Unauthorized Practice of Law Whitepaper

 

 

LAWCLERK™ - Where Attorneys Go To Hire Freelance Lawyers

 

LAWCLERK's Compliance With the Unauthorized Practice of Law Rules

LAWCLERK is a marketplace through which persons holding a law degree (“Lawclerks”) may be engaged in the capacity of a paraprofessional (verses as a lawyer) by attorneys that are admitted to and in good standing with their respective state’s bar association (“Attorneys”), to provide discrete legal-related services, such as the preparation of memorandums, pleadings, written discovery, and agreements. This memorandum addresses why Lawclerk.legal and its use by Lawclerks and Attorneys, which encourages cost-effective delivery of legal services and reduces the spiraling cost of civil litigation,1 does not constitute the unauthorized practice of law.

While the definition of the practice of law is established by law and varies from one jurisdiction to another,2 the courts and bar associations unanimously agree that the purpose of the prohibition on the unauthorized practice of law is to protect the public from receiving legal services from unqualified persons.3 

Because of the divergent definitions of what constitutes the practice of law, this memorandum undertakes a state by state analysis of how Lawclerk.legal fits within the unauthorized practice of law framework for every state other than Indiana. However, the American Bar Association’s Model Rules of Professional Conduct (the “Model Rules”), as well as other professional organizations’ guidelines provide overarching guidance that should first be considered.

Every state other than California has adopted the Model Rules, although some states have modified the Model Rules in their adoption or have not adopted the most recent amendments to the Model Rules.4 Model Rule 5.3, titled “Responsibilities Regarding Nonlawyer,” and Model Rule 5.5, titled “Unauthorized Practice of Law; Multijurisdictional Practice of Law,” are most pertinent to the analysis of what constitutes the unauthorized practice of law.5

 

  • See Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836, 846 (7th Cir. 1984), cert. denied, 469 U.S. 1106 (1985) (quoting Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 (1989)).
  • See Model Rules Comment 5.5(2).
  • See id.
  • The date of adoption can be found at:

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/ alpha_list_state_adopting_model_rules.html.

 

  • The American Bar Association’s (the “ABA”) comparison of Model Rule 5.3 to each state’s adopted form of Model Rule 5.3 as of September 15, 2016 can be found at https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_5_3.authcheckdam. pdf. The ABA’s comparison of Model Rule 5.5 to each state’s form of Model Rule 5.5 as of September 15, 2016 can be found at: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/recommendations.authche ckdam.pdf.

 

 

The Model Rules balance the need for attorneys to utilize paraprofessional services while ensuring that the public is not unknowingly receiving legal advice from unqualified professionals. The Comments to Model Rules 5.3 and 5.5 provide that:

 

  • “This Rule [Model Rule 5.5] 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.”6

 

  • “A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.”7

 

Consistent with the Model Rules and as shall be developed herein, Lawclerk.legal similarly balances the need for Attorneys to obtain paraprofessional services to maintain cost-effective legal services while meeting the public’s need to ensure that they are not unknowingly receiving legal advice from unqualified people. To this end, each Attorney utilizing the services of a Lawclerk through Lawclerk.legal must execute the following agreement:

 

I am a duly licensed attorney in good-standing and I agree to fully comply with the following rules regarding the use of Lawclerk services.

 

  1. I shall have sole professional responsibility for the work product of the Lawclerk.

 

  1. I will supervise the Lawclerk’s performance of services on the assigned project to ensure compliance with the applicable Rules of Professional Conduct.

 

  1. I will establish and maintain the relationship with my client.

 

  1. The Lawclerk shall have no contact with the my client, including without limitation no email, telephone, skype, web, social media, or in-person contact.

 

  1. The Lawclerk shall not appear in court or any other judicial or administrative body on behalf of a my client.

 

  1. I will not ask or otherwise cause the Lawclerk to serve or otherwise disseminate the Lawclerk’s work product or any other documents to anyone other than me.

 

  1. I will not ask or otherwise cause the Lawclerk to sign or file any documents with any court or administrative body.

 

 

  • See Model Rules Comment 5.5(2).

 

  • See Model Rules Comment 5.3(3).

 

  1. The Lawclerk shall have no contact with opposing counsel, witnesses, or other persons potentially involved in the project for which the Lawclerk has been engaged, including without limitation no email, telephone, skype, web, social media, or in-person contact.

 

  1. If required by my engagement agreement with my client or applicable law, I have obtained my client’s consent to utilize the services of a Lawclerk.

 

  1. I have sole responsibility for determining the fee charged to my client for legal services. The Lawclerk shall not have any involvement in determining the fee I charge my client for the Lawclerk's services.

 

  1. All payment for Lawclerk services shall be completed through: www.lawclerk.legal.

 

Additionally, Lawclerk.legal imposes the following requirements on its Attorneys and

 

Lawclerks:

 

  • The Attorney establishes the flat fee price for the Project, which is not contingent upon the outcome of the Attorney’s case or matter. The Lawclerk will have no involvement in determining the fees charged by an Attorney to his/her clients.

 

  • The Lawclerk shall hold a Juris Doctorate from an ABA accredited law school and his/her services shall solely be offered to Attorneys (not the public).

 

  • The Attorneys shall be properly admitted and in good standing within their applicable jurisdiction(s).

 

  • Disbarred or suspended lawyers may not serve as Lawclerks.

 

  • legal will maintain a list of all of the Attorney’s clients for which the Lawclerk has been engaged through Lawclerk.legal and will remove from the available list of Lawclerks any Lawclerk that has a conflict as a result of prior work performed through Lawclerk.legal.

 

  • For each Project in which a Lawclerk is engaged by an Attorney, the Lawclerk shall:

 

(i) complete a conflicts check and review the applicable state’s conflict laws and affirm that he or she does not have any conflict and may complete the Project; and (ii) execute a confidentiality and non-disclosure agreement.

 

Lawclerk.legal thereby requires that the Attorney agree to remain solely responsible for the attorney-client relationship and the legal advice provided by the Attorney to his/her client. Thus, while the Attorney may obtain a legal memorandum, a draft pleading, or other legal services from a Lawclerk, the Lawclerk will have no direct contact with the Attorney’s client, the Lawclerk will be supervised by the Attorney, and the Attorney will retain sole responsibility for the Lawclerk’s work product and the Attorney’s ultimate use of such work product.

 

 

 

  1. legal Complies with Model Rules 5.3 and 5.5.

 

Lawclerk.legal complies with the requirements of Model Rules 5.3 or 5.5. Model Rule 5.3 is titled “Responsibilities Regarding Nonlawyers Assistance” and provides:

 

With respect to a nonlawyer employed or retained by or associated with a lawyer:

 

  • 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;

 

  • 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

 

  • 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:

 

  • the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

 

  • 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.

 

Supervision designed to ensure that nonlawyers do not provide legal advice or otherwise violate the Rules of Professional Conduct is the key to Model Rule 5.3. By precluding any contact with an Attorney’s clients, opposing counsel, witnesses, or any other party to the project for which the Lawclerk has been engaged, Lawclerk.legal eliminates the greatest concern addressed by Model Rule 5.3. Lawclerk.legal also requires, as more fully set forth above, conflict checks, an acknowledgment that the Lawclerk has reviewed and will comply with the applicable state’s Rules of Professional Conduct, an agreement by the Attorney to supervise the Lawclerk, and an acknowledgement by the Attorney that s/he is solely responsible for the Lawclerk’s work product. These restrictions and requirements are designed to satisfy not only the actual text of Model Rule 5.3, but the policy behind it.

 

Comment 1 to Model Rule 5.3 discusses the attorneys’ responsibilities for paraprofessionals that are engaged within or outside of a firm providing:

 

 

 

Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that nonlawyers in the firm and nonlawyers outside the firm who work on firm matters act in a way compatible with the professional obligations of the lawyer. See Comment [6] to Rule 1.1 (retaining lawyers outside the firm) and Comment [1] to Rule 5.1 (responsibilities with respect to lawyers within a firm). Paragraph (b) applies to lawyers who have supervisory authority over such nonlawyers within or outside the firm. Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of such nonlawyers within or outside the firm that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.

 

Comment 2 to Model Rule 5.3 under the heading “Nonlawyers Within the Firm” contemplates attorneys use of paraprofessionals, providing:

 

Attorneys 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.

 

Comment 3 to Model Rule 5.3 under the heading: “Nonlawyers Outside the Firm” expressly address the engagement of nonlawyers outside the firm and provide as follows:

 

A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6

 

(confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.

 

The addition of Comment 5.3(3) and the change from “nonlawyer assistants” to “nonlawyer assistance” in 2012 served to highlight that attorneys have an obligation to make reasonable efforts to ensure that nonlawyers that assist them act in a manner that is consistent with the attorneys’ professional obligations, whether they are employed or contractual paralegals, assistants within a law firm, or others engaged from outside the firm.8

 

Model Rule 5.5 is titled “Unauthorized Practice of Law; Multijurisdictional Practice of

 

Law” and provides in relevant part:

 

  • 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.

 

  • A lawyer who is not admitted to practice in this jurisdiction shall not:

 

  • except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

 

  • hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

 

Comment 2 to Model Rule 5.5 expounds as follows:

 

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.

