ETHICAL UTILIZATION OF PARALEGALS

AND OTHER NON-LAWYER ASSISTANTS

JOSEPH W. KLINE
Attorney at Law
Professor, Paralegal Studies
South Plains College
819 Gilbert Drive
Lubbock, Texas 79416

State Bar of Texas

STATE BAR COLLEGE “SUMMER SCHOOL”
July 16-18, 2009
Galveston Island

CHAPTER 9
 JOSEPH W. KLINE
Attorney at Law
Professor, Paralegal Studies
South Plains College
819 Gilbert Drive
Lubbock, Texas 79416
(806) 716-4662
jkline@southplainscollege.edu

BIOGRAPHICAL INFORMATION

EDUCATION

B.S. Criminal Justice, University of Cincinnati

M.P.A. Public Affairs, University of Cincinnati
J.D., Texas Tech University

PROFESSIONAL ACTIVITIES

Attorney at Law (1989-Present)

Licensed in Texas, U.S. District Court for the Northern District of Texas, and United
States Supreme Court
Professor, Paralegal Studies, South Plains College, Lubbock, Texas (2003-Present)
Member: State Bar of Texas, Lubbock County Bar Association, Lubbock Criminal
Defense Lawyers Association, Texas Center for Legal Ethics and Professionalism

LAW-RELATED PUBLICATIONS AND PRESENTATIONS

Texas Supplement to “Basic Civil Litigation” (2nd ed.) by Herbert Feuerhake (Aspen
Publishers)
“Practical Law Office Ethics and Client Relation Skills” presented at Texas Legal
Assisting Fundamentals Seminar (February 12, 2009)
Ethical Utilization Of Paralegals And Other Non-Lawyer Assistants Chapter 9

TABLE OF CONTENTS

I. INTRODUCTION ............................................................................................................................................. 1

II. DO PARALEGALS PRACTICE LAW?........................................................................................................... 1

A. The Practice of Law .............................................................................................................................. 1
B. Paralegals Do Substantive Legal Work ................................................................................................ 1
C. Is There Anything Paralegals Cannot Do?............................................................................................ 1

III. REGULATION OF PARALEGAL AND NON-ATTORNEY CONDUCT..................................................... 2

A. How are Paralegals Regulated?............................................................................................................. 2
1. State Bar Regulation ................................................................................................................ 2
2. Criminal Law ........................................................................................................................... 3
3. Tort Law .................................................................................................................................. 3
4. Ethics Codes............................................................................................................................. 3

IV. A LAWYER’S RESPONSIBILITY TO PARALEGALS AND NON-LAWYER ASSISTANTS UNDER

THE TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT ................................................... 3
A. Rule 5.03 ............................................................................................................................................... 3
B. Rule 5.05 ............................................................................................................................................... 4
1. No Client Contact .................................................................................................................... 4
2. Inadequate Supervision Can Result in UPL............................................................................. 4

V. GUIDES FOR THE ETHICAL USE OF PARALEGALS................................................................................ 4

VI. PARTICULAR AREAS OF INTEREST........................................................................................................... 5

A. Paralegal Signing for the Attorney........................................................................................................ 5
1. Pleadings .................................................................................................................................. 5
2. Letters ...................................................................................................................................... 5
B. Business Cards ...................................................................................................................................... 5
C. Letterhead Listing Paralegal ................................................................................................................. 5
D. Contacts with Opposing Counsel.......................................................................................................... 6
E. Negotiating Settlements ........................................................................................................................ 6
F. Paralegal Conflicts and Disqualification of Counsel ............................................................................ 6
G. Appearing for Counsel at Docket Call, Etc........................................................................................... 6
H. Every Attorney Knows Paralegals Really Run Things ......................................................................... 6

VII. CONCLUSION.................................................................................................................................................. 6

