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Published: 2008-03-26

Practicing with Paralegal



Questions and Answers

Who is a Paralegal?

The Missouri Bar Guidelines define a paralegal as a person who:

1. is qualified through education in legal studies, training and/or work experience in a law environment;
2. is employed or retained by a lawyer, law office, corporate in-house counsel, government agency or other entity;
3. works under the ultimate direction and supervision of an attorney; and
4. performs substantive legal work. This is work requiring sufficient legal knowledge that, without the assistance of a paralegal, it would be performed by a lawyer.
Is a "paralegal" different from a "legal assistant?"

For purposes of these Guidelines, the titles "Paralegal" and "Legal Assistant" are synonymous. Some employers have developed their own conventions concerning paralegal job titles.

What education should a paralegal have?

1. Formal legal education - The American Association for Paralegal Education (AAfPE) and the American Bar Association (ABA) have endorsed minimum standards for paralegal education. An educational program approved by the ABA must require no less than 60 hours of classroom study. AAfPE has endorsed the ABA s minimum standard and has developed a model set of core competencies for paralegal education.
2. Content
The formal education of a paralegal should include:
(a) instruction in professional ethics;
(b) legal research;
(c) analysis of legal materials;
(d) knowledge in drafting legal documents;
(e) knowledge of judicial and administrative procedures;
(f) knowledge of substantive areas of law;
(g) knowledge of law office systems and technology;
(h) oral and written communication skills.
3. Degree Levels
Formal education for paralegals is available in a wide variety of formats. Colleges, universities, community colleges and proprietary institutions provide the following types of educational credentials:
(a) post graduate (both master s in legal studies and post-graduate certificates);
(b) baccalaureate degrees
(i) specific bachelor s degree in legal studies;
(ii) bachelor s degree in a different major (e.g., criminal justice, history, political science, business) with emphasis in legal studies or with a minor in legal studies;
(iii) a paralegal certificate tied to the completion of a bachelor's degree in any field;
(c) associate's degrees (of arts or science or applied science) in legal studies;
(d) undergraduate certificate: an educational program normally completed in one year of study or less.
A certificate awarded from an educational institution is the document verifying the completion of a course of study. This should not be confused with certification, a voluntary process, usually administered by a professional association, that is given to a person who has demonstrated some level of professional competency.

What can a paralegal do?

Paralegals can do tasks delegated to them by an attorney, provided the attorney supervises the work and maintains responsibility for the work product. Examples of some of these duties may be:

(a) researching cases and other legal authority;
(b) factual investigation;
(c) preparing legal documents;
(d) reviewing and organizing case files;
(e) assisting at and preparing a case for trial;
(f) assisting at depositions;
(g) summarizing depositions;
(h) drafting interrogatory questions and answers;
(i) interviewing clients and witnesses;
(j) assisting in court;
(k) handling administrativ matters;
(l) communicating information to clients and other people.
May a paralegal represent a client in court?

Generally paralegals may not appear as an advocate. However, specific exceptions to the unauthorized practice of law statute have been created through statutes and regulations that permit paralegals to represent clients in court.

The Federal Administrative Procedures Act, 5 U.S.C. 555(b), permits any person to represent another if allowed by the agency. Examples include the Social Security Administration, Internal Revenue Service, Consumer Product Safety Commission, Department of Labor, and Environmental Protection Agency.

Can paralegals answer clients questions?

Yes. Paralegals may give factual and procedural information. The paralegal cannot give legal opinions in response to client questions.

If a client asks a paralegal for a legal opinion, can a paralegal answer the question? Paralegals must inform clients that they cannot give legal advice. A paralegal may relay advice specifically given to him by his supervising attorney. A lawyer shall not place a paralegal in the position of being perceived as giving legal advice to a client.

May a paralegal directly communicate with an opposing party who is represented by counsel?

No. Neither lawyers nor paralegals may communicate with an opposing party who is represented by counsel without the express written permission of opposing counsel.

May a paralegal prepare and draft legal documents?

Yes. However, the lawyer is responsible for reviewing and approving the contents of the document.

May a paralegal engage in legal research?

Yes.

May a paralegal take a deposition?

No. A paralegal may attend a deposition and assist the lawyer during the deposition by taking notes and coordinating documents and exhibits.

May a paralegal sit at the counsel table in court?

Yes, if permitted by local court rules. (Paralegals can be of great assistance to lawyers at trial and often sit at counsel tables if court rules do not restrict their presence).

May a paralegal have business cards?

Yes. A paralegal may have business cards on which he/she is clearly identified as a paralegal.

May a paralegal's name be included on law office letterhead?

Yes. The paralegal's name may be used provided he/she is clearly identified as a paralegal.

May a paralegal sign correspondence from a law firm?

Yes, as long as the paralegal's status is clearly identified.

