Practicing With Paralegals

Transcription

1 The Missouri Bar Practicing With Paralegals Answers to Frequently Asked Questions and The Missouri Bar Guidelines Published by The Missouri Bar Post Office Box 119 Jefferson City, MO 65102

2 A variety of public information materials are available for your use through The Missouri Bar. For further information, call or write: The Missouri Bar Communications Department P.O. Box 119 Jefferson City, Missouri Phone: 573/ Fax: 573/ ACKNOWLEDGEMENTS For additional informationregarding the 2003 edition of this booklet, please contact committee Chairperson B. Joyce Yeager at or committee council member Constance Anderson at B. Joyce Yeager, Chair The Missouri Bar Committee on Paralegals Copyright, 2003 The Missouri Bar

3 The Missouri Bar Guidelines for Practicing With Paralegals Questions and Answers

4 Questions and Answers 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. Paralegal Experience Paralegal experience shall mean the performance of substantive legal work, non-clerical or non-adminstative in nature, that absent a paralegal, an attorney would perform. (Adopted by the Committee on Paralegals of The Missouri Bar, November 9, 2001). What education should a paralegal have? 1. Formal legal education - The American Association for Paralegal Education (AAfPE) and the American Bar Association (ABA) have endorsed minimum standards for paralegal education. An educational program approved by the ABA must require no less than 60 hours of classroom study. AAfPE has endorsed the ABA s minimum standard and has developed a model set of core competencies for paralegal education. 2. Content The formal education of a paralegal should include: (a) instruction in professional ethics; (b) legal research; (c) analysis of legal materials; (d) knowledge in drafting legal documents; (e) knowledge of judicial and administrative procedures; (f) knowledge of substantive areas of law; (g) knowledge of law office systems and technology; (h) oral and written communication skills. 3. Degree Levels Formal education for paralegals is available in a wide variety of formats. Colleges, universities, community colleges and proprietary institutions provide the following types of educational credentials: (a) post graduate (both master s in legal studies and post-graduate certificates); (b) baccalaureate degrees (i) specific bachelor s degree in legal studies; 2

5 (ii) bachelor s degree in a different major (e.g., criminal justice, history, political science, business) with emphasis in legal studies or with a minor in legal studies; (iii) a paralegal certificate tied to the completion of a bachelor s degree in any field; (c) associate s degrees (of arts or science or applied science) in legal studies; (d) undergraduate certificate: an educational program normally completed in one year of study or less. A certificate awarded from an educational institution is the document verifying the completion of a course of study. This should not be confused with certification, a voluntary process, usually administered by a professional association, that is given to a person who has demonstrated some level of professional competency. What can a paralegal do? Paralegals can do tasks delegated to them by an attorney, provided the attorney supervises the work and maintains responsibility for the work product. Examples of some of these duties may be: (a) researching cases and other legal authority; (b) factual investigation; (c) preparing legal documents; (d) reviewing and organizing case files; (e) assisting at and preparing a case for trial; (f) assisting at depositions; (g) summarizing depositions; (h) drafting interrogatory questions and answers; (i) interviewing clients and witnesses; (j) assisting in court; (k) handling administrative matters; (l) communicating information to clients and other people. May a paralegal represent a client in court? Generally paralegals may not appear as an advocate. However, specific exceptions to the unauthorized practice of law statute have been created through statutes and regulations that permit paralegals to represent clients in court. The Federal Administrative Procedures Act, 5 U.S.C. 555(b), permits any person to represent another if allowed by the agency. Examples include the Social Security Administration, Internal Revenue Service, Consumer Product Safety Commission, Department of Labor, and Environmental Protection Agency. Can paralegals answer clients questions? Yes. Paralegals may give factual and procedural information. The paralegal cannot give legal opinions in response to client questions. 3