 

Similar to the analysis under Model Rule 5.3, as the Attorney has sole responsibility for the Lawclerk’s work product and the Lawclerk is precluded from having any contact with an Attorney’s clients, opposing counsel, witnesses, or any other party to the project for which the Lawclerk has been engaged, the Lawclerk is precluded from providing legal advice to an

 

 

  • See ABA Model Guidelines for the Utilization of Paralegal Services, n. 3, available at https://apps.americanbar.org/legalservices/paralegals/downloads/modelguidelines.pdf.

 

 

 

 

Attorney’s client, thereby satisfying both the requirements imposed in Model Rule 5.3, as well as the policy behind the rule.

 

 

 

 

 

 

 

  1. Organizational Guidelines for the Use of Paraprofessionals Exemplify that Lawclerk.legal Does Not Engage in the Unauthorized Practice of Law.

 

Beyond the Model Rules, the services to be provided by Lawclerks to Attorneys are consistent with the parameters set forth in the Second Edition of the American Jurisprudence addressing the services that may be provided by a law clerk:

 

The functions of an unlicensed law clerk should be limited to work of a preparatory nature, such as research, investigation of details, assemblage of data, and like work that will enable the attorney/employer to carry a given matter to a conclusion through his or her own examination, approval, or additional effort; the activities of a law clerk do not constitute the practice of law so long as they are thus limited. [footnote omitted] On the other hand, an unlicensed law clerk who engages in activities requiring legal knowledge or training, such as handling probate matters, examination of abstract titles, and preparation of wills, leases, mortgages, bills of sales, or contracts, without supervision from his or her employer, thereby engages in the unauthorized

 

practice of law.[9]

 

Further, while paralegals and legal assistants may not serve as Lawclerks, the guidelines, rules, and case law analyzing the services that may be provided by legal assistants and paralegals is nonetheless instructive as to what services may be employed by a paraprofessional without engaging in the unauthorized practice of law. For instance, the National Association of Legal Assistants (NALA) has formulated its Code of Ethics and Professional Responsibility (the “NALA Code”), as well as Model Standards and Guidelines for Utilization of Paralegals (the “NALA Guidelines”) that its members must follow to remain a member in good stating with the organization.10 Most applicable here, the NALA Guidelines, citing to Model Rule 5.3, provide that “a paralegal is allowed to perform any task which is properly delegated and supervised by a lawyer, as long as the lawyer is ultimately responsible to the client and assumes complete professional responsibility for the work product.”11

 

 

 

  • 7 Am. Jur. 2d Attorneys at Law § 130 (emphasis added).

 

  • NALA Code, available at https://www.nala.org/sites/default/files/codeofethics.pdf; see also NULA Guidelines, available at https://www.nala.org/sites/default/files/modelstandards.pdf.

 

  • NALA Guideline No. 2; NALA Code Canon 2.

 

The NALA Code further instructs that the attorney and not the paralegal must form and maintain the direct relationship with the client and that the paralegal is prohibited from: (i) engaging in, encouraging, or contributing to any act that could constitute the practice of law; (ii) establishing attorney-client relationships, setting fees, giving legal opinions or advice, or representing a client before a court or agency unless specifically authorized by that court or agency; and (iii) engaging in conduct or taking any action that would assist or involve the lawyer in a violation of professional ethics or giving the appearance of impropriety.12 However, such restrictions do not alter the requirement that a paralegal must use discretion and professional judgment commensurate with his knowledge and experience, but must not render independent legal judgment in place of a lawyer; rather, any legal opinion may only be rendered to the attorney.13

 

The ABA Standing Committee on Paralegals has additionally prepared its Model Guidelines for the Utilization of Legal Assistant Services (the “ABA Guidelines”). While the ABA Guidelines refer to paralegals, the term is intended to include legal assistants.14 ABA Guideline No. 2 states that “[p]rovided the lawyer maintains responsibility for the work product, a lawyer may delegate to a paralegal any task normally performed by the lawyer” unless there is a statute, court rule, administrative rule or regulation, controlling authority, the applicable rule of professional conduct of the jurisdiction in which the attorney practices, or the Guidelines that expressly precludes the attorney from delegating the specific task to a nonlawyer.15 The ABA Guidelines then identify three responsibilities that may not be delegated to a paralegal: (i) responsibility for establishing a lawyer -client relationship; (ii) responsibility for establishing the amount of a fee to be charged for a legal service; and (iii) responsibility for a legal opinion rendered to a client.16 Conversely, the preparation of factual investigation and research, legal research, and the preparation of legal documents are identified as tasks that may be delegated to paralegals subject to appropriate attorney supervision.17

 

Consistent with the foregoing legal authorities and guidelines, Lawclerk.legal requires the Attorney to supervise the Lawclerk and to maintain responsibility for the Lawclerk’s work product. However, Lawclerk.legal is far more restrictive than the foregoing guidelines for paralegals, law clerks, and legal assistants and more protective of the public as it precludes Lawclerks from engaging in any contact with clients, opposing counsel, witnesses, or any other party to the project for which the Lawclerk has been engaged.

 

 

 

 

  • See NALA Code Canons 2 and 3; NALA Guidelines 2 and 3.

 

  • See NALA Code Canon 4; see also 122 Am. Jur. Proof of Facts 3d § 279.

 

14See ABA Guidelines, at Preamble and n. 1, available at https://apps.americanbar.org/legalservices/paralegals/downloads/modelguidelines.pdf.

 

  • See id. at Guideline No. 2 (emphasis added).

 

  • See id. at Guideline No. 3.

 

  • See id. at Comment to Guideline No. 2.

 

  1. A State By State Analysis Confirms that the Use of Lawclerk.legal Does Not Violate the Unauthorized Practice of Law in 49 of the 50 States.

 

Every state other than California has adopted a form of Model Rules 5.3 and 5.5. While there is some variance between the state’s adopted versions of these Model Rules, they all are drafted to further the central purpose of ensuring that the public is not unknowingly receiving legal advice from someone other than lawyers properly admitted and in good standing within the jurisdiction.

 

Alabama.

 

Section 34-3-5 of the 1975 Code of Alabama, titled “who may practice as attorneys” states in pertinent part:

 

  • Only such persons as are regularly licensed have authority to practice law.

 

  • For the purposes of this chapter, the practice of law is defined as follows: Whoever,
    • In a representative capacity appears as an advocate or draws papers, pleadings, or documents, or performs any act in connection with proceedings pending or prospective before a court or a body, board, committee, commission, or officer constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the state or any subdivision thereof; or

 

  • For a consideration, reward, or pecuniary benefit, present or anticipated, direct or indirect, advises or counsels another as to secular law, or draws or procures or assists in the drawing of a paper, document, or instrument affecting or relating to secular rights; or

 

  • For a consideration, reward, or pecuniary benefit, present or anticipated, direct or indirect, does any act in a representative capacity in behalf of another tending to obtain or secure for such other the prevention or the redress of a wrong or the enforcement or establishment of a right; or

 

  • As a vocation, enforces, secures, settles, adjusts, or compromises defaulted, controverted, or disputed accounts, claims or demands between persons with neither of whom he or she is in privity or in the relation of employer and employee in the ordinary sense;

 

is practicing law. [18]

 

 

  • Code § 34-3-6.

 

The foregoing statute was enacted to “ensure that ‘laymen would not serve others in a representative capacity in areas requiring skill and judgment of a licensed attorney.’”19

 

Alabama expressly authorizes eligible20 law students to prepare pleadings, interview, advise, and negotiate for a client while rendering assistance to the attorney of record, and appear in civil and criminal matters if the attorney of record and the client consent in writing and the attorney of record supervises the law clerk.21 Additionally, beyond Alabama’s adoption of Model Rule 5.3,22 the Alabama Association of Paralegals, Inc. has adopted the NALA Code further establishing that legal assistants and paralegals may perform the tasks delegated to them subject to the supervision of the attorney and the above-discussed restrictions on the attorney-client relationship.23

 

Alabama courts have held that a nonlawyer engages in the unauthorized practice of law when he performs activities customarily executed by licensed attorneys while not under the direct supervision of a licensed lawyer in good standing, such as an executor filing a complaint on behalf of the estate,24 completing blanks in form deeds and giving legal advice or expressing opinions as to the effect of legal documents at closings conducted by title companies,25 and filing pleadings with the court on behalf of another person or corporation irrespective of the existence of a power of attorney.26

 

Lawclerk.legal imposes restrictions on its Lawclerks and Attorneys that are more restrictive than the restrictions imposed on eligible law students under Section 34-3-6 of the Alabama Code and more restrictive than the NALA Code requirements for paralegals.

 

19Armstrong v. Brown Serv. Funeral Home West Chapel, 700 So.2d 1379, 1381 (Ct. App. Ala 1997) (citing State ex rel. Porter v. Alabama Ass’n of Credit Executives, 338 So.2d 812, 814 (Ala. 1976)); see also Godwin v. McKnight, 784 So.2d 1014 (Ala. 2000) (citing Armstrong v. Brown Service Funeral Home West Chapel, 700 So.2d 1379 (Ala. Civ. App. 1997), Derek A. Denckla, The Unauthorized Practice of Law: an Overview of the Legal and Ethical Parameters, 67 Fordham L.Rev. 2581 (1999); L. Bruce Ables, Unauthorized Practice of Law, 56 Ala. Law. 288 (1995) (documenting Alabama’s rampant problem with the unauthorized practice of law).

