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When Does a Lawyer Breach Professional Responsibilities Regarding Nonlawyer Assistants?

A lawyer may be subject to an ethics investigation and disciplinary action based on the conduct of nonlawyers employed or outsourced by the lawyer. When your paralegal or other nonlawyer assistant engages in wrongful conduct, such as breach of client confidentiality and unauthorized practice of law, you may be held responsible under Rule 5.3 of the Minnesota Rules of Professional Conduct (MRPC).

What Are a Lawyer’s Responsibilities Regarding Nonlawyer Assistants? 

Minnesota’s Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, mirrors the ABA Model Rule. MRPC 5.3 requires you to make efforts to ensure the nonlawyer’s conduct is compatible with the professional ethics rules that apply to lawyers.

With respect to a nonlawyer employed or retained by or associated with a lawyer, Rule 5.3 applies to the following lawyers:

Partner. Rule 5.3(a), MRPC, states that a partner “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.”

Rule 5.3 (c)(2), MRPC, further states that a partner is responsible for a nonlawyer’s conduct that would violate the rules (if engaged in by a lawyer) when the partner “knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”

Rule 1.0(h), Terminology, defines a partner as “a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.”

Lawyer, who individually or together with other lawyers, has managerial authority. MRPC 5.3(a) and (c)(2) also apply to lawyers with “comparable managerial authority [to partners] in a law firm.” These are lawyers who, similar to partners, manage and control the firm.

Lawyer with direct supervisory authority over the nonlawyer. MPRC 5.3(b) states, “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.” These are lawyers, such as senior associates, who are not necessarily partners or managers, but still have  “direct supervisory authority” over the nonlawyer.

Lawyer who orders or ratifies the nonlawyer’s misconduct. MPRC 5.3(c)(1) states that a lawyer is responsible for a nonlawyer’s conduct that would violate the rules (if engaged in by a lawyer) when “the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.”

When Does a Lawyer Breach Responsibilities Regarding Nonlawyer Assistants? 

Delegating work to non-lawyers, such as law student interns, secretaries, investigators, and paraprofessionals is common and expected in law firms. It is difficult for lawyers to run their firms, serve clients, respond to prospects, market their practice, and collect fees without assistance from non-lawyers.

But responsibilities related to nonlawyer assistants may be found to be breached in the following situations:

Partner or Lawyer With Comparable Managerial Authority fails to take reasonable measures to ensure the firm reasonably discourages misconduct. MRPC 5.3(a). 

Under Rule 5.3(a), partners and managing lawyers who fail to implement reasonable policies, procedures and practices to deter nonlawyers from engaging in misconduct may be investigated and disciplined when such misconduct occurs.

MRPC 1.0 (i), Terminology, defines “reasonable” or “reasonably” as “conduct of a reasonably prudent and competent lawyer.” Partners and managing lawyers who do not act reasonably under the circumstances, with respect to preventing misconduct by nonlawyers, may be subject to discipline.

Partners and managing lawyers who fail to establish checks and balances, instill and promote a firm culture, and provide training that encourage compliance with a lawyer’s ethical duties open themselves up to disciplinary action when nonlawyers engage in wrongful conduct.

They may be investigated, for example, when there are no policies and practices that prohibit nonlawyers from divulging confidential information obtained during the attorney-client relationship, working on matters in which they have a conflict of interest, providing legal advice on a client matter, and signing pleadings on behalf of a lawyer.

Partner, Lawyer With Comparable Managerial Authority, or Supervising Lawyer fails to take reasonable remedial measures when they learn about the misconduct at a time when the consequences can be avoided or mitigated. MRPC 5.3 (c)(2).

Rule 5.3(c)(2) subjects partners and managing lawyers to investigation and discipline if they fail to take reasonable steps to correct a nonlawyer’s misconduct when they know of it at a time when the impact can be warded off or reduced.

MRPC 1.0(g), Terminology, defines “knows” as “actual knowledge of the fact in question. ” MRPC 5.3(c) applies only when the nonlawyer engages in misconduct and the lawyer is actually aware of it or should have been aware of it. The lawyer is not liable if he did not consciously avoid knowledge of the nonlawyer’s misconduct or if the nonnlawyer concealed the misconduct.

