What Is A Paralegal?
Paralegals are trained legal professionals that work directly with attorneys in the preparation and processing of cases. Paralegals are often referred to as legal assistants. Most agencies and law firms utilize paralegals to save time and money within their office.
Paralegals are similar to legal secretaries, but the major difference between the two is that a paralegal is a trained legal professional and has undergone schooling to become a paralegal. A legal secretary is an administrative position in which an individual provides clerical or administrative type of tasks.
The American Bar Association (ABA) defines a paralegal this way: "A legal assistant or paralegal is a person, qualified by education, training, or work experience who is employed 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." It further explains that paralegals are useful in serving clients and/or the public, assisting lawyers in the delivery of legal services, aiding lawyers in any kind of area that requires performance of legal work, and conducting research.
Attorneys delegate many legal tasks to paralegals, such as: Some paralegals work in governmental agencies, like the United States District Court, Internal Revenue Service, or other federal, state, or local government offices. These paralegals are trained legal professionals that can help prepare the paperwork you need for your case. They are trained to work under the supervision of an attorney, but are not able to give any legal advice.
Documents That Paralegals Can Draft
Legal documents that a paralegal may prepare under the supervision of a licensed attorney include such things as memoranda, pleadings, briefs, discovery documents, correspondence, depositions, trial and hearing notebooks, interrogatories, client interview outlines and questionnaires, wills, motions, and real estate documents. All documents prepared by paralegals must be reviewed and signed by an attorney.
Limitations On What Documents Paralegals Can Prepare
One might think that with the growing number of states allowing paralegals to provide service directly to the public, including legal document preparation services, the limitations on a paralegal’s preparatory role have grown less defined. However, it has been just the opposite. The restrictions to which paralegals are subject in this jurisdiction regard specific subject matter, including probate administration, family law, real estate and foreclosure, probate litigation, criminal law, bankruptcy, and personal injury. Even as a legal document preparer, the restriction remains that only a lawyer may counsel a client on matters of law, including advising on the right forms to file in a proceeding.
Some recently passed prohibitions are as follows: Florida’s newly enacted rule prohibits the preparation of pleadings for "an action in foreclosure, an action involving eminent domain, a suit for dissolution of marriage, a suit for separation and all other actions governed by the Family Law Rules of Procedure, a complaint against an attorney, testate (wills), or intestate (no will), deposition notices, motions, answers and edicts in probate . . ."
California’s rules limit paralegals from preparing "prejudgment or post-judgment family law orders regarding preliminary injunctions, domestic relations, support, custody, partition of community property, or restraining orders."
Nevada’s rules disallow any "conduct that the lawyer would be prohibited from doing;" and further details that the paralegal may not (1) render legal advice, (2) give advice as to the application of any statute or rule or of a legal character concerning the probable outcome of any legal controversy, or (3) inquire interpretations of statutes or rules, or of any legal questions by any person other than the supervising lawyer, or offer to perform or perform any of these acts until such time as the Nevada Supreme Court authorizes or describes a method to evaluate the competency of a paralegal or paralegal specialist, implementation and scope.
Other states’ prohibitions are similar in nature to the above. If the legal restrictions cannot be met, there are general restrictions which apply. For example, paralegals cannot draft documents related to family law, unless the document is a "request for employment of counsel and approval of a guardian ad litem or an application for setting fees for prior representation by court-appointed counsel." These would presumably be appropriate in a family law proceeding of any jurisdiction.
Supervision is Key
Whether paralegals prepare a legal document or not is really irrelevant if they don’t have the proper supervision by a licensed attorney regarding that document. An attorney has a professional duty to supervise all of their subordinates to insure they are doing the work that is within their scope and expertise of what they have been trained to do and what is within their licensing.
Supervision, according to Black’s Law Dictionary (8th ed. 1999), means:
1. A person charged with the duty of directing and controlling the performance of another.
2. n. The act or process of overseeing the subordinate parts or functions of an organization; management or oversight.
The attorney must retain "control" over the document – meaning it must be reviewed at least by the attorney before it is released or filed with a court. Nothing is worse than having an ill-written document filed with a court and then having to ask permission from the court to correct the document after it’s been filed and accepted by the court – such as a minor misspelling or accidentally checking the box in the wrong place on a form.
Supervision of the paralegal’s work and legal documents created by them ensures the ethical and legal integrity of the practice.
Benefits Of A Paralegal In A Law Firm
An advantage that law firms can receive from including paralegals in their legal practice is cost efficiency. Clients that feel they are being dunned for every hour and three minutes of an attorney’s time may go elsewhere or at least not regard the service as very cost effective. If a paralegal can perform many of the tasks, particularly those where a paralegal has the most training and experience, at a lower rate , they can help the firm’s bottom line while also providing good service to the client.
Preparing documents is something that many paralegals do as part of their training. Many paralegals have experience with document preparation in as many areas as the lawyer’s practice covers. The more the work is done by the paralegal, the more efficient it is. When a lawyer must dictate to a secretary or spend his/her time reviewing, revising, and doing everything else that needs to be done besides documenting the work, time is lost. Having a well-trained paralegal prepare the documents can mean the difference between business as usual (that is, loss of billable time) and efficiency.
