Most attorneys have long known, at least in a general way, that law clerks, legal assistants, secretaries and paralegals may not ethically “practice law.” The difficulty for many attorneys, however, is determining what constitutes the unauthorized practice of law, as opposed to the proper and ethical function various members of the support staff may perform. Here, the attorneys at Eccleston & Wolf further explain the difference between the two.
It is imperative that attorneys understand the difference between supporting duties that their staff can perform and actions that constitute as “practicing law”.
Attorney Supervision of Paralegals & Staff
First and foremost, it should be noted that all of the work performed by any support staff member, including paralegals, must be under the direct supervision of an attorney licensed to practice law.
Paralegals and other members of the support staff are not permitted to provide legal advice, or to utilize their independent judgment and discretion in making tactical and strategic decisions regarding the representation of clients.
For example, under no circumstances are paralegals permitted to settle legal claims. Paralegals and other staff members are not authorized to utilize the attorney’s letterhead, or to sign the attorney’s name to correspondence, without the specific knowledge and approval of the attorney. The attorney is not permitted to simply give general authorization to paralegals or other staff members to sign and send correspondence at their discretion.
Legal Repercussions for Unauthorized Practice of Law
While there may still be some gray areas, the Court went a long way towards drawing some very clear lines for what is permitted, while specifying some conduct that clearly constitutes a violation of Maryland’s Code of Professional Responsibility.
The Court of Appeals of Maryland recently suspended a lawyer for six months and a day, despite the fact that he had practiced law with a perfectly clean ethics record since 1972, because he allowed paralegals to exceed their proper role.
Paralegals and Unauthorized Practice of Law
In many personal injury firms by way of example, the primary point of contact with clients is often a paralegal, or another member of the staff, who may be responsible for everything from establishing the file, to answering client questions, obtaining information and documentation and even preparing settlement packages.
In these situations, clients may inquire of the paralegal about the law, the assessment of liability issues in their case, the value of the underlying matter, and the appropriate settlement demands that should be issued.
In far too many firms, paralegals regularly dispense legal advice and even formulate settlement strategy and demand packages without any involvement by the attorneys in the firm. Far too often they dispense direct legal advice to the firm’s clients, and if the case settles, the attorneys in the firm are never truly involved in the assessment and evaluation of the case.
Many paralegals feel that their knowledge and experience exceeds that of at least some of the attorneys in the law firm, and consequently they feel that they do not “need” the supervision of an attorney in answering the questions of their clients; gathering medical records and other information pertinent to the case; assessing the value of the case; preparing and submitting a demand package to the insurance company; negotiating a settlement with the defendant or their insurance company; or, advising and very often convincing the firm’s clients, to accept a settlement offer.
If settlement is achieved, the paralegals in these firms confirm the resolution with the parties, advise “their client” to sign the release, and prepare the settlement sheet and other related documents. In fact, in any number of these firms the attorneys only really become involved if the paralegals and other support members are unable to achieve settlement and the matter must proceed to litigation.
While there may be some gray area, certainly any law firm utilizing the system just described is violating the applicable ethics rules in the State of Maryland by failing to properly supervise their staff and permitting the unauthorized practice of law. In its recent decision, Maryland’s Court of Appeals made it clear that paralegals cannot settle claims without an attorney’s specific authorization.
Obviously, attorneys can only give such authority if they are sufficiently familiar with the case to properly evaluate the file, which in turn requires an understanding of the investigation undertaken and an independent evaluation of the liability and damage issues involved.
Only an attorney may represent a client, and he or she must therefore oversee and supervise everyone who works on the file. Paralegals are limited to assisting the attorney, and must not usurp the attorney’s role.
Providing legal advice, making tactical and strategic decisions, determining case value, negotiating settlement and counseling clients as to whether to settle a case, without the direct and specific supervision of an attorney, constitutes the unauthorized practice of law.
See Attorney Grievance Commission of Maryland v. Charles Allan Fineblum, Miscellaneous Docket AG No. 3, September Term 2020, which can be accessed here: https://mdcourts.gov/data/opinions/coa/2021/3a20ag.pdf.
Consult With an Attorney Malpractice Lawyer at The Law Offices of Eccleston & Wolf
Of course, paralegals and other staff members can play an important and often significant role in many different practice areas. Eccleston and Wolf is always happy to consult with attorneys to explore ethical issues in any practice, and to provide specific advice as to the proper and ethical use of support staff, regardless of the field of practice.
Eccleston and Wolf has long counseled clients regarding the direct supervision of support staff members who are dealing with clients, insurance companies, opposing counsel and others in connection with the handling of files. We routinely assist attorneys in determining what level of supervision is required and appropriate under various circumstances.