But MRPC 1.0(g) further states, “A person’s knowledge may be inferred from circumstances.” A lawyer with constructive knowledge – i.e. he should have known if he had take reasonable care – is just as liable as one with actual knowledge.

Partners and managing lawyers who fail to intervene and stop the nonlawyer’s misconduct, when they become aware of it at a time when the consequences can be avoided or mitigated, do so at their own peril.

For instance, a partner or managing lawyer who failed to adequately screen nonlawyers from working on a particular client matter and, after learning about a conflict of interest, does not take any corrective measures, such as getting the client’s consent or pulling the paralegal from the case assignment, may be disciplined.

Supervising Lawyer fails to  make reasonable efforts to prevent misconduct. MRPC 5.3(b). 

Rule 5.3(b) subjects supervising lawyers to investigation and discipline when they fail to make reasonable efforts to ensure the nonlawyer’s conduct is compatible with the lawyer’s professional duties.

Lawyers with “direct supervisory authority” who fail to adequately supervise the nonlawyer who engages in misconduct are vulnerable to disciplinary action. Failure to carry out proper delegation, offer adequate training, do necessary follow-ups and provide adequate supervision to ensure obligations are met, through nonlawyers, is a dereliction of duties.

Mere reliance on the existence of office policies, procedures and practices is not sufficient to comply with Rule 5.3(b). Neglecting to provide ongoing training, monitoring and review may amount to breach of this rule.

Lawyer orders or condones the misconduct. MRPC 5.3(c)(1). 

A lawyer who directs a nonlawyer’s misconduct, or ratifies the misconduct after becoming aware of it, is answerable to discipline under Rule 5.3 (c)(1).

A lawyer who orders the misconduct or approves of it cannot hide behind reasonable preventive measures that have been implemented at the law firm.

Any lawyer who directs a nonlawyer to engage in acts that would be considered a violation of the lawyer’s professional duties not only violates Rule 5.3(c)(1), but may also be found liable under Rule 8.4(a), which states “It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”

Examples of a Rule 5.3(c)(1) violation include instructing a notary public at the firm to notarize a client’s affidavit when the client did not appear before the notary public; allowing secretaries to sign pleadings on behalf of the lawyer; and encouraging paralegals to make legal recommendations to the client. Saving time or trying to meet deadlines or client demands is no excuse for violating this rule.

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Rule 5.3 relates to nonlawyers within the firm, including secretaries, investigators, law student interns, and paraprofessionals – whether employees or independent contractors – acting for the lawyer in rendition of legal services. See MRPC 5.3, Comment 2. It also relates to nonlawyers outside the firm assisting the lawyer in providing legal services, such as an investigative or paraprofessional service, a document management company to create and maintain a database for complex litigation, a third party that prints and scans client documents, and an Internet-based service to store client information. See MRPC 5.3, Comment 3.

Partners and managing lawyers must make reasonable efforts to ensure the firm has implemented measures to keep nonlawyers’ conduct compatible with the lawyer’s professional obligations. They, along with supervising lawyers, must take appropriate remedial action when they know (or should know) about a nonlawyer’s misconduct. Supervising lawyers also need to provide adequate oversight to prevent misconduct. All lawyers must avoid ordering, or ratifying with knowledge, any nonlawyer’s conduct that is not consistent with the lawyer’s professional obligations.

Be sure to read our related article, What Should a Lawyer Do to Meet Professional Responsibilities Regarding Nonlawyer Assistants? 

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This article provides general information only. Do not consider it as legal advice for any individual case or situation.  

The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance. 

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Why hire an immigration lawyer when immigration consultants and online immigration services offer lower rates?

The current political climate and 2016 election of Donald Trump for U.S. President have fueled fear among immigrant groups. Amidst the anti-immigrant rhetoric, it’s important to discuss your options in legalizing your status or securing the appropriate visa with an experienced immigration lawyer.

Why hire a lawyer when there is lower-cost help available through immigration consultants and online immigration services? The reasons are many, from ensuring you receive accurate advice to avoiding unnecessary delays.

The main advantages of hiring a reputable and trusted immigration lawyer, instead of depending on an immigration consultant or online immigration service are:

1. You receive guidance on which forms and documents to submit

A lawyer is not required to fill out application forms for immigration benefits. Anyone can complete the forms, which are, along with the instructions, available for free on U.S. Citizenship & Immigration Services and the U.S. Department of State’s websites.

