SUPERVISION OF NON-LAWYERS WITHIN THE
GUIDELINES AND ETHICS OF THE NORTH
CAROLINA STATE BAR
North Carolina Academy of Trial
Convention
Summer Convention 2003
Presented by:
Kenneth L. Hardison, Partner, Hardison
& Leone, L.L.P.
Cheryl J. Leone, General Manager, Hardison
& Leone, L.L.P
David W. Favor, Catalyst Teaching Seminars
"LETTING CAGED EAGLES FLY"
Lawyers more
than ever are faced with being able to
provide quality legal services while
keeping the cost of doing business at an
all time low. In order to accomplish this,
lawyers are depending more than ever on
non-lawyers to assist in the generation of
work product. As this dependency
increases, the lawyers are adding more and
more duties to the non-lawyer, which
requires an ever-increasing vigilance on
the part of the lawyer to adequately
supervise non-lawyers.
While most
lawyers apply this to the paralegal or
legal assistant the truth of the matter is
it applies to every non-lawyer in the
office, from the file clerk to a certified
paralegal to law students. As the level of
responsibility held by the non-lawyer
increases the duties of the lawyer to
supervise becomes more and more important.
In an effort
to avoid duplicate we have attached as
Exhibit A which is the excerpt from the
North Carolina State Bar's website setting
out the guidelines for the supervision of
non-lawyers within the guidelines of the
ethics rules. Every lawyer should read
this exhibit.
Most law
offices are made up of receptionists, file
clerks, secretaries and legal assistants
and/or paralegals. Each position holds a
degree of responsibility but the lines
become blurred as to what a non-lawyer can
or can't do, with confusion on both sides.
Each lawyer must make his or her own
decision as to what the levels of
responsibility are with respect to each
position and set the boundaries
accordingly.
Without
boundaries and as non-lawyers grow in
their competency they may, without meaning
to do so, cross the boundaries of
practicing law. Good legal assistants or
paralegals have a strong desire to learn
as much as they can and grow in their
knowledge and delivery of work product.
Because of this they can, without meaning
to do so, cross the boundaries into the
area of practicing law.
A law office
that wishes to establish good boundaries
and supervision for non-lawyers should
start first with defining positions within
a firm and what the level of
responsibility is.
Prior to the
early 1980's most law firms consisted of a
group of dedicated individuals called
legal secretaries. Courses were taken in
legal terminology at colleges in
secretarial science and secretaries in the
legal field were considered to be the
"cream of the crop". Keeping
pace with their lawyer, the legal
secretary was an integral part of the
legal process.
As legal
secretaries grew in knowledge and
expertise a semi-professional designation
grew out of this called a
"paralegal". Colleges began
offering two year to four-year courses to
establish individuals as paralegals who
did substantive legal work under the
direction of the lawyer. We are seeing
crop up 12 to 14 week courses, either
on-line or at community colleges offering
"paralegal certificates". Some
are certified by the American Bar
Association who has established a strong
set of standards for a course.
In this regard
we strongly encourage you to check out the
type of course material a paralegal has
taken when someone applies for this
position. You can easily be misled by the
level of education, training, and
understanding paralegals have depending on
when and where they took their training.
Legal
secretaries, many of whom, had spent many
years doing substantially the same work
demanded the recognition with our without
the title and thus lawyers started
designating legal secretaries who had, by
virtue of their experience and ability as
legal assistants or paralegals. Efforts to
regulate the designation in large part
have failed.
In this regard
the first area of confusion tends to be
what is a legal assistant and what is a
paralegal. Depending upon whom you talk
with they are either one in the same or
one has a higher degree of expertise than
the other. The ABA in 1986 defined a legal
assistant as: "a person, qualified
through 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." The ABA treats the
terms "legal assistant" and
"paralegal" as synonymous.
Many
paralegals (or legal assistants) who had
spent a great deal of time and energy on
their higher education came to resent the
law office personnel who got the same
recognition even though those with the
educational background had a great
understanding of the law and could apply
more substantive work. Lawyers simply set
back and let everyone fight it out.
With this
confusion over what duties each position a
non-lawyer could hold; ie: secretarial,
legal assistant, or paralegal, came the
confusion as to supervision and how far
could a non-lawyer go in delivering
quality work product.
We believe
that in order to properly supervise
non-lawyers it is important and crucial
that the lawyer define the boundaries of
each position. There is no unimportant
position in a law office and it is the
obligation of the lawyer owner to make
sure his or her own personnel understand
the position and the responsibility that
goes with it.
If you have
not done so you should immediately draft
and implement an Employee Manual. At
Hardison & Leone we have a detailed
Employee Manual that outlines the policies
and procedures of our firms together with
boundaries for our non-lawyer staff. We
require all members of the firm, attorneys
and staff alike, to adhere to this manual.
In addition we
have a Firm Attorney Manual, which also
outlines the policies, procedures and
boundaries for attorneys. Within this
manual are the duties of our attorneys for
supervision of non-lawyers.
Together these
two manuals give us the written directives
necessary to make sure that we comply with
the guidelines for non-lawyers.
We supplement
these two manuals with teaching and
training seminars put on by Catalyst
Group, Inc. for the attorneys and the
non-lawyers that teach leadership,
management and supervisory skills, and
teaching non-lawyers the boundaries they
must operate under. We also teach our
lawyers how to keep the non-lawyers within
these boundaries.
