s active matters and flag those with familiar client, party, or opposing attorney names. Then inquire about the relationships and determine whether an ethical wall would be appropriate.

7. Encourage paralegals to take the initiative to stay educated.

Most paralegals do not have to meet CLE requirements, but a well-educated and informed staff can only benefit the firm’s work. Paralegals should stay up to date about local court rules, state ethics rules, principles of ethics and professional responsibility, and substantive areas of law relevant to their work.

ABA Model Guideline No. 10 for the Utilization of Paralegal Services recommends that any “lawyer who employs a paralegal should facilitate the paralegal’s participation in appropriate continuing education” because it both “improves the legal services rendered by lawyers employing paralegals and provides a more satisfying professional atmosphere in which paralegals may work.”¹⁰ Encourage staff to seek out educational opportunities and share what they learn with each other—and with lawyers.

In addition to in-house orientations and reviews, strongly consider paying for staff to attend continuing education courses and seminars through which they will receive both an ethics refresher and an update on substantive law and best practices relevant to the firm’s work. Many state trial bars—such as those in Georgia, North Carolina, and Tennessee—hold regular conferences or seminars specifically designed for legal assistants and paralegals, as do national organizations such as NALA and NFPA. And AAJ recently developed an on-demand paralegal and legal assistant training series.¹¹ Firms with the resources may even consider developing an in-house certified paralegal program, paying for the costs of certification courses and exams, and providing CLE and study groups for those who wish to participate.¹²

Invest in your staff’s ethics and professional training. Paralegals and other staff members want to do their jobs well and they appreciate the opportunity to develop their skills, discuss ethical quandaries, and learn how best to serve clients and assist attorneys. When lawyers provide staff with the necessary tools to perform professionally and ethically, our firms will be better for it.

Madeline E. McNeeley is a partner at Harris Lowry Manton in Atlanta and can be reached at molly@hlmlawfirm.com.

Notes

1. Rule 5.3—which covers paralegals and other staff members such as interns, investigators, and secretaries—has been widely adopted across the United States. See, e.g., Ga. R. Prof’l Conduct R. 5.3; La. R. Prof’l Conduct R. 5.3 (2004); Tenn. R. Prof’l Conduct R. 5.3 (2021).
2. Model R. of Prof’l Conduct R. 5.3 (2012). The comments to Rule 5.3 also state that the lawyer “must give such assistants appropriate instruction and supervision 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.”
3. Cal. Bus. & Prof. Code §6450(d) (West 2007); Utah Sup. Ct. R. Prof’l Prac. R. 15-702–713 (2018); Wash. State Ct. R. Admission & Prac. R. 28 (2021).
4. Committing the resources to educating employees on these issues—and fostering open discussion about them—also helps staff feel valued and increases their confidence in how to approach their work.
5. NALA has promulgated an ethics code (binding only on NALA’s voluntary members) that is a useful distillation of how attorneys—and state regulators—generally view the work of paralegals and other nonlawyer staff members. This article draws in large part from NALA’s Code of Ethics and Professional Responsibility (https://tinyurl.com/4ncdnbwe) and its Model Standards and Guidelines for Utilization of Paralegals (https://tinyurl.com/2p8anzuc). Similarly, NFPA has produced a Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement “to delineate the principles for ethics and conduct to which [NFPA believes] every paralegal should aspire.” National Federation of Paralegal Associations Inc., Model Code of Ethics and Professional Responsibility at 1 (https://tinyurl.com/ycam653x).
6. A useful resource for lawyers and their staff on this topic and the other issues covered in this article is the ABA Model Guidelines for the Utilization of Paralegal Services (https://tinyurl.com/292d46x5).
7. See, e.g., id. at 5–8.
8. See, e.g., Cal. Bus. & Prof. Code §6450(a)–(b) (West 2007); Ga. Bar Ass’n Disciplinary Bd. Advisory Op. 21 (1977) (https://tinyurl.com/4v72afmt).
9. See, e.g., Cal. Bus. & Prof. Code §6450(b) (West 2007).
10. ABA Model Guidelines, supra note 6, at 20.
11. AAJ’s series covers attorney-client privilege, avoiding the unauthorized practice of law, and more. For more information, visit https://www.justice.org/resources/events/paralegal-and-legal-assistant-training-series.
12. My law firm offers such a program for paralegals to obtain and maintain certification through NALA. Korinne Morris, an advanced certified paralegal, organized the program and would enthusiastically advise anyone considering doing the same. She can be reached at korinne@hlmlawfirm.com.