6 If a client asks a paralegal for a legal opinion, can a paralegal answer the question? Paralegals must inform clients that they cannot give legal advice. A paralegal may relay advice specifically given to him by his supervising attorney. A lawyer shall not place a paralegal in the position of being perceived as giving legal advice to a client. May a paralegal directly communicate with an opposing party who is represented by counsel? No. Neither lawyers nor paralegals may communicate with an opposing party who is represented by counsel without the express written permission of opposing counsel. May a paralegal prepare and draft legal documents? Yes. However, the lawyer is responsible for reviewing and approving the contents of the document. May a paralegal engage in legal research? Yes. May a paralegal take a deposition? No. A paralegal may attend a deposition and assist the lawyer during the deposition by taking notes and coordinating documents and exhibits. May a paralegal sit at the counsel table in court? Yes, if permitted by local court rules. (Paralegals can be of great assistance to lawyers at trial and often sit at counsel tables if court rules do not restrict their presence). May a paralegal have business cards? Yes. A paralegal may have business cards on which he/she is clearly identified as a paralegal. May a paralegal s name be included on law office letterhead? Yes. The paralegal s name may be used provided he/she is clearly identified as a paralegal. May a paralegal sign correspondence from a law firm? Yes, as long as the paralegal s status is clearly identified. 4

7 Example: Very truly yours, TAYLOR & JONES By John J. Smith Paralegal May an attorney have his/her paralegal sign the attorney s name to documents? The attorney may direct the paralegal to sign the attorney s name to correspondence/pleadings on a document by document basis after the attorney has reviewed, supervised production, and approved the content of the document. The paralegal should indicate that he/she signed the attorney s name to the document. One method of indicating this fact is for the paralegal to initial the signature. Can paralegals be paid based upon the profitability of the firm? Yes. Law firms may give paralegals pensions, profit sharing plans and salary increases based upon the firm s profitability. These benefits can be given based upon individual performance and/or the firm s profitability. However, a firm may not base compensation upon the outcome of a case. How is a paralegal s time billed to a client? The substantive legal work of a paralegal (work normally performed by an attorney in the absence of a paralegal) may be billed directly to the client in the same way an attorney s work is billed. To be billable, the work paralegals perform must not be clerical or ministerial. In circumstances where attorneys fees are reviewed or awarded by a court, the paralegal hours may be recovered as part of the attorney fee that is reviewed or awarded. May a paralegal be a partner or shareholder in the law firm? No. A lawyer shall not practice with or in the form of a professional corporation, limited liability company, or association, if: (a) a paralegal owns any interest in it (except as a fiduciary representative of the estate of a lawyer); (b) a paralegal is a corporate director, officer or manager of the limited liability company; or (c) a paralegal has the right to direct or control the professional judgment of the lawyer. What are the ethical responsibilities of a paralegal? The Rules of Professional Conduct and Guidelines do not regulate paralegals. 5

8 Paralegals who are members of national, state and local paralegal associations are required to follow the Codes of Ethics of those associations. These codes contain the following requirements, which are similar to the requirements governing the ethical conduct of lawyers: (a) Maintaining a high level of competence and personal and professional integrity; (b) Maintaining a high standard of professional conduct; (c) Serving the public interest by contributing to the delivery of quality legal services and the improvement of the legal system; (d) Preserving all confidential information provided by the client or acquired from other sources before, during and after the course of the professional relationship; (e) Disclosing one s status and title; (f) Avoiding the unauthorized practice of law; (g) Avoiding conflicts of interest and disclosing conflicts to employers/clients and prospective employers/clients. What are the ethical responsibilities of a lawyer who employs a paralegal? The lawyer is ultimately responsible for the work product and ethical conduct of a paralegal. Paralegals are not subject to professional discipline. The lawyer must give ethical guidance and direction to the paralegal. The supervising attorney must ensure that the paralegal s work product and conduct comply with the Rules of Professional Conduct and these Guidelines. The attorney should: (a) develop policies regarding the delegation and supervision of the work product and conduct of the paralegal; (b) communicate the policy to the paralegal; (c) enforce the policy; and (d) have a system of review and feedback to ensure the policy is being followed. If a paralegal s activities violate the Rules of Professional Conduct, is the paralegal s employer at fault? Yes. The lawyer employer is responsible for the paralegal s direction and ethical guidance. The supervisory measures that the lawyer applies should take account of the fact that paralegals are not subject to professional discipline. The lawyer is ultimately responsible for the work product and ethical conduct of the paralegal. How should a paralegal be identified to others? At the beginning of all professional communications with others, the paralegal shall disclose that he or she is a paralegal. The lawyer shall instruct the paralegal to make this disclosure. If the lawyer is present, the lawyer should introduce the paralegal and identify him/her as a paralegal. 6