The following are some of the
boundaries we believe keeps our
non-lawyers from transgressing over into
the unauthorized practice of law.
CLIENT CONFIDENTIALITY:
We believe
this falls within supervision of
non-lawyers. Exhibit C is an excerpt from
our manual relating to client
confidentiality. This is one of the few
policies we have that if violated will
result in immediate dismissal from our
firm no matter your title or length of
service. Exhibit C is our policy on client
confidentiality.
DOCUMENTATION OF WORK ON FILE
We have a
policy that any conversation any lawyer or
non-lawyer has with any other person
whether it is a client, someone the client
has given authority to us to discuss the
case, another attorney, adjustor, staff
from other offices, must document this
discussion immediately upon occurrence of
the action on the file with details as to
what asked and what said. We have a case
management system that has a notes file.
However any law firm can create notes
files for clients without a case
management system.
Our lawyers
have two options with respect to notes
entries by non-lawyers. The first option
is to email the attorney the action. The
second action (provided by our case
management system) is to print all notes
for the day's work and the attorney on the
case reviews.
This allows
the lawyer to review the work of the
non-lawyers and to correct any erroneous
information plus to spot when a non-lawyer
is exceeding his or her boundaries.
We again have some strict rules on
"notes entries" the two most
important being that (1) you make the
notes entry immediately; and (2) you never
go back and alter a previously made note.
As in most computers you can tell when
something has been changed at a later date
or a timed entry and we have been known to
check to see no one is doing this. We have
terminated an employee who went back in
and made a note to cover an error.
TITLE DESIGNATIONS:
Within our firm our manual defines the
duties and responsibilities of the
non-lawyers. This is important because
with each job designation comes great
levels of experience and authority.
It is absolutely a rule that any
non-lawyer working in a law firm clearly
defines their name, their job title, and
whatever other steps they need to take to
make sure that the other person either by
phone or correspondence understands they
are dealing with a non-lawyer. All
correspondence requires the title
designation of the non-lawyer.
In our firm we require the non-lawyers
to type their name and title with which
attorney directed the work as follows:
Jane A. Smith
Paralegal
At the direction
of: Elizabeth A. Leone
Our phones are answered by the name of
the person and their title. For example,
you may here:
"This is
Jane Smith, I am paralegal to Beth Leone,
how may I help you"
Humor in our firm is that there are two
"Leone's". As General Manager I
get lots of calls because they have asked
for Ms. Leone. I am very clear that I am
the General Manager and not the attorney
(though I probably should state that I am
"Beth's Mom" which gives me more
status from time to time).
With title designation comes authority
(or the boundaries) we set for non-lawyers
within the firm. Exhibit B is taken from
our manual showing title designations.
AUTHORITY GRANTED TO NON-LAWYERS
In order to protect the firm we have
come up with some things non-lawyers
cannot do under any circumstances:
1. Statute of Limitations: Under no
circumstances may any non-lawyer in our
firm state the statute of limitations to
anyone, including potential new clients or
current clients. The only thing they are
permitted to state are there are
"time constraints" which are
necessary to meet and if you fail to meet
those time constraints you could be barred
from recovery. Any further demand for this
type of information is referred to an
attorney.
2. Client Information from File: Legal
Assistants through Case Managers may
provide information from the file to the
client as to general status. They may not
discuss the legal issues. Administrative
Assistants, Legal Secretaries, and
Management Personnel (except the General
Manager) may not reveal any information
without permission of the lawyer. They may
not talk with anyone else on the client's
case unless the client has given us
permission in writing to do so. We even
refuse to talk to a spouse unless the
client has given us written permission.
Note: We have a form the client signs at
the same time as the contract is signed
and our case is marked on the computer
with who has authority to call on case.
Basically we see our non-lawyers as the
person who establishes a good working
relationship with the client, gets all the
information we need on the case, and keeps
our cases organized and running. Lawyers
are the orchestra leaders and are the
dispenser of legal advice.
3. Client's Request for Legal Advice:
This usually translates into "what do
you think about my case". This is for
the lawyer, not the non-lawyer. Simply put
non-lawyers refer this to the lawyer. Our
client packets given to new clients
clearly state this. Our non-lawyers can
accept the question but the client is
aware it is related to the lawyer and any
response comes from the lawyer by direct
contact or related back to the client with
the provision that this is the lawyer's
advice.
4. Dealing with Other Law Firms: While
we try to be as helpful as possible we
have set strong limits on all our
non-lawyers. Those "darn defense
attorneys" will try to get a staff
person to be chatty about the case. They
simply may not tell any defense attorney
anything about a file without the lawyer's
permission. They may deal with the firm or
the staff in setting up mediations,
depositions, and etc. but they cannot
discuss anything else.
5. Dealing with Adjustors: Adjustors
call our non-lawyer staff constantly for
"updates". We do not permit
anyone other than our most senior Legal
Assistant, Senior Paralegal, or Case
Manager to provide updates on the client's
condition. The information that can be
released is basic and the lawyer has given
the authority to the person to do so.
