INTEROFFICE MEMORANDUM

Transcription

1 INTEROFFICE MEMORANDUM To: Dave Jackson, Esq. From: Michael Mayes Date: November 10, 2013 Re: Settlement Conference and Representative Information, Case No ASSIGNMENT Review the authorities provided from multiple cases in order to determine any possible issues with paralegal s performing tasks such as providing clients with fee and representative information, as well as determining if paralegals can ethically conduct settlement conferences. FACTS Our client came to the law firm s office three months ago to get information about the specific fees being charged to retain your attorney services. Before interviewing the client, you told me the specific fees that would be charged to the client, including the attorney and paralegal s hourly rates. As you know, I shared this information with the client at our initial meeting under your instruction. You have since asked me to review the four provided authorities to determine whether I may in the future conduct settlement conferences in your place. ISSUES 1. Can a paralegal interview clients for the purpose of providing the client with fee and representative information? 2. Under what circumstances may a paralegal conduct a settlement conference?

2 ANALYSIS 1. Can a paralegal interview clients for the purpose of providing the client with fee and representative information? In cases dealing with paralegals and the tasks they are able to perform, courts have ruled that a paralegal s performance should be under the ultimate direction and supervision of an attorney. In Attorney Griev. Comm. V. Hallmon 343 Md. 390, 681 A.2d 510 (1996), an attorney, Morgan Hallmon, had an office manager who was a law school graduate, but who was not admitted to practice in any jurisdiction. The office manager prepared the local church s application for special exception, signing the attorney s name and placing her initials behind that signature. At the zoning hearing, it became very apparent that Hallmon was unaware concerning the church s case, and the zone hearing examiner had filed a complaint with the Bar Counsel raising the issue of unauthorized practice of law by the paralegal. The attorney, Hallmon, attempted to fight the complaint in the Administrative Law Hearing by stating that he approved most of the papers filed in the case after reviewing them over the telephone, but constantly asked the hearing official to let his office manager answer questions for him at the hearing. The Appellate court held: The hearing record demonstrates by clear and convincing evidence and abdication of supervision by Hallmon and that lay legal assistant was unauthorizedly practicing law. The above authority applies because in both the Attorney Griev. Comm. V. Hallmon and our client's case, the two cases focus one extremely important factor, which is attorney supervision. The supervision of an attorney is a key element in our case in order to determine whether a paralegal is able to perform specific duties without being considered to be unethical, or being deemed to be involved

3 with the unauthorized practice of law. The court stated in the above authority that paralegals can perform a wide variety of tasks such as obtain facts, communicate information to the client, interview witnesses, prepare drafts, and outlines for the lawyer, as long as the attorney provides adequate supervision. The authority clearly defines that a paralegal, under the supervision of an attorney, is able to communicate information to the client. Therefore, it appears that a paralegal is legally able to interview clients for the purpose of providing the client with fee information as well as representative information, if the attorney states the fees to the paralegal, and the attorney supervises the delegated work, while retaining responsibility for the work. The unauthorized practice of a law is prohibited by state law, and violators of these laws are generally subject to sanctions, State Stat holds, An attorney shall not assist a non-lawyer in the unauthorized practice of law. To this end, an attorney shall properly train and supervise those employees under his supervision, and shall take reasonable steps to ensure staff compliance with all ethical rules and standards. Our attorney complied with the above statue, by communicating the information to the paralegal, which regarded fees that would be charged to the client, and that the attorney would be interested in handling the case. The attorney was supervising his paralegal by telling them his fees and making sure that the paralegal knew that the lawyer was the one accepting the case beforehand. Therefore, under State Stat , the attorney in our case took the reasonable steps to make sure the paralegal was able to provide client fee and representative information to clients without violating any compliance or ethical rules.

