Saturday, October 25, 2008

Legal assistants

Guidelines have been adopted by the American Bar Association, the National Association of Legal Assistants (NALA), and the National Federation of Paralegal Associations (NFPA) on the role and conduct of legal assistants or paralegals, the salient parts of which I wish to summarize below, together with other additional notes on the subject matter, for legal research purposes of the visitors of this blog.

A lawyer is “responsible for all of the professional actions of a legal assistant performing legal assistant services at the lawyer's direction”. He should take reasonable measures to ensure that the legal assistant's conduct is “consistent with the lawyer's obligations under the Model Rules of Professional Conduct”.

Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a legal assistant “any task normally performed by the lawyer except those tasks proscribed to one not licensed as a lawyer”.

It should be noted that a lawyer 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.

It is the lawyer's responsibility to take reasonable measures to ensure that clients, courts, and other lawyers are aware that a legal assistant, whose services are utilized by the lawyer in performing legal services, is not licensed to practice law.

It is the responsibility of a lawyer to take “reasonable measures to ensure that all client confidences are preserved by a legal assistant”.

A lawyer 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 lawyer.

A lawyer may include a charge for the work performed by a legal assistant in setting a charge for legal services.

A lawyer may not “split legal fees” with a legal assistant nor pay a legal assistant for the “referral of legal business”. A lawyer 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, upon the profitability of the lawyer's practice”.

A lawyer who employs a legal assistant should facilitate the legal assistant's participation in appropriate “continuing education and pro bono publico activities”.

There seems to be a move in the USA to allow nonlawyers to provide “some legal services directly to the public”, although there is strong opposition thereto. For example, the Washington State Bar Association (WSBA) has adopted a proposed rule that would establish a "Practice of Law Board" with authority to recommend to the Washington Supreme Court the opening of “limited areas of practice to nonlawyers” as a means to provide “greater access to affordable legal services”.

In addition to private law firms, other organizations in the private sector currently employing legal assistants include “corporate legal departments, insurance companies, estate and trust departments of large banks, hospitals and health care organizations, real estate and title insurance companies, and professional trade associations”. Job opportunities in the public sector are available in “community legal services programs, consumer organizations, offices of public defenders, prosecutors and attorneys general, city attorneys, a wide array of state and federal government agencies and the judicial system”.

Responsibilities most often assigned to legal assistants are “maintaining client files, drafting correspondence, performing factual research, monitoring deadlines, drafting and investigation and analyzing documents, and acting as liaison with clients and others”.

Paralegals must be certified, a process by which a “non-governmental agency or association grants recognition” to an individual who has met certain predetermined qualifications specified by that agency or association. It usually involves “passing an examination drawn up by the sponsoring organization and meeting specified educational and/or experiential requirements”.

Presently, there is no mandatory certification examination for legal assistants anywhere in the United States. However, the certification issue has been a subject of considerable interest and debate for the past several years among legal assistant associations, bar associations and some legislatures.

The National Association of Legal Assistants, Inc., (NALA) headquartered in Tulsa, Oklahoma, sponsors a certification examination (Certified Legal Assistant). NALA also offers advanced specialty exams. Educational programs for paralegals in the USA are offered by two-year community and junior colleges, four-year colleges and universities, and business and proprietary schools devoted solely to providing this type of training.

Many legal assistant education programs include an internship as a part of the curriculum. The internship enables a student to utilize skills acquired in the program and to gain practical on-the-job experience. Internships are available in a variety of settings, including private law firms, offices of a public defender or attorney general, banks, corporate legal departments, legal aid organizations, and many government agencies.

Paralegals in small and medium-sized law firms usually perform a variety of duties that require a general knowledge of the law. For example, they may research judicial decisions on improper police arrests or help prepare a mortgage contract. Paralegals employed by large law firms, government agencies, and corporations, however, are more likely to specialize in one aspect of the law. Computer use and technical knowledge has become essential to paralegal work.. Computer software packages and the Internet are increasingly used to search legal literature stored in computer databases and on CD-ROM. In litigation involving many supporting documents, paralegals may use computer databases to retrieve, organize, and index various materials. Imaging software allows paralegals to scan documents directly into a database, while billing programs help them to track hours billed to clients. Computer software packages also may be used to perform tax computations and explore the consequences of possible tax strategies for clients.

Paralegals and legal assistants held about 188,000 jobs in 2000. Private law firms employed the vast majority; most of the remainder worked for corporate legal departments and various levels of government. Within the Federal Government, the U.S. Department of Justice is the largest employer, followed by the U.S. Departments of Treasury and Defense, and the Federal Deposit Insurance Corporation. Other employers include State and local governments, publicly funded legal-service centers, banks, real estate development companies, and insurance companies. A small number of paralegals own their own businesses and work as freelance legal assistants, contracting their services to attorneys or corporate legal departments.
Earnings of paralegals and legal assistants vary greatly. Salaries depend on education, training, experience, type and size of employer, and geographic location of the job. In general, paralegals who work for large law firms or in large metropolitan areas earn more than those who work for smaller firms or in less populated regions. In 2000, full-time, wage and salary paralegals and legal assistants had median annual earnings of $35,360. The middle 50 percent earned between $28,700 and $45,010. The top 10 percent earned more than $56,060, while the bottom 10 percent earned less than $23,350. According to the National Association of Legal Assistants, paralegals had an average salary of $38,000 in 2000. In addition to a salary, many paralegals received a bonus, which averaged about $2,400. According to the National Federation of Paralegal Associations, starting salaries of paralegals with 1 year or less experience averaged $38,100 in 1999.