Friday, September 10, 2010

More Than A Paralegal

The Massachusetts Supreme Judicial Court has suspended an attorney for a year and a day for allowing his non-lawyer assistant (hereinafter Porter)  to practice law. The assistant had an expertise (which the attorney lacked) in employment and discrimination matters. The court rejected the "a paralegal could do it" defense:

The respondent argues that "the vast majority of Porter's activities fall within the ambit of permissible paralegal work." While many tasks performed by an attorney may also be performed by a paralegal, we require that an attorney supervise a paralegal's performance of such work. See comment 1 to Mass. R. Prof. C. 5.5(b) (rule "does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work"). Here, respondent did not supervise Porter in Porter's discrimination law practice. In addition, much of Porter's practice of law before the MCAD was unauthorized, as practice by nonlawyers before the MCAD is confined to the filing of complaints by a qualifying organization and participation in some informal conferences. [FN4] See 804 Code Mass. Regs. § 1.10(1)(c) (1999) (allowing MCAD complaints to be filed by nonprofit organizations "whose purposes include the elimination of the unlawful practice [s]"); 804 Code Mass. Regs. § 1.13(5)(b) (1999) (claimant may be accompanied to an informal investigative conference "by his or her attorney or other representative"). Porter's discrimination law practice at the respondent's firm was not covered under the regulation regarding nonprofit organizations, as he was not acting on behalf of a qualified organization; accordingly, Porter handled each of his cases at the MCAD under the appearances he filed in respondent's name, but without any supervision from the respondent or another attorney at respondent's firm. In addition, Porter's unsupervised activity at the MCAD went far beyond appearing at informal investigative conferences.

The court concluded:

Lawyers who employ nonattorneys are required to supervise the delegated work and retain responsibility for the nonattorney's work. The Massachusetts Rules of Professional Conduct indicate that failure to do so could result in a charge of assistance in the unauthorized practice of law. See comment 1 to Mass. R. Prof. C. 5.5. See also Restatement (Third) of the Law Governing Lawyers § 4 comment g (2000) ("[L]awyers and law firms are empowered to retain nonlawyer personnel to assist firm lawyers in providing legal services to clients. In the course of that work, a nonlawyer may conduct activities that, if conducted by that person alone in representing a client, would constitute unauthorized practice. Those activities are permissible and do not constitute unauthorized practice, so long as the responsible lawyer or law firm provides appropriate supervision ... and so long as the nonlawyer is not permitted to ... split fees ..."). In Matter of DiCicco, 6 Mass. Att'y Discipline Rep. 83, 89-91 (1989), the single justice held that, where an attorney formed a business with a paralegal to represent prison inmates experiencing administrative problems and listed the paralegal on letterhead as "Of Counsel," and then failed to supervise the paralegal's activities, the attorney assisted in the unauthorized practice of law. Similarly, in Matter of Jackman, 20 Mass. Att'y Discipline Rep. 263, 267-268 (2004) (Jackman ), the respondent was held to have provided the "necessary 'assistance' " to a nonmember of the bar to conduct the unauthorized practice of law when he agreed to allow the nonlawyer to manage the day-to-day operations of an office in which nonlawyers handled and settled personal injury cases, arranged to split legal fees from the business with the nonlawyer, and then failed to provide adequate supervision or oversight. The differences between Jackman and this case are minor: in Jackman, the nonlawyers operated from a separate office; here, Porter ran a separate practice within the respondent's office. In addition, the respondent allowed Porter to run his own unsupervised discrimination law practice from the respondent's law office, understanding that people would "assume that Porter was employed by [the firm] as a paralegal, despite the reality that Porter was carrying on his own practice." The total effect of the respondent's conduct was to facilitate Porter's unauthorized practice of law by creating an environment in which it could exist. Here, the respondent allowed it to flourish.

The respondent's efforts to curb Porter's conduct, by holding Porter out as a paralegal, instructing Porter on fee agreements, requiring Porter to turn over all fee payments to the firm, and minimally reprimanding Porter when he was informed of Porter's missteps, are not sufficient to avoid a charge of assistance in the unauthorized practice of law. See, e.g., Matter of Jackman, supra at 268 (finding it immaterial that nonattorneys did not hold themselves out as members of bar).

(Mike Frisch)

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Posted by: flop | Sep 10, 2010 1:02:37 PM

Just how would the lawyer supervise the paralegal? Assume the lawyer read all the paralegal's output on a matter in which the paralegal knew far more than the lawyer. What could the lawyer contribute that would protect the client? Yet, I suspect, had the lawyer read the output and then approved it (how, one cannot guess) there would have been no problem.

Had the paralegal screwed up, the lawyer would have been liable for malpractice, whether or not there was (unnecessary) supervision. Why isn't that enough?

Posted by: Dennis Tuchler | Sep 12, 2010 11:29:13 AM

Attorneys are ultimately responsible for the work performed by the non-attorney staff they employ or engage, including contractors. I am a freelance paralegal and know without doubt that I must be especially careful and take all measures to ensure that the attorney engaging my services is involved in the process from inception to completion. They will then finalize and send out the work from their office.

I had someone call me the other day stating that their attorney suggested that they use a paralegal to prepare a complaint because it would be cheaper and that this attorney volunteered to review the complaint once it was drafted. My response was that I would do the work only after receiving written verification from the attorney that he was a licensed attorney and that the work would be forwarded to him for review and approval. All of our company's marketing also states that all of our services are performed under the supervision and with the final approval of the attorney requesting the work or another attorney that he or she would designate.

Posted by: Robyn | Sep 14, 2010 8:09:03 AM

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