 

  • The eligibility requirements include, but are not limited to, being registered as a law student with the Secretary of the Board of Commissioners of the Alabama State Bar and duly enrolled in a law school from which a graduate is qualified and authorized to take the Alabama Bar Exam, completed not less than four semesters (not less than 54 semester hours), be certified by the dean of the law school as being of good character and competent legal abilities, and certify that he has read the Alabama Rules of Professional Conduct and will faithfully perform the duties of a legal intern. See Hayden v. Elam, 739 So. 2d 1088, 1091-1092 (Ala. 1999).

 

  • See id.

 

  • The only difference between Rule 5.3 of the Alabama Rules of Professional Conduct and Model Rule 5.3 is the replacement of the clause “and a lawyer…in a law firm” with in the firm. See 1.

 

  • See http://www.alabamaparalegals.net/images/Code-of-Ethics.pdf.

 

  • See Godwin v. McKnight, 784 So.2d 1014 (Ala. 2000).

 

25See Coffee County Abstracto and Title Co. v. State ex rel Norwood, 445 So.2d 852 (Ala. 1984).

 

26See Franklin v. Max Federal Credit Union, 168 So.3d 83 (Ct. App. Ala. 2014); see also Beasley v. Poole, 63 So.3d

 

  • (Ct. App. 2010); A-OK Construction Co., Inc. v. Castle Construction Co., Inc., 594 So.2d 53 (Ala. 1992).

 

Lawclerk.legal further complies with Rule 5.3 of the Alabama Model Rules of Professional Conduct and is in accord with the case law determining what constitutes the unauthorized practice of law in Alabama.

 

Alaska.

 

In Ethics Opinion No. 73-1, the Ethics Committee of the Alaska Bar Association was asked “whether a legal assistant who investigates workmen’s compensation claims, directly deals by telephone with the claim managers and agents of insurance companies regarding the settlement of such claims and who additionally dictates letters of correspondence setting forth his employer’s position regarding their settlement is engaged in the unauthorized practice of law if at all times his status as a legal assistant is fully disclosed to the other party with whom he is dealing and his activities are consistently supervised and reviewed by a lawyer admitted to practice law in the State of Alaska.”27 Citing to Canons 3528 and 4729 of the Canons of Professional Ethics (subsequently replaced by the Model Rules), Ethics Opinion 73-1 provides that:

 

As further pointed out in American Bar Association Opinion 316, 1967, a lawyer may employ non-lawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, or appear in court or in formal proceedings a part of the judicial process, so long as it is the attorney who takes the work and vouches for it to the client and is responsible to the client. While a lawyer cannot delegate his professional responsibility to a law student employed in his office, ‘[He] may avail himself of the assistance of the student in many of the field of the lawyer’s work, such as examination of case law, finding and interviewing witnesses, making collections of claims, examining court records, delivering papers, conveying important messages, and other similar matters . . . . The student in all his work must act as agent for the lawyer employing him, who must supervise his work and be responsible for his good conduct. . . . Any such employee negotiating adjustments must report proposed settlements to the lawyer for final decision.’ American Bar Association Opinion 85, 1932. Drinker, Legal Ethics, 1954 at page 180 also states that it is not unethical for a lawyer to employ a layman to negotiate

 

 

27Alaska Bar Association Ethics Opinion 73-1 adopted October 6, 1973, available at https://www.alaskabar.org/servlet/content/indexes_aeot__73_1.html.

 

  • Canon 35 of the Canons of Professional Ethics stated in part: “The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer. A lawyer’s responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest or such intermediacy. A lawyer’s relation to his client should be personal and the responsibility should be direct to the client. . . .”

 

  • Canon 47 of the Canons of Professional Ethics stated: “No lawyer shall permit his professional services, or his name, to be used in aid of, or to make possible, the unauthorized practice of law by any lay agency, personal or corporate.”

 

insurance adjustments for the lawyer’s approval provided that such services do not constitute the practice of law and the layman’s compensation is not a proportion of the lawyer’s fee.

 

It is, of course, true that that lay assistant is, in all cases, bound by the Code of Professional Responsibility, and the attorney who employs the lay assistant will be personally subject to discipline if the lay assistant violates a disciplinary rule. Also, disclosure that the lay assistant is not a lawyer must be made in all transactions in such a manner as to assure that that fact is known and understood by the person with whom the lay assistant is dealing.[30]

 

In determining that two paralegals had not engaged in the unauthorized practice of law, the Alaska Court of Appeals discussed: (i) the Comments to Rule 5.5 of the Alaska Rules of Professional Conduct, noting that the comments expressly state that “this rule ‘does not prohibit a lawyer from employing the services of paralegals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work;’” (ii) the ABA Guidelines which state that “paralegals may properly ‘communicate a lawyer’s legal advice to a client’ (as long as they do not ‘interpret or expand on that advice’), and that paralegals may also properly participate in ‘preparing the lawyer’s legal opinion’—that is, participate in the process of formulating the lawyer’s legal advice, so long as the lawyer makes the final assessment of what that advice should be;” and (iii) the fact that law clerks working for the trial and appellate courts participate in the formulation of court decisions even though they may not be authorized to practice law, and concluded that the paralegals’ conduct functioned within these boundaries and while they had direct contact and communications with the client about her case, they were always under the ultimate supervision of the attorney.31

 

Consistent with the foregoing ethics opinion and case law, Lawclerks can only provide the services that are delegated to them and supervised by the Attorney. The Attorney always retains responsibility for the Lawclerk’s work and only the Attorney may provide legal advice to the Attorney’s client.

 

Arizona.

 

Arizona is one of the few states to have formulated a precise definitions of both the practice of law and the unauthorized practice of law. Rule 31 of the Rules of the Supreme Court of Arizona provides in pertinent part as follows:

 

(a) Supreme Court Jurisdiction Over the Practice of Law

 

 

 

 

 

 

30Alaska Bar Association Ethics Opinion 73-1 adopted October 6, 1973 (emphasis added).

 

  • Welton v. State of Alaska, 2011 WL 2151850 *9 (Ct. App. Ala. 2011).

 

  1. Any person or entity engaged in the practice of law or unauthorized practice of law in this state, as defined by these rules, is subject to this court’s jurisdiction.

 

 

  1. ‘Practice of law’ means providing legal advice or services to or for another by:

 

  • preparing any document in any medium intended to affect or secure legal rights for a specific person or entity;

 

  • preparing or expressing legal opinions;

 

  • representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process such as arbitration and mediation;

 

  • preparing any document through any medium for filing in any court, administrative agency or tribunal for a specific person or entity; or

 

  • negotiating legal rights or responsibilities for a specific person

 

or entity.

 

  1. ‘Unauthorized practice of law’ includes but is not limited to:

 

  • engaging in the practice of law by persons or entities not authorized to practice pursuant to paragraphs (b) or (c) or specially admitted to practice pursuant to Rule 38(a); or

 

  • using the designations ‘lawyer,’ ‘attorney at law,’ ‘counselor at law,’ ‘law,’ ‘law office,’ ‘J.D.,’ ‘Esq.,’ or other equivalent words by any person or entity who is not authorized to practice law in this state pursuant to paragraphs (b) or (c) or specially admitted to practice pursuant to Rule 38(a), the use of which is reasonably likely to induce others to believe that the person or entity is authorized to engage in the practice of law in this state.

 

  1. ‘Legal assistant/paralegal’ means a person qualified by education and training who performs substantive legal work requiring a sufficient knowledge of and expertise in legal concepts and procedures, who is supervised by an active member of the State Bar of Arizona, and for whom an active member of the state bar is responsible, unless otherwise authorized by supreme court rule.

 

  • * *

 

 

  • Authority to Practice. Except as hereinafter provided in section (d), no person shall practice law in this state or represent in any way that he or she may practice law in this state unless the person is an active member of the state bar.

 

  • Restrictions on Disbarred Attorneys’ and Members’ Right to Practice. No member who is currently suspended or on disability inactive status and no former member who has been disbarred shall practice law in this state or represent in any way that he or she may practice law in this state.

 

  • Notwithstanding the provisions of section (b), but subject to the limitations of section (c) unless otherwise stated:

 

  • * *

 

  1. Nothing in this rule shall affect the ability of nonlawyer assistants to act under the supervision of a lawyer in compliance with ER 5.3[32] of the rules of professional conduct. This exemption is not subject to section (c).

 

  • * *

 

  1. Nothing in these rules shall affect the ability of lawyers licensed in another jurisdiction to engage in conduct that is permitted under ER 5.5[33] of the rules of professional conduct.[34]

 

Applying Rule 31, Arizona courts have found the unauthorized practice of law where: (i) a nonlawyer represents a client in a judicial proceeding or mediation;35 (ii) real estate agents and title companies prepare deeds, mortgages, releases, or other instruments affecting the obligations or rights between parties other than the title company irrespective of whether the title company has a lawyer as the title company’s attorney that is representing the title company, not the customer;36 (iii) a lawyer that is not admitted to the Arizona bar, but is admitted to practice in tribal court, represents clients in matters outside of the tribal jurisdiction, maintains an office address outside of the boundaries of the tribal jurisdiction, and presents himself on his letterhead and otherwise as a “J.D.” and an “attorney”;37 and (iv) a lawyer suspended from the practice of law

 

 

 

 

  • ER 5.3 is Arizona’s adopted version of Model Rule 5.3.

 

  • ER 5.5 is Arizona’s adopted version of Model Rule 5.5.

 

  • AZ ST S CT Rule 31.

 

  • See, e.g., Byer-Watts v. Parker, 18 P.3d 1265, 1268 (Ariz. Ct. App. 2001); State v. Eazy Bail Bonds, 229 P.3d 239,

 

  • (Ariz. Ct. App. 1 2010); Cuthbertson v. Cuthbertson, 2007 WL 5613318 *6 (Ariz. Ct. App. 2007).