Example:

Very truly yours,

TAYLOR & JONES

By________________________________________

John J. Smith
Paralegal
May an attorney have his/her paralegal sign the attorney s name to documents?

The attorney may direct the paralegal to sign the attorney s name to correspondence/pleadings on a document by document basis after the attorney has reviewed, supervised production, and approved the content of the document. The paralegal should indicate that he/she signed the attorney s name to the document. One method of indicating this fact is for the paralegal to initial the signature.

Can paralegals be paid based upon the profitability of the firm?

Yes. Law firms may give paralegals pensions, profit sharing plans and salary increases based upon the firm's profitability. These benefits can be given based upon individual performance and/or the firm's profitability. However, a firm may not base compensation upon the outcome of a case.

How is a paralegal's time billed to a client?

The substantive legal work of a paralegal (work normally performed by an attorney in the absence of a paralegal) may be billed directly to the client in the same way an attorney's work is billed. To be billable, the work paralegals perform must not be clerical or ministerial. In circumstances where "attorneys fees" are reviewed or awarded by a court, the paralegal hours may be recovered as part of the attorney fee that is reviewed or awarded.

May a paralegal be a partner or shareholder in the law firm?

No. A lawyer shall not practice with or in the form of a professional corporation, limited liability company, or association, if:

(a) a paralegal ownsany interest in it (except as a fiduciary representative of the estate of a lawyer);
(b) a paralegal is a corporate director, officer or manager of the limited liability company; or
(c) a paralegal has the right to direct or control the professional judgment of the lawyer.

What are the ethical responsibilities of a paralegal?

The Rules of Professional Conduct and Guidelines do not regulate paralegals. Paralegals who are members of national, state and local paralegal associations are required to follow the Codes of Ethics of those associations. These codes contain the following requirements, which are similar to the requirements governing the ethical conduct of lawyers:

(a) Maintaining a high level of competence and personal and professional integrity;
(b) Maintaining a high standard of professional conduct;
(c) Serving the public interest by contributing to the delivery of quality legal services and the improvement of the legal system;
(d) Preserving all confidential information provided by the client or acquired from other sources before, during and after the course of the professional relationship;
(e) Disclosing one's status and title;
(f) Avoiding the unauthorized practice of law;
(g) Avoiding conflicts of interest and disclosing conflicts to employers/clients and prospective employers/clients.

What are the ethical responsibilities of a lawyer who employs a paralegal?

The lawyer is ultimately responsible for the work product and ethical conduct of a paralegal. Paralegals are not subject to professional discipline. The lawyer must give ethical guidance and direction to the paralegal. The supervising attorney must ensure that the paralegal's work product and conduct comply with the Rules of Professional Conduct and these Guidelines. The attorney should:

(a) develop policies regarding the delegation and supervision of the work product and conduct of the paralegal;
(b) communicate the policy to the paralegal;
(c) enforce the policy; and
(d) have a system of review and feedback to ensure the policy is being followed.

If a paralegal's activities violate the Rules of Professional Conduct, is the paralegal's employer at fault?

Yes. The lawyer employer is responsible for the paralegal's direction and ethical guidance. The supervisory measures that the lawyer applies should take account of the fact that paralegals are not subject to professional discipline. The lawyer is ultimately responsible for the work product and ethical conduct of the paralegal.

How should a paralegal be identified to others?

At the beginning of all professional communications with others, the paralegal shall disclose that he or she is a paralegal. The lawyer shall instruct the paralegal to make this disclosure. If the lawyer is present, the lawyer should introduce the paralegal and identify him/her as a paralegal.

Missouri Bar Guidelines for Practicing With Paralegals

Scope and Purpose of Guidelines

The Missouri Rules of Professional Conduct require members of the bar to make legal services available to the public at a price it can afford. To this end, members of the bar are employing paralegals.

These guidelines supplement and clarify the principles of the Missouri Rules of Professional Conduct. These guidelines provide standards for lawyers to employ paralegals in accordance with the Missouri Rules of Professional Conduct, statutes, court rules and decisions, rules and regulations of administrative agencies, opinions rendered by the attorney general, and committees on professional ethics and the unauthorized practice of law.

Except where prohibited by law or the Missouri Rules of Professional Conduct, an attorney may employ the services of paraegals to assist in the representation of a client.

Definition of a "Paralegal"

The term "paralegal," as used in these guidelines, shall mean a person qualified through education in legal studies, training and/or work experience in a law environment, who is employed or retained by a lawyer, law office, corporate in-house counsel, government agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifically delegated substantive legal work that, for the most part, requires a sufficient knowledge of legal concepts that, absent the paralegal, the attorney would perform.

For purposes of these Guidelines, the term "legal assistant" shall be considered synonymous with the term "paralegal."

