Although it may be convenient, economical or essential in certain circumstances for a lawyer to use the services of nonlawyer assistants in his or her law practice, the lawyer is responsible for ensuring that nonlawyer assistants perform their work in a manner consistent with the lawyer's ethical obligations. Since many law practices utilize paralegals, legal assistants, investigators, bookkeepers, secretaries and other support staff, this article will identify some of the ethical issues that a lawyer should consider when practicing with nonlawyer assistants.
Bar counsel receives numerous complaints alleging misconduct by nonlawyer assistants, including allegations that a secretary disclosed confidential information about a client's case, a paralegal settled a personal injury claim without the client's authorization, a debt collector from a lawyer's office threatened or harassed a consumer over the telephone, a legal assistant incorrectly completed immigration or bankruptcy forms, and a paralegal conducted real estate closings. Each of these complaints calls into question the violation of an ethical rule. See Mass. R. Prof. C. 1.6 (lawyer obliged to protect confidential information), Mass. R. Prof. C. 1.1 (lawyer obliged to provide competent representation), Mass. R. Prof. C. 1.3 (lawyer obliged to provide diligent representation); Mass. R. Prof. C. 4.4 (lawyer shall not use means that serve no substantial purpose other than to harass, embarrass, delay or burden a third person).
Mass. R. Prof. C. 5.3 provides that
"[w]ith respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurances that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action."
In addition, reliance on staff to answer telephone calls and client inquiries may not fulfill the lawyer's obligations under Mass. R. Prof. C. 1.4, which requires the lawyer to maintain adequate communications with the client. If the representation involves handling client funds or property, the lawyer is responsible for safekeeping that property under Mass. R. Prof. C. 1.15.
Failure to provide adequate supervision also could create a situation permitting the paralegal to overstep proper bounds and commence giving legal advice or take advantage of the client. Mass. R. Prof. C. 5.5(b) expressly prohibits a lawyer from "assist[ing] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." Delegation is allowed only if the lawyer supervises the nonlawyer and retains responsibility for the work See Comment 1 to Mass. R. Prof. C. 5.5. A lawyer received a private reprimand because he failed to supervise an investigation conducted by a suspended private investigator who was working as an employee of the lawyer. The lawyer's failure to supervise the investigation allowed the suspended private investigator to perform unnecessary work and to charge the lawyer's client an excessive fee. PR-88-15, 5 Mass. Att'y Dis. R. 554 (1988). In addition, Mass. R. Prof. C. 5.4(a) prohibits a lawyer from sharing fees with a nonlawyer.
Ethical training for nonlawyer assistants, adequate supervision and review of nonlawyers' work are tasks that a lawyer cannot ignore. A lawyer received an admonition for fully delegating a probate matter to a paralegal who made several errors in preparing the documents. AD No. 97-80, 13 Mass. Att'y Dis. R. 1001 (1997). Another lawyer received an admonition because his support staff did not deposit a retainer into an IOLTA account. AD No. 01-40, S.J.C. No. BD-2001-040 (July 30, 2001). Two partners in a law firm received admonitions because a former paralegal did not obtain title insurance policies and discharge mortgages for real estate closings. AD No. 01-72, S.J.C. No. BD-2001-072 (Oct. 10, 2001). In Matter of Foster R. Herman, 7 Mass. Att'y Disc. R. 110 (1991), the lawyer received a one-year suspension because, among other things, he failed to supervise his secretary in the preparation of documents to obtain a license to sell real estate. In Matter of Edward P. Holzberg, 15 Mass. Att'y Disc. R. 264 (1999), the lawyer received a public reprimand because he allowed a paralegal to handle a personal injury matter from intake through disbursement of funds without any supervision. The client did not have any contact with the lawyer, was unaware that he was dealing with a paralegal and disputed a portion of the settlement that the paralegal paid to himself. In Matter of Robert S. Lappin, S.J.C. No. BD-2001-011 (March 3, 2001), the lawyer resigned as a disciplinary sanction because his failure to adequately supervise his secretary allowed her to steal client funds.
A clear job description and clear office procedures that are scrupulously followed are essential to assuring that nonlawyer assistants conduct themselves in accordance with the professional obligations of the lawyer. Having the job description and procedures in writing would greatly assist in demonstrating that the lawyer has made a reasonable effort to assure compliance by nonlawyer personnel. At a minimum, an office manual should include clear guidelines and reminders about maintaining the confidentiality of client information; not giving legal advice in conversations with clients; and identifying themselves by their titles in communications with the public. In addition, the lawyer should have in place, and preferably in writing, supervision guidelines requiring that a lawyer review, approve and personally sign all pleadings and legal documents. The lawyer must also retain tight control over client funds; it is recommended that the lawyer be the only or a required signatory on all client trust accounts. Taking and staying in charge will prevent costly and potentially disastrous mistakes by subordinates that call into question the lawyer's competence and ethics.
A partner or supervisory lawyer also has obligations regarding lawyer subordinates. For a discussion about the responsibilities of a lawyer supervising others in a law firm setting, see "Thy Brother's Keeper" by First Assistant Bar Counsel Constance V. Vecchione at the BBO Web site, http://www.state.ma.us/obcbbo/.