James R. Sheldon, Jr., Supervising Attorney
Ronald M. Hager, Staff Attorney
National Assistive Technology Advocacy Project
Neighborhood Legal Services, Inc.
295 Main Street, Room 495
Buffalo, New York 14203
716-847-0655 ext. 262, 0227 (fax), 1322 (tdd)
jsheldon@nls.org - rhager@nls.org
www.nls.org
March 2004
I. Introduction - Defining the Issues
A. Protection and Advocacy (P&A) programs use advocates, legal assistants, paralegals, and others to help deliver advocacy services to eligible clients.
B. What limitations are imposed on this practice by the legal codes of ethics which govern attorney conduct?
1. How does the non-attorney avoid claims that he or she is engaged in the unauthorized practice of law?
C. What special obligations does an attorney have when the non-attorney under his or her supervision provides some of the advocacy services?
1. What are the obligations of the attorney to oversee the work of this individual?
2. What are the obligations of the P&A agency or other legal advocacy program to ensure that this individual's work is supervised?
II. The Relevant Ethical Rules
A Preliminary Statement to "Lawyer's Code of Professional Responsibility" provides some context for this discussion:
Obviously the Canons, Ethical Considerations, and Disciplinary Rules cannot apply to non-lawyers; however, they do define the type of ethical conduct that the public has a right to expect not only of lawyers but also of their non-professional employees and associates in all matters pertaining to professional employment. A lawyer should ultimately be responsible for the conduct of the lawyer's employees and associates in the course of professional representation of the client. [We would edit the last clause to make it apply to the P&A or legal services context: "responsible for the conduct of the agencys non-lawyer employees and associates ..."]
B. When does the attorney/client relationship begin?
It could be as early as the first telephone contact with the agency, even if this is with a paralegal or advocate.
1. Does the caller have a reasonable expectation that he or she is calling a law office?
2. Confidentiality rules would favor an early onset of the attorney/client relationship, even if for the limited purpose of discussing the caller's legal concerns.
C. Rules about unauthorized practice of law
1. Model Rules of Professional Conduct:
LAW FIRMS AND ASSOCIATIONS
RULE 5.5 UNAUTHORIZED PRACTICE OF LAW;
MULTIJURISDICTIONAL PRACTICE OF LAW
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
Comment
[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer's direct action or by the lawyer assisting another person.
[2] The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.
[3] A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. Lawyers also may assist independent nonlawyers, such as paraprofessionals, who are authorized by the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
2. Model Code of Professional Responsibility
CANON 3
A Lawyer Should Assist in Preventing The Unauthorized Practice of Law
EC 3-3 A non-lawyer who undertakes to handle a legal matter is not governed as to integrity or legal competence by the same rules that govern the conduct of a lawyer. A lawyer is not only subject to that regulation but also is committed to high standards of ethical conduct. The public interest is best served in legal matters by a regulated profession committed to such standards. The Disciplinary Rules protect the public in that they prohibit a lawyer from seeking employment by improper overtures, from acting in cases of divided loyalties, and from submitting to the control of others in the exercise of judgment. Moreover, a person who entrusts legal matters to a lawyer is protected by the attorney-client privilege and by the duty of the lawyer to hold inviolate the confidences and secrets of the client.
EC 3-4 A person who seeks legal services often is not in a position to judge whether he or she will receive proper professional attention. The entrustment of a legal matter may well involve the confidences, the reputation, the property, the freedom, or even the life of the client. Proper protection of members of the public demands that no person be permitted to act in the confidential and demanding capacity of a lawyer without being subject to the regulations of the legal profession.
EC 3-5 It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of the lawyer is the educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such a court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.
EC 3-6 A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal service more economically and efficiently.
3. Minn. Stat. § 481.01.
Subdivision 1. Prohibitions. It shall be unlawful for any person or association of persons, except members of the bar of Minnesota admitted and licensed to practice as attorneys at law, to appear as attorney or counselor at law in any action or proceeding in any court in this state to maintain, conduct, or defend the same, except personally as a party thereto in other than a representative capacity, or, by word, sign, letter, or advertisement, to hold out as competent or qualified to give legal advice or counsel, or to prepare legal documents, or as being engaged in advising or counseling in law or acting as attorney or counselor at law, or in furnishing to others the services of a lawyer or lawyers, or, for a fee or any consideration, to give legal advice or counsel, perform for or furnish to another legal services, or, for or without a fee or any consideration, to prepare, directly or through another, for another person, firm, or corporation, any will or testamentary disposition or instrument of trust serving purposes similar to those of a will, or, for a fee or any consideration, to prepare for another person, firm, or corporation, any other legal document, except as provided in subdivision 3.
