ETHICS OPINION 641-1975 ETHICS AND THE PARALEGAL

Opinion Number 641

NUMBER 641

QUESTION.

 

What ethical guidelines govern the employment and conduct of paralegals?

 

ANSWER.

 

“Paralegal” is a term of relatively recent origin, but one with which lawyers are becoming increasingly familiar. Whether denominated “paralegal”, “legal assistant”, “lay assistant”, “investigator”, “law secretary” or otherwise, the concept relates to one who, although not a member of the Bar, has received specialized training in the field of law-related matters which will enable him or her to be of assistance to a lawyer in the latter’s rendition of legal services. Schools for the training of paralegals have proliferated, and qualified legal assistants are being graduated and employed in substantial numbers. As may be expected, many ethical problems arise in connection with the utilization of their services.

 

The advantages afforded by the employment of paralegals are apparent. By relieving the lawyer of part of his labor through the delegation of work, more time remains for concentration on purely legal services, thus resulting in a higher quality of legal service and also enabling the lawyer to expand his professional availability to a larger number of clients. Furthermore, by saving his own more valuable time, the lawyer will reduce the cost of his services. His payroll, too, will be less if his employee is permitted to perform services previously allocated to lawyers only, and he will be able to pass along this saving to his clients. These considerations are especially important at the present time when emphasis is laid on the inability of many individuals, particularly in middle-income groups, to afford adequate legal representation.

 

It is fundamental that a paralegal may not engage in the practice of the law. See Judiciary Law, Secs.478 and 484, and exceptions noted therein. What acts constitute the practice of the law are legal questions which are for the Courts to decide. However, ethical principles are also involved, for Canon 3 and DR 3-101(A) of the Code of Professional Responsibility prohibit a lawyer from aiding a non-lawyer in the unauthorized practice of law. See Also EC 3-3 and EC 3-8. It is, accordingly, the responsibility of both the lawyer employer and the paralegal employee to make certain that the latter does not engage in an activity which would be deemed to be the practice of the law.

 

Even if the services rendered by the paralegal do not per se constitute the practice of the law, they must nevertheless be performed under the general supervision of a lawyer, and the lawyer must remain totally responsible for his employee’s work. As stated in N.Y. County 420 (1953):

 

“What an employee, who is not a lawyer, does in the course of his employment by the law office is deemed a professional service by the law firm for which it is charged with full responsibility. Consequently, his work must be done under the supervision and direction of one or more lawyers in the firm; and must, in the last analysis, be treated as in the nature of nonprofessional staff assistance to the lawyers in the firm.”

 

It follows from the above that a paralegal may never perform services which involve the exercise of the professional judgment of a lawyer, may not advise clients with respect to their legal rights, and his or her activities may not be interpreted as modifying or interfering with the direct attorney-client relationship between the employer and the recipient of the services. For a discussion of these limitations, see N.Y. City 884 (1974).

 

Within the guidelines above mentioned, and subject to the application of ethical principles to particular cases, as hereinafter exemplified, there is no impropriety in a lawyer’s delegation of part of his work to paralegals. This has been recognized in the Code of Professional Responsibility. EC 3-6 provides that:

 

“A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal service more economically and efficiently.”

 

The employment of non-lawyers to assist a lawyer in the performance of law related tasks was approved in ABA 316 (1967) where it was stated:

 

“A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, non-lawyer draftsmen or non-lawyer researchers. In fact, he may employ non-lawyers to do any tasks for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings a part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible for it to the client. In other words, we do not limit the kind of assistants the lawyer can acquire in any way to persons who are admitted to the Bar, so long as the non-lawyers do not do things that lawyers may not do or do the things that lawyers only may do.”

 

The fact that the enlarged duties of paralegal employees may involve greater access to clients’ confidences or secrets than would otherwise occur does not appear to pose an ethical problem. As in the case of any other employee of a lawyer, the paralegal is under a duty to preserve the sanctity of the confidences and secrets of the client, and the lawyer is under an obligation to exercise care in selecting and training his paralegal employee to prevent improper disclosure thereof. DR 4-101(D); see CPLR Sec. 4503.

 

Specific activities of paralegals and other lay assistants have been considered in various opinions of Committees on Professional Ethics.

