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Role of Nonlawyers in Law Practice: Guidelines for Utilization of Legal Assistant
Preamble
On May 28, 1976, the State Bar of Board of Commissioners approved Guidelines for the Utilization of Legal Assistant Services as additional commentary to the former code of Professional Responsibility. Effective October 1, 1988, the State Bar of Michigan adopted the Michigan Rules of Professional Conduct, superseding the prior Code. In August of 1991, the American Bar Association’s House of Delegates adopted Model Guidelines for the Utilization of Legal Assistant Services, to serve as a guide to lawyers in the use and supervision of legal assistants. Based in part on the ABA Model Guidelines and the 1976 Michigan Guidelines, and after considering Michigan ethics opinion and case law, the Subcommittee on Professional Ethics drafted Proposed Guidelines to supersede the 1976 Guidelines. The Board of Commissioners on April 23, 1993 approved the revised Guidelines. Article 1, Sec 6, of the Bylaws of the State Bar of Michigan defines "legal assistant" for purposes of membership in the State Bar Legal Assistant Section as follows: "Any person currently employed or retained by a lawyer, law office, governmental agency or other entity engaged in the practice of law, in a capacity or function which involves the performance under the direction and supervision of an attorney of specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts such that, absent that legal assistant, the attorney would perform the task, and which is not primarily clerical or secretarial in nature . . ." While the Guidelines are directed primarily at the utilization of legal assistants as defined above, many of the same considerations would apply in the utilization and supervision of any other nonlawyer assistants. While the Guidelines necessarily discuss the conduct of legal assistants, they are directed at lawyers who use or supervise legal assistants. The Guidelines are intended to aid the lawyer in fulfilling responsibilities under the Michigan Rules of Professional Conduct. Guideline 1: A lawyer shall make reasonable efforts to ensure that the conduct of a legal assistant under the lawyer’s direct supervision is compatible with the lawyer’s professional obligations under the Michigan Rules of Professional Conduct. Such efforts should include training in the requirements of those Rules that most directly relate to communications with persons other than the lawyer’s clients. Comment: The responsibilities described in the first sentence are intended to be identical to those imposed by MRPC 5.3. See also the Comment to MRPC 5.3. Although training would vary depending on the specific responsibilities of the legal assistants being trained, training efforts involving MRPC 1.6 (Confidentiality of Information), MRPC 3.3 (Candor Toward the Tribunal), MRPC 3.4 (Fairness to Opposing Party and Counsel), MRPC 3.5 (Impartiality and Decorum of the Tribunal) MRPC 3.6 (Trial Publicity), MRPC 4.1 (Truthfulness in Statements to Others), MRPC 4.2 (Communication with a Person Represented by Counsel, MRPC 4.3 (Dealing with an Unrepresented Person), and MRPC 4.4 (Respect for Rights of Third Persons) should be emphasized. Guideline 2: A lawyer may ethically assign responsibility to a legal assistant for the performance of tasks relating to the representation of a client and the law firm’s delivery of legal services, commensurate with the experience and training of the legal assistant, and where the lawyer directly supervises the legal assistant and reviews the legal assistant’s work product before it is communicated outside the law firm, provided that: Comment: A comprehensive list of duties which a legal assistant may undertake is impossible to compile, since the duties will vary according to the expertise of the legal assistant, the size of the law office, the nature of the law practice, the consent of the client, and changes in the laws of unauthorized practice. In Michigan, it is not unauthorized practice of law for a nonlawyer to engage in legal research, investigation, client or witness interviews, or in other tasks in which the nonlawyer performs as a courier (e.g., services of process, notary public) or conduit (e.g., relay of offers of settlement, tracking case dockets, scheduling meetings). Paragraph "a" reflects the current prohibition that nonlawyers may not hold themselves out as lawyers, MCL 600.916. It is the lawyer’s responsibility to see that communications about services rendered by the law firm and its nonlawyers are not false, fraudulent, deceptive or misleading, MRPC 7.1, and that nonlawyer employees of the firm understand those limitations, MRPC 5.3. See Guideline 1. If the lawyer or legal assistant becomes aware that the role of the legal assistant is unclear, the lawyer and the legal assistant have an affirmative duty to clarify the legal assistant’s role. Paragraph "b" addresses the current prohibition against nonlawyers giving advice to other persons. In State Bar v Cramer, 399 Mich 116 (1976), the Court held that although nonlawyers could provide legal forms and instructions, it was unauthorized practice of law for a nonlawyer to provide particularized