4. Court decisions involving non-attorney advocates
a. Arons v. New Jersey State Bd. of Ed., 842 F.2d 58 at 63 (3rd Cir. 1998) (State law permitting "lay advocates" to represent parents at special education impartial hearings, but prohibiting them from being compensated for such representation is legal. Since ANew Jersey could ban the practice of law altogether by unlicensed persons, the state could impose restrictions on lay practitioners.")
b. Holmberg v. Holmberg, 588 N.W.2d 720 (Minn. 1999) (Unauthorized practice of law, even with legislative authorization, for non-attorneys to draft pleadings and appear at contested hearings for determination of child support issues.)
c. Matter of Arons, 756 A.2d 867 (Del. 2000) (Non-lawyer representation of parents at special education impartial hearings constituted unauthorized practice of law.)
4. Tyler L. v. Poway Unified Sch. Dist., 2002 WL 423467 (Cal.App. 4 Dist. 2002) (Non-lawyer representation of school district at special education impartial hearing was not the unauthorized practice of law.)
D. The attorney's obligation to supervise non-attorney staff
1. Model Rules of Professional Conduct:
LAW FIRMS AND ASSOCIATIONS
RULE 5.3 RESPONSIBILITIES REGARDING
NONLAWYER ASSISTANTS
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance 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 in 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 or has comparable managerial authority 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.
Comment
[1] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.
[2] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph 8) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.
2. Model Code of Professional Conduct:
CANON 1
A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession
EC 1-8 A law firm should adopt measures giving reasonable assurance that all lawyers in the firm conform to the Disciplinary Rules and that the conduct of nonlawyers employed by the firm is compatible with the professional obligations of the lawyers in the firm. Such measures may include informal supervision and occasional admonition, a procedure whereby junior lawyers can make confidential referral of ethical problems directly to a designated senior lawyer or special committee, and continuing legal education in professional ethics.
DR 1-104 ['1200.5] Responsibilities of a Partner or Supervisory Lawyer and Subordinate Lawyers.
A. A law firm shall make reasonable efforts to ensure that all lawyers in the firm conform to the disciplinary rules.
B. A lawyer with management responsibility in the law firm or direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the disciplinary rules.
C. A law firm shall adequately supervise, as appropriate, the work of partners, associates and non-lawyers who work at the firm. The degree of supervision required is that which is reasonable under the circumstances, taking into account factors such as the experience of the person whose work is being supervised, the amount of work involved in a particular matter, and the likelihood that ethical problems might arise in the course of working on the matter.
D. A lawyer shall be responsible for a violation of the Disciplinary Rules by another lawyer or for conduct of a non-lawyer employed or retained by or associated with the lawyer that would be a violation of the Disciplinary Rules if engaged in by a lawyer if:
1. The lawyer orders, or directs the specific conduct, or, with knowledge of the specific conduct, ratifies it; or
2. The lawyer is a partner in the law firm in which the other lawyer practices or the non-lawyer is employed, or has supervisory authority over the other lawyer or the non-lawyer, and knows of such conduct, or in the exercise of reasonable management or supervisory authority should have known of the conduct so that reasonable remedial action could be or could have been taken at a time when its consequences could be or could have been avoided or mitigated.
E. A lawyer shall comply with these Disciplinary Rules notwithstanding that the lawyer acted at the direction of another person.
F. A subordinate lawyer does not violate these Disciplinary Rules if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.
3. New York Ethics Opinion 677 (1995 - 98)
NY State Bar Association, at www.nysba.org/Content/NavigationMenu/Attorney_Resources/Ethics_Opinions/Committee_on_Professional_Ethics_Opinion_677.htm (A particularly narrow interpretation.)
Topic: Delegation of Lawyer's Duties to Paralegal
Digest: Lawyer may delegate attendance at real estate closing to paralegal under certain circumstances.
Opinion
Whether a task may be given over to a non-lawyer depends fundamentally on whether the task constitutes the practice of law. [Citing EC 3-5 for a functional definition.] ...
A clerk may without his employer being present, attend mortgage closings and other out-of-court matters, but only so long as his responsibilities are clearly limited to those functions not involving independent discretion or judgement. ... So long as the closing is properly described as "ministerial," a lawyer may ethically delegate attendance at such a closing to a paralegal, provided the lawyer discharges his duty to the client properly in the delegation of this task. ...
