Chapter. The Role of the Paralegal

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1 Chapter ONE The Role of the Paraleal The Lawyer-Paraleal Relationship Paraleals today perform many tasks that once were performed only by lawyers, such as preparin, filin, or producin documents. Law firms have for many years realized that their practices can be more cost efficient by hirin paraleals instead of lawyers to do these and other tasks. What was true over 20 years ao is still true today: Under present market conditions, clients are no loner willin to have all the work performed at lawyers rates. Associate rates that once provided a solution to the hih cost of leal work now contribute to the problem. Because of this, the leal assistant profession has become one of the fastest rowin in the nation. Lawyers are beinnin to reconize that they will be able to produce a reater volume of leal work if they shift a larer portion of work to nonlawyers. 1 Paraleals can enhance profitability for law firms by performin a variety of work that lawyers would otherwise do, thereby reducin costs for clients (because paraleals 1

2 2 The Paraleal s Guide to Professional Responsibility services are billed at lower rates) and increasin access to the leal system for individuals who miht not otherwise be able to afford leal services. The paraleal acts as an aent of the lawyer in reard to interaction with clients and others. As such, the paraleal owes the lawyer certain duties. Subsequent chapters will discuss these duties more fully in the context of the paraleal s function, but the eneral duties of an aent include the dilient and competent performance of tasks within the authority iven by the principal and the avoidance of conflicts of interest. Maintainin confidentiality and communicatin effectively would fall under these broad cateories. As lawyers are themselves aents (of their clients), they are subject to the same eneral duties. Lawyers duties, which have been formalized into specific bodies of rules, are introduced in Chapter 2 and discussed throuhout this book. Althouh these rules apply to lawyers and not to paraleals, paraleals as aents actin on behalf of their employers must help ensure that the rules are not violated. Model Rule of Professional Conduct 8.4 states, moreover, that [i]t is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct... throuh the acts of another. Consequences of rule violations usually fall upon the lawyer as the principal in the relationship, with deleterious effects on the firm and on the leal profession. However, paraleals can be held directly responsible for the unauthorized practice of law and other actions as described in later chapters. The aency relationship between lawyer and paraleal, then, requires first and foremost that the paraleal understand the rules of conduct overnin leal practice in the state where the lawyer is located. Next, the paraleal must refrain from any action that would cause a violation of the rules and mention any violation likely to occur as a result of lawyer or other staff actions. 2 Thus, the relationship between lawyer and paraleal is one of shared oals and mutual responsibility. Workin toether, they can efficiently provide hih-quality services. As members of a team, they owe certain obliations

3 The Role of the Paraleal 3 to one another. The lawyer must deleate, supervise, and assume ultimate responsibility for the paraleal s work. The paraleal should perform tasks competently, refrain from ivin leal advice or otherwise enain in the unauthorized practice of law, and keep the lawyer informed of proress on assinments. The role of paraleals continues to chane and expand. The work performed by paraleals is varied and complex and includes both routine tasks and more substantive tasks performed under the supervision of lawyers. The principal employers of paraleals in the private sector are law firms. Other employers include insurance companies, estate and trust departments of financial institutions, real estate firms, title insurance companies, and corporate law departments, as well as nonprofit oranizations such as unions, professional and trade associations, charitable oranizations, and consumer and advocacy roups. Public-sector employers include courts, leal services prorams, the military, and state and local overnment offices, such as those of public defenders and prosecutors. The larest employer of paraleals outside the private sector is the federal overnment. Who Are Paraleals? Paraleals are a diverse roup in terms of educational backround. Some enter the field directly after hih school and are trained on the job. Others advance to the paraleal ranks from clerical or secretarial backrounds. Still others choose to obtain a paraleal certificate or a deree before beinnin their careers. Many career chaners are enterin the field as well and securin postbaccalaureate credentials. Paraleals in the United States are not licensed; jurisdictions do not impose requirements, such as an examination or a character and fitness evaluation, before individuals may undertake paraleal responsibilities. Some states, however, have instituted voluntary reistration or certification prorams for paraleals. 3 In addition, some leal professional associations have recommended certain academic criteria they think are essential for entry into the field.

4 4 The Paraleal s Guide to Professional Responsibility The National Association for Leal Assistants (NALA) and the National Federation of Paraleal Associations (NFPA), the two larest national paraleal associations, have adopted definitions of the terms paraleal and leal assistant that enerally follow the one developed in 1997 by the ABA Standin Committee on Leal Assistants (now the Standin Committee on Paraleals): A leal assistant or paraleal is a person, qualified by education, trainin, or work experience, who is employed or retained by a lawyer, law office, corporation, overnmental aency or other entity and who performs specifically deleated substantive leal work for which a lawyer is responsible. 4 Further acknowledment that paraleals are capable of carryin out many tasks that would otherwise be performed by a lawyer, and billed at a hiher rate, came in Missouri v. Jenkins, a school desereation case in which the U.S. Supreme Court allowed a separate compensation award for paraleals, law clerks, and recent law school raduates. 5 The Court there delineated the substantive duties paraleals perform: It has frequently been reconized in the lower courts that leal assistants are capable of carryin out many tasks, under the supervision of an attorney, that miht otherwise be performed by a lawyer and billed at a hiher rate. Such work miht include, for example, factual investiation, includin locatin and interviewin witnesses; assistance with depositions, interroatories, and document production; compilation of statistical and financial data; checkin leal citations; and draftin correspondence. Much such work lies in a ray area of tasks that miht appropriately be performed either by an attorney or a leal assistant. 6 As paraleals acquire reater experience and in some instances develop specialized expertise in different areas of practice, they row increasinly more competent in performin tasks that have traditionally been performed by lawyers. Experienced paraleals are often iven proressively more responsibility and subjected to less direct supervision as they ain knowlede and skills. But, because the paraleal is the aent of the lawyer, who is ultimately responsible for all of the paraleal s actions, this increased responsibility includes an obliation to understand and uphold the same hih ethical standards to which the lawyer is subject.

5 The Role of the Paraleal 5 Growth of the Paraleal Profession While lawyers have employed leal secretaries or assistants for enerations, it has only been since the 1960s that a clearly identifiable paraleal profession has emered. 7 The risin cost of leal services threatened to exclude low-income and middle-income Americans from access to leal services, and local bar roups searched for ways to make leal services affordable while still protectin the public. The solution was the creation of a profession of specially trained paraleals. Initially, the only trainin available to many of those employed as paraleals was received on the job. Paraleals enterin the field today frequently are tauht both leal procedure and substantive law at paraleal prorams in educational institutions. These prorams are offered by collees and a variety of proprietary institutions. The role of paraleals in deliverin leal services has been steadily increasin since the late 1970s. Accordin to the Occupational Outlook Handbook, the U.S. Department of Labor estimates that approximately 277,000 individuals held positions as paraleals or leal assistants in The Handbook predicts that employment of paraleals and leal assistants will row 17 percent between 2012 and 2022, much faster than the averae for all occupations. 8 The ABA and Paraleals The ABA has been actively involved in supportin the paraleal profession by encourain paraleal education and employment. Paraleals are eliible to become associate members of the ABA and are encouraed to become associates in one or more of the 30 ABA Sections and Forums. Associate status in any of these entities entitles one to all privilees of membership except the riht to vote or to be an officer or council member. Associate members receive publications and participate in a variety of prorams. They are also eliible to be appointed to committees of these entities. In 1968, the ABA House of Deleates adopted a resolution creatin a committee, now named the Standin Committee on Paraleals, to consider

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