4 2. Under what circumstances may a paralegal conduct a settlement conference? Courts have generally ruled that attorneys, who allow their paralegals too much freedom in dealing with clients alone, are at higher risk for aiding the unauthorized practice of law. In re Morin, 319 Or. 547, 878 P.2d 393 (1994), the attorney had his two paralegals conduct seminar sessions where they were selling will packages and giving advice on which will would be better suited for clients, without the attorney being present. Since witness statements needed to be signed to attest the wills, and this became a difficulty, the attorney had the paralegals and other members of the staff complete the witness signatures outside the area. The Trial Panel of the Disciplinary Board of Oregon found that the attorney intentionally misrepresented his clients with a scheme to falsify witness living trusts, and allowed one of his paralegals, Monett, to engage in the unauthorized practice of law. The plaintiff appealed, but the Oregon Supreme Court upheld the Trial Court s decision. The court in that case opined: Thus, even if the accused did not intend for the paralegals to practice law, he assisted in the unlawful practice by allowing them too much freedom in dealing with clients, thereby allowing at least Monnet to provide legal advice to those clients. In the instant case, as in the above authority, a paralegal is at a higher risk for engaging in unauthorized practice of law if they are giving specific advice to their client without the attorney s knowledge or presence. In the In re Morin case, the paralegals were asked to attend seminars, and were found to be engaged in the unauthorized practice of law, because any advice given by a paralegal to a client does constitute as legal advice. In our own client s case, a settlement conference

5 conducted only by a paralegal would put them at risk for engaging in the unauthorized practice of law. The court in the In re Morin case, stated that consultation, explanation, recommendation, or advice or assistance in selecting particular forms, in filling out any parts of forms, or suggesting how the forms should be filled out, does constitute the practice of law. In our client s situation, a paralegal would not be able to approve or reject proposals during a settlement conference because that would be giving legal advice to the client, and acting without being under the ultimate direction and supervision of an attorney. Therefore, based on the cited authority, law firms should avoid having a paralegal attend a settlement conference without an attorney being present. A paralegal can act as an aide to the attorney in a settlement conference, but without the attorney being present in the conference, the opportunity for explanation, consultation, recommendation, advice, or other assistance could easily lead to a paralegal engaging unauthorized practice of law. Additional authority has established that an attorney who acts negligently and assists a nonmember of the bar in the unauthorized practice of law is putting their clients at harm. In People v. Milner, 35 P.3d 670 (Colo. 2001), the attorney failed to act with reasonable diligence and promptness in representing clients by failing to submit court documents, failing to keep her clients reasonably informed, and charging unreasonable fees. The attorney agreed to accept cases and charged fees verbally, changed the verbally agreed upon amount, and at times did not perform the work that the attorney agreed to do. The attorney also assisted of a nonmember of the Colorado bar in the unauthorized practice of law by failing to notice her

6 paralegal was accepting cases without her knowledge, and giving legal advice to clients. The court held: In addition to private harm, the public has been harmed by Milner s misconduct and her failure to supervise Kemp, and provide assistance to him in the unauthorized practice of law. This case establishes that when an attorney fails to supervise their paralegal, and allows them to accept cases on behalf of the lawyer, even though the lawyer had no prior knowledge of; the attorney is still assisting the paralegal in the unauthorized practice of law. In our own client s situation, a paralegal approving or rejecting the client s proposals would be practicing law, and the attorney would be held responsible for assisting the unauthorized practice of law, even if they had no knowledge concerning the legality of the situation. Therefore, even if the attorney has no acknowledgement of the paralegal s actions such as accepting or rejecting proposals, which constitutes practicing law, the attorney is still responsible, because the court states that attorneys are to supervise the actions of their assistant and their work product, in order to protect the public from harm. CONCLUSION 1. It was perfectly ethical for the attorney to instruct a paralegal to provide information regarding representation to our client. 2. Even if the paralegal is provided with the appropriate guidelines, a firm should avoid having a paralegal attend a settlement conference without an attorney being present.

7 RECOMMENDATION After reviewing the four authorities provided, I do not feel it would be appropriate for a paralegal to conduct a settlement conference due to the opportunity for explanation, consultation, recommendation, or advice that would lead to a paralegal possibly engaging in the unauthorized practice of law. However, the information that I provided in the client interview did not violate any ethical standards, and showed that our firm is taking the reasonable steps necessary to avoid any possible engagement in the unauthorized practice of law.