(Note: Ever had an adjustor ask a staff
person how your injured client is and the
non-lawyer says "fine". We can
assure you that the adjustor just lowered
the reserve on the claim.)
One of the examples our firm faces is
whether or not our paralegals can
negotiate claims with an adjustor. RPC 70
states that non-lawyer may communicate and
negotiate claims with a claims adjustor
for the adverse party's insurance carrier
provided the non-lawyer does not exercise
independent legal judgment regarding the
value of the case.
In order to make sure we comply with
RPC 70, the lawyer discusses the claim
value with the client, sets the parameters
of the value of the case, our paralegals
negotiate with the claims adjustor and
after each offer and counter-offer meets
with our lawyers for additional
discussions. None of our case managers may
accept an offer without notes
documentation by the lawyer that they
instructed the case manager to accept the
offer.
6. Legal Pleadings and Documents: Our
Legal Assistants and Paralegals are
responsible for a great deal of
preparation of letters, settlement
packages, briefs, litigation pleadings,
etc. A non-lawyer in our firm may not mail
any documents so prepared without prior
approval by the lawyer. Unless the letters
drafted by non-lawyer are of a general
nature with the content pre-approved the
lawyer handling the case must approve
them.
Our non-lawyers are not permitted to
sign attorney's name to any legal document
for any reason whatsoever. If an attorney
is out of the office, that attorney must
talk with another attorney in the office
if it is truly that crucial.
If an attorney dictates or has a letter
or document drafted that is not filed with
the Court but and the lawyer is not
available to sign it, the non-lawyer upon
direction from the lawyer can sign the
lawyer's name but the words must appear on
the letter below the lawyer's signature:
"Dictated but signed in the
attorney's absence". This allows the
lawyer an out if there is a problem.
Helpful Hint: Many times non-lawyers
talk to clients and get valuable
information that requires follow-up advice
from the lawyer. The non-lawyer knows what
the lawyer would say and they are directed
to immediately draft letter, confirming a
conversation, proposing solution, and give
to the lawyer to review and sign. It makes
the lawyer look good.
7. Giving credit where credit is due:
The hardest part to control in our opinion
is the enthusiasm of our talented
non-lawyers to talk about the case
utilizing the phrasing…."I think
you should…". We actually hold a
class and teach our staff to say,
"Mr. Hardison thinks you should…"
or "Mr. Hardison has asked me to tell
you he would like you to…". Nothing
is worse than to overhear a non-lawyer
acting as if he or she controls the file
and if it were not for them the case would
fall apart. Our lawyers get the credit
from the client…. the non-lawyer gets
the credit from the lawyer.
8. Supervision of Non-Lawyers: At our
firm we believe we have clearly told our
non-lawyers our EXPECTATIONS,
having given them the TOOLS (good
working conditions, equipment, training
and education), provide FEEDBACK
(supervision, critiquing, praise) and we
expect ACCOUNTABILITY.
The lawyers in our office are
responsible for the day-to-day management
of their staff in the generating of the
work product and their compliance with the
boundaries for non-lawyers. We consider
this to be as crucial to our success as
the ability to give outstanding client
service and quality work product. Catalyst
Group provides mandatory classes for
lawyers in leadership and management. We
expect our lawyers to step up to the plate
and be the mentor, the teacher, and the
role model to our non-lawyers.
We do not permit lawyers to so heavily
rely on staff that they do not know their
case or the client and let the staff run
the case. Our lawyers do not hide behind
talented staff but rather work in concert
with them to meet all the needs of our
clients. Our firm has a "Quality
Assurance Division" and we routinely
and randomly physically audit files (even
those of the partners).
Lawyers are required to meet with their
staff once a week to go over their entire
case list. Each person's level of
responsibility dictates the direction of
the meeting. Because only our most senior
legal assistants or paralegals or case
managers have more responsibility, this is
the time the lawyer gives the direction on
the case, what may or may not be done, and
allows our non-lawyers to run with the
case. We document direction given at the
meeting in notes. Again case managers do
not make decisions on values of cases.
They are given authority levels and may
not except or reject offers without the
authority of the lawyer.
By the same token our lawyers utilize
our staff heavily to convey messages,
draft documents, letters and memorandums
so that our lawyers truly practice the
fine art of law.
The bottom line is that it is the
lawyer's responsibility to govern the
actions of their staff. If lawyers fail to
set the high standards required by the
North Carolina State Bar with respect to
non-lawyers, they fail themselves and the
quality of work product and client service
that today's client consumer has the right
to expect.
HOW TO LET CAGED
EAGLES FLY
A "caged eagle" is an
employee who has outstanding skills,
intelligence, knowledge and ability but is
not allowed to exercise independence, make
decisions, or grow to higher levels.
Lawyers have by tradition many "caged
eagles". We believe this is because
lawyers see this as "giving up
control".
Having decided how we would control our
employees and make sure our lawyers
understand and accept their responsibility
for supervision so we didn't violate any
of the State Bar Ethics, we also realized
you can restrict employees too much. We
realized quickly the difference was the
level of training, education and
experience dictated which employees could
handle the responsibility.
An unwillingness on the part of the
lawyer to admit that a non-lawyer may be
just as intelligent, just as
knowledgeable, and can do some of the
traditional work does by lawyers,
restricts employees and keeps the lawyers'
overhead high. It is one of the single
most important factors we believe that
stops work production and cause the lawyer
to wake up in the middle of the night
worrying about a case.