 

  • See State Bar of Arizona v. AZ Land Title and Trust Co., 366 P.2d 1, 11-12 (Ariz. 1961).

 

  • See State Bar of Arizona v. Lang, 323 P.3d 740 (Ariz. Ct. App., Div. 1 2014).

 

acts without supervision of an active member of the State Bar of Arizona while employed as a legal assistant/paralegal.”38

 

Consistent with Rule 31 and the applicable case law, Lawclerks can only provide the services that are delegated to them and supervised by an Attorney, cannot appear in court, and cannot have any communication with the client or opposing counsel. The Attorneys always retains responsibility for the Lawclerk’s work and only the Attorney may provide legal advice to the Attorney’s client. Further, the fact that Arizona permits attorneys to engage suspended or disbarred lawyers to provide paraprofessional services as long as the suspended or disbarred lawyer acts under the supervision of a lawyer in good standing with the Arizona State Bar further confirms that Lawclerks do not engage in the unauthorized practice of law by completing projects delegated to them by an Attorney that is responsible for their work product and for their supervision.

 

 

Arkansas.

 

In applying Rules 5.3 and 5.5 of the Arkansas Rules of Professional Conduct, the Supreme Court of Arkansas has emphasized that “it is clear that, while a lawyer may delegate certain tasks to his assistants, he or she, as supervising lawyer, has ultimate responsibility for compliance by the nonlawyer with the applicable provisions of the Model Rules.39 Finding that a lawyer had violated Rule 5.5(b), among others, the Supreme Court of Arkansas focused on the fact that the attorney had permitted his assistants to engage in the following unsupervised tasks: (i) direct communications and providing settlement advice to clients; (ii) referring to firm clients as the assistants’ clients in correspondence sent to third parties; (iii) utilizing the lawyer’s signature stamp, thereby acting in the attorney’s stead; and (iv) negotiating settlements with insurance companies on behalf of the firm’s clients.40

 

Consistent with the Arkansas Supreme Court’s Mays decision, Lawclerk.legal requires the Attorney’s supervision of the Lawclerk, the Attorney retains ultimate responsibility for the Lawclerk’s work, and prohibits the Lawclerk from having any direct contact with the Attorney’s clients, opposing counsel, witnesses, or any other party to the project for which the Lawclerk has been engaged.

 

California.

 

Section 6125 of the California Business and Professions Code states that “[n]o person shall practice law in California unless the person is an active member of the State Bar”41 and Rule 1-

 

38See In re Gallego, 2012 WL 5286893 *1 (Ariz. 2012).

 

  • See Mays v. Neal, 938 S.W.2d 830, 834-835 (Ark. 1997).

 

  • See id. at 836.

 

  • Bus. & Prof. Code § 6125.

 

300 of the California Rules of Professional Conduct is titled “Unauthorized practice of law” and provides:

 

  • A member shall not aid any person or entity in the unauthorized practice of law.

 

  • A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

 

The general rule is that while a person may represent him/herself and his/her own interests without being a member of the California state bar, only active members of the California state bar may practice law for another person in California.42 California’s prohibition on the unauthorized practice of law serves to protect the public, the courts, and litigants that rely on attorneys by assuring the competency of those performing legal services.43

 

While the “practice of law” is not defined by statute, the California courts have explained that the practice of law is “the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure,” including legal advice, legal instruments, and contract preparation irrespective of whether such services are rendered in the course of litigation.44

 

In Landlords Professional Services, the court examined whether Landlords Professional Services, a company that offered eviction services, had engaged in the unauthorized practice of law.45 In its analysis, the court examined other jurisdictions’ decisions on “do-it-yourself” legal services and manuals and concluded that the sale of “do-it yourself” kits and manuals does not constitute the unauthorized practice of law, nor does the provision of related clerical services (i.e., making forms available for a client’s use, completing the forms at the specific direction of the client, and filing and serving the documents at the direction of the client).46 However, because Landlords Professional Services’ nonlawyers interviewed their clients and provided client-specific advice regarding eviction procedures and legal rights, as well as unlawful detainer actions, Landlords Professional Services engaged in the unauthorized practice of law.47 Having determined that Landlords Professional Services engaged in the unauthorized practice of law, the trial court granted, and the appellate court affirmed, the following permanent injunction:

 

 

  • See Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal. 4th 119, 127, 949 P.2d 1, 5 (Cal. App. 1998), as modified (Feb. 25, 1998).

 

  • See Aulisio v. Bancroft, 230 Cal. App. 4th 1516, 1519, 179 Cal. Rptr. 3d 408, 411 (Cal. App. 2014) (quoting Drake v. Superior Court, 21 Cal. App.4th 1826, 1830, 26 Cal. Rptr.2d 829 (Cal. App. 1994)).

 

  • See Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal. 4th at 128, 949 P.2d at 5 (quoting People ex rel. Lawyers’ Institute of San Diego v. Merchants’ Protective Corp., 189 Cal. 531, 535, 209 P. 363 (Cal. 1922)).

 

  • See People v. Landlords Prof’l Servs., 215 Cal. App. 3d 1599, 1608, 264 Cal. Rptr. 548, 553 (Ct. App. 1989).

 

  • See id. 215 Cal.App.3d at 1608.

 

  • See id. 215 Cal.App.3d at 1609.

 

Defendants, their agents, officers, employees and representatives are enjoined from engaging in or performing directly or indirectly any and all of the following acts:

 

  1. The preparation, other than at the specific and detailed direction of a person in propria persona or under the direct supervision of a lawyer, of written instruments relating to evictions such as: three day notices, summons and complaints, at issue memoranda, judgments, writs of execution or other legal documents relating to evictions.

 

  1. Explaining orally or in writing, except under the direct supervision of a lawyer, to individual clients: (A) the effect of any rule of law or court; B) advising such persons as to the requirements for commencing or maintaining a proceeding in the Courts of this state; or (C) advising or explaining to such clients the forms which are legally required or how to complete such forms.

 

  1. Holding themselves out or allowing themselves to be held out to newspapers, magazines, or other advertising, or representing themselves as being able to provide, except through a lawyer, any of the following: legal advice, the preparation of legal documents (other than as a secretarial service), or any explanation of any rules of law or court in relation to evictions or as being qualified to do any of the above activities.

 

  1. Any employee, agent, officer or representative of L.P.S., not a licensed member of the California Bar, is prohibited from practicing law in any form or holding themselves out as having the right to practice law in any form.[48]

 

The Landlords Professional Services decision illustrates why Lawclerk.legal does not violate the unauthorized practice of law. In Lawclerk.legal, only the Attorney provides advice to his/her client, only the Attorney maintains the attorney-client relationship, and the Lawclerk only provides services to the Attorney, which services are undertaken at the direction of, and under the direct supervision of, the Attorney.

 

In Birbrower, the court held that where a law firm based in New York that did not have any attorneys barred in California and did not associate with a member in good standing of the California bar at the time the significant pre-litigation services were rendered in the geographic bounds of California had engaged in the unauthorized practice of law.49 However, reasoning that California’s unauthorized practice of law statute did not regulate the practice of law in other states, the court concluded that it did not bar recovery of compensation for services that the New York-

 

 

 

  • See id. 215 Cal. App.3d at 1603-1604 (emphasis added).

 

  • See id.

 

barred attorneys had performed in New York. In fashioning a test for what constituted the practice of law in California, the court reasoned that:

 

the practice of law ‘in California’ entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. In addition to a quantitative analysis, we must consider the nature of the unlicensed lawyer's activities in the state. Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced law ‘in California.’ The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.[50]

 

Notably, the Birbrower court’s analysis not only focused on the relationship between the client and the non-barred lawyer, but additionally discussed the exceptions for attorneys admitted to practice law in California on a temporary basis (pro hac) subject to affiliating with a barred attorney in good standing in California.51

 

The Birbrower analysis underscores why Lawclerk.legal does violate the unauthorized practice of law. In Lawclerk.legal, the attorney-client relationship occurs between a duly-licensed Attorney in good standing and his/her California client. There is no contact between the Attorney’s client and the Lawclerk. Further, the Lawclerk solely provides the services delegated by the Attorney, which services are solely provided to the Attorney (not the Attorney’s client).

 

While Lawclerks are not paralegals, instead having graduated from law school, the statutory framework defining the permissible scope of services that may be provided by California paralegals is nonetheless instructive.52 Section 6450 of the California Business and Professions Code entitled “Paralegal defined; prohibited activities; qualifications; continuing legal education” provides in pertinent part:

 

  • ‘Paralegal’ means a person who holds himself or herself out to be a paralegal, who is qualified by education, training, or work experience, who either contracts with or is employed by a lawyer, law firm, corporation, governmental agency, or other entity, and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California, as defined in Section 6060, or a lawyer practicing law in the federal courts of this state, that has been specifically delegated by the attorney to him or her. Tasks performed by a paralegal include, but are not limited to, case

 

  • at 17 Cal. 4th 129.

 

  • See 17 Cal. 4th at 130.

 

  • Discussing whether a lawyer may be reinstated, the California State Bar affirmatively cited that after his release from jail, the lawyer had worked as a law clerk under the supervision of a barred lawyer performing legal research and preparing legal briefs, complaints, and discovery, thereby connoting that unbarred lawyers may serve as paraprofessionals. See In re Rudnick, 2007 WL 431815, at *4 (Cal. Bar Ct. Feb. 8, 2007).

