A paralegal can perform any task that an attorney can, with the exceptions of representing a client in front of a judge, who is not an administrative law judge (“ALJ”), forming the attorney-client relationship with a client on behalf of an attorney employer, signing legal pleadings on behalf of an attorney or client, and giving legal advice that is not an attorney employers advice. This means that as a paralegal you can draft pleadings and correspondence, interview potential clients and witnesses, prepare various reports for the court, and even write pre and post trial briefs, but does your boss need to dictate pleadings and various writings to you or just review them before signing and sending out? And what if your attorney is unavailable to review your work and asks that you file, mail, or otherwise distribute it anyway? As a paralegal you know that by law you are supposed to be supervised by an attorney in order to avoid ethical violations and the unauthorized practice of law. But just how closely do you need to be supervised and how much direction do you really need?
Avoiding the Unauthorized Practice of Law
My guess is that a large percentage of paralegals who have worked for solo practitioners have at some point crossed the line into the unauthorized practice of law (“UPL”) or have come very close to doing so. Oftentimes this happens because the attorney is out of the office when clients and potential clients really need them and as a solo practitioner, no other attorney is available. You may not even be aware of the fact that you have engaged in or are currently engaging in the UPL. Some common tasks that might be performed by paralegals which may be considered practicing law include:
- Accepting a retainer before the attorney has met with them. Even if you have conducted a thorough interview based on a form your attorney has made up, you cannot form the attorney-client relationship for your boss. He or she must meet with a client personally before you accept a retainer or fee.
- Filing a pleading, report, or brief with the Court, without an attorney reviewing and signing the document. This includes standard motions and pleadings such as appearances, motions to continue a hearing, and requests for a jury trial.
- Responding to or initiating correspondence with opposing counsel without your boss reviewing the correspondence, unless you include a notation indicating that the correspondence has not been reviewed by him or her and have your attorney’s permission to do so.
- Giving a client, or potential client, “common sense” advice. When working for family, criminal, bankruptcy, and probate attorneys a paralegal might get asked for advice on many issues that seem to require only common sense and not legal advice. However, because the client has contacted a law office for the advice, you should consider any advice that you give legal and not common sense, and simply avoid giving it.
A case law review of perhaps some more obvious instances of UPL in various jurisdictions can be found in Crowder Law’s article Avoiding Unauthorized Practice of Law: How much attorney supervision of paralegals is required?
So what then do you do if you believe that you may be engaging in UPL because of a lack of supervision by your attorney? Marching into your boss’s office and informing him or her that they are not their job is probably not a good idea, even if you are close to them. I recommend asking more questions about assigned tasks, in order to get more input from your boss, camping out in front of the their desk on a regular basis, in order to watch them review and sign documents that you need that day, and trying to arrange their schedule so that they are in the office and available for unscheduled phone calls more often. However, after all of this, if you feel like you are providing more guidance to your attorney than they are to you, it’s time to start looking for a new job.None found at this time.