But U.S. government agencies are not your advocates and do not consider your individual situation when providing resources and information to you. Only an immigration lawyer, who truly understands the eligibility requirements, can give you the most reliable advice on which forms and documents to submit to receive immigration benefits.

Legitimate immigration consultants and online immigration processors can certainly help you complete forms and submit the paperwork to USCIS and DOS at a much lower cost than what lawyers charge.

Nevertheless, your knowing which forms and documents to submit is not always clear by just reading instructions or doing your own research. Immigration consultants and online immigration services are prohibited from giving any legal advice concerning your immigration case, including which forms and documents to submit. Rather, you yourself have to make this determination before they then fill out the forms with your answers and prepare the documents you have given them for filing with the appropriate U.S. government agency.

Even qualified immigration consultants and highly-rated online immigration services are just document preparers. While they are distinguishable from shady Notarios who prey on vulnerable immigrant groups and engage in immigration scams, they provide limited service that does not always meet your immigration needs.

Questions on applications forms and questions from immigration or consular officers might seem simple, but often relate to legal issues that can result in denials and setbacks in your case. Immigration consultants and online immigration processors cannot counsel you on how to best answer a question or cross-check or verify your answers on the forms. All they can do is replicate and type out your responses to the questions asked on the forms.

When non-lawyer immigration consultants or online immigration processors advise you on which immigration benefit to apply for and how to prove you qualify for it, they essentially engage in unauthorized practice of law.

In contrast, immigration lawyers advise you on which exact forms and documents to submit for a particular immigration benefit. They will cross check your answers on application forms with your biographic and immigration records to help ensure accuracy and completeness. They will also counsel you on the implications of your answers to questions, as well as the effects of providing or not providing certain documents.

2. You get legal advice on how to best present your case

A good lawyer will counsel you on eligibility standards and evidentiary requirements, including those that are not spelled out in the instructions for forms or are otherwise readily known.

For instance, while an immigration consultant or online immigration service will accept your marriage certificate and divorce decrees for prior marriages as sufficient in an I-130 spousal immigrant petition, a lawyer will counsel you on additional documents to submit to prove your marriage is valid and bona fide.

A lawyer might be unnecessary in very simple cases, where the bare minimum is all that’s required to get the case approved. But in many cases, a high volume of documentary evidence, as well as credible testimony, are needed to achieve a favorable outcome.

One of the fastest growing online immigration processors, RapidVisa, states specifically that it does not give legal advice or representation, but offers a service similar to TurboTax for visa applications. At a low price, they provide online processing of K-1 fiancée visas, spousal visas, parent visas, green cards (adjustment of status), removal of conditions, citizenship (naturalization), joint sponsorship, and deferred action (Deferred Action for Childhood Arrival, under President Obama).

RapidVisa boasts an approval rate of 99.7% and 4-hour turnaround time. But it’s fair to say that these cases most likely had no complications to require the work of a lawyer, and could have been handled just as well by an applicant who was willing and able to deal with the paperwork alone.

Reputable immigration lawyers, who have the expertise to deal with the worst types of cases, are best equipped to help you present the strongest case possible. They can steer you away from pitfalls that lead to complications in your case, such as USCIS issuing a Request for Evidence or a Notice of Intent to Deny Petition. They are trained to spot issues and weaknesses that can tank your case. Unlike immigration consultants and online immigration processors, they do not merely rely on generic templates and checklists that do not account for unique situations.

3. You obtain verification on whether you actually qualify for the benefit sought

An immigration lawyer will gather facts and review your record to confirm whether you are eligible for the immigration benefit you seek. For example, under current law, you cannot apply for a marriage-based green card within the U.S. if you were not lawfully admitted to the U.S. with inspection, and you do not qualify for 245(i) benefits. If your immigrant petition is not in the immediate relative category, you may not file for adjustment to permanent residence unless you are maintaining lawful nonimmigrant status after entry as an F-1 student, H-1B worker, etc. or certain narrow exceptions apply.

Immigration consultants and online immigration processors are not equipped or authorized to verify your eligibility for a benefit sought. They cannot give advice as to which immigration status you should seek. These are legal issues that requires a lawyer’s guidance, especially when there are complications in your case.

