RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

Obsolete Date: 3/1/2016

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers has comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer's conduct is compatible with the professional obligations of the lawyer;

(b) the lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of a nonlawyer that would be a violation of these Rules if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the nonlawyer is employed, or has direct supervisory authority over the nonlawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated, but fails to take reasonable action.

(d) In addition to paragraphs (a), (b) and (c), the following apply with respect to a legal assistant employed or retained by or associated with a lawyer:

(1) A lawyer may delegate to a legal assistant any task normally performed by the lawyer except those tasks proscribed to one not licensed as a lawyer by statute, court rule, administrative rule or regulation, controlling authority, or these Rules.

(2) A lawyer may not delegate to a legal assistant:

(i) responsibility for establishing a lawyer-client relationship;

(ii) responsibility for establishing the amount of a fee to be charged for a legal service;

(iii) responsibility for a legal opinion rendered to a client; or

(iv) responsibility for the work product.

(3) The lawyer shall make reasonable efforts to ensure that clients, courts, and other lawyers are aware that a legal assistant is not licensed to practice law.

Comment

[1] Lawyers generally employ nonlawyers in their practice, including secretaries, legal assistants, investigators, law student interns, and paraprofessionals. These individuals, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such nonlawyers appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and is responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

[2] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with these Rules. See Comment to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of these Rules if engaged in by a lawyer.

[3] While appropriate delegation of tasks to legal assistants is allowed, a lawyer may not permit a legal assistant to engage in the "practice of law." The key to appropriate delegation is proper supervision, which includes adequate instruction when assigning projects, monitoring of the project, and review of the project. Lawyers should take care in hiring and choosing a legal assistant to work on a specific project to ensure that the legal assistant has the education, knowledge, and ability necessary to perform the delegated tasks competently.

[4] The following guidelines have been recognized as helpful in evaluating the education, training or experience of a qualified legal assistant.

1) Graduation from one of the following ABA approved legal assistant/paralegal programs: bachelor's degree, associate's degree, or a post-baccalaureate program. If not ABA approved, graduation from a legal assistant/paralegal program that consists of a minimum of 60 semester credit hours or the equivalent, of which eighteen semester credit hours are substantive legal assistant/paralegal courses.

2) A bachelor's degree in any field, and either one-year employer training as a legal assistant/paralegal or eighteen semester credit hours of legal assistant/paralegal substantive courses.

3) Successful completion of a national certifying examination that is specifically designed for legal assistants/paralegals and which includes continuing legal education for maintenance of that certification status.

4) Seven years or more of experience working as a legal assistant/paralegal who has been employer trained by and under the supervision of a lawyer.

[5] The essential elements of any lawyer-client relationship are the agreement to undertake representation, the scope of that representation, and the fee arrangement relating to that representation. In evaluating whether to undertake the representation, the lawyer must evaluate whether any circumstances exist which would require that the representation be declined (See, Rule 1.16). Rule 1.2 requires that the lawyer consult with the client regarding any limitations on the scope of representation. The lawyer must further obtain the agreement of the client, and in some cases written agreement, with respect to the fee arrangement relating to the representation (See, Rule 1.5). In addition, Rule 2.1 requires a lawyer to exercise independent professional judgment and render candid advice. These matters are of such importance that they must be handled personally by the lawyer. Regardless of how the legal assistant may be used in the initial stages of establishing a lawyer-client relationship, i.e., gathering background information from the client and others, preparing initial drafts of fee arrangements, or performing other incidental tasks, the lawyer may not delegate responsibility to a legal assistant or other nonlawyer for deciding whether the representation will be undertaken or for any legal opinion rendered to a client.

[6] Finally, nonlawyers may not hold themselves out as lawyers. It is the lawyer's responsibility to see that communications about services rendered by the law firm and its nonlawyers are not false, fraudulent, deceptive or misleading (See, Rule 7.1), and that nonlawyer employees of the firm understand those limitations. If the lawyer or a legal assistant becomes aware that the role of the legal assistant is unclear, the lawyer has an affirmative duty to clarify the legal assistant's role.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 11/08/85 and 01/31/86; Minutes of the Joint Committee on Attorney Standards Meetings of 06/13/95, 09/15/95, 12/01/95, 06/11/96, 08/06/04, 04/08/05, 06/14/05, 09/09/05.