The Connecticut Bar Association’s House of Delegates approved these Guidelines for Lawyers Who Employ or Retain Legal Assistants and Guidelines for Legal Assistants on January 13, 1997. These guidelines may be photocopied, but should be identified as CBA Guidelines for Lawyers Who Employ or Retain Legal Assistants and Guidelines For Legal Assistants. Acknowledgment is given to those members who assisted in the development of these guidelines: Eilleen Glancy; Peter C. Herbst; Quintin Johnstone (Chair); Jill E. Martin; Sid M. Miller; Wanda Negron; Andrew H. Pinkowski; Jane S. Scholl; Fred D. Sette.
These guidelines are directed to Connecticut lawyers who employ or retain legal assistants and are intended as a brief summation of the legal and professional responsibility obligations pertaining to lawyers’ utilization of legal assistants. The guidelines are not meant to supersede any applicable federal, state or local laws or any provisions of the Rules of Professional Conduct as approved by the Connecticut Superior Court judges. Legal assistants can help lawyers to provide quality legal services to clients at an affordable price. However, to protect client interests and public interests, lawyer utilization of legal assistants should be in accordance with these guidelines and the underlying laws and rules of professional conduct on which the guidelines are based.
It should be noted that the guidelines are applicable to lawyers in all types of law offices that utilize legal assistants, among them not only independent private firms but also government law offices, corporate law department offices, and legal aid offices. The guidelines also apply not only to lawyers or law offices that employ legal assistants but also to those that retain legal assistants as independent contracting parties to perform legal work for lawyers under the lawyers’ supervision and for which the lawyers are responsible.
These guidelines adopt the following definition of legal assistant, a definition approved by the American Bar Association Board of Governors:
A legal assistant is a person, qualified through education, training, or work experience, who is employed or retained 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 an attorney, of specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts that, absent such assistant, the attorney would perform the task.1
As used herein, "legal assistant" and "paralegal" are synonymous terms.2
Guideline 1
Responsibility and Supervision. A lawyer is responsible for all of the professional actions of a legal assistant performing legal services under the lawyer’s direction. The lawyer should take all reasonable supervisory measures to make certain that the legal assistant is not engaged in the unauthorized practice of law and that the legal assistant’s conduct is consistent with the lawyer’s obligations under the Rules of Professional Conduct.
Comment. The unauthorized practice of law is prohibited by statute in Connecticut. Conn. Gen. Stats. Ann. 51-88. Violation of the statute is a crime. In addition to criminal penalties, the court may enjoin the unauthorized practice of law and impose penalties for contempt of court. The Connecticut statutes do not elaborate on what constitutes the unauthorized practice of law but the Connecticut Supreme Court has declared that the purpose of the Connecticut statutes on unauthorized practice is to prohibit conduct "commonly understood to be the practice of law." Grievance Committee v. Payne, 128 Conn. 325, 330, 22 A.2d 623, 626 (1941). This language is quoted with approval in State Bar Assn. v. Conn. Bank & Trust Co., 145 Conn. 222, 234, 140 A.2d 863, 870 (1958). Among acts generally considered to be the unauthorized practice of law are appearances before courts or administrative agencies, unless authorized by statute, court rule, or agency rule; providing legal advice; and drafting legal documents. Grievance Committee v. Dacey, 154 Conn. 129, 222 A.2d 339 (1966). Also see In re Peterson, 163 B.R. 665, 671-675 (1994). As to the propriety of legal assistants drafting legal documents under the supervision of a lawyer, see Guideline 2.
The Rules of Professional Conduct prohibit a lawyer from assisting a legal assistant or others in the unauthorized practice of law. Rule 5.5 of the Rules of Professional Conduct states that "A lawyer shall not:... (b) Assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law."
To assure that legal assistants and others over whom a lawyer has direct supervisory authority will not engage in unauthorized practice of law or conduct incompatible with the lawyer’s professional responsibility obligations, the lawyer should instruct such persons in applicable legal and professional responsibility obligations. On this requirement see particularly Rules of Professional Conduct, Rule 5.3(b) and the comment following Rule 5.3. As partial fulfillment of this instructional duty relative to any legal assistant for whom the lawyer has direct supervisory responsibility, the lawyer should make certain that the legal assistant has received a copy of the Guidelines for Legal Assistants approved by the Connecticut Bar Association and that the legal assistant is fully familiar with the content of those guidelines.
