Immigration Practice News

Volume 3, Issue 2

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The Ethics of Paralegal Utilization and Management By Kristina Rost What is a Paralegal or a Legal Assistant? There are a few definitions of para- legals and legal assistants. The most noticeable ones are by the American Bar Association (ABA), the National Association of Legal Assistants and the National Federation of Paralegal Assistants. States adopt, though their own state rules, definitions of parale- gal/legal assistant that reflect the def- initions listed above. Nearly all states, organizations representing lawyers, and courts maintain that a paralegal should not perform any substantive legal work unless that work is prop- erly supervised by the attorney. Should Paralegals be Licensed? No state licenses or certifies parale- gals. Most states regulate paralegals through unauthorized practice of law statutes and through the State Bar's regulation of attorneys charged with supervising of paralegals. California is the only state to adopt educational and/or work experience require- ments for those using the job title "paralegal." In the absence of formal educational/ work experience requirements for paralegals, employers can look to ABA Model Rule 5.3 for guidance. This rule establishes that legal as- sistants may perform almost any function in the office provided that all of their work is supervised by an attorney who is ultimately respon- sible for that work. Attorneys and paralegals are held to the same ethi- cal standards, and their obligations to the clients are considered to be "same common obligations." What are the Statutory and Regulatory Bases for Disciplining Paralegals? Because no states currently license or discipline paralegals independently, statutory and regulatory standards apply to legal assistants in the same way they apply to the attorneys who employ them. For example, INA §274C addresses criminal proceed- ings against immigration lawyers and paralegals who have committed docu- ment fraud. A paralegal convicted un- der this section of INA can certainly go to jail with his or her employer. Some Key Practice Concerns in Utilizing Paralegals First, the duty of competence ex- tends from the attorney through the paralegal in the representation of the client. The attorney must be aware of all cases being worked on by the paralegal and any deadlines affecting these cases. In addition, the attorney is responsi- ble for ensuring that the attorney-cli- ent confidentiality privilege extends to communications via the paralegal. The paralegal must be aware of the privilege and that he has an affirma- tive duty to uphold it. Finally, there is this blurred line between "authorized" and "unau- thorized" practice for paralegals and legal assistants which requires an attorney's attention. According to the ABA/BNA Lawyers' Manual on Professional Conduct, attorneys may violate the prohibition against assist- ing in other's unauthorized practice by doing the following (the list is by no means exhaustive): • Improperly delegating duties to non-lawyer staff or inadequately supervising staff; • Offering legal services to or ac- cepting referrals from businesses whose non-lawyer employees pro- vide legal service to customers; or • Working with disbarred, suspend- ed or out-of-state lawyers who are improperly practicing law. 5 Practice Pointers Maintaining Ethics in Supervising Paralegals By Kristina Rost 1 2 Hold periodic meetings with your staff to review office procedures, client matters, and changes in the law; Keep your paralegals' skills updated: send them to legal seminars and encourage them to take advantage of training opportunities; supervising attorney (try and keep the door open); 3 quoting your published price list or the hourly rate that your firm charges; 4 Do not allow your paralegal to conduct an initial client interview (although you may wish to have your staff do a simple phone-screen of potential clients so you are aware of the issues that may come up in the intake); CONTINUED on pg.3 >> 2 Do not allow paralegals to set any fees—limit their authority to Give your paralegals complete access to you as their

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