The Missouri Bar Fall Committee Meeting November 22, 2013

Transcription

1 The Missouri Bar Fall Committee Meeting November 22, 2013 Presented By: Suzanne Kissock and Dori DeCook Presentation Prepared by the Paralegals Committee of the Missouri Bar and the Missouri Paralegal Association

2 Welcome to our presentation! The Paralegals Committee of The Missouri Bar was formed in 1975.! The Missouri Bar offers a brochure titled Practicing with Paralegals. 11/28/13 2

3 Welcome to our presentation We hope today s session will:! Provide an understanding of the advantages of using a paralegal;! Give an overview of ethics and the paralegal;! Answer any questions you may have regarding a paralegal s role on a legal team. 11/28/13 3

4 Who is a paralegal? A paralegal, qualified through education, training or work experience, is employed or retained by an attorney, law firm, government agency, corporation, or other entity to perform substantive and procedural legal work under the ultimate direction and supervision of an attorney or as authorized by administrative, statutory, or court authority. - Adopted by the Committee on Paralegals of the Missouri Bar, November 9, /28/13 4

5 Who is a paralegal? Paralegal Experience shall mean the performance of substantive legal work, non- clerical or non- administrative in nature, that absent a paralegal, an attorney would perform. 11/28/13 5

6 Who is a paralegal? ABA definition of a Legal Assistant/Paralegal is a person qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible - Adopted by the ABA House of Delegates in August, /28/13 6

7 A few statistics! According to a 2011 employment survey by the Bureau of Labor Statistics, more than 4,500 people are at work as paralegals in Missouri.! Urban areas, such as St. Louis and Kansas City, account for the highest percentage of employment among paralegals.! Employment of paralegals is projected to grow 18% between 2010 to 2020 (Bureau of Labor Statistics). 11/28/13 7

8 Can a paralegal be certified?! Certified by Bar Association:! Missouri does not certify paralegals! The ABA does not certify paralegals! States which do include Ohio, Texas, North Carolina, and Florida! Certified by Paralegal Organization:! The National Federation of Paralegal Associations (NFPA) awards the designation Registered Paralegal (RP)! The National Association of Paralegals (NALA) awards the designation Certified Paralegal (CP)! The American Alliance of Paralegals (AAPI) awards the designation American Alliance Certified Paralegal (AACP)! The National Association for Legal Professionals (NALS) awards the designation Professional Paralegal (PP) 11/28/13 8

9 Examples of duties delegated to a paralegal! May include but are not limited to:! Case planning! Development and management of cases! Legal research! Interviews with clients! Fact gathering and retrieving information! Drafting and analyzing legal documents! Exhibit preparation! Assisting at depositions or at trial 11/28/13 9

10 When does a paralegal cross the line? A paralegal cannot:! Provide legal advice or opinions! Sign legal pleadings on your own behalf! Engage in the practice of law! Represent a client in court! Take a deposition! Establish the fees to charge a client! Contract with someone other than an attorney to perform paralegal services 11/28/13 10

11 Rule Responsibilities Regarding Nonlawyer Assistants Lawyer is responsible for nonlawyer s actions if:! Orders conduct! Ratifies conduct, or! Knows of the conduct at the time when the consequences can be avoided or! Fails to take reasonable steps to ensure nonlawyer s conduct is compatible with the Rules of Professional Conduct 11/28/13 11

12 Attorneys Have Duty To Not Assist Unauthorized Practice of Law Rule of the Rules of Professional Conduct provides that a lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. 11/28/13 12

13 Responsibilities Regarding Paralegals! Lawyer must maintain a direct relationship with the client! Lawyer must make sure that the client understands that the paralegal is not an attorney! Lawyer must adequately supervise the paralegal! Lawyer has complete professional responsibility for the activities of the paralegal 11/28/13 13

14 Professional Independence of Lawyer in Relationship to Paralegal! Sharing of Fees! Lawyer shall not share fees with paralegal! Ownership and Control of Law Practice! Paralegal cannot form partnership with a paralegal! Paralegal cannot own portion of law practice, serve as a corporate director of professional corporation or direct or control the professional judgment of a lawyer 11/28/13 14