Guideline 2
Tasks Legal Assistants May Perform. If a lawyer maintains responsibility for a legal assistant’s work product and adequately supervises the legal assistant’s performance, a wide and varied range of tasks may properly be delegated by a lawyer to a legal assistant, including many tasks commonly performed by lawyers. Some of the more important of these tasks are listed below, the list being illustrative not exhaustive.
Interviewing. Clients, witnesses and others may be interviewed by a legal assistant, but legal advice may not be given by the legal assistant nor may the legal assistant accept or reject clients or set legal fees.
Drafting Legal Documents. Legal documents may be drafted by a legal assistant but such documents shall be reviewed by the lawyer.
Legal Research. A legal assistant may conduct statutory, case law and other legal research but the research product shall be reviewed by the lawyer.
Appearance Before Courts and Other Adjudicatory Bodies. A legal assistant may appear before adjudicatory bodies only if authorized by law to do so. However, with appropriate approval, a legal assistant may accompany and assist counsel at pretrial conferences and judicial and other adjudicatory proceedings.
Will Executions. A legal assistant may attend will executions and act as a witness but may not provide legal advice at will executions.
Real Estate Closings. A legal assistant may attend closings, even though no lawyer from the law firm employing the legal assistant is also present. However, at the closing the legal assistant may act only as a messenger and should not use or express any independent opinion or judgment about execution of the documents, changes in adjustments or price, or other matters involving documents or funds. For further particulars, see comment below.
Depositions. A legal assistant may summarize and index depositions and, with appropriate approval, attend the taking of depositions, but may not conduct depositions.
Preparing Tax Returns. A legal assistant may prepare client income, estate, gift and other tax returns but such returns shall be reviewed by the lawyer.
Comment. Although there are many tasks that legal assistants may legally perform, in delegating tasks to any particular legal assistant, the lawyer should be confident that based on the legal assistant’s education, training, experience and overall abilities, the tasks will be performed in a timely and satisfactory manner.
A real estate closing opinion by the Connecticut Bar Association’s Committee on Professional Ethics, Opinion 96-14, provides in part as follows:
In the opinion of the Committee, a law firm or an attorney may use an employee who is not admitted to practice, in this case a legal assistant or paralegal, as a messenger to deliver and pick up documents and funds required for a real estate closing. The messenger function could include communicating information or questions from an attorney in the firm to the buyer’s attorney. If the buyer is represented by an attorney who is not present at the closing, then the seller’s attorney should not communicate with the buyer directly or through the employee without the prior permission of the buyer’s attorney, as required by Rule 4.2 of the Rules of Professional Conduct.
The employee should not compromise his or her function as a messenger by providing information regarding the legal implications of a document. It is expected the employee will contact an attorney in the firm during the closing for instructions, if any questions are raised about the execution of the documents, changes in adjustments or price, or other matters involving documents or funds. The employee should not, however, be involved as an intermediary between the seller’s attorney and the buyer or the buyer’s attorney to negotiate or otherwise resolve questions about the funds or the legal sufficiency or effect of documents. Nor should the employee use or express any independent opinion or judgment about such matters. Nor should the employee supervise the closing where there is no attorney at the closing to perform this function.
Guideline 3
Protecting Client Confidences. The lawyer should take reasonable measures to ensure that all client confidences are protected by the legal assistant.
Comment. The lawyer’s responsibility to protect client confidences, according to the comment to Rule 5.3 of the Rules of Professional Conduct, includes the responsibility to give assistants whom they employ or retain "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...." It should be noted that Rule 1.6 of the Rules of Professional Conduct, which has as its heading "Confidentiality of Information," applies broadly to information related to representation of a client. Rule l .6a states: "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation..." with certain listed exceptions. Thus Rule 1.6a provides that all information relating to the representation may be confidential.
Guideline 4
Status Disclosure. The lawyer should take reasonable measures to ensure that clients, courts and other relevant persons are aware that a legal assistant, whose services are utilized by the lawyer in performing legal services, is not licensed to practice law.
Comment. The lawyer has the responsibility to disclose to third persons the status of the legal assistant. This disclosure may be made orally or in writing and generally should be made when the legal assistant initially has contact with the third person.
Guideline 5
Letterheads and Business Cards. A lawyer may identify legal assistants by name and title on the lawyer’s letterhead and on business cards identifying the lawyer’s firm.
Comment. Letterhead and business card identifications should not be misleading and when a legal assistant’s name is included, the legal assistant’s status should clearly be indicated. Informal Opinion 85-17 of the Connecticut Bar Association’s Committee on Professional Ethics is consistent with this guideline.
