Ask Attorney Jennifer B.: Ethics of using support staff in your firm
As our law practices grow and develop, we all learn the importance of utilizing support staff to increase efficiency and appropriately leverage our billing. It does not make financial sense for all work to be billed at the lawyer’s rate, especially for the more ministerial tasks. Clients are happy to pay less for a paralegal to do some of the work, and the lawyer is thus able to concentrate on the more complex issues. And some paralegals and legal assistants are so knowledgable that they are more valuable to the practice than a young associate just learning the ropes.
Therefore, as our practices are chugging along like well-oiled machines, many of us are oblivious to potential pitfalls that we create. When we become so reliant on our stellar support staff, we may not even realize that we are crossing an ethical line. I recently learned about this when I attended a presentation about the ethics of using support staff in a law practice. This was a true eye-opener.
Model Rule 5.3
The American Bar Association Model Rules require that lawyers assure that the nonlawyers they supervise conduct themselves in a manner consistent with the lawyers’ professional conduct rules (Model Rule 5.3). Under the rule:
- Paralegals cannot engage in the unauthorized practice of law.
- They cannot give clients legal advice.
- Lawyers have an obligation to screen paralegals from matters that may be perceived to be a potential conflict (i.e. a paralegal cannot work on one side of a case at one firm and then switch firms and work on the other side of the case).
- Lawyers have the obligation to supervise and train their support staff properly.
- Lawyers cannot have their support staff act in a deceptive manner or one that is not compatible with the lawyers’ ethical rules.
Given the lawyer’s ethical obligations and the serious penalties that can be invoked for the violation, it is critical that each of us take the time to properly train our support staff. Sure, paralegals can help us get our work done, but they cannot do our legal work for us. They can help us manage our clients, but they can’t manage the clients for us.
In my area of specialty, family law, experienced paralegals are regularly used to assist in cases. In some offices, it seems that the paralegal knows more about the case than the lawyer for whom they work. Clients often deal with paralegals frequently and may feel so comfortable with the paralegal and appreciate the lower rate that the paralegal charges, that they seek legal advice from him or her rather than going to the lawyer.
Enter Limited License Legal Technicians
There is a general recognition in the legal industry that a “justice gap” exists, that is, there are clients who need legal services but cannot necessarily afford the cost of a lawyer. In an effort to help fix the gap, Washington state became the first to license a new category of legal advisors called Limited License Legal Technicians (LLLT’s). While LLLT’s are not lawyers, they are able to give legal advice in certain situations. They must be licensed, adhere to ethical standards and while they cannot represent clients in Court, they can assist with legal services that a client may not otherwise afford to receive. As a nurse practitioner is to a surgeon, so will the LLLT be to the attorney.
While Washington is the first state to have LLLT’s, California is considering creating a similar category of legal advisors. New York does not have LLLT’s but instead a category of advisors called “navigators” who can provide some legal advice and even accompany litigants to court although they cannot represent the client before a Judge. Other states are likely to follow suit in the future, especially where there is a need for an advisor to bridge the gap between those who can afford traditional legal services and those who cannot.
The takeaway here is that while our staff is undoubtedly invaluable to our practice, they are not a substitute for us. Keep in mind that a client hires the lawyer and thus, the lawyer is responsible for assuring that the case is handled efficiently, professionally and ethically. The key with support staff, as in all aspects of practice management, is to make sure that we are properly managing our practices and not that our practices are managing us.