State Regulation Of Paralegals
While paralegals generally are subject to a national standard of conduct, especially among the members of national paralegal professional associations such as the National Federation of Paralegal Associations (NFPA) and the Paralegal Association of Central Ohio (PACO), many states and some local jurisdictions impose additional restrictions. Having a thorough understanding of the regulatory environment in your state is vital to developing a successful relationship with your supervising attorney.
For example, Article 28-G of New York State’s State Education Law requires paralegals (in the state known as "legal assistants") to be employed by an attorney admitted to practice in the state or a firm headed by such a lawyer. It also prohibits unlicensed individuals from providing full-service representation to clients, meaning that a paralegal may not "appear as an attorney" or otherwise represent another person in any court, or make court appearances on behalf of a client. In New York City, the law is even stricter: legal assistants may not appear as an attorney or represent clients in labor arbitration cases. In addition, legal assistants are required to work under the direct supervision of an attorney who is responsible for their work and must enter into a written agreement with the legal assistant specifying their terms of employment.
On the other hand, Ohio and Pennsylvania have no local laws that specifically address the duties and limitations on paralegals. Under the Ohio Rules of Professional Conduct, however, non-lawyer assistants may not engage in work that constitutes the unauthorized practice of law. RPC 5.3(b). They may not independently represent a client in litigation in any court nor engage in negotiation on behalf of a party to settlement, unless in conjunction with an attorney, and they may not establish a direct relationship with a client. Pennsylvania’s Rules of Professional Conduct, like Ohio’s, place the ultimate responsibility for the conduct of a non-lawyer assistant on the supervising lawyer.
Paralegal Ethics
Like most legal professionals, paralegals are subject to state and national legal profession rules. States adopt their own rules of ethics, but the American Bar Association (ABA) Model Rules of Professional Conduct have been a primary source used for their ethical rules.
Attorney Responsibilities
The ABA Model Rules of Professional Conduct rule 5.3 indicates that attention must be given to the ethical responsibilities of all nonlawyers who assist lawyers and law firm staff in rendering legal services. Because some nonlawyer assistants do work that can be delegated to others, attorneys in those situations must specifically direct the nonlawyer regarding the handling of client information as well as how to maintain client confidentiality. Specifically, rule 5.3(b) provides that attorneys with management responsibility are responsible for ensuring nonlawyer employees follow all professional obligations. Moreover, attorneys with direct supervisory authority over nonlawyer employees are responsible for setting reasonable measures to ensure the employee complies with ethical obligations.
Duty of Confidentiality
An essential element of maintaining the attorney-nonlawyer assistant attorney-client relationship is the obligation to maintain client confidentiality, which covers everything from the details of a case to the mere fact that a potential client has expressed interest in retaining legal counsel. The duty of confidentiality prohibits nonlawyer assistants from revealing the confidences and secrets of clients during any capacity of employment. To avoid disclosure and protect the confidentiality of sensitive matters, paralegals should always advise the investigating officer that they are bound by confidentiality rules to protect the information provided to them. Nonlawyer assistants must refrain from revealing any confidential or privileged information without the express permission of the employer or in open court, or otherwise in the course of representation.
Conflicts of Interest
As a general rule, paralegals must avoid any representations, business, financial relationships or personal relationships that may create conflicts of interest for both current and former clients. However, paralegals must realize that while the ethical duties of an attorney also apply when dealing with a current or former client, the same rules do not necessarily apply to paralegals. For example, the duties of confidentiality of current and former clients of the lawyer do not apply to paralegals. Nonetheless, paralegals must still avoid disclosing or using confidential information from the representation of one client against another client, regardless of whether or not the client consents. This means that all matters related to the representation of a former client must be kept confidential and used only for purposes related to the prior representation, and even then only if the former client consents to such disclosure.
Violations of Ethical Rules
Violations of the rules of professional conduct may result in criminal proceedings, administrative sanctions or civil liability, as well as disbarment of the attorney and/or the paralegal. In addition to disciplinary actions by the state bar, violations may also subject paralegals and attorneys to discipline by professional organizations, including the National Association of Legal Assistants (NALA).
Conclusion: Paralegals As Document Drafter
While it is certainly legal for paralegals to prepare legal documents, provided those documents are ultimately reviewed and signed by an attorney, the process is not foolproof. As we can see from the cases referenced above, it is all too easy to overlook a minor detail that can end up costing the client a great deal of time and money. It’s crucial for both attorney and paralegal to approach legal document preparation from the perspective of a final product. This means considering not just how this document appears to you in the moment, but also how it may affect the client and recipient beyond the moment of signing.
That said, attorneys should also remember that paralegals are under no obligation to perform beyond their agreed upon responsibilities . If you request a task that is outside the scope of what they agreed to perform, it is perfectly acceptable for them to decline. Don’t expect them to make the same judgment calls and preparations you would, especially in a field in which you have more experience than they do. Additionally, don’t expect them to immediately change their way of doing things simply because you ask. If you need a particular or different formatting, for example, be prepared to explain why and maybe even show them the specific examples.
In short, both attorneys and paralegals play an important role in the document preparation process, but both parties should be on the same page in terms of their expectations and scope. Communication is key to keeping things running smoothly.