15 Conflicts of Interest for the Paralegal! Typically arise! When you change jobs! From family and personal relationships! Business interest and professional relationships outside of employment 11/28/13 15

16 What to do if your paralegal has a conflict of interest?! Create an ethical wall wall the paralegal off from the matter! The wall should bar any communication, either written or verbal, between members of the legal team handling a matter and the person with whom the conflict of interest exists! Conflict of interest requires are more lenient for non- lawyers than lawyers 11/28/13 16

17 Information to properly utilize paralegals! Written in 1991 and revised in 2004! From The Standing Committee on Paralegals! A lawyer may delegate to a paralegal any task normally performed by the lawyer except 11/28/13 17

18 ABA Model Guidelines Guideline No. 1 A lawyer is responsible for all of the professional actions of a paralegal performing services at the lawyer s direction and should take reasonable measures to ensure that the paralegal s conduct is consistent with the lawyer s obligations under the rules of professional conduct of the jurisdiction in which the lawyer practices. 11/28/13 18

19 ABA Model Guidelines Guideline No. 2 Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a paralegal any task normally performed by the lawyer except those tasks proscribed to a nonlawyer by statute, court rule, administrative rule or regulation, controlling authority, the applicable rule of professional conduct of the jurisdiction in which the lawyer practices, or these guidelines. 11/28/13 19

20 Guideline No. 3 ABA Model Guidelines A lawyer may not delegate to a paralegal: (a) responsibility for establishing an attorney- client relationship; (b) responsibility for establishing the amount of a fee to be charged for a legal service; (c) responsibility for a legal opinion rendered to a client. 11/28/13 20

21 Guideline No. 4 ABA Model Guidelines A lawyer is responsible for taking reasonable measures to ensure that clients, courts, and other lawyers are aware that a paralegal, whose services are utilized by the lawyer in performing legal services, is not licensed to practice law. 11/28/13 21

22 Guideline No. 5 ABA Model Guidelines A lawyer may identify paralegals by name and title on the lawyer s letterhead and on business cards identifying the lawyer s firm. Guideline No. 6 A lawyer is responsible for taking reasonable measures to ensure that all client confidences are preserved by a paralegal. 11/28/13 22

23 Guideline No. 7 ABA Model Guidelines A lawyer should take reasonable measures to prevent conflicts of interest resulting from a paralegal s other employment or interests. Guideline No. 8 A lawyer may include a charge for the work performed by a paralegal in setting a charge and/or billing for legal services. 11/28/13 23

24 Guideline No. 9 ABA Model Guidelines A lawyer may not split legal fees with a paralegal nor pay a paralegal for the referral of legal business. A lawyer may compensate a paralegal based on the quantity and quality of the paralegal s work and the value of that work to a law practice, but the paralegal s compensation may not be contingent, by advance agreement, upon the outcome of a particular case or class of cases. 11/28/13 24

25 Guideline No. 10 ABA Model Guidelines A lawyer who employs a paralegal should facilitate the paralegal s participation in appropriate continuing education and pro bono activities. 11/28/13 25

26 How would a paralegal improve my practice?! Your costs would be reduced! You would be able to lower your legal fees! Your clients would also appreciate increased contact with your practice through your paralegal! You may find new ways to approach problems 11/28/13 26

27 How would a paralegal improve my practice?! Paralegal time can be billed separately to your clients, and at lower rates! Paralegals are paid less than attorneys, yet handle many tasks (under an attorney s supervision) that would be otherwise performed by an attorney! Paralegal staff can be a profit center for your practice! Paralegals can enhance your ability to do pro bono work 11/28/13 27

28 Suzanne Kissock Thank You Dori DeCook Attorney Paralegal Legal Studies Program Director Office of the Chief Disciplinary Counsel Missouri Western State University 3335 American Ave Downs Dr. Jefferson City, MO St. Joseph, MO The Missouri Bar Paralegals Committee Missouri Paralegal Association This presentation will be available on the Missouri Paralegal Association website. 11/28/13 28