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Ethical Utilization Of Paralegals And Other Non-Lawyer Assistants
ETHICAL UTILIZATION OF
PARALEGALS AND OTHER NON-
LAWYER ASSISTANTS
I. INTRODUCTION
Lawyers commonly employ legal assistants or
paralegals, secretaries, law students, investigators, and
other non-attorney personnel to help the lawyer
provide effective legal services. These persons may
perform some of the same activities as the attorney.
The attorney, however, remains ultimately responsible
for their conduct and work product. This paper
presents a review of ethical considerations when using
such non-attorney assistants.
II. DO PARALEGALS PRACTICE LAW?
A. The Practice of Law
The first step in answering this question is to
determine what the “practice of law” involves. Several
tests to determine if an act constitutes the practice of
law are found in Charles W. Wolfram’s 1986
“Hornbook on Modern Legal Ethics.” These tests
include:
The “professional judgment” test (does it
require a lawyer’s training and skill);
The “traditional areas of practice” test (would
it normally be performed by an attorney); and
The “incidental legal services” test (is it
primarily legal in nature, or is it merely an
aside to some business routine or
transaction).
The practice of law in Texas is defined by statute:
“The ‘practice of law’ means the preparation of a
pleading or other document incident to an action or
special proceeding or the management of the action or
proceeding on behalf of a client before a judge in court
as well as a service rendered out of court, including the
giving of advice or the rendering of any service
requiring the use of legal skill or knowledge, such as
preparing a will, contract, or other instrument, the legal
effect of which under the facts and conclusions
involved must be carefully determined.” Tex. Gov’t
Code § 81.101(a). This definition is not exclusive.
B. Paralegals Do Substantive Legal Work
In its definition of a “paralegal, the State Bar of
Texas Paralegal Division recognizes paralegals
perform “substantive legal work”:
“A paralegal is a person, qualified through
various combinations of education, training, or
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work experience, who is employed or engaged
by a lawyer, law office, governmental agency,
or other entity in a capacity or function which
involves the performance, under the ultimate
direction and supervision of a licensed
attorney, of specifically delegated substantive
legal work, which work, for the most part,
requires a sufficient knowledge of legal
principles and procedures that, absent such a
person, an attorney would be required to
perform the task.”
Further, “substantive legal work includes, but is not
limited to, the following: conducting client interviews
and maintaining general contact with the client;
locating and interviewing witnesses; conducting
investigations and statistical and documentary
research; drafting documents, correspondence, and
pleadings; summarizing depositions, interrogatories,
and testimony; and attending executions of wills, real
estate closings, depositions, court or administrative
hearings, and trials with an attorney.”
http://www.texasbar.com/paralegalstandards.
Compensation is not required for the conduct to
constitute UPL. Crain v. UPLC, 11 S.W.3d 328, 333
(Tex. App. — Houston [1st Dist.] 2000, pet. denied),
cert. denied, 532 U.S. 1067 (2001).
By these definitions, paralegals routinely engage
in the “practice of law.” See also Zitter, Jay M., “What
Constitutes Unauthorized Practice of Law by a
Paralegal,” 109 A.L.R.5th 275 (2003).
C. Is There Anything Paralegals Cannot Do?
Certain activities are reserved specifically for
attorneys: giving legal advice; setting and receiving
fees for legal services; accepting or rejecting clients or
cases; and appearing in court on behalf of a client (in
person or by signing pleadings).
Practice pointer: Your law firm handles personal
injury cases on a “standard” contingent fee. Your
paralegal is instructed to quote the standard fee to
prospective clients who call your office. Is your
“standard” fee “appropriate” and “reasonable” in
every case? Should non-lawyers be quoting fees?
In Drew v. Unauthorized Practice of Law Committee,
970 S.W.2d 152 (Tex. App.-Austin 1998), the trial