I. Lawyer's Responsibility for Paralegal Conduct

A lawyer is responsible for the professional and ethical conduct of a paralegal under his or her supervision.

COMMENT:
The lawyer has a responsibility to establish and communicate firm policies concerning ethical and professional conduct to the paralegals in his/her employ.

II. Unauthorized Practice of Law

A lawyer shall not assist a paralegal in the performance of an activity that constitutes the unauthorized practice of law.

COMMENT:
Missouri Revised Statutes '484.010 and '484.020 define the practice of law and law business. This law prohibits anyone who is not licensed to practice law from advocating a person s claim before a tribunal, drafting legal documents, or giving advice requiring the application of legal principles. Missouri Rule of Professional Conduct 5.5 notes that a lawyer should not assist nonlawyers in the performance of activities that constitute the practice of law. However, Rule 5.3 recognizes the fact that lawyers employ nonlawyers to assist in the delivery of legal services. A lawyer may employ a nonlawyer as long as the lawyer supervises the work of the nonlawyer and ensures that the person s conduct is compatible with the professional obligations of the lawyer. A lawyer with direct supervisory responsibility over the nonlawyer is responsible for his or her conduct.

A major area in which paralegals are confronted with the issue of unauthorized practice of law is requests from clients for information that would constitute legal advice. The lawyer s responsibility regarding the unauthorized practice of law is:

(a) The lawyer must give clients an understanding of the paralegal's role in their case;
(b) The lawyer must define the role of the paralegal in preparing legal documents;
(c) The lawyer must explain the paralegal's role in assisting a person in proceedings before federal or state courts, administrative agencies, and tribunals.
Case law does not provide much guidance in defining where the actions of a paralegal cross the line from assisting a lawyer in the practice of law to actually performing acts that would violate the unauthorized practice of law statute.

For the purposes of these Guidelines, a paralegal is not practicing law if, under the ultimate direction and supervision of a licensed lawyer, the paralegal is applying knowledge of law and legal procedures in rendering direct assistance to a licensed lawyer. This assistance may include but is not limited to:

  • researching legal matters;
  • developing an action, procedure, technique, service or application;
  • preparing and interpreting legal documents;
  • selecting, compiling and using technical information;
  • assisting the lawyer in court;
  • handling administrative matters with the tribunal;
  • handling will attestations and real estate closings; and
  • analyzing and following procedural problems that involve independent decision.

A paralegal is not practicing law when acting in compliance with statutes, court rules or decisions, and administrative rules and regulations that permit paralegals or other lay persons to do what would otherwise be considered the practice of law.

III. Professional Independence of a Lawyer in Relationship to a Paralegal

(a) Sharing of Fees

(1) A lawyer or law firm shall not share legal fees with a paralegal. However, a lawyer or law firm may include paralegal employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.

(b) Ownership and Control of Law Practice
(1) A lawyer shall not form a partnership with a paralegal if any of the activities of the partnership consist of the practice of law.
(2) A lawyer shall not practice with or in the form of a professional corporation, limited liability company, or association authorized to practice law for a profit, if:
  • a paralegal owns any interest in the corporation, limited liability company or association (except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration);
  • a paralegal is a corporate director or officer of the corporation or manager of the limited liability company;
  • a paralegal has the right to direct or control the professional judgment of a lawyer.
COMMENT:
This section expresses traditional limitations on sharing fees which are designed to protect the lawyers' professional independence of judgment. The prohibition against "fee splitting" is not intended to deny salary or bonuses to paralegals even though it is tied to the profitability of the firm. Rather, the prohibition is to any form of compensation directly tied to the existence or amount of a particular legal fee, where such fee-splitting would influence the lawyer's professional independent judgment.

IV. Responsibilities Regarding a Paralegal
A lawyer has a responsibility to:
(a) develop policies that clearly define the delegation of tasks to be performed by paralegals and address the responsibility of paralegals concerning the Rules of Professional Conduct;
(b) directly supervise the paralegal to ensure his/her conduct is consistent with the Rules of Professional Conduct;
(c) directly supervise and maintain responsibility for the paralegal's work product;
(d) provide the paralegal with a copy of these Guidelines, Rule 5.3 of the Missouri Rules of Professional Conduct and the firm s written policies;
(e) instruct the paralegal regarding ethical conduct and confidentiality of client information;
(f) check for conflicts of interest;
(g) check to ensure that the paralegal is qualified to act in the capacity as a paralegal by reason of education in legal studies, training and/or experience in a law environment.
COMMENT:
Whether a paralegal is a direct employee of the lawyer or an independent contractor, the paralegal acts for the lawyer in the rendition of the lawyer s professional service. If a paralegal would engage in conduct that, if performed by a lawyer, would constitute a violation of the Rules of Professional Conduct, then the lawyer would be responsible if:
(a) the lawyer orders, or ratifies, this conduct; or
(b) the lawyer is a partner in the law firm in which the paralegal is employed, or has direct supervisory authority over the paralegal and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

