It may be an occupational disease prevalent among lawyers: where legal assistants are concerned, lawyers often place too much dependence upon, or give too little guidance to their office staff members. If your loyal legal assistant has been running your office for 20 years, it is all too easy to rely on that person more than you should. Conversely, it is common in a busy law practice to delegate too much responsibility or work volume to an assistant who has had inadequate training before or after being hired. Because of the attorney's extreme "busy-ness," he or she may fail to give sufficiently clear instruction or supervision. Quite frankly, some legal assistants are intimidated by one or more of the attorneys and are reluctant to ask critical questions for fear of being chastised for their ignorance. No wonder these situations can bring on a grievance or malpractice claim.
Legal assistants and non-lawyer staff hate being put in the position of making decisions they feel ill-informed to make, or being asked to generate work product without proper details or direction from the attorney. They don't like making mistakes, any more than you want them to happen. At the extreme, when the lawyer fails to supervise the delegated work, fails to maintain a direct relationship with the client, and essentially abdicates responsibility for the work, the legal assistant is engaging in the unauthorized practice of law. It is a violation of Disciplinary Rule 5.05(b) for a lawyer to allow this to happen. Tex. Disciplinary R. Prof. Conduct, 5.05(b) (1989) reprinted in Tex. Govt. Code Ann., Tit. 2, Subtit. G, App. (Vernon's Supp., 1995) (State Bar Rules Art. X, Sec. 9).
As an attorney, you are professionally responsible for the work activities of non-lawyer assistants within your supervisory authority, and the firm bears ultimate responsibility for all work product of attorneys and office staff. With respect to a non-lawyer employed or retained by or associated with a lawyer, Disciplinary Rule 5.03 (a) requires that "a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer." Id., R. 5.03(a).
Lawyers are also subject to discipline for conduct by non-lawyer employees which would be a disciplinary violation if engaged in by a lawyer. Id., R. 5.03(b). This is true of partners or direct supervisors having knowledge of the misconduct and knowingly failing to take reasonable remedial action or mitigate the consequences. Id. This ethical duty also extends to non-partner lawyers without direct supervisory authority, if the lawyer orders, encourages, or permits the non-lawyer's misconduct. Id. Comment 1 to Rule 5.03 directs lawyers to give non-lawyer assistants appropriate instruction and supervision concerning the ethical aspects of their employment, especially with regard to confidentiality and responsibility for their work product. Comment 1 also admonishes lawyers to remember that non-lawyers do not have legal training and are not subject to professional discipline.
In 1993, the State Bar of Texas Board of Directors promulgated guidelines for the proper supervision of legal assistants. These directives are for the attorneys to follow, in addition to making them known to the legal assistants. For those attorneys who are unaware of these guidelines, TLIE is reprinting them here. Please read them and share them with your staff.
In 1981, the Legal Assistants Committee of the State Bar of Texas, with help from the State Bar Professional Ethics Committee, Unauthorized Practice of Law Committee and the General Counsel of the State Bar, developed the original "General Guidelines for the Utilization of the Services of Legal Assistants by Attorneys." Such guidelines were developed for the purpose of clarifying ethical questions raised by Texas attorneys. The following guidelines, as revised, were approved by the Board of Directors of the State Bar of Texas on January 22, 1993.
GENERAL GUIDELINES FOR THE UTILIZATION OF THE SERVICES OF LEGAL ASSISTANTS BY ATTORNEYS
State Bar of Texas
Board of Directors
January 22, 1993
GUIDELINE I: An attorney should ensure that a legal assistant under his or her supervision and direction does not give legal advice or otherwise engage in the unauthorized practice of law.
GUIDELINE II: An attorney should ensure that a legal assistant under his or her supervision and direction does not engage in conduct which may involve the attorney in a violation of the law and take reasonable measures to ensure that the legal assistant's conduct is consistent with the Texas Disciplinary Rules of Professional Conduct.
GUIDELINE III: An attorney may, with the client's knowledge and consent, allow a legal assistant under his or her supervision and direction to perform certain functions to the extent the functions are authorized by statute, court rule or decision, administrative rule or regulation, controlling authority, Texas Disciplinary Rules of Professional Conduct, or these Guidelines.
GUIDELINE IV: An attorney should ensure that, in those situations in which a legal assistant subject to his or her supervision and direction is dealing with a court, administrative agency, the public, or other person, firm or corporation, the status of the legal assistant is specifically disclosed to the client, court, administrative agency, the public, or other person, firm or corporation at the outset.
GUIDELINE V: Except as otherwise provided by statute, court rule or decision, administrative rule or regulation, controlling authority, Texas Disciplinary Rules of Professional Conduct, or these Guidelines, an attorney may allow a legal assistant under his or her supervision and direction to perform delegated services in the representation of that attorney's clients, provided:
A. The services performed by the legal assistant do not require the exercise of independent professional legal judgment; and,
B. The attorney maintains a direct relationship with the client; and,
C. The attorney directs and supervises the legal assistant in the performance of delegated duties; and,
D. The client understands that the legal assistant is not an attorney; and,
E. The attorney remains professionally responsible for such client and that client's legal matters, including all actions taken or not taken in connection therewith by the legal assistant, to the same extent as if such actions had been taken or not taken directly by the attorney.
GUIDELINE VI: An attorney may not delegate to a legal assistant:
A. Responsibility for establishing an attorney-client relationship;
B. Responsibility for establishing the amount of a fee to be charged for a legal service;
C. Responsibility for a legal opinion rendered to a client.
GUIDELINE VII: An attorney should instruct a legal assistant under his or her supervision and direction to preserve the sanctity of all confidences and secrets of a client and take reasonable measures to ensure that his or her legal assistant refrains from using any such confidences or secrets.
GUIDELINE VIII: An attorney should take reasonable measures to prevent conflicts of interest resulting from a legal assistant's other employment or interests insofar as such other employment or interests would present a conflict of interest if it were that of the attorney.
GUIDELINE IX: An attorney may charge and bill a client for a legal assistant's time, but the attorney may not share legal fees with a legal assistant under his or her supervision and direction.
GUIDELINE X: An attorney may not split legal fees with a legal assistant nor pay a legal assistant for the referral of legal business. An attorney may compensate a legal assistant based on the quantity and quality of the legal assistant's work and the value of that work to a law practice, but the legal assistant's compensation may not be contingent, by advance agreement, or upon the profitability of the attorney's practice.
GUIDELINE XI: An attorney or firm may authorize a legal assistant under that attorney's or firm's supervision and direction to utilize a business card designating the status of the legal assistant and including the name, address and telephone number of the attorney or firm. The attorney or firm should take reasonable measures to ensure that such business card is not used in a deceptive way nor for unethical solicitation.
Return to TLIE Home Page Return to Newsletter List © Texas Lawyers' Insurance Exchange 1996. This page was last updated on July 7, 1999.