court enjoined a non-attorney – the self-elected
“president of the Civil Rights Review Corporation” -
from specific conduct, “including preparation of
pleadings, giving legal advice, preparing legal
documents, and attempting to appear before a judge on
behalf of another a non-attorney.”
The court in Brown v. Unauthorized Practice of
Law Committee, 742 S.W.2d 34 (Tex. App. - Dallas
1987, writ denied), found a paralegal engaged in the
Ethical Utilization Of Paralegals And Other Non-Lawyer Assistants
unauthorized practice of law in representing clients in
settlements of personal injury and property damage
claims. The trial court found the paralegal: (1)
contracted with persons to represent them with regard
to their personal causes of action for property damages
and/or personal injury; (2) advised persons as to their
rights and the advisability of making claims for
personal injuries and/or property damages; (3) advised
persons as to whether to accept an offered sum of
money in settlement of claims for personal injuries
and/or property damages; (4) entered into contracts
with individuals to represent them in their personal
injury and/or property damage matters on a contingent
fee together with an attempted assignment of a portion
of the person's cause of action to the defendant; (5)
entered into contracts with third persons which
purported to grant to the paralegal the exclusive right
to select and retain legal counsel to represent the
individual in any legal proceeding; and (6) advised
clients of their rights, duties, and privileges under the
laws.
The key for non-lawyers is whether such conduct
is performed while under the supervision of an
attorney. “So long as the lawyer supervises the
delegated work, and retains responsibility for the work,
and maintains a direct relationship with the client, the
paraprofessional cannot reasonably be said to have
engaged in activity that constitutes the unauthorized
practice of law.” Tex. Disciplinary R. Prof. Conduct
5.05, Comment 4.
Under such supervision, courts will allow
paralegals to engage in certain activities which an
attorney would otherwise be required to perform,
including legal and factual investigations (Texas
Attorney General Opinion No. GA-0275 (11-24-04)
which exempts employees who work for an attorney
engaged in the practice of law from the licensing
requirements of Chapter 1702 of the Texas
Occupations Code), drafting legal documents,
pleadings, and memoranda, preparing legal forms,
preparing correspondence to clients, attorneys, courts,
and government agencies, interviewing clients and
witnesses, filing documents with courts and
government agencies, preparing cases for trial,
attending the execution of wills, attending depositions,
and conducting real estate closings.
Caveat: Paralegals may be authorized to “practice
law” before administrative agencies, such as the Social
Security Administration (for disability and SSI claims)
and the Internal Revenue Service (as an enrolled agent
representing a taxpayer). The Administrative
Procedures Act, 5 U.S.C. § 555(b) (1994) authorizes
federal government agencies to permit nonlawyers to
accompany, represent, and advise persons required to
appear before them. Sperry v. Florida, 373 U.S. 379,
385, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963) (unlicensed
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lawyers may practice law pursuant to preemptive
federal legislation despite the fact that they are
violating state proscriptions on unauthorized practice.);
Grace v. Allen, 407 S.W.2d 321, 324 (Tex.Civ.App.—
Dallas 1966, writ ref'd n.r.e.) (state law yields when
state and federal law conflict).
Interestingly, the National Federation of Paralegal
Associations issued a “Position Statement on Non-
Lawyer Practice” in which “The NFPA supports
legislation and adoption of court rules permitting non-
lawyers to deliver limited legal services provided that
such legislation or court rules include 1. Exceptions
from the unauthorized practice of law…”
http://www.paralegals.org/associations/2270/files/non_
lawyer_practice.pdf.
III. REGULATION OF PARALEGAL AND NON-
ATTORNEY CONDUCT
A. How are Paralegals Regulated?
Like the status of paralegal certification, the
regulation of paralegals lacks any general consensus.