We believe there are a great number of
competent non-lawyers who can handle the
cases as well as the lawyer exclusive of
the theory of the law and the trial. To
accomplish this level of non-lawyer, we
believe in TRAINING AND EDUCATION and then
giving RESPONSIBILITY.
We have seminars available on every
aspect of our practice area, which certain
employees are required to attend. We teach
them law! We believe if they know why they
can figure out how to best support the
lawyer and the client.
There are many excellent companies that
provide in-house training seminars.
Exhibit D is a list of seminars offered by
Catalyst Group as an example. We believe
the money spent on training and education
pays off many times over.
Each week our entire practice areas
meet, lawyers and staff alike, to discuss
certain areas of law or reasoning. We make
our lawyers "teachers". It has
paid off time and time again when a
non-lawyer will spot a problem in a file
because they knew the law and brings it to
the lawyer's attention. All of our high
level staff are required to read Lawyers
Weekly every week. We send them to NCATL
Seminars. Advancement within our firm is
directly tied to successful completion of
our Catalyst Teaching Seminars.
We insist that our lawyers have no
"egos". We always believe that
two heads are better than one. We have
also seen non-lawyers spot a problem and
head off a difficult situation or an
embarrassing one because they were
confident in their job and what they knew.
We have an open door policy with our
non-lawyers to come in and discuss a case
or a problem.
The knowledge and experienced of well
trained staff allows the lawyer and the
non-lawyer to be an unbeatable team. We do
not have our non-lawyers taking this type
of education in the law to our clients or
outside the firm. Rather it makes them
manage the files much faster and generates
a quality work product. You only have to
see a settlement packaged drafted by one
of our case managers that explains a
complex legal liability situation coupled
with legal research and strong medical
research to support the claim to realize
the hours our staff save our lawyers.
By supervising non-lawyers but giving
them the ability and challenge to see how
far they can go with the knowledge creates
an excitement with our staff. They see
themselves as true professionals. They see
the lawyer in control of the case.
We have long had the philosophy that
the higher the standard we set the more
likely it is that the standard will be
met. Having been accused of expecting too
much from non-lawyers it is with a great
deal of pride that we show off our highly
talented staff. We have been able to keep
our over-head down by layering our staff
with degrees of responsibility and
authority and giving our lawyers time to
handle the law and the complexities of the
case. Today's lawyer has to utilize and
maximize all avenues within the business
aspect of a law practice.
Eagles are meant to fly higher and
farther. It is up to the lawyer to open
the cage door and teach them to fly beyond
all heights. Eagles are meant not only to
fly but also to soar to new heights.
Boundaries, coupled with responsibility,
will give the lawyer in the 21st Century
eagles to carry you, the lawyer, to new
heights in the practice of law.
One of our favorite sayings at our firm
simply is this: "There are no limits
on what you can know, there are no limits
on what you can be, and there is no limits
on what you can make." And we back
this policy by thought, word and deed.
As you leave this seminar, we would
challenge you to look at your staff and
ask yourself if you have caged eagles or
free eagles, are you in control of your
office or is your office in control of
you. Are you truly the lawyer in the firm
and do you have people who understand your
role and the role of the non-lawyer.
If not, then we encourage you to start
a new day with a new type of practice -
and make an unbeatable team of lawyers and
non-lawyers.
EXHIBIT A to "Setting The
Boundaries for Non-Lawyers"
EXCERPT FROM NORTH CAROLINA STATE BAR
WEBSITE
GUIDELINES FOR USING NON-LAWYERS IN
RENDERING LEGAL SERVICES
Making legal services of good quality
available to all segments of the public
efficiently and at a cost all can afford
is an important goal of and one reason for
the existence of officially established
bar organizations. The North Carolina
State Bar is committed to this goal.
In the early days of the legal profession,
lawyers performed all tasks relative to
legal representation, including the
physical preparation of documents. In more
recent times, to increase efficiency and
allow the attorney to spend more time in
forming and exercising legal judgment,
most clerical and routine tasks are
delegated to non-lawyer assistants. Quite
naturally, the responsibilities of these
non-lawyer assistants have increased over
time. Such persons are now routinely
engaged in activities, which were once
felt to be the exclusive province of
lawyers.
No state agency regulates paralegals in
North Carolina. Moreover, the North
Carolina State Bar only regulates the
activities of legal assistants through the
obligation of its attorney members to
supervise legal assistants. The North
Carolina State Bar does have regulatory
authority to investigate the unauthorized
practice of law by a paralegal.
The Rules of Professional Conduct
establish the standards for lawyers using
non-lawyer assistants. Chapter 84 of the
N.C. General Statutes includes laws
regulating the unauthorized practice of
law. The Council of the North Carolina
State Bar and its committees on ethics and
the unauthorized practice of law have
interpreted these ethical standards and
the North Carolina statutes in response to
inquiries on this subject.