V. Identification of a Paralegal

A lawyer has a responsibility to:

(a) instruct the paralegal to disclose that he/she is a paralegal in all dealings with any other persons;
(b) disclose the paralegal's title on business cards,stationery, firm profiles, legal directories (such as Martindale-Hubbell) or other means of communications;
(c) instruct the paralegal to identify his/her title on written communications to others.
COMMENT:
The responsibility of clearly identifying the paralegal is two-fold. Both the lawyer and the paralegal have the responsibility to clearly identify the paralegal. If, in the judgment of the lawyer, the client indicates confusion as to the role of the paralegal, the lawyer must describe the functions of the paralegal.

Identifying the paralegal on letterhead, business cards and other means of communication also serves to inhibit the misunderstanding of the position of the paralegal. Such identification can serve as a continual reminder to the client or other reader the position is one of a paralegal.

A paralegal may sign correspondence on the law firm letterhead provided the signature is followed by an appropriate identifying designation as a paralegal. Under no circumstances may any form of communication, either written or otherwise, contain the following: false, fraudulent, misleading, or deceptive statements; or claims concerning either the paralegal's status, authority or relationship to the lawyer or law firm employing the paralegal.

Missouri Paralegal Associations

Missouri Alliance of Paralegal Associations
c/o Kansas City Paralegal Association
8826 Santa Fe Drive, Suite 208
Overland Park, Kansas 66212
or contact any one of the following member associations:

Gateway Paralegal Association
P.O. Box 50233
St. Louis, Missouri 63105

St. Louis Association of Legal Assistants
P.O. Box 69218
St. Louis, Missouri 63169-0218

Kansas City Paralegal Association
8826 Santa Fe Drive, Suite 208
Overland Park, Kansas 66212

Southwest Missouri Paralegal Association
c/o Jackie Harkrider
2838 South Ingraham Mill Road
Springfield, Missouri 65804

Joplin Metropolitan Paralegal Association
c/o Pam Baack
P.O. Box 1582
Joplin, Missouri 64802

Mid-Missouri Paralegal Association
c/o Retta Taylor
MHTD-District Counsel
221 Bolivar Street, 4th Floor
Jefferson City, Missouri 65101

Paralegal Education Programs In
Missouri And Surrounding States
Webster University
St. Louis, Missouri

Maryville University
St. Louis, Missouri

St. Louis Community College
at Meramec
St. Louis, Missouri

St. Louis Community College
at Florissant Valley
St. Louis, Missouri

William Woods University
Fulton, Missouri

Missouri Southern State College
Joplin, Missouri

Phillips Junior College
Springfield, Missouri
Missouri Western State College
St. Joseph, Missouri

Johnson County Community College
Overland Park, Kansas

Avila College
Kansas City, Missouri

Rockhurst College
Kansas City, Missouri

Penn Valley Community College
Kansas City, Missouri

William Jewell College
Liberty, Missouri

Belleville Area College
Belleville, Illinois

Contact Persons of The Missouri Bar
Committee on Paralegals

Lynn Ann Whaley, Esq.
Chairperson & Executive Committee
The Esquire Group
8860 Ladue Road
St. Louis, Missouri 63124
(314) 862-1922

Brenda Rice, Esq., Executive Committee
Johnson County Community College
12345 College Blvd.
Overland Park, Kansas 66210
(913) 469-8500, ext. 3781

Michael L. Yates, Esq., Vice Chair
Attorney at Law/Associate Professor
Paralegal Studies/Political Science
Missouri Southern State College
Joplin, Missouri 64801
(417) 625-9333

Linda Skinner, Esq., Vice Chair
5925 Beverly
Kansas City, Missouri 66202
(417) 625-9333

Gretchen Fleischut, Esq., Vice Chair
6600 North Beaman Avenue
Kansas City, Missouri 64151

H. Margaret (Peggy) Nickerson, Newsletter Editor
Paralegal Studies
William Woods Universty
200 West Twelfth Street
Fulton, Missouri 65251-1098
(573) 642-2251; pnickers@iris.wmwoods.edu

Constance J. Anderson, Executive Committee
Sonnenschein, Nath & Rosenthal
One Metropolitan Square, Suite 3000
St. Louis, Missouri 63102-2733
(314) 259-5834; cja@sonnenschein.com

Kelly Roth, Secretary & Executive Committee
The May Department Stores Co.
611 Olive Street
St. Louis, Missouri 63101
(314) 342-6656

Pam Baack, Executive Committee
P.O. Box 1582
Joplin, Missouri 64802
(417) 623-8220

The Missouri Bar, P.O. Box 119, Jefferson City, MO 65102-0119