Vuong, Patrick, “Paralegal Regulations in the United
States,” Legal Assistant Today (March/April 2006).
See also Durgin, Catherine R., “Getting Legal with
Paralegals”, Business Law Today, vol. 16, no. 3
(Jan./Feb. 2007). http://www.abanet.org/
buslaw/blt/2007-01-02/durgin.shtml.
The ABA Standing Committee on Paralegals has
issued policy statements rejecting proposals for
licensing paralegals, relying instead on the ethical
requirements placed on lawyers as adequate for protect
of the public. American Bar Association Standing
Committee on Legal Assistants, Position Paper on
Legal Assistant Licensure or Certification (1985).
http://www.abanet.org/legalservices/paralegals/.
NALA has argued there is no need to regulate
paralegals who work under the supervision of a lawyer.
NALA instead supports voluntary self regulation
through its national professional certification program.
http://www.nala.org/NJStmt.htm.
Texas has no mandatory regulatory scheme for the
paralegal profession. Rather, Texas adopted a
voluntary certification program for paralegals in 1994
which is administered by the Texas Board of Legal
Specialization. http://www.tbls.org/.
For more information on paralegal regulation
nationwide, NFPA has compiled a state-by-state chart
(updated as of July, 2008) showing the current status of
paralegal regulation.
http://www.paralegals.org/associations/2270/files/REG
ULATION_CHART_07_08.pdf.
1. State Bar Regulation
In Texas, paralegals and other non-lawyer
assistants are primarily regulated through their
supervising attorneys under the Texas Disciplinary
Rules of Professional Conduct. Tex. Disciplinary R.
Ethical Utilization Of Paralegals And Other Non-Lawyer Assistants
Prof. Conduct 5.03 and 5.05. Of course, and perhaps
unfortunately, only the lawyer may be directly
sanctioned by the State Bar of Texas.
2. Criminal Law
Paralegals are also regulated by criminal laws
prohibiting the unauthorized practice of law and
barratry. Tex. Penal Code § 38.122 - Falsely Holding
Oneself Out As A Lawyer; Tex. Penal Code § 38.123 -
Unauthorized Practice Of Law; Tex. Penal Code
§ 38.12 - Barratry and Solicitation of Professional
Employment. Depending on the circumstances, the
unauthorized practice of law and barratry can be a
misdemeanor or felony. Falsely holding oneself out as
a lawyer is a third-degree felony.
Practice pointer: Ask your paralegal how many times
he/she has heard the following statement at the end of
an initial client interview: “You seem like a good
attorney – I think I’ll hire you.” Failure to disclose a
paralegal’s status may violate Tex. Penal Code
§ 38.122.
Practice pointer: Watch out for “sharing” of software
between non-attorney employees. Criminal copyright
infringement is a violation of 18 U.S.C. § 2319 and 17
U.S.C. § 506.
a. Pay Those Bar Dues Timely!
In Satterwhite v. State, 952 S.W.2d 613 (Tex.
App. – Corpus Christi 1997, pet. ref’d), an attorney
was suspended for failure to timely pay his bar dues
but continued to represent a defendant in multiple
criminal cases. The “non-attorney” was prosecuted for
falsely holding himself out as a lawyer. A jury found
appellant guilty and assessed punishment at
confinement for a term of four and one-half years, plus
a fine of $7,500.00. On appeal, the attorney
unsuccessfully argued upon payment of his delinquent
bar dues, his state bar membership was “revitalized”
retroactively, and thereby validating his actions during
the period of his suspension. The appellate court
concluded “an attorney who is retroactively returned to
his pre-suspension status as an active member of the
State Bar should not be absolved of liability for any
misconduct occurring during the period of his
suspension.”
Sidebar: Presumably the attorney was not prosecuted
for the “unauthorized practice of law” because a first
offense for UPL would be a misdemeanor rather than a
felony. Do you have friends in the District Attorney’s
Office?
3. Tort Law
Because a paralegal’s supervising attorney is
primarily responsible for the paralegal’s conduct under
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the tort principle of respondeat superior, a lawyer has
a strong incentive to ensure the paralegal follows legal
and ethical mandates. While paralegals are not likely