The following guidelines are intended
neither to change the Rules and their
formal interpretation, nor to inhibit the
proper employment and usage by attorneys
of persons who can help them enhance both
the quality and efficiency of their legal
services. Every lawyer, law firm, and
legal service organization of this State
must decide, based on the statutes
regulating the practice of law, the extent
to which legally-related tasks may
properly be performed by non-lawyers. The
intent of these guidelines is to assemble
in one document the applicable standards
(with appropriate comment) for the ready
use of attorneys and their employees in
determining the permissible bounds of the
conduct and activities of lay persons
engaged in assisting lawyers in the
rendition of legal services.
Although the use of non-lawyers in the
actual practice of law is fraught with the
most difficult questions and has received
the greatest attention, the guidelines
address the employment of non-lawyer
assistants in a variety of contexts
including non-lawyer employees and
independent contractors. These guidelines
also govern the activities of persons
working in an attorney's office who are
licensed to practice law by other
jurisdictions but not North Carolina. For
rules governing the use of disbarred or
suspended lawyers, see Revised Rule of
Professional Conduct 5.5(c) & (d). For
economy of style, these guidelines refer
to all laypersons assisting lawyers, from
the office "runner" or file
clerk to the graduate paralegal or special
investigator, as "assistants."
Special Issues Involving Paralegals
and Legal Assistants
Definition
Although these guidelines generally apply
to the use of all non-lawyer assistants in
rendering legal services, certain issues
affect only the use of paralegals or legal
assistants. The American Bar Association
("ABA") in 1986 defined
"legal assistant" as:
A person, qualified through 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.
The ABA treats the terms "legal
assistant" and "paralegal"
as synonymous. Consequently, these
guidelines use the terms interchangeably.
One reason why it is necessary to use
such a definition is that no mandatory
course of study or certifying exam exists
to qualify one as a legal assistant or a
paralegal, and attorneys are not required
to hire legal assistants with any specific
educational prerequisites or
certifications. Nevertheless, information
about paralegal educational and
certification programs may assist an
attorney in hiring and effectively
utilizing legal assistants in accordance
with the attorney's ethical obligations
and these guidelines.
Educational Programs
With respect to paralegal education, a
wide variety of programs exist. There is
no standard, prescribed curriculum for
paralegals that is analogous to law
school. Educational programs vary from
two-year associate degrees, to
undergraduate training, to post-graduate
training. Because of the variety of
programs, external criteria exist to
evaluate paralegal educational programs.
The ABA Standing Committee on Legal
Assistants has adopted guidelines for
paralegal training programs, which include
criteria for curriculum, faculty, library
facilities and career placement results.
Only those paralegal training or
educational programs meeting these
guidelines are ABA-approved. Application
for ABA approval is voluntary.
Additionally, the American Association
for Paralegal Education
("AAFPE") is a national
organization of member institutions
offering paralegal education. AAFPE was
formed to promote high standards for
paralegal educational programs. All AAFPE
institutions must be either ABA-approved
or be in "substantial
compliance" with ABA guidelines.
AAFPE does not perform on-campus
evaluations for each program but does
review each institution's application for
membership.
Additional information about ABA
approval or AAFPE membership may be
obtained by writing to the ABA and AAFPE
at the following addresses:
American Bar Association
Standing Committee on Legal Assistants
750 North Lake Shore Drive
Chicago, IL 60611
(312) 988-5618
American Association for Paralegal
Education
P. O. Box 40244
Overland Park, KS 66204
(913) 381-4458
Certification
Legal assistants are not required to pass
any specific qualifying or certifying exam
analogous to the bar exam. Paralegal
certification is a voluntary process
conducted by non-governmental entities
that certify applicants who meet certain
qualifications. Such qualifications
include completion of an approved
educational program, passing a qualifying
exam or having a specified amount of work
experience. Certification is distinct from
a certificate of completion, which
generally is awarded upon successful
completion of an educational or training
program.
The most common certification program is
offered by the National Association of
Legal Assistants ("NALA").
Successful completion of the NALA program
requires passing a two-day exam and
results in a designation as a Certified
Legal Assistant ("CLA"). To
retain CLA status, a legal assistant must
attend a certain number of continuing
legal education classes periodically. For
more information about the NALA
certification program, contact:
National Association of Legal
Assistants
1516 South Boston Street
Tulsa, OK 74119
(918) 587-6828
Voluntary Associations and Associate
and Affiliate Memberships
In addition to educational programs and
certification, numerous voluntary
associations of paralegals exist in North
Carolina. For example, the North Carolina
Paralegal Association ("NCPA")
is a statewide association and an
affiliate of the National Association of
Legal Assistants. The membership consists
primarily of legal assistants but is open
to students in paralegal programs,
attorneys, educators and others in the
legal profession. NCPA offers several
different classes of memberships, all of
which have different eligibility
requirements. Information about the NCPA
or any local paralegal association may be
obtained by contacting:
North Carolina Paralegal Association
PO Box 36264
Charlotte, NC 28236-6264
1-800-479-1905
1-704-535-3363
info@ncparalegal.org
Several voluntary professional
organizations for attorneys offer
associate or affiliate memberships for
legal assistants. For example, the North
Carolina Bar Association allows paralegals
to become affiliate members of the Bar
Association. Affiliate membership is
voluntary and open to legal assistants
satisfying the Bar Association's
membership criteria, which includes
education, training, job experience, and
supervised employment by an attorney
member of the North Carolina State Bar for
not less than 800 hours per year. To
receive more information about affiliate
membership, contact:
North Carolina Bar Center
8000 Weston Parkway
Cary, NC 27513
(919) 677-0561
(919) 677-0761 fax
In addition, the North Carolina Academy
of Trial Lawyers ("Academy")
allows paralegals to become associate
members provided they are employed by an
attorney member of the Academy. For more
information about the Academy's Legal
Assistants Division, contact:
North Carolina Academy of Trial Lawyers
P. O. Box 10918
Raleigh, NC 27605-0918
(919) 832-1413
(800) 688-1413
(919) 832-6361 fax
Finally, the North Carolina Association
of Women Attorneys ("NCAWA")
offers an associate membership to
non-lawyers who are interested in
furthering the goals of NCAWA. For
information, contact:
North Carolina Association of Women
Attorneys
P. O. Box 1593
Durham, NC 27702-1593
(919) 479-2032
Membership in these organizations is
not a prerequisite to working as a legal
assistant in North Carolina.