 

planning, development, and management; legal research; interviewing clients; fact gathering and retrieving information; drafting and analyzing legal documents; collecting, compiling, and utilizing technical information to make an independent decision and recommendation to the supervising attorney; and representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation.

 

  • Notwithstanding subdivision (a), a paralegal shall not do the following:

 

  • Provide legal advice.

 

  • Represent a client in court.

 

  • Select, explain, draft, or recommend the use of any legal document to or for any person other than the attorney who directs and supervises the paralegal.

 

  • Act as a runner or capper, as defined in Sections 6151 and 6152.

 

  • Engage in conduct that constitutes the unlawful practice of law.

 

  • Contract with, or be employed by, a natural person other than a lawyer to perform paralegal services.

 

  • In connection with providing paralegal services, induce a person to make an investment, purchase a financial product or service, or enter a transaction from which income or profit, or both, purportedly may be derived.

 

  • Establish the fees to charge a client for the services the paralegal performs, which shall be established by the attorney who supervises the paralegal's work. This paragraph does not apply to fees charged by a paralegal in a contract to provide paralegal services to a lawyer, law firm, corporation, governmental agency, or other entity as provided in subdivision (a).

 

[Subsections (c) and (d) address what certifications a paralegal must possess and what continuing education must be completed.]

 

  • A paralegal does not include a nonlawyer who provides legal services directly to members of the public, or a legal document assistant or unlawful

 

 

 

 

 

detainer assistant as defined in Section 6400, unless the person is a person described in subdivision (a).[53]

 

In Jorgensen, the California State Bar determined that a lawyer assisted a paralegal in the unauthorized practice of law where a paralegal company named Legally Yours hired a lawyer to provide legal services to its clients; however, it was Legally Yours (not the lawyer) that: (i) solicited and engaged the clients; (ii) controlled the supervision of its clients’ cases, evaluated the legal needs of its clients, and undertook decision-making regarding legal matters; (iii) reserved the right to make tactical and procedural decisions for its clients; and (iv) obtained a special power of attorney from its clients to settle client claims.54

 

Notably, Lawclerk.legal imposes greater restrictions than Section 6450 places on paralegals and precludes the type of violations cited in Jorgensen as Lawclerks are precluded from engaging in any direct client contact, communicating with the opposing counsel, and appearing before any tribunal or court. The attorney-client relationship is established and maintained by the Attorney and only the Attorney determines legal strategy and provides legal advice to his/her clients. Thus, while Lawclerks are not paralegals under California law, Section 6450 further confirms that the limited services provided by Lawclerks under the supervision of the Attorneys do not constitute the unauthorized practice of law.

 

Colorado.

 

The Colorado Supreme Court has defined the unauthorized practice of law as “acting ‘in a representative capacity in protecting, enforcing, or defending the legal rights and duties of another and in counselling, advising and assisting him in connection with these rights and duties....’”55

Applying the foregoing definition, Colorado courts have “held that an unlicensed person engages in the unauthorized practice of law by offering legal advice about a specific case, drafting or selecting legal pleadings for another’s use in a judicial proceeding without the supervision of an attorney, or holding oneself out as the representative of another in a legal action.”56

 

In Stewart, a lawyer was held to have violated Rules 5.3(b) and (c) and 5.5(b) of the Colorado Rules of Professional Conduct where the nonlawyer assistant conducted the first meeting with the clients, obtained the retainers, and provided legal advice directly to the clients.57 Similarly, in Calvert, a lawyer was held to have violated Rules 5.3(b) and 5.5(b) of the Colorado Rules of Professional Conduct where the lawyer: (i) failed to work on a dog bite case for which he

 

  • Bus. & Prof. Code § 6450 (emphasis added).

 

  • See In Matter of Jorgensen, 2016 WL 3181013, at *7 (Cal. Bar Ct. May 10, 2016).

 

  • State of Colorado v. Shell, 148 P.3d 162, 171 (Colo. 2006) (quoting Denver Bar Ass’n v. Pub. Util. Comm’n, 391 2d 467, 471 (Colo. 1964)).

 

  • (citing Unauthorized Practice of Law Comm. v. Grimes, 654 P.2d 822, 823 (Colo. 1999) (nonlawyers offering case-specific legal advice and selecting case-specific legal documents constitutes the unauthorized practice of law); Unauthorized Practice of Law Comm. v. Prog, 761 P.2d 1111, 1115 (Colo. 1988) (same).

 

  • See State of Colorado v. Stewart, 892 P.2d 875, 876-878 (Colo. 1995).

 

signed the contingency fee agreement, instead giving complete responsibility for providing the client with legal advice, advocating in writing for the client, negotiating a settlement, and attending a court hearing with the client to his law clerk/paralegal; and (ii) allowed, without a modicum of supervision, the law clerk/paralegal to represent clients in a bankruptcy matter and to use the lawyer’s electronic signature on filings the lawyer had not reviewed.58

 

Consistent with the foregoing authority, Formal Ethics Opinion No. 79 states that the use of paralegals, law clerks, and other legal assistants that are not licensed lawyers to appear at depositions, hearings, and administrative proceedings to represent the lawyer’s client constitutes the unauthorized practice of law.59 Nothing in the opinion indicates that paralegals, law clerks, and other legal assistants may not complete legal research and prepare pleadings under the direct supervision of a barred lawyer in good standing where the work product is provided solely to the lawyer for his/her review and use.

 

Consistent therewith, the Colorado Bar Association has developed guidelines divided into twenty-one specialty areas of practice that provide a general framework of potential tasks that can or should be performed by a supervised paralegal in an effort to assist with work flow.60 By way of example, under the “Civil Litigation Paralegal” area of practice, the following delegable tasks, subject to lawyer supervision, are identified:

 

 

 

  1. COMMENCEMENT OF ACTION

 

  1. Identify parties.

 

  1. Attend initial client interviews.

 

  1. Check for conflicts of interest.

 

  1. Participate in case analysis and identification of potential issues, including discovery considerations with attorney; check jury instructions for claims and defenses.

 

  1. Internal Factual Development; investigate and analyze factual issues: a. Determine sources of potential evidence; b. Locate, obtain, and preserve material evidence, i.e., search public records, conduct site inspection, obtain medical and investigative materials, obtain photographs, documents and other

 

 

  • See State of Colorado v. Calvert, 280 P.3d 1269, 1282-1283 (Colo. PDJ 2011); see also State of Colorado v. Milner,

 

  • 3d 670, 686 (Colo. PDJ 2001).

 

  • See Formal Opinion 79 of the Colorado Bar Association Ethics Committee, Colorado Ethics Handbook 5th

 

  • See Guidelines for the Utilization of Paralegals, Colorado Bar Association, adopted May 17, 2008, available at http://www.cobar.org/For-Members/Law-Practice-Management/Paralegal-Resources.

 

physical evidence; c. Place and monitor “litigation hold” on all evidence, hard and electronic files; d. Locate and interview lay and expert witnesses, obtain statements and prepare written reports; e. Arrange for outside investigator, if necessary; f. Review and organize data; establish concept and design for document management system; assist in determining whether to use litigation support software, and the extent of such use; g. Analyze and summarize all data; prepare necessary chronologies; h. Obtain, review, and organize damage information; calculate damages and prepare, maintain and update damage summaries; and i. Begin trial/hearing notebooks.

 

  1. Research (including computer research) legal issues: a. Locate and summarize applicable statutory law, including statutes of limitation, and regulatory law; b. Locate, Shepardize, and summarize relevant case law; c. Draft briefs and legal memoranda for attorney review; d. Review citations and references in briefs; and e. Review citations and references in briefs of opposing parties and prepare memoranda.

 

  1. Draft pleadings and other documents, including, but not limited to: complaint, summons, answer, motions, stipulations, discovery pleadings, affidavits, briefs, etc.; and arrange for service of process.

 

  1. Draft or prepare correspondence.

 

  1. Communicate with the clerk of the Court, division clerk, and law clerk as needed.

 

  1. Maintain tickler system, master dockets and calendars: a. Statute of limitations situations for filing suit/notices of claim; b. Answers/Responses to complaints (e.g. original, third party, counterclaims); c. Answers, Responses to motions requiring an answer or response; d. Rule 16 Case and Trial Management

 

Orders, in accordance with Rule 26 where required; and e. Answers/Responses to discovery requests (e.g., interrogatories, request for production, request for admissions).

 

  1. Review file regularly, make recommendations to attorney and prepare regular status reports to client.

 

  1. Conduct medical and technical research as necessary.

 

  1. DISCOVERY AND DISCLOSURES

 

  1. Assist in formulation of discovery/disclosure plan.

 

  1. Send 26(a)(1) letter to client.

 

 

  1. Collect, review, organize and index and Bates number discovery documents; maintain list of privileged documents.

 

  1. Subjectively code documents to database; supervise objective coding of documents; arrange to have documents imaged for use during trial preparation, depositions, and trial.

 

  1. Draft Rule 26(a)(1) disclosures, organize, index and Bates number documents.

 

  1. Draft, prepare, and respond to requests for admission, production of documents, interrogatories, and discovery motions.

