It’s Not Just The Lawyers…
Firm ManagementWorking appropriately with support staff is crucial to delivering quality legal services. TLIE has seen its share of claims where the actions of support staff were a significant factor. This article will outline some of the ethical and practical issues that attorneys should consider in working with paralegals, secretaries, runners, and other firm personnel.
Ethics
The disciplinary rules discuss a lawyer’s duties with regard to non-lawyer assistants. Lawyers with direct supervisory authority over lay assistants are required to take steps to assure that assistants’ conduct is “compatible with the professional obligations of the lawyer.” Rule 5.03(a). Under the Texas rules, a lawyer can be disciplined for the conduct of an assistant that would violate the rules if the lawyer engaged in the conduct or if the lawyer “orders, encourages or permits” such conduct. Rule 5.03(b)(1). The lawyer can also be disciplined for such conduct if the lawyer directly supervises the assistant and fails to take remedial action after learning of the conduct. Rule 5.03(b)(2). Comment 1 to 5.03 stresses that lawyers need to instruct their assistants on ethical aspects of employment including duties of confidentiality, and that lawyers “should be responsible for” assistant work product.
Comment 1 to Rule 5.03 mentions secretaries, investigators, law student interns, and paraprofessionals as assistants covered by the rule, but leaves room for other assistants. Lawyers should think of any employees or contractors who might have access to sensitive client information as assistants. Computer technicians, runners, and other parties may fall within the scope of the definition of assistants. Contractual provisions with service providers should make clear that any confidential information obtained while providing services to the firm cannot be shared with other persons outside the firm without authorization.
Rule 5.03 provides a basic outline for the risk management steps that lawyers should follow with regard to assistants: Educate assistants and review their work product. A lawyer can be liable as an agent for an assistant’s conduct even when the lawyer has followed Rule 5.03. Assistants are subagents for their supervising lawyers, who are agents for clients. As a result, assistants can be directly liable to clients for their conduct, though suits against assistants are rare. Assistants are generally defined as “insureds” under most lawyers’ professional liability insurance policies.
Conflicts and Confidentiality
Conflicts of interest and confidentiality are among the most critical areas in which lawyers must educate their assistants. Virginia Legal Ethics Opinion 1832 (May 10, 2007) discussed a situation in which a legal secretary received confidential information from a prospective client. The lawyer eventually chose to represent a party adverse to the prospective client. In most states, when a lawyer receives confidential information from a prospective client, the lawyer must keep that information confidential and avoid using such information to the detriment of the prospective client, even if the lawyer never represents the client. See Texas Rules of Evidence Rule 503(a)(1)(“Client” is defined to include someone “who consults a lawyer with a view to obtaining professional legal services from that lawyer.”) The Virginia opinion concludes that a lawyer facing a situation where an assistant has received confidential information from a prospective client must instruct the assistant that they cannot reveal the information. Further, the lawyer must screen the assistant from information and work related to any matter that could be affected by the confidential information received from the prospective client if the lawyer takes a case adverse to that prospective client. As a general rule, the opinion indicates that assistants should be trained to take the minimum information necessary to run conflict checks and to avoid receipt of confidential information.
A pair of Texas Supreme Court cases makes clear that screening is also required when a legal assistant has worked on a related matter at a prior law firm. In Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831(Tex. 1994), the court allowed a firm to continue to represent a client even though they had hired an employee who had worked adversely to a client at a prior firm. The firm was able to show that the legal assistant had not worked on the same case at the new firm, and that the firm had dismissed the legal assistant before she had access to any confidential information. A companion case, Grant v. Thirteenth Court of Appeals, 888 S.W.2d 436 (Tex. 1994), illustrates how failure to properly screen a legal assistant can result in disqualification. In Grant, the paralegal directly worked on the same case that she had worked on at the prior firm. The court found this to be a violation of the attorney’s duty to warn new employees that they “should not work on any matter on which the employee worked for the former employer.” Grant, 888 S.W.2d at 467-468, citing ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1526 (1988).
To avoid problems with legal assistant conflicts based on work at prior firms, law firms should:
- Warn assistants not to work on any matters they worked on at prior firms;
- Ask assistants to bring any such situations to the attention of the firm;
- Include assistants in the conflict analysis process at all stages; and
- Take steps to avoid sharing of confidential information between the firm and the assistant with regard to such cases.
Quality Work Product
As noted previously, review of a legal assistant’s work product is critical to assuring compliance with lawyer ethical duties and avoiding malpractice claims. TLIE has had a number of claims in which a lawyer failed to review the work of an assistant. When deadlines are pushed too closely, it may be difficult for lawyers to review assistant work in detail. In some cases, it may be almost impossible to truly review all aspects of an assistant’s work. A critical skill for lawyers is to be able to understand a legal assistant’s capabilities, and to review work sufficiently to avoid harm to the client.
Creating an atmosphere where a legal assistant is not afraid to ask questions makes the review process much easier. Lawyers can sometimes become irritated when assistants make mistakes, and this can make staff fearful of asking questions. If assistants are too afraid of criticism to ask questions or admit mistakes, chances to avoid poor quality work or to correct errors early are lost.
Questions from staff are an opportunity to teach assistants about their jobs further, so that they can become more efficient and accurate. Questions also let lawyers know the limits of an assistant’s competence. Questions are not, however, just about your assistant’s limitations: they can help avoid the lawyer’s limitations. Lawyers have no monopoly on common sense or brilliant insight. A good question from an assistant may help a lawyer see an angle that had not been considered.
One question that assistants can ask saves many headaches. It is not uncommon for a lawyer to have a lot of projects on the table at the same time, all needing attention. When assistants are trained to ask for priorities when given simultaneous requests, the chances of something getting “stuck in the pile” and forgotten is decreased. On several occasions, TLIE has had claims where a task was assigned to an assistant, but the lawyer failed to follow up to see that it was completed timely.
Assistants can play another role in firms that helps avoid errors. Assistants can look for problems in systems and procedures or with other personnel. On a day to day basis, assistants often know more than lawyers about how systems and procedures work in actual practice, and often have good ideas for improvement. Encouraging assistants to discuss any problems with work routines can avoid harm to clients. Assistants can also help alert their lawyer managers to impairment issues with other firm personnel. Impairment of assistants and lawyers contributes significantly to both ethical and malpractice problems.
Every assistant in the firm can help in assuring quality legal work. A runner should be encouraged to seek clarification if delivery instructions are unclear. Mail room clerks should be on the look out for bad addresses. Anyone in the firm may notice something out of the ordinary, and discussing the situation may save the firm from embarrassment later.
Conclusion
Lawyers who use assistants have additional responsibilities, but also have the opportunity to take advantage of assistant strengths. Educating assistants about ethical issues and assuring quality work can enhance the ability of a lawyer to effectively represent clients.