Guidelines
A LAWYER SHALL NOT PERMIT AN
ASSISTANT TO ENGAGE IN THE PRACTICE OF
LAW.
G.S. 84-4 makes it unlawful for anyone
but a licensed attorney to practice law.
The term "practice law" is
defined in G.S. 84-2.1:
The phrase "practice law" as
used in this Chapter is defined to be
performing any legal service for any other
person, firm, or corporation, with or
without compensation, specifically
including the preparation or aiding in the
preparation of deeds, mortgages, wills,
trust instruments, inventories, accounts
or reports of guardians, trustees,
administrators or executors, or preparing
or aiding in the preparation of any
petitions or orders in any probate or
court proceeding; abstracting or passing
upon titles, the preparation and filing of
petitions for use in any court, including
administrative tribunals and other
judicial or quasi-judicial bodies, or
assisting by advice, counsel, or otherwise
in any legal work; and to advise or give
opinion upon the legal rights of any
person, firm or corporation: Provided,
that the above reference to particular
acts which are specifically included
within the definition of the phrase
"practice law" shall not be
construed to limit the foregoing general
definition of the term, but shall be
construed to include the foregoing
particular acts, as well as all other acts
within the general definition.
The Rules of Professional Conduct provide:
"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."
Rule 5.5(b). The rationale for allowing
only licensed attorneys to practice law is
articulated in the comment to the rule:
"Limiting the practice of law to
members of the bar protects the public
against rendition of legal services by
unqualified persons." Rule 5.5(b),
Comment [1]. As noted in the Comment,
however, Rule 5.5 "does not prohibit
a lawyer from employing the services of
paraprofessionals and delegating functions
to them, so long as the lawyer retains
responsibility for their delegated
work." Id.
Regardless of the apparent competence
displayed by a paralegal or legal
assistant, members of the bar must ensure
that assistants do not transgress the
rules governing the unauthorized practice
of law and thereby violate the law and the
Rules of Professional Conduct. A lawyer
may, however, allow an assistant to
perform legally related tasks, provided
the lawyer and the assistant comply with
these guidelines. For example, an
assistant may communicate and negotiate
claims with a claims adjuster for the
adverse party's insurance carrier, as long
as the assistant does not exercise
independent legal judgment regarding the
value of the case. RPC 70.
A LAWYER SHALL NOT PERMIT AN
ASSISTANT TO APPEAR ON BEHALF OF A CLIENT
IN A DEPOSITION, IN COURT OR BEFORE ANY
AGENCY OR BOARD, IN PERSON OR ON THE
RECORD, UNLESS PERMITTED BY THE NORTH
CAROLINA GENERAL STATUTES AND A RULE OF A
PARTICULAR COURT, AGENCY OR BOARD.
Although only an attorney may act as a
representative of or serve as an advocate
for a client before most judicial and
administrative bodies, there are
exceptions by virtue of statute,
administrative rule, court rule and
regulation. For example, the Federal
Administrative Procedures Act authorizes
non-lawyers to represent parties in
certain proceedings before specified
federal agencies. Also, a qualified law
student is allowed to perform certain
functions normally restricted to members
of the bar provided the student acts under
the supervision of an attorney pursuant to
an approved program. Even when an
assistant is permitted to appear and
represent a client, the assistant should
disclose his or her non-lawyer status.
A lawyer may not permit an assistant
either to examine a witness at a
deposition or to represent a client who is
being deposed by the opposing attorney.
RPC 183.
A LAWYER SHALL REQUIRE THAT AN
ASSISTANT DISCLOSE THAT HE OR SHE IS NOT A
LAWYER WHEN NECESSARY TO AVOID
MISREPRESENTATION.
Although an assistant may communicate
directly with a client on behalf of the
lawyer, early disclosure of non-lawyer
status is necessary to assure that there
will be no misunderstanding as to the
responsibilities and role of the
assistant. Disclosure may be made in any
way that avoids confusion. Common sense
suggests a routine disclosure at the
outset of a conference or any type of
communication. If an assistant is
designated as the individual to contact in
a law firm, disclosure of the non-lawyer
status should be made at the time of such
designation.