 

  1. Meet with client and prepare Rule 26(a)(1) disclosures and responses to discovery requests.

 

  1. Prepare summary of disclosures and discovery responses.

 

  1. Attend and/or supervise document productions.

 

  1. Assemble witness files and assist in preparing witnesses for deposition.

 

  1. Depositions: a. Assist attorney in determining appropriate depositions; b. Arrange deposition times, locations, reporters, videographers, etc.; c. Prepare subpoenas and notices of deposition, witness fees and mileage checks; prepare demand letters, subpoenas and commissions to take out-of-state depositions; d. Draft deposition questions and outline; prepare witness profile notebooks; review and assemble documents for depositions; e. Attend deposition with attorney and take notes, which can include observation of reactions of deponent and others present, and manage documents; f. Prepare summaries and digests of deposition transcripts; g. Follow-up after depositions for additional information; and h. Load full-text transcripts on computer, and conduct text searches as needed.

 

  1. Supervise discovery and recommend further discovery.

 

  1. PRE-TRIAL

 

  1. Designate portions of testimony from video tapes, audio tapes or transcribed depositions for use at trial and consult with attorney regarding same.

 

  1. Schedule and accompany attorney to hearings, pretrial conferences, and settlement conferences, and draft and prepare necessary follow-up documents, i.e., letter to client, order, etc.

 

  1. Prepare disclosure certificates, amend case management order, settlement statements and trial management order.

 

  1. Prepare witnesses for trial.

 

  1. Prepare or arrange for demonstrative exhibits, i.e., charts, graphs, diagrams, etc.

 

  1. Arrange for necessary special equipment at trial.

 

  1. Locate and interview potential expert witnesses and give them copies of necessary records, documents, etc.

 

  1. Organize and label trial exhibits and prepare trial notebooks.

 

  1. Coordinate additional arrangements required for out-of-town trials.

 

  1. TRIAL

 

  1. Prepare trial subpoenas.

 

  1. Assist in drafting voir dire.

 

  1. Assist in drafting jury instructions both before and during trial; obtain jury lists and biographical information on jurors.

 

  1. Manage trial logistics such as coordination of witnesses, delivery and return of trial materials, provisions for special equipment and other matters that arise during the course of trial.

 

  1. Attend trial with attorney and take notes; assist with jury selection; take notes during voir dire, observe reactions of potential jurors to voir dire questions; assist with coordination of witnesses; manage exhibits and visual aids.

 

  1. Meet with attorney regarding evaluation of witnesses, testimony and trial strategy.

 

  1. Assist with retrieving testimony from depositions for impeachment purposes.

 

  1. Work with database, imaged documents and transcripts on laptop computer during course of trial.

 

  1. Monitor exchange of exhibits at trial; maintain list of exhibits as mentioned, offered, admitted or objected to.

 

  1. POST-TRIAL

 

  1. Draft cost bill.

 

  1. Draft Attorney’s Fee Application.

 

  1. Summarize trial testimony; order trial transcripts and prepare recap or outline of same.

 

  1. Draft or prepare post-trial motions.

 

  1. If case is not appealed, participate in post-mortem, if case is not appealed, i.e., assist in speaking with members of the jury, and closing the file.

 

  1. Prepare garnishments, levies, and other post-judgment collection documents; assist in processing writs of execution.

 

  1. APPEAL

 

  1. Prepare timetable for appeal process and set up reminder system.

 

  1. Obtain applicable case law and organize research.

 

  1. Assist with preparation of appeal briefs, i.e., Shepardize cases, prepare table of contents and table of authorities, etc.

 

  1. Assist with designation of record on appeal; organize appendix.

 

  1. Draft notice of appeal for attorney review.

 

  1. Review and analyze legal authority cited by adverse party.

 

  1. SETTLEMENT

 

  1. Draft or prepare settlement agreements, calculations and releases.

 

  1. Draft or prepare motions and stipulations for dismissal.

 

  1. INCIDENTAL

 

  1. Utilize applicable computer programs, Internet, and other technology for research, investigations, document management, exhibit and witness preparation, tracking deadlines, e-filing and service of pleading, and other case-specific tasks.[61]

 

The foregoing case law, coupled with the Colorado Guidelines, illustrates the broad scope of legal services that may be delegated to a paraprofessional as long as the paraprofessional is

 

 

  • See id., available at http://www.cobar.org/Portals/COBAR/Repository/ParalegalGuidelines/CivilLitigation.pdf.

 

supervised by a barred lawyer. In Lawclerk.legal, the Lawclerk, who has superior legal knowledge to a paralegal, only engages with the Attorney and the Attorney is responsible for the Lawclerk’s work product, thereby removing an ability for the paraprofessional to provide legal advice to a client. The Colorado courts have also repeatedly held that a suspended or disbarred lawyers may perform services as a paralegal,62 further evidencing that Lawclerks do not engage in the unauthorized practice of law by completing projects delegated to them by the Attorney that is responsible for their work product and for their supervision.

 

Connecticut.

 

Section 51-88 of the Connecticut General Statutes prohibits a person that has not been admitted as an attorney to the Connecticut Bar from providing legal services unless such person is providing legal services pursuant to statute or a rule of the Superior Court.63 Rule 2-44A of the Connecticut Rules for the Superior Court defines the practice of law in pertinent part as follows:

 

  • General Definition: The practice of law is ministering to the legal needs of another person and applying legal principles and judgment to the circumstances or objectives of that person. This includes, but is not limited to:

 

  • Holding oneself out in any manner as an attorney, lawyer, counselor, advisor or in any other capacity which directly or indirectly represents that such person is either (a) qualified or capable of performing or (b) is engaged in the business or activity of performing any act constituting the practice of law as herein defined.

 

  • Giving advice or counsel to persons concerning or with respect to their legal rights or responsibilities or with regard to any matter involving the application of legal principles to rights, duties, obligations or liabilities.

 

  • Drafting any legal document or agreement involving or affecting the legal rights of a person.

 

  • Representing any person in a court, or in a formal administrative adjudicative proceeding….

 

  • Giving advice or counsel to any person, or representing or purporting to represent the interest of any person, in a transaction in which an interest in property is transferred…. and

 

 

 

  • See, e.g. State of Colorado v. Gray, 35 P.3d 611, n. 4 (Colo. PDJ 2001) (citing Goff v. State of Colorado, 35 P.3d 487, 492 (Colo. PDJ 2000), McCaffrey v. State of Colorado, 35 P.3d 481, 483 (Colo. PDJ 2000), and Varallo v. State of Colorado, 35 P.3d 177, 179 (Colo. PDJ 1999)).

 

  • See Gen. Stat. Ann. § 51-88.

 

  • Engaging in any other act which may indicate an occurrence of the authorized practice of law in the state of Connecticut as established by case law, statute, ruling or other authority.

 

Section (c) expressly addresses nonlawyer assistance stating “nothing in this rule shall affect the ability of nonlawyer assistants to act under the supervision of a lawyer in compliance with Rule 5.3 of the Rules of Professional Conduct.”64

 

Connecticut courts have held that a lay person, including a paralegal, acting without the supervision of a lawyer engages in the unauthorized practice of law when s/he prepares legal documents for others.65 In reaching this conclusion, the courts emphasize that the public must be protected from the “potentially severe economic and emotional consequences that may flow from erroneous advice given by persons untrained in the law.”66 They have further explained that while Practice Book § 2-44(c) allows for work to be done by a paralegal under the supervision of the lawyer, when the lawyer does not supervise the paralegal and the paralegal engages in direct contact with the client and negotiates a settlement with the opposing party, the lawyer violates Rule 5.3 of the Connecticut Rules of Professional Conduct.67

 

Similarly, the Connecticut Supreme Court has held that where a nonlawyer engaged in the unauthorized practice of law where he operated a business named “Doc-U-Prep” that prepared legal documents for nonlawyers to file pro se in their own legal proceedings based on questionnaires that his clients had completed and returned to him.68 In reaching its conclusion, the court stated “[i]t is of importance to the welfare of the public that these manifold customary functions [of practicing law] be performed by persons possessed of adequate learning and skill and of sound moral character, acting at all times under the heavy trust obligation to clients which rests upon all attorneys.”69

 

As discussed above, Lawclerk.legal not only complies with Rule 5.3, but by precluding Lawclerks from having any client contact or contact with the opposing party and requiring the

 

 

 

  • CT R. Supr. Ct. Gen. § 2-44A.

 

  • See Monroe v. Horwitch, 820 F. Supp. 682, 687 (D. Conn. 1993), aff’d, 19 F.3d 9 (2d Cir. 1994) (quoting State v. Buyers Service Co., 292 S.C. 426, 357 S.E.2d 15 (1987)) (unsupervised paralegals preparing court documents in uncontested divorce actions are engaged in the unauthorized practice of law); Statewide Grievance Comm. v. Patton,
  • 2d 1359, 1361 (Conn. 1996) (operator of legal document preparation business engaged in the unauthorized practice of law when he gave customers questionnaires regarding the type of services they needed, sent completed questionnaires to the office which prepared legal documents pursuant to the franchise agreement, and then delivered completed documents to the customers).

 

66Id. at n. 6.

 

  • See Saas v. Statewide Grievance Comm., 2013 WL 388204, at *11 (Conn. Super. Ct. Jan. 2, 2013).

 

  • See Statewide Grievance Comm. v. Patton, 683 A.2d 1359, 1360 (Conn. 1996).

 

  • at 255 (quoting State Bar Ass’n of Conn. v. Connecticut Bank & Trust Co., 140 A.2d 863 (Conn. 1958).

 

Attorney to be responsible for the Lawclerk’s work product, Lawclerk.legal protects the public from the receipt of “erroneous advice given by persons untrained in the law.”

