A lawyer bears professional responsibilities regarding nonlawyer assistants within and outside the firm. When a nonlawyer assistant engages in conduct that would violate the ethics rules applying to lawyers, the lawyer is answerable under Rule 5.3 of the Minnesota Rules of Professional Conduct (MRPC).
Proper delegation, adequate supervision, and implementation of policies and procedures to discourage misconduct are some steps you must take to meet your duties related to nonlawyer assistants.
What Should a Lawyer Do to Meet Responsibilities Regarding Nonlawyer Assistants?
The buck stops with you. Whether you are the partner or managing lawyer who controls the firm, the lawyer who directly supervises the nonlawyer, or the lawyer who incites or condones misconduct by the nonlawyer, you may be held responsible for a nonlawyer assistant’s wrongful conduct under MRPC 5.3.
Minnesota’s Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, mirrors the ABA Model Rule. It requires you to make efforts to ensure the nonlawyer’s conduct is compatible with the professional ethics rules that apply to lawyers.
Here are reasonable steps you must take to meet your duties related to nonlawyers:
1. Delegate appropriately
Lawyers may delegate certain tasks to paralegals, legal assistants, law clerks, and other nonlawyer assistants to provide legal services at lower cost and deal with high volumes of work. But the lawyer must strive to ensure those tasks are performed diligently, competently, and otherwise in compliance with the ethics rules.
An immigration lawyer, for example, may assign a paralegal to gather documentary evidence from the client, prepare the application forms, and conduct legal research. But the lawyer may not delegate, to a nonlawyer, the duty to advise the client on legal strategy, complete final review of the application forms, and verify or analyze the research.
Proper delegation begins with having appropriate job descriptions for non-lawyers that outline their roles and duties, and the required qualifications, followed by selecting qualified and reputable persons for the job. Background and reference checks are appropriate.
The lawyer should consider the nonlawyer’s education, experience, training and skills when assigning tasks. The lawyer must also provide clear instructions, identify roles and responsibilities, set boundaries, turnaround times and deadlines, and communicate desired goals. A delicate balance between micro-management and abdication of responsibility needs to be struck.
2. Provide adequate supervision
A lawyer’s responsibility does not end with delegation. The lawyer is ultimately in charge of filing pleadings, communicating with clients, responding to discovery requests, and addressing other time-sensitive matters.
Lawyers must follow up with their nonlawyer assistants to confirm assigned tasks are performed competently and diligently. In addition to giving clear instructions at the outset, lawyers need to monitor progress and confirm the tasks are done well. Lawyers have to review the nonlawyer’s work product and provide guidance in even simple cases.
Delegating inappropriate authority to nonlawyers can open you up Rule 5.3 violations, particularly when there is inadequate supervision. Lawyers must provide the necessary supervision to ensure nonlawyer assistants do not engage in misconduct, such as unauthorized practice of law (MRPC 5.5 violation), prolonged procrastination on client matters (MRPC 1.3 violation), failure to submit required evidence to the court (MRPC 1.1 violation), neglect of client requests for information (MRPC 1.4 violation), and breach of client confidentiality (MRPC 1.6 violation). Adequate supervision is key to deterring nonlawyer misconduct and avoiding disciplinary action under Rule 5.3.
3. Offer regular training and mentorship
Ongoing training and mentorship programs, whether formal or on-the-job, must be offered to nonlawyer assistants. Lawyers should take time to train and mentor paralegals, law student interns, and paraprofessionals to carry out substantive work and perform their duties in alignment with the rules of professional conduct.
Lawyers themselves should keep attending CLEs, completing workshops and reading articles and books on professional ethics to keep their knowledge fresh and stay abreast of changes and developments.
They should also work to build their nonlawyer assistants’ awareness of professional ethics and encourage them to defer legal questions to the lawyers. Leading by example and discussing a lawyer’s ethical duties in group and individual meetings are critical.
Providing checklists for routine tasks and templates for common cases is a key part of training. But the training does not end there. Rather, lawyers should constantly educate nonlawyer assistants through constructive comments on their work, execution of office protocols and procedures, and teaching them the difference between working efficiently and taking harmful shortcuts.
While lawyers should train nonlawyer assistants to take initiative, they also need to caution them against unauthorized practice of law. For example, an immigration lawyer’s assistant must be reminded to communicate just the lawyer’s explanation, instead of adding her own advice and recommendations, when acting as an interpreter.
Lawyers ought to take remedial measures when they observe nonlawyer assistants breaching professional obligations. No matter how experienced a paralegal, receptionist, secretary or office manager might be, the lawyer cannot take ongoing training for granted.
4. Prioritize professional ethics through the establishment of firmwide systems and protocols
The partner or managing lawyer must implement policies, procedures and practices to help ensure the nonlawyer’s conduct is compatible with lawyers’ professional duties. The firm should also have a systematic approach in dealing with ethics violations and mitigating the consequences.
The distribution of an ethics manual, provision of ongoing training, and formal establishment of protocols addressing diligence, competence, client confidentiality, conflicts of interest, client file requests, trust account issues, unauthorized practice of law and other professional obligations are reasonable measures to be taken.
An office handbook or memorandum outlining telephone etiquette, email exchanges, and other client communication and confidentiality issues is paramount. Identifying the lawyers and nonlawyers assigned to the case in an engagement letter, fee agreement or client correspondence is recommended.
Be sure to read our related article, When Does a Lawyer Breach 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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