Rule 4.2 prohibits a lawyer from
communicating with a party known to be
represented by an attorney, unless the
person's attorney consents. The rule also
prohibits a lawyer from using an agent,
including an assistant, to make such a
communication. The lawyer has an
obligation to ensure that his or her
assistant does not communicate directly
with a party known to be represented by an
attorney, without that attorney's consent.
A PARTNER IN A LAW FIRM SHALL MAKE
REASONABLE EFFORTS TO ENSURE THAT THE FIRM
HAS IN EFFECT MEASURES GIVING REASONABLE
ASSURANCE THAT THE ASSISTANT'S CONDUCT IS
COMPATIBLE WITH THE PROFESSIONAL
OBLIGATIONS OF THE LAWYER.
Rule 5.3(a) places responsibility upon
the principals of a law firm to see that
the firm ensures that the conduct of legal
assistants is consistent with the
professional obligations of the lawyers in
the firm. Thus, it is very important that
those lawyers having responsibility for
the management of the firm familiarize
legal assistants with all relevant
provisions of the Rules of Professional
Conduct. Particular care must be taken to
ensure that legal assistants understand
and appreciate the obligation to maintain
the confidentiality of information
received incident to the representation of
clients. Moreover, "[the measures
employed in supervising non-lawyers should
take account of the fact that they do not
have legal training and are not subject to
professional discipline." Rule 5.3,
Comment [1]. In addition to assuring
compliance with the attorney's ethical
obligations, an attorney should ensure
that a non-lawyer is properly educated or
trained to perform any legal task the
attorney delegates to the assistant.
Obviously, a lawyer is better able to
ensure ethical compliance by assistants
who are employees of the lawyer because
the lawyer is in contact with employees on
a regular basis. When the assistant is not
working as an employee of the lawyer, but
instead contracts independently to perform
legally related tasks, the lawyer is still
responsible for the assistant's work
product and ethical conduct. For this
reason, special care must be taken by the
lawyer to make sure that the assistant
performs both competently and ethically
before entrusting services to an
independent assistant.
A lawyer who discovers that a non-lawyer
has misappropriated money from the
attorney's trust account must inform the
State Bar. Rule 5.3, Comment [2].
A LAWYER HAVING DIRECT SUPERVISORY
AUTHORITY OVER AN ASSISTANT SHALL MAKE
REASONABLE EFFORTS TO ENSURE THAT THE
ASSISTANT'S CONDUCT IS COMPATIBLE WITH THE
PROFESSIONAL OBLIGATIONS OF THE LAWYER.
Just as the principals of a law firm
have general responsibility to ensure that
assistants are aware of the ethical rules,
lawyers having direct supervisory
authority over assistants must make
reasonable efforts to ensure that the
work, which they are supervising, is
accomplished in a manner which is
compatible with their own professional
obligations.
Specifically, Rule 5.3(c) makes a
lawyer professionally responsible for
conduct of legal assistants over whom he
or she has direct supervisory authority,
which conduct would violate the Rules of
Professional Conduct if engaged in by a
lawyer, if (1) the lawyer orders the
conduct involved, or (2) the lawyer knows
of the conduct at a time when its
consequences can be avoided but fails to
take reasonable actions to avoid the
consequences.
A LAWYER SHALL MAINTAIN AN ACTIVE
AND DIRECT RELATIONSHIP WITH THE CLIENT,
SUPERVISE THE ASSISTANT'S PERFORMANCE OF
DUTIES, AND REMAIN FULLY RESPONSIBLE FOR
THE WORK PERFORMED.
An attorney shall maintain an active,
personal relationship with his or her
clients. Maintaining such a relationship
with the client, however, does not
preclude an assistant from meeting with or
talking with the client, nor does it
necessarily require regular and frequent
meetings between the lawyer and client.
However, whenever it appears that
consultation between the lawyer and the
client is necessary, the lawyer should
talk directly with the client and, when
reasonable, remain available for
consultation with the client.
An assistant should inform the
responsible lawyer of all significant
actions and services performed by the
assistant. A lawyer can maintain ultimate
responsibility for the actions of a legal
assistant only if the lawyer is fully
informed of the actions of the assistant.
Only by thorough supervision of the
assistant can the lawyer ensure that the
assistant is neither engaging in the
unauthorized practice of law nor involving
the lawyer in any violation of the
lawyer's professional responsibilities.
A LAWYER SHALL ENSURE THAT NO
INTEREST OR RELATIONSHIP OF THE ASSISTANT
IMPINGES UPON THE SERVICES RENDERED TO THE
CLIENT.
A lawyer owes his or her client
loyalty. The attorney's loyalty must not
be diluted by the interest of anyone other
than the client. If the interests of a
legal assistant might materially limit or
otherwise adversely affect the lawyer's
representation of a prospective or current
client, Rule 1.7 clearly requires the
lawyer to decline or discontinue the
representation.
Lawyers should make sure that their
assistants clearly understand their
professional and ethical responsibilities
with respect to conflicts of interest. If
a lawyer accepts a matter in which the
assistant has a conflict of interest that
does not affect or limit the lawyer's
representation of the client, the lawyer
should exclude the assistant from
participation in the representation. RPC
176. Although the imputed disqualification
rules in Rule 1.10 do not apply to
non-lawyers, the attorney must take
"extreme care to ensure" that
the assistant is totally screened from
participation in the case. Id. In
addition, the lawyer should inform the
client that a non-lawyer employee has a
conflict of interest which, were it the
lawyer's conflict, might prevent further
representation of the client in connection
with the matter. The nature of the
conflict should be disclosed. No interest
or loyalty of the assistant may be
permitted to interfere with the lawyer's
exercise of independent professional
judgment.