to be named as a defendant in a legal malpractice
lawsuit, paralegals still retain liability for their own
negligent or intentional misconduct.
Practice pointer: Does your malpractice insurance
cover your paralegal’s conduct?
4. Ethics Codes
Paralegals are bound by the same ethical codes
and rules as attorneys. In addition, the major paralegal
associations have adopted codes of ethics for their
members. For example, NALA first adopted its “Code
of Ethics and Professional Responsibility” in 1975.
http://www.paralegals.org/. The State Bar of Texas
Paralegal Division has also adopted a “Code of Ethics
and Professional Responsibility.” http://txpd.org/.
IV. A LAWYER’S RESPONSIBILITY TO
PARALEGALS AND NON-LAWYER
ASSISTANTS UNDER THE TEXAS
DISCIPLINARY RULES OF
PROFESSIONAL CONDUCT
A. Rule 5.03
Rule 5.03 governs the lawyer's responsibilities for
non-lawyer personnel who generally lack the legal
training and professional judgment of an attorney, and
who are often uneducated about the ethical standards
governing a lawyer's handling of legal matters. Rule
5.03(a) requires a lawyer supervising legal assistants or
paralegals and other non-lawyer assistants must ensure
such persons comply with the rules of professional
conduct, and the lawyer is ultimately responsible for
their conduct. For example, delegation of work to a
paralegal who is not competent to perform the task
would constitute a violation of the lawyer’s ethical
duty of competent representation under Rule 1.01. A
paralegal’s competence is affected by proper
delegation and supervision of paralegal work. See:
Cannon, Therese A., “Competence and Supervision,”
Legal Assistant Today (January/February 2008).
In the medical malpractice case of Cunningham v.
Columbia/St. David’s Healthcare System, L.P., 185
S.W.3d 7 (Tex. App. - Austin 2006), “an alleged
miscommunication” between the attorney and legal
assistant resulted in the failure to timely file a medical
expert report. Citing Rule 5.03, the court refused to
allow the late filing of the medical expert’s report
“Because lawyers are responsible for the actions of the
legal assistants that they supervise, the procedural
mistakes made by a legal assistant are imputed to the
supervising attorney.”
In Kuzmin v. Thermaflo, Inc., 2009 WL 1421173
E.D. Tex., 2009 (May 20, 2009), an attorney blamed
his legal assistant for failure to file a civil cover sheet
Ethical Utilization Of Paralegals And Other Non-Lawyer Assistants
as required by local court rules. “The Court, therefore,
finds that [the offending counsel] violated the Court's
local rules.” The court also observed the attorney “has
been a civil litigation lawyer for twenty eight years and
has had an “AV Martindale-Hubbell” rating for more
than 15 years.”
By its terms, a lawyer's duties under Rule 5.03 are
not limited to persons actually employed directly by
the lawyer. If, for example, an attorney outsources
work for a client, the lawyer must ensure sure work is
performed according to all ethical standards applicable
to the lawyer.
Under Rule 5.03(b), a lawyer may be disciplined
for another’s ethical violation if the lawyer “orders,
encourages, or permits the conduct involved,” or where
the lawyer has direct supervisory authority over such
persons, and “with knowledge of such misconduct by
the non-lawyers, knowingly fails to take reasonable
remedial action to avoid or mitigate the consequences
of that person’s misconduct.” See Kings Park
Apartments, Limited v. National Union Fire Insurance
Company of Pittsburgh, Pennsylvania, 101 S.W.3d 525
(Tex. App. - Houston [1st Dist.] 2003, pet. denied)
(discovery abuse included, inter alia, paralegal
instructed by National Union and its attorneys to steal
documents from the chambers of the special trial
judge; sanctions included requiring National Union to
pay $25,000 to the Texas Center for Legal Ethics and
Professionalism.)
B. Rule 5.05
Rule 5.05(b) prohibits a lawyer from assisting a
non-lawyer in practicing law. Two areas of concern
arise in this context: a former lawyer working as a non-
lawyer assistant and inadequate supervision of non-
lawyer assistants.
1. No Client Contact
In the case of In re Comish, 889 So.2d 236 (La.
2004) the attorney was suspended for allowing a
disbarred former attorney working in the lawyer's