9 Missouri Bar Guidelines for Practicing With Paralegals Scope and Purpose of Guidelines The Missouri Rules of Professional Conduct require members of the bar to make legal services available to the public at a price it can afford. To this end, members of the bar are employing paralegals. These guidelines supplement and clarify the principles of the Missouri Rules of Professional Conduct. These guidelines provide standards for lawyers to employ paralegals in accordance with the Missouri Rules of Professional Conduct, statutes, court rules and decisions, rules and regulations of administrative agencies, opinions rendered by the attorney general, and committees on professional ethics and the unauthorized practice of law. Except where prohibited by law or the Missouri Rules of Professional Conduct, an attorney may employ the services of paralegals to assist in the representation of a client. Definition of 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. I. Lawyer s Responsibility for Paralegal Conduct A lawyer is responsible for the professional and ethical conduct of a paralegal under his or her supervision. COMMENT: The lawyer has a responsibility to establish and communicate firm policies concerning ethical and professional conduct to the paralegals in his/her employ. II. Unauthorized Practice of Law A lawyer shall not assist a paralegal in the performance of an activity that constitutes the unauthorized practice of law. 7

10 COMMENT: Missouri Revised Statutes and define the practice of law and law business. This law prohibits anyone who is not licensed to practice law from advocating a person s claim before a tribunal, drafting legal documents, or giving advice requiring the application of legal principles. Missouri Rule of Professional Conduct 5.5 notes that a lawyer should not assist nonlawyers in the performance of activities that constitute the practice of law. However, Rule 5.3 recognizes the fact that lawyers employ nonlawyers to assist in the delivery of legal services. A lawyer may employ a nonlawyer as long as the lawyer supervises the work of the nonlawyer and ensures that the person s conduct is compatible with the professional obligations of the lawyer. A lawyer with direct supervisory responsibility over the nonlawyer is responsible for his or her conduct. A major area in which paralegals are confronted with the issue of unauthorized practice of law is requests from clients for information that would constitute legal advice. The lawyer s responsibility regarding the unauthorized practice of law is: (a) The lawyer must give clients an understanding of the paralegal s role in their case; (b) The lawyer must define the role of the paralegal in preparing legal documents; (c) The lawyer must explain the paralegal s role in assisting a person in proceedings before federal or state courts, administrative agencies, and tribunals. Case law does not provide much guidance in defining where the actions of a paralegal cross the line from assisting a lawyer in the practice of law to actually performing acts that would violate the unauthorized practice of law statute. For the purposes of these Guidelines, a paralegal is not practicing law if, under the ultimate direction and supervision of a licensed lawyer, the paralegal is applying knowledge of law and legal procedures in rendering direct assistance to a licensed lawyer. This assistance may include but is not limited to: researching legal matters; developing an action, procedure, technique, service or application; preparing and interpreting legal documents; selecting, compiling and using technical information; assisting the lawyer in court; handling administrative matters with the tribunal; handling will attestations and real estate closings; and analyzing and following procedural problems that involve independent decision. A paralegal is not practicing law when acting in compliance with statutes, court rules or decisions, and administrative rules and regulations that permit paralegals or other lay persons to do what would otherwise be considered the practice of law. 8

11 III. Professional Independence of a Lawyer in Relationship to a Paralegal (a) Sharing of Fees (1) A lawyer or law firm shall not share legal fees with a paralegal. However, a lawyer or law firm may include paralegal employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. (b) Ownership and Control of Law Practice (1) A lawyer shall not form a partnership with a paralegal if any of the activities of the partnership consist of the practice of law. (2) A lawyer shall not practice with or in the form of a professional corporation, limited liability company, or association authorized to practice law for a profit, if: a paralegal owns any interest in the corporation, limited liability company or association (except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration); a paralegal is a corporate director or officer of the corporation or manager of the limited liability company; a paralegal has the right to direct or control the professional judgment of a lawyer. COMMENT: This section expresses traditional limitations on sharing fees which are designed to protect the lawyers professional independence of judgment. The prohibition against fee splitting is not intended to deny salary or bonuses to paralegals even though it is tied to the profitability of the firm. Rather, the prohibition is to any form of compensation directly tied to the existence or amount of a particular legal fee, where such fee-splitting would influence the lawyer s professional independent judgment. IV. Responsibilities Regarding a Paralegal A lawyer has a responsibility to: (a) develop policies that clearly define the delegation of tasks to be performed by paralegals and address the responsibility of paralegals concerning the Rules of Professional Conduct; (b) directly supervise the paralegal to ensure his/her conduct is consistent with the Rules of Professional Conduct; (c) directly supervise and maintain responsibility for the paralegal s work product; 9