Complications include marriage/divorce complications, visa overstays, unlawful presence, prior removal orders, illegal entries and re-entries to the U.S., immigration fraud or willful misrepresentation, false claims to U.S. citizenship, a criminal record, and being from a high-fraud country.

In June 2016, the State of Colorado passed a law that forced RapidVisa to relocate out of Colorado Springs, Colorado to Las Vegas, Nevada, where regulations related to the document-preparation industry are favorable. Known as Immigration Consultants Deceptive Trade Practice, the Colorado law targets deceptive “notarios”, which are small operations common in Hispanic communities, but it further forbids any person from offering any immigration service, regardless of whether it involves practicing law, unless that person is a lawyer.

In a press release, Ben Ives, President of RapidVisa, stated “this was simply a case of lawyers protecting their income.” He noted, “Petitioning for a family visa is a benefit request, not a legal issue. Do you hire a lawyer to apply for your driver’s license?”

Contrary to Mr. Ives’ claim, applying for an immigration benefit involves many legal issues that determine whether a person can live, study or work in the U.S., and even visit the country. Filing for an immigration benefit has a much more serious and broader impact than applying for a driver’s license.

A U.S. citizen’s decision to bring a fiancée, spouse,  or parent to the U.S. , for example, affects the fate of the family and their reunification.  An applicant’s mistake in filing for an immigration benefit, such as a green card or citizenship, for which he does not qualify can sometimes lead him into removal proceedings and get him deported from the United States.

4. You have comprehensive counseling from start to finish

In the initial evaluation of your case, and during the course of representation, an immigration lawyer can identify your priorities and pinpoint issues to help you achieve your objectives. They can lay out your various options and describe the pros and cons of pursuing each path.

An immigration lawyer can guide you on how to avoid complications or address them as they arise, such as responding to a Request for Evidence, a Notice of Intent to Deny, a Notice of Intent to Revoke, or a denial decision. He or she can intervene on your behalf to resolve problems.

An immigration lawyer can also prepare you for interviews before USCIS and the U.S. Consulates by describing what questions to expect and which issues are likely to arise, and how to best address them. They can appear with you at green card interviews and naturalization interviews to help protect your rights, present documentary information, and ask clarifying questions. They can further prepare and submit a legal brief to stave off concerns and persuade the officer to approve your case.

Lawyers must keep up with changes in the law, the risks (not just the benefits) of applying for immigration relief, and the nuances in the immigration process, and advise you accordingly.

A non-lawyer immigration consultant or online immigration processor cannot perform these vital services.

5. You get legal help from a licensed professional who is held to the highest ethical standards

When an immigration consultant or online immigration processor overlooks critical pieces of information or documents, which results in an avoidable denial or delay, there is generally no recourse. You typically have to rectify the harm through their channels or file a consumer complaint with the state attorney general.

Lawyers, on the other hand, are held to ethical standards set forth in their state rules of professional conduct. They can face disciplinary action, such as a suspension or disbarment, for failing to perform duties owed to clients. As a licensed professional, a lawyer has obligations and responsibilities that go above and beyond those of a non-lawyer immigration service.

Consult an immigration attorney at the very least 

Some states, such as California, Minnesota, and New York regulate the conduct of immigration consultants, instead of forbid them from performing any immigration service. While they may provide document preparation, they cannot offer legal advice in any situation.

Legitimate immigration consultants and online immigration processors can ease the stress that comes with handling the immigration paperwork yourself. But realize they do nothing more than document preparation. A complete reliance on non-lawyer immigration services gives you a false sense of security and could open you up to making mistakes and bungling your immigration matter.

Reliable legal representation may be more affordable than you assume. There are solo practitioners and small firm lawyers who charge reasonable fees for high-quality, comprehensive service. There are also non-profit legal service providers and pro-bono attorneys who will accept your case for sliding scale or reduced fees or no fees.

Almost everyone can gather funds to consult an experienced immigration lawyer at least once, or retain unbundled legal service to address the complicated parts of the case. Before you file for an immigration benefit, talk to a reputable immigration lawyer about the eligibility standards, documentary requirements and filing process. Relying on immigration consultants and online immigration processors can save you money upfront, but cost you a lot more in the long run.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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