office as a paralegal to hold himself out as a member of
the bar and to practice law. The attorney was
“frequently absent from his office” during the time he
employed the disbarred former attorney. The attorney
also had family problems and took vacation trips to go
scuba diving “on a fairly regular basis.” The former
disbarred attorney testified he could “not recall
whether he had or had not received specific
instructions from [the attorney] that he was to
designate himself as a paralegal on all correspondence
that he sent.”
Practice pointer: There’s nothing like the “real
thing.”
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2. Inadequate Supervision Can Result in UPL
In Columbus Bar Assn. v. Watson, 106 Ohio St.3d
298, 834 N.E.2d 809 (2006) and Columbus Bar Assn.
v. Thomas, 109 Ohio St.3d 89, 846 N.E.2d 31 (2006),
the sole practitioner was at home sick for some months
and his paralegal tried to keep his law practice going.
The attorney was disciplined for improper supervision
and the paralegal was prosecuted for UPL.
See also In re McMillian, 359 S.C. 52, 596 S.E.2d
494 (2004) (lawyer who allowed non-lawyer
employees to perform nearly all aspects of real estate
closings without any real supervision was disbarred);
and In re Sledge, 859 So.2d 671 (La. 2003) (attorney's
failure to supervise non-lawyer assistants to the point
they effectively ran attorney’s practice warranted
disbarment).
Practice pointer: How many times have you signed a
letter, document or pleading prepared by a paralegal
without thoroughly reading it?
V. GUIDES FOR THE ETHICAL USE OF
PARALEGALS
In 2004 the ABA Standing Committee on
Paralegals published its Model Guidelines for the
Utilization of Paralegal Services. See:
http://www.abanet.org/legalservices/paralegals/downlo
ads/modelguidelines.pdf. These guidelines, with
commentary, are directly addressed to lawyer conduct
and not directly to the conduct of the paralegal. For
example:
Guideline 1: A lawyer is responsible for all
of the professional actions of a paralegal
performing service at the lawyer’s direction
and should take reasonable measures to
ensure that the paralegal’s conduct is
consistent with the lawyer’s obligations
under the rules of professional conduct of the
jurisdiction in which the lawyer practices.
Guideline 2: Provided the lawyer maintains
responsibility for the work product, a lawyer
may delegate to a paralegal any task
normally performed by the lawyer except
those tasks proscribed to a nonlawyer by
statute, court rule, administrative rule or
regulation, controlling authority, the
applicable rule of professional conduct of the
jurisdiction in which the lawyer practices, or
these guidelines.
The National Association of Legal Assistants (NALA)
has also published a “Model Standards and Guidelines
for Utilization of Legal Assistants · Paralegals” which
include explanatory comments and references to
relevant case law. NALA's Code of Ethics and
Ethical Utilization Of Paralegals And Other Non-Lawyer Assistants
Professional Responsibility states "A legal assistant's
conduct is guided by bar associations' codes of
professional responsibility and rules of professional
conduct." http://www.nala.org/98model.htm.
Along with 25 other states, Texas has adopted
standards for the use of paralegal services. In Gill Sav.
Ass'n v. International Supply, 759 S.W.2d 697 (Tex.
App.-Dallas 1988, writ denied), adopted the 1981 State
Bar of Texas guidelines for using paralegal services.
Texas last updated its standards for the use of
paralegals in 2006, which includes the following
ethical obligations:
“1. Attorney. The employing attorney has
the responsibility for ensuring that the
conduct of the paralegal performing the
services is compatible with the professional
obligations of the attorney. It also remains
the obligation of the employing attorney to
fully inform the client as to whether a
paralegal will work on the legal matter, what
the paralegal’s fee will be, and whether the
client will be billed for any nonsubstantive
work performed by the paralegal.
2. Paralegal. A paralegal is prohibited from
engaging in the practice of law, providing
legal advice, signing pleadings, negotiating
settlement agreements, soliciting legal
business on behalf of an attorney, setting a
legal fee, accepting a case, or advertising or