12 (d) provide the paralegal with a copy of these Guidelines, Rule 5.3 of the Missouri Rules of Professional Conduct and the firm s written policies; (e) instruct the paralegal regarding ethical conduct and confidentiality of client information; (f) check for conflicts of interest; (g) check to ensure that the paralegal is qualified to act in the capacity as a paralegal by reason of education in legal studies, training and/or experience in a law environment. COMMENT: Whether a paralegal is a direct employee of the lawyer or an independent contractor, the paralegal acts for the lawyer in the rendition of the lawyer s professional service. If a paralegal would engage in conduct that, if performed by a lawyer, would constitute a violation of the Rules of Professional Conduct, then the lawyer would be responsible if: (a) the lawyer orders, or ratifies, this conduct; or (b) the lawyer is a partner in the law firm in which the paralegal is employed, or has direct supervisory authority over the paralegal and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. V. Identification of a Paralegal A lawyer has a responsibility to: (a) instruct the paralegal to disclose that he/she is a paralegal in all dealings with any other persons; (b) disclose the paralegal s title on business cards, stationery, firm profiles, legal directories (such as Martindale-Hubbell) or other means of communications; (c) instruct the paralegal to identify his/her title on written communications to others. COMMENT: The responsibility of clearly identifying the paralegal is two-fold. Both the lawyer and the paralegal have the responsibility to clearly identify the paralegal. If, in the judgment of the lawyer, the client indicates confusion as to the role of the paralegal, the lawyer must describe the functions of the paralegal. Identifying the paralegal on letterhead, business cards and other means of communication also serves to inhibit the misunderstanding of the position of the paralegal. Such identification can serve as a continual reminder to the client or other reader the position is one of a paralegal. A paralegal may sign correspondence on the law firm letterhead provided the signature is followed by an appropriate identifying designation as a paralegal. Under no circumstances may any form of communication, either written or 10

13 otherwise, contain the following: false, fraudulent, misleading, or deceptive statements; or claims concerning either the paralegal s status, authority or relationship to the lawyer or law firm employing the paralegal. Missouri Paralegal Associations Kansas City Paralegal Association (KCPA) 1912 Clay Street N. Kansas City, MO Office: Fax: InfoLine: KansasCity@paralegals.org City Missouri Paralegal Association P.O. Box 1016 Jefferson City, MO Missouri Roundtable (note: a group of interested individuals investigating issues relating to paralegal regulation/ licensure) See: Contact: Jennifer Crisp for information Meeting Dates: see MPA Calendar Mid-Missouri Paralegal Association (MMPA) P.O. Box 1291 Jefferson City, MO St. Louis Association of Legal Assistants (SLALA) P.O. Box St. Louis, MO Southwest Missouri Paralegal Association (SMPA) c/o Jackie Harkrider 1154 S. Willow Lane Springfield, MO harkriderj@pcis.net 11

14 Paralegal Education Programs In Missouri And Surrounding States Webster University St. Louis, Missouri Maryville University St. Louis, Missouri St. Louis Community College at Meramec St. Louis, Missouri St. Louis Community College at Florissant Valley St. Louis, Missouri William Woods University Fulton, Missouri Missouri Southern State College Joplin, Missouri Phillips Junior College Springfield, Missouri Missouri Western State College St. Joseph, Missouri Johnson County Community College Overland Park, Kansas Avila College Kansas City, Missouri Rockhurst College Kansas City, Missouri Penn Valley Community College Kansas City, Missouri William Jewell College Liberty, Missouri Southwest Illinois College Belleville, Illinois 12

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