First, delegation must neither interfere with nor substitute for the continuing and direct relation between lawyer and client. ... A lawyer has clients. The paralegal assists. ... Second, the lawyer must supervise properly both the substantive and ethical sufficiency of all delegated work. Thus, the lawyer must assure the competence of work performed under delegation. This means the lawyer must consider in advance what will occur under delegation, and review after the fact what in fact occurred, assuring its soundness. ... Third, the delegating attorney is "completely responsible for the work-product of the delegation. ...
III. Providing Context for the Discussion - Description of One P&A Agency's Use of Non-Attorneys
A. The following describes the how the authors' agency, Neighborhood Legal Services, Inc. (NLS), uses non-attorneys.
1. Historically, NLS was established in the mid-1970s as a not-for-profit advocacy program serving low-income individuals on civil legal problems. In its early years nearly 100 percent of its funding came from the federal Legal Services Corporation (LSC).
2. Presently, NLS gets nearly 40 percent of its funding through LSC and the remainder of its funding through 25 to 30 different grants. We receive 15 different disability grants, including six different grants to operate regional P&A programs (our PAAT program is statewide).
B. NLS uses the title, "paralegal," to designate those individuals who are performing some range of advocacy services to eligible clients.
1. Although many of our paralegal staff graduated from paralegal studies programs, New York has no special licensing for paralegals. NLS does not require a particular set of credentials for the position, but typically hires persons who are college graduates or have a paralegal degree/certificate.
2. Many similar agencies, within and outside New York, use the terms "advocate" or "legal assistant," among others, to describe a person in this position. There appears to be no agreement among those in P&A or legal services programs what an individual in this position should be called.
C. NLS also uses a number of other paid and unpaid persons who are not attorneys to deliver advocacy services, primarily through time-limited positions. Those working under 1, 2, or 3, below, have performed all of the functions of paralegals, including representation at administrative hearings.
1. Law student interns
2. College interns (for several years NLS used recent college graduates who worked through the Jesuit Volunteer Core program)
3. Law graduates (those who are not yet admitted to practice)
4. Receptionists and secretaries: NLS often uses them to gather information from or deliver information to eligible clients, in some cases as Spanish language interpreters.
D. Staffing ratios
1. Within the agency, there are usually an equal number of attorneys and paralegals.\
2. These ratios will vary among our four specialty units.
NOTE: We are aware of P&A or other advocacy programs with much higher ratios of advocate to attorney, including one that carries about 10 to 15 advocates for each licensed attorney.
E. The agency's delivery model (how paralegals are used)
This describes the primary categories of direct advocacy services to eligible clients, with an emphasis on disability-related advocacy. Unless otherwise noted, the paralegal will be involved in each of these categories.
1. Telephone#1 screening, intake
a. In the P&A area, these calls are split between those from eligible clients and those from service providers.
b. This model assumes that many client concerns can be met through information and referral or brief advice.
c. The model also assumes that some problems can be resolved through a quick phone call or two to a public agency,
d. One of our special grants involves a statewide, toll-free technical assistance line staffed exclusively by paralegals.
e. For those cases that cannot be resolved through some form of brief service, an appointment is generally scheduled for an in-person interview. This now becomes (subject to merit and priority issues) a regular or full-service case.
2. Casework - negotiation, mediation, benefits advisement, and administrative hearings
a. Many paralegals carry their own caseloads, under attorney supervision.
b. The paralegal is responsible for all aspects of a case, including legal research and analysis. Although many cases are closely scrutinized through case review and supervision, experienced paralegals enjoy tremendous autonomy to work on their own.
c. Administrative hearings - Within the Medicaid and Social Security areas, most of the administrative hearings are done through paralegals with no attorney present at the hearing.
3. Litigation
a. Clearly, these cases must be handled by a licensed attorney.
b. Paralegals have been used to draft legal pleadings and affidavits, subject to attorney review. In selected cases, paralegals have become a part of the litigation team.
4. Outreach and training
a. Many of the disability grants that NLS receives, including the P&A grants, envision or even require that we do community education sessions to educate individuals with disabilities or the agencies that serve them about their eligibility for various public benefits and their legal rights in various settings.
b. A significant number of these sessions are delivered by paralegals.
IV. Hypothetical Issues to Consider
A. Telephone
1. The caller explains that her son has difficulty learning and has inquired about his eligibility for special education services. A special education administrator has told the caller that her son does not have the type of problems that would make him eligible for services, indicating that the school cannot invest the money to have the child tested.