advice tailored to the legal situation of another. Clearly a legal assistant may discuss with the supervisory lawyer the legal assistant’s research, admissibility of evidence, and the like. The lawyer, however, must exercise independent professional judgment regarding not only the precedential effect or impact of laws regarding not only the precedential effect or impact of laws regarding the client’s situation, but also the strategy and tactics to be employed to best achieve the client’s objectives. See MRPC 1.2(a) and (b), 5.4(c). It is the lawyer’s responsibility to counsel the client on those options and limits. See MRPC 1.4. Therefore, the lawyer must determine advice particular to the legal situation of the client. The legal assistant may communicate with others conveying the lawyer’s advice when the lawyer has approved that communication. Paragraph "c" addresses the propriety of a nonlawyer drafting legal documents. As long as the work product of the legal assistant is supervised and reviewed by the lawyer, and conveyed over the lawyer’s name, a legal assistant may draft preliminary pleadings, settlement agreements, contracts, wills or any other legal document. Drafts that have not been adopted by the lawyer should not be conveyed to anyone outside the law office. It is improper for a legal assistant to sign the lawyer’s name to a legal document, even with the lawyer’s direction and consent. See MRPC 4.1; MCR 2.114. The legal assistant may sign the lawyer’s name to correspondence at the direction of the lawyer, as long as the lawyer has authorized and reviewed the correspondence and the correspondence shows that the legal assistant signed the correspondence at the lawyer’s direction. Paragraph "d" addresses the propriety of nonlawyers "appearing" on behalf of another person regarding the person’s legal matter. In State Bar v Galloway, 422 Mich 188 (1985), the Court held that where there existed explicit statutory authority for a nonlawyer to represent the interests of others in certain administrative agency proceedings, such participation was not unauthorized practice of law. There is no distinction between an "appearance" in person and a verbal "appearance" or an "appearance" through written documents (e.g., signed pleadings). Appointment as guardian, agent, assignee, "next friend" or under a power of lawyer are insufficient to grant authority for a nonlawyer to represent the interests of another in the person’s legal matters. Guideline 3: A lawyer may not delegate to a legal assistant: Comment: The essential elements of any lawyer-client relationship are the agreement to undertake representation, the scope of that representation and the fee arrangement relating to that representation. In evaluating whether to undertake the representation, the lawyer must evaluate whether or not any circumstances exist which would require that the representation be declined. See MRPC 1.16. Rule 1.2 requires that the lawyer consult with the client regarding any limitations on the scope of representation. The lawyer must further obtain the agreement of the client, and in some cases written agreement, with respect to the fee arrangement relating to the representation. See MRPC 1.5. These matters are of such importance that they should be handled personally by the lawyer. Legal assistants may play a valuable role by participating in initial client interviews, gathering background information from the client and others, preparing initial drafts of fee agreements, and performing other tasks incidental to establishment of the lawyer-client relationship. RI-123, RI-128. The lawyer may not delegate responsibility to a nonlawyer for deciding whether the representation will be undertaken. Guideline 4: A lawyer may identify legal assistants by name and title on the lawyer’s letterhead and on business cards identifying the lawyer’s firm. Comment: As long as the letterhead or business card accurately and clearly identifies the nonlawyer’s status, it is not improper to include a nonlawyer’s name and title on law firm communications. See Michigan ethics opinion RI-34 and Guideline 2a. Guideline 5: In employing a legal assistant, or assigning a legal assistant to any particular client matter, a lawyer should take reasonable measures to ensure that no conflict of interest is presented arising out of the legal assistant’s current or prior employment or from the legal assistant’s other business or personal interests. Comment: Ethics rules concerning conflicts of interest limit a lawyer in undertaking representation which may be materially limited by the lawyer’s responsibilities to another client, the lawyer’s own interest, or to some third person [MRPC 1.7(b), 1.8, 1.13], which is directly adverse to a current client [MRPC 1.7(a), or substantially related and materially adverse to representation of a former client [MRPC 1.9], or in which the lawyer formerly participated personally and substantially [MRPC 1.11, 1.12]. Recognizing that one important function served by these rules is the preservation of client confidences, courts have applied these same principles in the context of the hiring of legal assistants. See e.g., Kapco Mfg. Co., Inc v C & O Enterprise, Ins., 637 F Supp 1231 (ND Ill 1985); Williams v Trans World Airlines, Inc., 588 F Supp 1037 (WD Mo 1984). A lawyer should address the hiring of a legal assistant with the same care as the hiring of a new lawyer. See R-4, RI-115; ABA Op 88-1526. Information should be gathered regarding the legal assistant’s other current and prior employment and outside interests. See C-216, legal assistant related to presiding judge. Where necessary, appropriate screening procedures should be timely implemented to prevent the involvement of the legal assistant in client matters which may give rise to a conflict of interest, and waives should be obtained from the affected clients. See RI-26, lawyer as advocate in matter where legal assistant is necessary witness. Guideline 6: In establishing a fee arrangement with a client, a lawyer may include a reasonable charge for work performed by a legal assistant, provided that the client consents after consultation. Comments: In cases involving fixed fees or contingent fees, the total fees are agreed upon in advance and there is no separate charge for legal assistant services. In matters charged on the basis of "fee for service" or "charge by the hour," a lawyer may include separate charges for work performed by legal assistants or otherwise include legal assistant hours in calculating the amount of fees to be charged. In Missouri v Jenkins, 491 US 274 (1989), the Court held in setting a reasonable lawyer’s fee under 28 USC § 1988 that it was appropriate to include a charge for legal assistant services, and that it was appropriate to value such services at "market rates" rather than "actual cost" to the lawyer. In such instances, the lawyer should disclose to the client, either at the outset of the representation or at the point during the representation when the lawyer determines a legal assistant should be used, that the lawyer proposes to use a legal assistant and obtain the "client'’ agreement to any charges. The total fees, whether including legal assistant charges or not, remain subject to the requirements of MRPC 1.5. Guideline 7: A lawyer may not split legal fees with a legal assistant nor pay a legal assistant for the referral of legal business. A lawyer may compensate a legal assistant based on the quantity and quality of the legal assistant’s work and the value of that work to the law practice. A lawyer may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. Comment: Although "fee-splitting" with nonlawyers had been prohibited traditionally, such prohibitions do not apply to compensation and retirement plans. See MRPC 5.4, 7.2(c). Compensation of nonlawyer employees may include "fixed" components (e.g., salary) and "variable" components (e.g., bonus). See RI-143. Guideline 8: A lawyer who employs a legal assistant should facilitate the legal assistant’s participation in appropriate continuing education and public service activities. Comment: Guideline 1 addresses a lawyer’s responsibility to ensure the legal assistant’s understanding of and compliance with the Michigan Rules of Professional Conduct. The lawyer’s responsibility includes taking appropriate steps to ensure that the legal assistant remains competent in the fields of practice in which the legal assistant is assigned, MRPC 1.1 and that the legal assistant has opportunities to render public interest service, MRPC 6.1. The lawyer’s responsibility may be discharged in a number of ways, as shown by the following illustrative examples: The working relationship between the lawyer and the legal assistant should extend to cooperative efforts on public service activities whenever possible. A legal assistant’s independent pro bono activities may be facilitated by granting time away from regular job duties and providing office logistical support. OPINION R-1 Adequate Supervision RI-26 Employee as Witness RI-34 Nonlawyers on Firm Letterhead RI-103 Employee Undertaking Administrative Agency Representation RI-104 Nonlawyer Consultants RI-105 Nonlawyer Professional Employed by Law Firm RI-115 Imputed Disqualification When Changing Employment RI-123 Nonlawyer Performing Client Intake RI-125 Employee Undertaking Administrative Agency Representation RI-128 Nonlawyer Acting as Intermediary with Client RI-143 Compensation Plan RI-191 Nonlawyer Business Relationship C-216 Firm Employee Related to Presiding Judge Additional References: Article, Disciplined Lawyers and the Unauthorized Practice of Law, Vol 68 No 11 MBJ 1108 (1989); Ethics Spotlight, Ethics and Legal Assistants, Vol 71 No 8 MBJ 826 (1992); Ethics Spotlight, Associating with Disciplined Lawyers, Vol 71 No 11 MBJ 1188 (1992), Supervisory Responsibility, Vol 72 No 6 MBJ 562 (1993), Michigan Rules of Professional Conduct. Notice to Lawyers: State Bar of Michigan ethics opinions are advisory and non-binding in nature. This index is a complete historical catalog. Some of the listed ethics opinions, though not expressly superseded in subsequent ethics opinions, may be nonetheless outmoded or no longer sound due to subsequent changes in case law, statutes, or court rules. Practitioners are urged to thoroughly research all sources to determine the current validity of any given ethics opinion. |
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