contracting with members of the general
public for the performance of legal
functions.”
http://www.texasbar.com/paralegalstandards.
VI. PARTICULAR AREAS OF INTEREST
A. Paralegal Signing for the Attorney
1. Pleadings
Pursuant to Rule 13 of the Texas Rules of Civil
Procedure “The signatures of attorneys or parties
constitute a certificate by them that they have read the
pleading, motion, or other paper; that to the best of
their knowledge, information, and belief formed after
reasonable inquiry the instrument is not groundless and
brought in bad faith or groundless and brought for the
purpose of harassment.” In addition, Rule 57 requires
“Every pleading of a party represented by an attorney
shall be signed by at least one attorney of record …”
Therefore, the only person who may “sign by
permission” for a licensed attorney is another licensed
attorney.
Only an attorney may sign a certificate of service.
“The party or attorney of record shall certify to the
court compliance with this rule in writing over
signature and on the filed instrument. A certificate by a
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party or an attorney of record, or the return of the
officer or the affidavit of any other person showing
service of a notice shall be prima facie evidence of the
fact of service.” Tex. R. Civ. Pro. 21a.
Signature stamps are also not effective on
pleadings to comply with the rules of procedure. State
of Texas v. Shelton, 830 S.W.2d. 605 (Tex. Crim. App.
1992) (the use of a signature stamp on a notice of
appeal was "ineffective to show personal
authorization" and did not "comply with the
legislatively mandated guarantee that the only person
permitted by statute to make an appeal on behalf of the
State actually participated in the process"); followed by
State of Texas v. Roberts, 940 S.W. 2d 655 (Tex. Crim.
App. 1996). The best practice, therefore, is never to
allow the use of an attorney signature stamp on any
pleading, legal or official document.
2. Letters
“It is proper for a Legal Assistant to write a letter
on his law firm's letter head provided that he is a
supervised employee of the law firm and that he signs
as a Legal Assistant.” Tex. Comm. On Professional
Ethics, Op. 381, V. 38 Tex. B.J. 462 (1975).
However, a paralegal may sign correspondence,
including e-mail correspondence, only so long as no
legal advice is given in the correspondence and the
paralegal's name, title, and either the firm name or the
name of the supervising attorney are also clearly
identified. If a letter contains legal advice or
agreements, only the attorney should sign (or have
another attorney sign by permission).
B. Business Cards
“A legal assistant may have a business card with
the firm name appearing on it, provided the status of
the legal assistant is clearly disclosed. The business
card is designed to identify the legal assistant and to
state by whom the legal assistant is employed. The
business card of a legal assistant shall be approved, in
form and substance, by the lawyer-employer.” Tex.
Comm. On Professional Ethics, Op. 403, V. 45 Tex.
B.J. 78 (1982).
C. Letterhead Listing Paralegal
“An accurate and dignified listing of a legal
assistant's name and any certification on the letterhead
of the law firm employing the legal assistant with an
indication that the person is a legal assistant and is not
licensed to practice law would not in normal
circumstances constitute a communication that was
false or misleading about the law firm or the legal
services provided by the firm … The Texas Code of
Professional Responsibility does not prohibit the
accurate and dignified listing on a law firm's letterhead
of the name and any certification of a legal assistant
employed by the firm with a further designation that
Ethical Utilization Of Paralegals And Other Non-Lawyer Assistants
the person is a legal assistant and is not licensed to
practice law.” Tex. Comm. On Professional Ethics,
Op. 436, V. 49 Tex. B.J. 1085 (1986).
D. Contacts with Opposing Counsel
A paralegal may contact opposing counsel to
discuss agreements regarding locations and dates, or to
simply relay information from the paralegal’s attorney.
However, “no agreement between attorneys or parties
touching any suit pending will be enforced unless it be