Guideline 6
Conflict of Interest. In employing or retaining a legal assistant, or assigning a legal assistant to any particular client matter, a lawyer should take reasonable measures to ensure that no conflict of interest is presented arising out of the legal assistant’s current or prior employment or from the legal assistant’s other business or personal interests.
Comment. Rule 5.3 of the Rules of Professional Conduct requires that a lawyer employing or retaining a legal assistant shall make reasonable efforts to ensure that the legal assistant’s conduct is "compatible with the professional obligations of the lawyer." Among these professional obligations is not to represent a client in conflict of interest situations as proscribed by Rules 1.7-1.13 of the Rules of Professional Conduct. Obviously, if there is a conflict of interest between a legal assistant and a client and the legal assistant is acting for the lawyer, a prohibited conflict of interest situation may exist. Among precautions the lawyer should take to avoid conflict of interest problems are to make inquiries, prior to hiring or retaining the legal assistant, as to the legal assistant’s past and current employment that might raise conflict of interest concerns. Another precautionary measure that should be taken is for the lawyer to instruct the legal assistant, following employment or retention, to inform the lawyer of any interest that may arise involving the legal assistant that could raise conflict of interest concerns.
Guideline 7
Fee Sharing. A lawyer shall not split legal fees with a legal assistant nor pay a legal assistant for the referral of legal work.
Comment. A lawyer is expressly prohibited by Rule 5.4(a) of the Rules of Professional Conduct from sharing legal fees with a nonlawyer, but Rule 5.3(a)(3) does state that "a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement." The prohibition on sharing legal fees with a legal assistant does not, however, prevent a lawyer from compensating a legal assistant based on the quantity and quality of the legal assistant’s work and the value of that work to a law practice. Connecticut Bar Association’s Committee on Professional Ethics Opinion 93-1 expressly holds that a law firm may provide periodic bonuses to its legal assistants based upon client projects completed and billable hours recorded. But the legal assistants’ compensation may not be contingent, by advance agreement, upon the profitability of the lawyer’s practice.
Guideline 8
Fee Charges. In establishing a fee arrangement with a client, a lawyer may include a reasonable and separate charge for work performed by a legal assistant, provided that the client consents after consultation.
Comment. In Missouri v. Jenkins, 491 U.S. 274 (1989), the Court held, in setting a reasonable fee under 28 U.S.C. 1988, that it was appropriate to include a charge for legal assistant services and that it was appropriate to value such services at "market rates" rather than "actual cost" to the lawyer. Of course, any fee charged by the lawyer, whether including a charge for legal assistant work or not, must be reasonable, as required by Rule 1.5 of the Rules of Professional Conduct.
Guideline 9
Partnership With a Legal Assistant. A lawyer shall not form a partnership with a legal assistant if any of the partnership’s activities consist of the practice of law.
Comment. This prohibition against forming a partnership with a legal assistant, or any other nonlawyer, is expressly proscribed by Rule 5.4(b) of the Rules of Professional Conduct, and is further prohibited by Rule 5.5(b) of the Rules of Professional Conduct stating that 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." It also should be noted that Rule 5.5(d) of the Rules of Professional Conduct generally prohibits a lawyer from practicing with or in a professional corporation or association authorized to practice law for a profit if a legal assistant or other nonlawyer owns any interest therein, is a corporate officer or director, or has a right to direct or control the professional judgment of a lawyer.
Guideline 10
Continuing Education and Pro Bono Publico Activities. A lawyer who employs a legal assistant should encourage the legal assistant’s participation in appropriate continuing education and pro bono publico activities.
Comment. This guideline is consistent with the objectives of Rules 1.1, 5.3 and 6.1 of the Rules of Professional Conduct.
Illustrative examples of how this guideline might be implemented are these: (a) encouraging attendance by the legal assistant at appropriate continuing education programs; (b) conducting in-house training programs for the legal assistant, or including the legal assistant in appropriate in-house programs designed for lawyers; (c) providing the legal assistant with access to appropriate publications concerning the substantive areas in which the legal assistant works; (d) encouraging and supporting the legal assistant’s membership in appropriate professional organizations; and (e) encouraging a legal assistant’s pro bono publico efforts by granting some time away from regular job duties and providing reasonable office logistical support.
Notes
1. Approved by the ABA Board of Governors on February 6, 1996.
2. In many respects, the guidelines also may apply to nonlawyers other than legal assistants who are employed or retained by lawyers, including legal secretaries.