Advisory Opinion 21
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State Disciplinary Board
Advisory Opinion No. 21
September 16, 1977
Guidelines for Attorneys Utilizing Paralegals.
Pursuant to the provisions of Rule 4-217 of the Rules and Regulations for the Organization and Government. of the State Bar of Georgia (219 Ga. 873, as amended), the State Disciplinary Board, after a proper request for such, renders its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia.
What are the ethical responsibilities of attorneys who employ legal assistants or paraprofessionals and permit them to deal with other lawyers, clients and the public?
The ethics authority applicable to this inquiry is Rule 3-103 (Canon III): EC 3-1, EC 3-2, ES 3-6, DR 3-101(A) and DR 3-103 are all included in that Rule. It is also noted that the provisions of Canon III appear as Disciplinary Standards 24, 25 and 26 in Part IV (discipline) of the Rules of the State Bar.
Canon III provides:
"A lawyer should assist in preventing the unauthorized practice of law."
Ethical Considerations under this Canon relevant to the question propounded are:
"EC 3-1 The prohibition against the practice of law by a layman is grounded in the need of the public for integrity and competence of those who undertake to render legal services. Because of the fiduciary and personal character of the lawyer-client relationship and the inherently complex nature of our legal system, the public can better be assured of the requisite responsibility and competence if the practice of law is confined to those who are subject to the requirements and regulations imposed upon members of the legal profession."
"EC 3-2 The sensitive variations in the considerations that bear on legal determinations often make it difficult even for a lawyer to exercise appropriate professional judgment, and it is therefore essential that the personal nature of the relationship of client and lawyer be preserved. Competent professional judgment is the product of a trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems, and a firm ethical commitment."
"EC 3-6 A lawyer often delegates tasks to clerks, secretaries and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal service more economically and efficiently."
"DR 3-101 Aiding Unauthorized Practice of Law.
(A) A lawyer shall not aid a nonlawyer in the unauthorized practice of law.:
"DR 3-102 Dividing Legal Fees with a Nonlawyer.
(A) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(3) a lawyer or law firm may include nonlawyer employees in a retirement plan even though the plan is based in whole or in part on a profit-sharing arrangement."
"DR 3-103 Forming a Partnership with a Nonlawyer.
(A) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law."
For purposes of this opinion the terms "legal assistant", "paraprofessional" and "paralegal" are defined as any lay person, not admitted to the practice of law in this State, who is an employee of, or an assistant to, an active member of the State Bar of Georgia or to a partnership or professional corporation comprised of active members of the State Bar of Georgia and who renders services relating to the law to such member, partnership or professional corporation under the direct control, supervision and compensation of a member of the State Bar of Georgia.
The overriding consideration in this opinion will be that the definition of the practice of law is very wide in the State of Georgia and that strict adherence to a program of supervision and direction of a paralegal is required in order to avoid any charges that the attorney is aiding his paralegal in the unauthorized practice of law. Ga. Code Ann. 9-401, 9-402. Avoidance of charges that the paralegal is engaging in the unauthorized practice of law may be achieved only by strict observance of the direction found in EC 3-6, quoted above, indicating that delegation of activities which ordinarily comprise the practice of law is proper only if the lawyer maintains a direct relationship with the client involved, supervises and directs the work delegated to the paralegal and assumes complete ultimate professional responsibility for the work product produced by the paralegal. Supervision of the work of the paralegal by the attorney must be direct and constant to avoid any charges of aiding the unauthorized practice of law.
It is the opinion of this Board that the following may be delegated to nonlawyer paralegals, provided that proper and effective supervision and control by the attorney exists:
(1) The interview of clients, witnesses and other persons with information pertinent to any cause being handled by the attorney.
(2) Legal research and drafting of pleadings, briefs of law and other legal documents for the attorney's review, approval and use.
(3) Drafting and signing of routine correspondence with the clients of the attorney when such correspondence does not require the application of legal knowledge or the rendering of legal advice to the client.
(4) Investigation of facts relating to the cause of a client of the attorney, including examinations of land records and reporting of his findings to the attorney.
(5) Scheduling of the attorney's activities in the law office and scheduling of his appearance before courts, tribunals and administrative agencies.
(6) Billing of clients and general management of the lawfirm's office and nonlegal staff.
(7) Routine contacts with opposing counsel on topics not effecting the merits of the cause of action at issue between the attorneys or requiring the use or application of legal knowledge.
(8) Rendering of specialized advice to the clients of the attorney on scientific and technical topics, provided that such advice does not require the application of legal judgment or knowledge to the facts or opinions to be discussed with the client.
It is the opinion of the Board that the following duties should not be delegated to paralegals:
(1) Any contact with clients or opposite counsel requiring the rendering of legal advice of any type.
(2) Any appearance as a lawyer at depositions, hearings,calendar calls or trials or before any administrative Tribunal unless otherwise preempted by Federal law or regulation.
(3) Responsibility for making final decisions as to the ethics of activities of paralegal employees of an attorney.
(4) Drafting, without review and approval by a member of the Bar, of any pleading or legal document.
(5) Negotiation with opposing parties or their counsel on substantive issues in expected or pending litigation.
(6) Contacting an opposite party or his counsel in a situation in which legal rights of the firm's client will be asserted or negotiated.
(7) Signature of pleadings, briefs or other legal documents for presentation to any court or explanation of legal document s to the client of the lawyer or to the opposite party in any negotiation or litigation.
It is the opinion of the State Disciplinary Board that there are other duties incumbent upon lawyers supervising the work of paralegals as follows:
(1) (a) In order to avoid any appearance that the lawyer is aiding the paralegal in the unauthorized practice of law,including unauthorized practice by way of "holding out as an attorney" (see Ga.Code Ann. 9-402), any letters or documents signed by the paralegal should clearly indicate the status of the paralegal and such status should be made clear by the nature of the typed signature or by express language in the text of the letter or document. See Advisory Opinion No. 19.
(b) The name of the paralegal should not appear on the letterhead or on the office door of any lawyer engaged in private practice. The paralegal may have a business card containing the name of the firm by which he or she is employed, but the card must contain the word "paralegal" to clearly convey that the paralegal is not a lawyer.
(c) In oral communications, either face-to-face or on the telephone, the paralegal should begin the conversation with a clear statement that he or she is speaking as a paralegal employee of the lawyer or the law firm. Such communication concerning the status of the paralegal should be given prior to all oral communications with clients, opposite parties, and other attorneys unless previous contacts with such persons would justify the paralegal in believing that their status was clearly known to such persons.
(2) A paralegal may not be a partner in a law firm nor have a financial interest that amounts to a partnership interest in such firm other than participation in a profit sharing plan allowed under Bar ethics rules. [DR 2-102 (A) ]
(3) As the paralegal is the agent of the attorney, the paralegal has a duty to protect and preserve the confidences and secrets of the firm's clients. [EC 4-2 and DR 4-102 ]
(4) As the paralegal is an agent of the lawyer or law firm, it is the duty of the supervising lawyer to carefully instruct the paralegal so that the paralegal will avoid taking any action which the attorney himself is prohibited from taking, including avoidance of solicitation of cases or clients for the lawyer or the lawfirm and avoiding any other activity which would be improper activity if performed by the supervising lawyer or his firm.
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