 

Delaware.

 

The Delaware Supreme Court has defined the practice of law as follows:

 

In general, one is deemed to be practicing law whenever he furnishes to another advice or service under circumstances which imply the possession and use of legal knowledge and skill. The practice of law includes ‘all advice to clients, and all actions taken for them in matters connected with the law’ ... and the exercise of such professional skill certainly includes the pursuit, as an advocate for another, of a legal remedy within the jurisdiction of a quasi judicial tribunal.[70]

 

In applying this definition, Delaware courts and the Delaware Office of Disciplinary Counsel have found the unauthorized practice of law where: (i) a paralegal, acting through his own company and without lawyer supervision, instructs the paralegal’s client (not the lawyer’s client) on the law and drafts legal documents for the client;71 (ii) someone other than a lawyer licensed to practice law in Delaware conducts a closing of a sale or refinancing of Delaware real property;72

 

  • a public accountant drafts, prepares, signs, and files legal documents on behalf of a third party and provides legal advice to third parties with respect to filing legal documents;73 and (iv) nonlawyers represent third parties in judicial proceedings, including due process hearings before the Delaware Department of Public Instruction.74

 

Conversely, the Delaware Office of Disciplinary Counsel has determined that the nonlawyer did not engage in the unauthorized practice of law where: (i) a paralegal (a) forwarded documents to a court, (b) requested scheduling of a hearing in a writing clearly identifying herself as a paralegal, (c) gathered factual information on a case and drafted legal documents under the supervision of a lawyer, and (d) attended a mediation session at the Family Court, where by

 

 

  • Marshall-Steele v. Nanticoke Mem’l Hosp., Inc., 1999 WL 458724, at *6 (Del. Super. June 18, 1999) (quoting Delaware State Bar Ass’n v. Alexander, Del.Supr., 386 A.2d 652, 661 (1978)). In Nanticoke, the Delaware Superior Court held that a nonlawyer had engaged in the unauthorized practice of law by representing a corporation in an appeal from the Unemployment Insurance Board’s denial of unemployment benefits. See id.

 

  • See Alston v. Issa, 2012 WL 6845666, at *2 (Del. Super. Dec. 26, 2012).

 

  • See Matter of Mid-Atlantic Settlement Services, Inc., Supreme Court No. 102, 2000, UPL 95-15 (5/31/000) available at http://courts.delaware.gov/ODC/Digest/Download.aspx?id=419 (further explaining that an attorney licensed to practice law in Delaware is required to be involved in a direct or supervisory capacity in drafting or reviewing all documents affecting the transfer of title to Delaware real property and evaluating the legal rights regarding title to real property and real property transfers).

 

  • See In re Estep, Supreme Court No. 434, 2006, UPL 05-01, available at http://courts.delaware.gov/ODC/Digest/Download.aspx?id=605; see also In re Estep, 933 A.2d 763 (Del. 2007).
  • In re Arons, 756 A.2d 867 (Del. 2000).

 

common practice, lawyers do not attend, and where the lawyer’s clients were not given legal advice by the paralegal;75 and (ii) a law student admitted to practice pursuant to Delaware Supreme Court Rule 56 (limited practice as legal intern) and who may have been held out as a Delaware lawyer, did not give legal advice to third-parties.76

 

Additionally, the Delaware Supreme Court has repeatedly held that a suspended or disbarred lawyer may be engaged to perform tasks usually performed by law clerks or paralegals as long as the suspended or disbarred lawyer does not have any contact with clients, witnesses, or prospective witnesses.77

 

Consistent with the foregoing authority, Lawclerk.legal does not engage in the unauthorized practice of law because all services provided by the Lawclerk are provided at the direction of, and under the supervision of, a barred Attorney, the Lawclerk does not provide legal advice to the client, the Lawclerk has no client contact and the Attorney retains sole responsibility for the Lawclerk’s work product.

 

District of Columbia.

 

Rule 49 of the District of Columbia Court of Appeals is titled the “Unauthorized Practice of Law” and provides the general rule that “[n]o person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules.”78 Rule 49(b)(2) then defines the “practice of law” as:

 

the provision of professional legal advice or services where there is a client relationship of trust or reliance. One is presumed to be practicing law when engaging in any of the following conduct on behalf of another:

 

  • Preparing any legal document, including any deeds, mortgages, assignments, discharges, leases, trust instruments or any other instruments intended to affect interests in real or personal property, will, codicils, instruments intended to affect the disposition of property of decedents' estates, other instruments intended to affect or secure legal rights, and contracts except routine agreements incidental to a regular course of business;

 

 

 

  • See In re Stone, BUPL No. UPL 91-2 (1991), available at http://courts.delaware.gov/ODC/Digest/Download.aspx?id=424.

 

  • In re Gross, BUPL No. UPL 92-8 (1993), available at http://courts.delaware.gov/ODC/Digest/Download.aspx?id=428.
  • See In re Mekler, 672 A.2d 23, 25 (Del. 1995); In re Frabizzio, 508 A.2d 468 (Del Supr. 1986).

 

  • C. Ct. App. R. 49(a).

 

  • Preparing or expressing legal opinions;

 

  • Appearing or acting as an attorney in any tribunal;

 

  • Preparing any claims, demands or pleadings of any kind, or any written documents containing legal argument or interpretation of law, for filing in any court, administrative agency or other tribunal;

 

  • Providing advice or counsel as to how any of the activities described in subparagraph (A) through (D) might be done, or whether they were done, in accordance with applicable law;

 

  • Furnishing an attorney or attorneys, or other persons, to render the services described in subparagraphs (a) through (e) above.[79]

 

The District of Columbia Committee on Unauthorized Practice of Law has issued several opinions providing guidance regarding whether Lawclerk.legal complies with Rule 49. For instance, in Opinion 6-99, the committee concluded that despite the language in Rule 49(F), “legal staffing companies do not engage in the practice of law by providing attorneys to legal services organizations so long as: (1) an attorney with an attorney-client relationship with the prospective client selects the temporary attorney; (2) the temporary attorney is directed or supervised by a lawyer representing the client; and (3) the staffing company does not otherwise engage in the practice of law within the meaning of Rule 49 or attempt to supervise the practice of law by the attorneys it places.”80 Consistent therewith, the Attorneys selects the Lawclerk, the Attorney maintains the attorney-client relationship, and the Lawclerk is supervised by the lawyer.

 

In Opinion 16-05, the committee examined, among other inquiries, whether a contract lawyer that is hired to provide paralegal work or other work that calls for little or no application of legal knowledge, training or judgment, and that is supervised by a member of the District of Columbia bar, engages in the unauthorized practice of law. In response to this inquiry the committee explained that the answer generally depends on whether the person is being held out, and billed out, as a lawyer or as a paralegal.81

 

Rule 49 does not regulate the hiring of a person as a paralegal or a law clerk, even though the person may be admitted to the practice of law in another jurisdiction. When a person is hired and billed as a lawyer, however, the person is generally engaged in the practice of law, and is certainly being held out as authorized or competent to practice law. Clients would reasonably assume that

 

 

  • at 49(b).

 

80See Opinion 6-99, issued June 30, 1999,

 

available at http://www.dccourts.gov/internet/documents/rule49_opinion6.pdf.

 

  • See id. at p. 5.

 

the person held out as a contract lawyer performs actions that are different in degree, if not in kind, from those performed by paralegals or law clerks, and that the cost of services performed by contract lawyers reflects the legal training and judgment that they bring to the work they perform. When a client is paying for the services of a lawyer, and not a paralegal or a law clerk, the person providing the services and the person’s employer must comply with Rule 49.

 

In addition, if a contract lawyer is supervised not as a paralegal or law clerk but as a subordinate attorney would be supervised, the contract lawyer is engaged in the practice of law.[82]

 

In Lawclerk.legal, the Attorney establishes the payment for the services performed by the Lawclerk, which are not established based on the billable hour, and the Attorney’s clients are not charged for the services based on the billable hour. Thus, not only are Lawclerks “held out” as paraprofessionals (not lawyers), but they are not paid or billed in the same manner as lawyers.

 

In Opinion 21-12, the committee analyzed whether companies that assist lawyers with document review, including offering lawyers to staff document review projects, providing physical space at which the document review may be conducted, providing computers for document review, and providing servers for hosting the documents to be reviewed, are engaged in the unauthorized practice of law.83 The committee offered the following pertinent principals. First, companies that provide lawyers for document review must abide by Rule 49 and Opinion 6-99, meaning that the final selection of lawyers to staff a document review project must be made by a member of the District of Columbia bar with an attorney-client relationship with the client, the document review lawyer’s legal work must be directed or supervised by a District of Columbia bar member who represents the client, and the discovery services company may not otherwise violate Rule 49 or attempt to supervise the document review lawyer.84 Second, discovery service companies may not provide legal advice to their clients and may not hold themselves or any lawyers on their staff as authorized to practice law in the District of Columbia.85 This opinion further illustrates that Lawclerk.legal does not engage in the unauthorized practice of law as the Attorney selects the Lawclerk, the Lawclerk does not provide legal advice to the Attorney’s clients, the Attorney supervises the Lawclerk, and Lawclerk.legal does not hold the Lawclerks out as being able to practice law.

 

 

 

 

 

 

  • at pp. 5-6.

 

  • See Opinion 21-12, issued January 12, 2012, available at http://www.dccourts.gov/internet/documents/21-Opinion-

 

21-12.pdf.

