Friday, January 26, 2007
PARALEGALS AND THE UNAUTHORIZED PRACTICE OF LAW -WHERE IS THE LINE DRAWN?
By: Lauren K. Jones, RP
Lauren K. Jones, RP continues her articles on Paralegals and the Unauthorized Practice of Law – Where is the Line Drawn?
In making such determination, we begin with Rule 5.3 of the Indiana Rules of Professional Conduct, which sets out an attorney's responsibilities regarding non-lawyer assistants:
(a), (b) A...lawyer...shall make reasonable efforts to ensure that the... [paralegal's] conduct is compatible with the professional obligations of the lawyer
(c) A lawyer shall be responsible for the conduct of...[the paralegal] that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer...knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Comment : Paragraph (a) requires lawyers...to make reasonable efforts to establish policies and procedures designed to provide reasonable assurances that non-lawyers in the firm will act in a way compatible with the Rules of Professional Conduct.
What services can a paralegal perform in Indiana?
Guideline 9.1 through 9.10 of the Ind. Rules of Professional Conduct provides specific guidance for the use of paralegals:
9.1: A non-lawyer assistant shall perform services only under the direct supervision of a lawyer authorized to practice in the State of Indiana...A lawyer...should take reasonable measures to ensure that the non-lawyer assistant's conduct is consistent with the lawyer's obligations under the Rules of Professional Conduct. Note the key words here are: only under the direct supervision of a lawyer. Although Indiana expressly places the responsibility for supervision of paralegals upon lawyers, some states have concluded that a paralegal is not relieved from an independent obligation to work directly under an attorney’s supervision. (ABA Model Guideline for the Utilization of Paralegal Services, 2003 Revisions.) The Supreme Court of New Jersey has held that a “paralegal who recognizes that the attorney is not directly supervising his or her work or that such supervision is illusory because the attorney knows nothing about the field in which the paralegal is working must understand that he or she is engaged in the unauthorized practice of law.” (In Re: Opinion No. 24 of the Committee on the Unauthorized Practice of Law, 607 A.2d 962, 969 (N.J. 1992).)
9.2: *...a lawyer may delegate to a...paralegal any task normally performed by the lawyer; however, any task prohibited by statute, court rule, administrative rule or regulation, controlling authority or the Indiana Rules of Professional Conduct may not be assigned to a non-lawyer. Note that the scope of a paralegal’s work is only limited to (1) any task normally performed by a lawyer (so long as lawyer is responsible for work product; and (2) those tasks not specifically prohibited).
Next Issue: What Tasks are Prohibited by Statute, Court Rule, Administrative Rule or Regulation, Controlling Authority or the Indiana Rules of Professional Conduct?