 

In N.Y. State 44 (1967) it was held that a law clerk, under supervision by an attorney, may appear at and answer calendar calls, provided no argument is necessary, and may attend mortgage closings and other out of court matters so long as his responsibilities are clearly limited to functions not involving the exercise of independent discretion or judgment, but that he should not represent a client in litigation before any court or administrative tribunal, argue motions, conduct examinations for depositions or in supplementary proceedings, or independently advise a client concerning his legal rights and duties. The Committee quoted from N.Y. City 78 (1927-28) as follows:

 

“In short, a law clerk is, properly speaking, a student, an apprentice, and cannot act in any manner, that is any matter arising in connection with the practice of the law, that calls for the exercise of a lawyer’s judgment or participation, independently of his employer or upon his own initiative, and of course could not independently advise clients of his employer’s office as to their right or duties”

 

In N.Y. State 343 (1974), it was decided that:

 

“An attorney may not delegate to a paralegal the task of supervising the execution of a will.”

 

In N.Y. State 304 (1973), the Committee stated that:

 

“The taking of a deposition necessarily involves an exercise of professional legal judgment, and therefore may not be delegated to anyone not yet authorized to perform an attorney’s function, whether or not a supervising licensed attorney remains present throughout the taking of the deposition. Cf. N.Y. State 44 (1967) EC 3-6 and N.Y. State 255 (1972) which permit the delegation of certain tasks to appropriate lay employees, do not extend to any matter where the exercise of professional legal judgment is required.”

 

See also N.Y. County 334 (1935).

 

In N.Y. State 299 (1973) it was found proper for a lawyer to acknowledge the contribution of a non-lawyer assistant in the preparation of a brief by an appropriate notation on the brief, provided the fact that the assistant was a non-lawyer was made clear.

 

In N.Y. State 255 (1972), it was held that:

 

“Within the Limits of his permitted duties, it is not improper for a paralegal employee to sign appropriate letters on his employer’s letterhead.”

 

“The signature should he followed by an appropriate designation so that there can be no connotation that the person so signing is a lawyer.”

 

Permissible letters would include those of “perfunctory”, “ministerial” or “routine character”. See N.Y. County 420 (1953). In any case, it would be improper for the paralegal to sign on behalf of his employer without identifying himself as a non-lawyer. N.Y. City 837 (1958).

 

Although a paralegal may in certain circumstances sign letters on his employer’s letterhead, the listing of his or her name on the letterhead is not authorized by DR 2-102(A)(4) which permits inclusion of the name of the lawyer, the name of the law firm, and the names of the firm’s members and associates. Accordingly, it was held in N.Y. State 261 (1972) that it was improper to list the name of a paralegal on a lawyer’s letterhead. The Committee stated:

 

“This Committee sees no benefit to the public to be advised who is office manager, investigator or legal assistant in a law firm except in case of direct communication from such person, in which case such person may sign the letter and designate himself as such, and therefore there is no valid purpose to be served by permitting the inclusion of the name of a non-lawyer on a lawyer’s letterhead. Such action would be improper.”

 

A distinction has been drawn in the case of professional cards. It was held in ABA Inf 909 (1966), (withdrawing previous ABA Inf 881) that an investigator” for a law firm could properly use a business card on which appear the name, address and telephone number of his employer, but without reference to the fact that the employer was a law firm. The Committee theorized that if the investigator could orally state by whom and in what capacity he was employed, he should be able to do the same thing by use of such a business card. See also, ABA Inf 1000 (1967) and ABA Inf 1185 (1971). The difference between the use of a business card and a letterhead was summarized in N.Y. State 261, as follows:

 

“In ABA Inf. 909 (1966) and 1000 (1967), that committee pointed out the distinction between the business card and the letterhead in that the card is the employee’s card, basically designed to identify him and to state by whom he is employed, exactly as he would do in an oral statement. It is not the professional card of the lawyer or law firm. That committee, therefore, held that the reasoning with respect to a business card need not and should not be extended to the professional letterhead, and adhered to the earlier opinions that such listing on a lawyer’s letterhead was improper.”

 

It was held in N.Y. City 454 (1938) that it would be professionally improper for a law firm to send out an announcement listing a non-lawyer assistant as “associated” with the firm, because “associate” implies that the assistant is a lawyer and will perform legal services.

 

The opinions hereinbefore cited are examples of the ethical problems generated by the employment of paralegals. Without doubt many further questions will arise as lawyers make more extensive use of this class of specially trained laymen.

 

January 30, 1975.