in writing, signed and filed with the papers as part of
the record, or unless it be made in open court and
entered of record.” Tex. R. Civ. Pro. 11.
For paralegals, see “The Ethics of Interactions
with Opposing Counsel” by Ellen Lockwood.
http://txpd.org/TPJ/54/scruples.asp.
E. Negotiating Settlements
Texas Ethics Opinion 396 recognizes “offers and
counter-offers that constitute realistic bargaining for
settlement, the judgment of the defendant's attorney as
to when and how much should be offered, and of the
Plaintiff's attorney as to the adequacy of the offer, is
itself a measure of competence. The client is entitled to
this full measure of competence from his attorney in
the bargaining process, and to the benefit of his
attorney's analysis and recommendation concerning all
offers of settlement.” Tex. Comm. on Professional
Ethics, Op. 396, V. 42 Tex. B.J. 439 (1979).
Therefore, non-lawyer assistants should not negotiate
settlement agreements.
F. Paralegal Conflicts and Disqualification of
Counsel
In a mandamus action, plaintiffs’ law firm sought
to disqualify defendants’ law firm which hired a legal
assistant who had worked for more than 170 hours on
the case with plaintiffs’ counsel. The court “must
apply tripartite test to determine whether proper
appropriate steps were taken to ensure confidentiality
when legal assistant changed employment from law
firm on one side of case to another: (1) new firm had
to instruct assistant not to disclose any information
concerning case she may have learned during her prior
employment; (2) new firm had to instruct assistant not
to work on any matter on which she had worked during
her prior employment; and (3) new firm had to take all
other reasonable steps to ensure that assistant did not
work in any way on matters on which she had worked
during her former employment.” Here, the defendants’
firm instructed the legal assistant and all other
employees not to discuss case with or in presence of
the legal assistant, the legal assistant and all other
employees signed confidentiality agreements not to so
discuss case, and the legal assistant was prevented
from access to all files concerning the case. The court
found these measures were adequate and denied the
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Chapter 9
motion to disqualify. Rubin v. Enns, 23 S.W.3d 382
(Tex. App. - Amarillo 2007).
See also Phoenix Founders, Inc. v. Marshall, 887
S.W.2d 831, 834 (Tex. 1994) (a "non-tainted" firm was
able to rebut the presumption a newly-hired paralegal
shared confidences with her new firm by proving the
existence of a "Chinese Wall" regarding the "tainted"
paralegal's past and future work on the particular case).
G. Appearing for Counsel at Docket Call, Etc.
What part of Rule 5.05(b) did you not understand?
Practice pointer: Train your paralegal to say “The
attorney asked me to respectfully inform the court ...”
H. Every Attorney Knows Paralegals Really Run
Things
In State v. Gill, 967 S.W.2d 540 (Tex. App. –
Austin 1998), “after the court recognized that [defense
counsel’s] paralegal, a disbarred lawyer and convicted
felon, was continuously feeding [defense counsel]
notes, the court felt it necessary to state the following:
‘The Court would like the record to show that [defense
counsel’s] paralegal is providing [defense counsel]
with the necessary questions for [defense counsel] to
ask during the course of his trial or at least it appears to
the Court that he is.’” The defendant got a new trial.
The appellate court did not address whether the
defendant received “effective assistance of paralegal.”
VII. CONCLUSION
Paralegals and other non-lawyer assistants are
invaluable assets for attorneys, but they must be
utilized ethically. To do so, attorneys must recognize
the limitations of using non-lawyer assistants and
provide adequate supervision at all times. Attorneys
must also educate non-attorneys about their ethical
obligations under the Texas Disciplinary Rules of
Professional Conduct. In the end, attorneys remain
ultimately responsible for the conduct of their
paralegals and other non-attorney assistants.
(For more on the lawyer’s responsibility for non-
lawyer assistants, see “Supervision of Non-lawyer
Employees: The Hidden Ethical Obligation.” Walter
W. Steele, Jr., 58 Tex.B.J. 798 (1995).)