2. The paralegal or advocate, having reviewed materials prepared by Ron Hager, explains that federal and state special laws allow the caller to refer her son to the special education department to be evaluated. The advocate goes on to tell the caller about services that might be available and other rights under the Individuals with Disabilities Education Act. Following the call, the advocate sends the caller a copy of a newsletter article on special education rights and invites her to call back if the issues are not resolved. The advocate's supervising attorney was not consulted during this transaction.
3. Is there an attorney/client relationship in this case? When did it begin? Would it make a difference if the paralegal or advocate clearly told the caller: "I am not a lawyer" or if he or she was silent on what title they had?
4. Has the non-attorney in this case engaged in the unauthorized practice of law?
5. Did the supervising attorney or the P&A agency have some obligation to oversee this communication with the eligible client to ensure that she was getting appropriate legal advice?
B. Brief service case through a few phone calls
1. Assume the same set of facts as above. However, now as the call is about to end the caller notes that she has a daughter who uses a wheelchair and that she is seeking an $2,200 ramp for the home through Medicaid. A request for the ramp was submitted to Medicaid through a vendor, but rejected without written notice with a Medicaid supervisor calling the vendor to say, "We do not pay for ramps."
2. The advocate or paralegal tells the caller that she could fight this denial but, based on her experience, it would probably take a court battle and 12 to 18 months to even have the chance of Medicaid paying for the ramp.
3. Based on the advocate's representation, the caller state's that she will borrow the money from her parents so that she can have the ramp installed, noting that she will not be pursuing the issue with Medicaid any further. This advocate's supervising attorney was not consulted during this transaction.\
4. Is there an attorney/client relationship in this case? When did it begin?
5. Has the non-attorney in this case engaged in the unauthorized practice of law?
6. Did the supervising attorney or the P&A agency have some obligation to oversee this communication with the eligible client to ensure that she was getting appropriate legal advice?
C. Representation at administrative hearing
1. The paralegal or advocate has a scheduled hearing before an administrative law judge to challenge Medicaid's denial of funding for a power wheelchair with several special custom items, including headlights and a horn.
2. Prior to agreeing to represent the 44 year old client who is spinal cord injured, the advocate and supervising attorney met briefly and agreed that this was an appropriate case to take to a hearing. However, as is the standard practice, the advocate went to the hearing without having the attorney present.
3. Ten minutes before the hearing is to begin, a representative of the Medicaid agency approaches the advocate and says that the agency is willing to approve the wheelchair without the lights and horn, reducing the price from $10,500 to $9,850.
4. Without any discussion with the supervising attorney (and no prior discussion on the merits of the claim for the lights or horn), the advocate presents this offer to the client. In doing so, the advocate points out that the case for medical necessity" on these items is weak. She recommends that the client take the offer, stating "a bird in the hand is worth two in the bush." The client agrees to the offer.
5. Is there an attorney/client relationship in this case? When did it begin?
6. Has the non-attorney in this case engaged in the unauthorized practice of law?
7. Did the supervising attorney or the P&A agency have some obligation to oversee the settlement of this case to ensure that the eligible client received the advice of an attorney before agreeing to this settlement?
D. Participation in out-of-court settlement
1. Assume the same basic scenario as described in C, above. However, also assume that the hearing decision ruled against the client and that the supervising attorney, with some assistance from the paralegal or advocate, filed an appeal in state court. Briefs in the case are not due for two months, but the parties recently had a meeting to discuss a possible settlement. The advocate participated in that meeting and, in fact, indicated that she had been in contact with the client about a potential settlement.
2. The supervising attorney is on vacation and cannot be reached. When the attorney for the Medicaid agency cannot reach the attorney, he calls the advocate and makes the same offer as described under C, above (drop the headlights and horn and we will give your client the wheelchair).
3. The advocate explains that this sounds like something the client might take, but indicated she could not settle the case as only the attorney could do that. The attorney for Medicaid then explains that the offer is only good through the end of the week as the Medicaid official who authorized it is retiring.
4. The advocate calls the client and explains the offer. The client is delighted and insists that she wants to accept right away, in effect ordering the advocate to accept the settlement. The advocate calls back the Medicaid attorney and agrees to the settlement and, with the attorney's assurance that "it is OK to do so," cosigns the settlement papers with the client.
5. Has the non-attorney in this case engaged in the unauthorized practice of law?
6. If your answer to 5 is yes, is there a way that the advocate could have handled this case differently and still met the desire of the client to settle the matter right away?
1 In recent years, a growing number of the information and referral, technical assistance, and brief service categories of service delivery will involve the use of email
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