Similarly, a lawyer is not disqualified
from representing a client merely because
a secretary or paralegal in his or her
office may be called as a witness. RPC 19
& 213. Rule 3.7, holding that a
potential conflict exists if an attorney
is both an advocate and a witness, does
not apply to assistants of the lawyer. RPC
19.
A LAWYER MAY CHARGE A CLIENT FOR
LEGAL WORK PERFORMED BY A LEGAL ASSISTANT
BUT SHALL NOT FORM A PARTNERSHIP OR OTHER
BUSINESS ENTITY WITH AN ASSISTANT FOR THE
PRACTICE OF LAW.
Numerous authorities, including the
United States Supreme Court, recognize
that paralegal work may be billed at the
prevailing market rate and included in a
fee application to a court. See, e.g.,
Missouri v. Jenkins, 491 U.S. 274 (1989).
Generally, a lawyer may bill and recover
for a non-lawyer's work if the work would
have traditionally been performed by the
lawyer. Of course, fees for non-lawyer
assistants, like fees for attorney's work,
must be reasonable.
On the other hand, Rule 5.4 generally
prohibits sharing legal fees with a
non-lawyer. In accordance with this rule,
compensation of an assistant may not
include a percentage of the fees received
by the lawyer, nor should the assistant
receive any remuneration, directly or
indirectly, for referring matters of a
legal nature to the lawyer. For example, a
lawyer may not pay an assistant a
discretionary bonus that is based upon a
percentage of the fees generated in
matters on which the assistant worked. RPC
147. A lawyer may, however, include his or
her assistants in a retirement plan, even
though the plan is based in whole or in
part on a profit-sharing arrangement. Rule
5.4(a)(4).
A LAWYER'S LETTERHEAD OR A BUSINESS
CARD MAY INCLUDE THE NAME OF A NON-LAWYER
ASSISTANT IF THE ASSISTANT'S CAPACITY IS
CLEARLY INDICATED AND THE DOCUMENT IS
OTHERWISE NEITHER FALSE NOR MISLEADING.
A lawyer's letterhead, like other
communications about the lawyer or the
lawyer's services, must not be false or
misleading. Rule 7.1. Specifically, such
communication may not misrepresent a fact
or omit a fact necessary to make a
statement not materially misleading. See
Rules 7.1(a). To avoid the implication
that an assistant whose name appears on
the letterhead of a lawyer or law firm is
licensed to practice law, the limited
capacity of the non-lawyer must be clearly
indicated. RPC 127.
Likewise, business cards bearing the
name of the lawyer or law firm employing
an assistant may be used by the assistant
for identification. However, the
assistant's non-lawyer status must be
evident from the title or other
description used with the non-lawyer's
name. See CPR 253.
An assistant may also sign correspondence
on a lawyer's or a law firm's letterhead,
subject, however, to the same
requirements. For example, an assistant's
signature must be accompanied by a title,
such as "secretary," "legal
assistant" or "paralegal."
A LAWYER MAY USE A NON-LAWYER,
NON-EMPLOYEE FREELANCE LEGAL ASSISTANT IF
THE LAWYER ADEQUATELY SUPERVISES THE
NON-LAWYER'S WORK.
It is permissible for a lawyer to
employ a non-lawyer, non-employee
freelance legal assistant (hereafter,
"freelance assistant") provided
certain conditions are met. A lawyer must
take reasonable measures to determine that
the freelance assistant is competent to
perform any activities delegated to the
assistant. See, e.g., RPC 216 (3rd
revision). In addition, as with an
employee, an attorney must also take
reasonable measures to ensure that the
freelance assistant complies with the
attorney's ethical responsibilities. The
lawyer must adequately supervise the
freelance assistant and inquire into the
freelance assistant's potential conflicts
of interest. Id. Additionally, the
attorney must be competent to do the legal
work delegated to the non-lawyer and to
supervise adequately the non-attorney. The
lawyer may not rely on the experience and
knowledge of the freelance assistant in
the practice area.
For example, an attorney utilizing a
freelance assistant to perform title
searches must ensure that the freelance
assistant is competent to perform such
services. Id. Additionally, to supervise
the freelance assistant, the attorney must
be competent to search and prepare title
opinions and may not rely on the
experience of the freelance assistant in
this area. Id. Assuming the attorney
satisfies these and all other pertinent
ethical obligations under the Rules, the
attorney may use a freelance assistant to
perform title searches. Id. An attorney
may not, however, rely on the title
summary of a freelance assistance over
whom the attorney does not exercise proper
supervision. RPC 29.
Finally, an attorney should disclose to
the client the use of a freelance
assistant, the name of the freelance
assistant and how the freelance
assistant's services will be charged to
the client, if the client inquires.
Revised RPC 216.
Exhibit C
THE FOLLOWING RELATES TO NON-LAWYER STAFF
ONLY
Hardison & Leone, L.L.P.
Firm Policy Manual