 

  • See id. at pp. 6-7.

 

  • See id. at pp. 7-8.

 

31

 

 

 

Florida.

 

The Florida Supreme Court has explained that:

 

[D]efining the practice of law must be considered in the context of our obligation to protect the public:

 

[I]n determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitute the practice of law. State ex rel. Florida Bar v. Sperry, 140 So.2d 587, 591 (Fla. 1962).[86]

 

Further expounding, the Florida Supreme Court “emphasized that the major purpose for prohibiting the unlicensed practice of law is to protect the consuming public from being advised and represented in legal matters by unqualified persons who may put the consuming public’s interests at risk.”87 The court then found that a paralegal had engaged in the unauthorized practice of law where he misled claimants and others to believe he was an lawyer, represented clients in mediations, analyzed statutory and case law and discussed it with clients, signed court-filed documents, and discussed legal documents with clients without a lawyer present.88

 

The Florida courts have also explained that while nonlawyers may sell legal forms and may serve as notaries and typists completing the forms with the information provided by their customers, nonlawyers engaged in the unauthorized practice of law where they provided legal advice to their customers regarding the preparation of marriage dissolutions, bankruptcy proceedings, and trust documents, among others, contacted opposing parties and lawyers for opposing parties on behalf of their customers in reference to legal matters without lawyer supervision, and advertised that their services were the equivalent of a lawyer.89

 

 

 

  • See Florida Bar v. Neiman, 816 So.2d 587, 596 (Fla. 2002).

 

  • (citing Florida Bar v. Schramerk, 616 So.2d 979, 983 (Fla. 1993) and Florida Bar v. Furman, 376 So.2d 378,

 

  • (Fla. 1979)).

 

  • See id. at 587-588 and 596-597.

 

  • See Florida Bar v. We the People Forms and Service Center of Sarasota, Inc., 883 So.2d 1280 (Fla. 2004); see also Florida Bar v. Catarcio, 709 So.2d 96 (Fla. 1998) (holding that a nonlawyer who has direct contact with individuals in the nature of consultation, explanation, recommendations, advice, and assistance in the provision, selection, and completion of legal forms engages in the unauthorized practice of law).

 

32

 

 

 

By precluding any contact with the client or other parties to the applicable matter and ensuring that the Attorney maintains full responsibility for the Lawclerk’s work product, Lawclerk.legal allows Attorneys to engage necessary paraprofessional assistance, thereby lowering legal costs, while ensuring that the “consuming public” continues to be represented by, and only receive legal advice from, the Attorney. This complies with not only the public policy goals behind the prohibition on the unauthorized practice of law, but additionally ensures compliance with Rule 4-5.3 (Responsibilities Regarding non-lawyer Assistants) and Rule 4-5.5 (Unauthorized Practice of Law) of the Florida Rules of Professional Conduct.

 

Georgia.

 

Section 15-19-50 of the Georgia Code defines the practice of law as follows:

 

  • Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body;

 

  • Conveyancing;

 

  • The preparation of legal instruments of all kinds whereby a legal right is secured;

 

  • The rendering of opinions as to the validity or invalidity of titles to real or personal property;

 

  • The giving of any legal advice; and

 

  • Any action taken for others in any matter connected with the law.[90]

 

Georgia courts, engaging in a fact-specific inquiry, have found the following conduct to constitute the unauthorized practice of law: (i) a “nondebtor mediation firm” representing debtors under a power of attorney in negotiations with a creditor’s lawyer in an effort to reduce the amount of the debtor’s indebtedness to the creditor or to work out a payment plan;91 and (ii) a nonlawyer advising a taxpayer to plead guilty for willful evasion of Federal income taxes and subsequently appearing for the taxpayer and making a motion to withdraw the guilty plea.92

 

A lawyer aids a nonlawyer in the unauthorized practice of law in violation of Rule 5.5 of the Georgia Rules of Professional Conduct when the lawyer “creates a reasonable appearance to

 

 

 

 

 

 

 

90See Ga. Code Ann. § 15-19-50.

 

  • In re UPL Advisory Opinion 2003-1, 623 S.E.2d 464, 465 (Ga. 2005).

 

  • Lowe v. Presley, 71 S.E.2d 730 (1952).

 

others that the lawyer has effectively substituted the legal knowledge and judgment of the nonlawyer for his or her own.”93

 

Georgia courts have determined that while a suspended or disbarred lawyer may serve as a law clerk or paralegal for a lawyer in good standing with the Georgia bar so long as the suspended or disbarred lawyer has no contact with the clients and appropriate supervisory mechanisms are in place, where the lawyer fails to supervise the disbarred or suspected lawyer working as a law clerk or paralegal, the supervising lawyer violates Rule 5.5 of the Georgia Rules of Professional Conduct.94 This is consistent with the Supreme Court of Georgia’s explanation of the public policy behind the prohibition on the unauthorized practice of law:

 

For public policy reasons it is important that the legal profession restrict its use of nonlawyers to those uses that would improve the quality, including the efficiency and cost-efficiency, of legal representation rather than using nonlawyers as substitutes for legal representation. Attorneys, as professionals, are ultimately responsible for maintaining the quality of the legal conversation in both the prevention and the resolution of disputes. This professional responsibility cannot be delegated to others without jeopardizing the good work that lawyers have done throughout history in meeting this responsibility.[95]

 

In Advisory Opinion No. 21, the Georgia State Disciplinary Board outlined the ethical responsibilities of lawyers that employ legal assistants or paraprofessionals and permit them to deal with other lawyers, clients, and the public. In reaching its conclusions, the State Disciplinary Board emphasized that the “delegation of activities which ordinarily comprise the practice of law is proper only if the lawyer maintains a direct relationship with the client involved, supervises and directs the work delegated to the paralegal, and assumes complete ultimate professional responsibility for the work product produced by the paralegal. Supervision of the work of the paralegal by the attorney must be direct and constant to avoid any charges of aiding the unauthorized practice of law.”96

 

It is the opinion of this Board that the following may be delegated to nonlawyer paralegals, provided that proper and effective supervision and control by the attorney exists:

 

 

 

 

93 Formal Advisory Opinion No. 00-2 issued by the Supreme Court of Georgia, Feb. 11, 2000, available at https://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=466.

 

  • See In re Gaff, 524 S.E.2d 728 (Ga. 2000).

 

  • Formal Advisory Opinion No. 00-2, issued by the Supreme Court of Georgia, Feb. 11, 2000, available at https://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=466.

 

  • Georgia State Disciplinary Board Advisory Opinion No. 21, available at https://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=469.

 

  • The interview of clients, witnesses and other persons with information pertinent to any cause being handled by the attorney.

 

  • Legal research and drafting of pleadings, briefs of law and other legal documents for the attorney's review, approval and use.

 

  • Drafting and signing of routine correspondence with the clients of the attorney when such correspondence does not require the application of legal knowledge or the rendering of legal advice to the client.

 

  • Investigation of facts relating to the cause of a client of the attorney, including examinations of land records and reporting of his findings to the attorney.

 

  • Scheduling of the attorney’s activities in the law office and scheduling of his appearance before courts, tribunals and administrative agencies.

 

  • Billing of clients and general management of the law firm’s office and nonlegal staff.

 

  • Routine contacts with opposing counsel on topics not effecting the merits of the cause of action at issue between the attorneys or requiring the use or application of legal knowledge.

 

  • Rendering of specialized advice to the clients of the attorney on scientific and technical topics, provided that such advice does not require the application of legal judgment or knowledge to the facts or opinions to be discussed with the client.

 

It is the opinion of the Board that the following duties should not be delegated to paralegals [all of which are also prohibited in Lawclerk.legal]:

 

  • Any contact with clients or opposite counsel requiring the rendering of legal advice of any type.

 

  • Any appearance as a lawyer at depositions, hearings, calendar calls or trials or before any administrative Tribunal unless otherwise preempted by Federal law or regulation.

 

  • Responsibility for making final decisions as to the ethics of activities of paralegal employees of an attorney.

 

  • Drafting, without review and approval by a member of the Bar, of any pleading or legal document.

 

 

 

  • Negotiation with opposing parties or their counsel on substantive issues in expected or pending litigation.

 

  • Contacting an opposite party or his counsel in a situation in which legal rights of the firm's client will be asserted or negotiated.

 

  • Signature of pleadings, briefs or other legal documents for presentation to any court or explanation of legal document s to the client of the lawyer or to the opposite party in any negotiation or litigation.[97]

 

It is the opinion of the State Disciplinary Board that there are other duties incumbent upon lawyers supervising the work of paralegals as follows:

 

  • (a) In order to avoid any appearance that the lawyer is aiding the paralegal in the unauthorized practice of law, including unauthorized practice by way of ‘holding out as an attorney’ (see Ga. Code Ann. 9-402), any letters or documents signed by the paralegal should clearly indicate the status of the paralegal and such status should be made clear by the nature of the typed signature or by express language in the text of the letter or document. See Advisory Opinion No. 19.[98]

 

  • The name of the paralegal should not appear on the letterhead or on the office door of any lawyer engaged in private practice. The paralegal may have a business card containing the name of the firm by which he or she is employed, but the card must contain the word ‘paralegal’ to clearly convey that the paralegal is not a lawyer.[99]

 

  • In oral communications, either face-to-face or on the telephone, the paralegal should begin the conversation with a clear statement that he or she is speaking as a paralegal employee of the lawyer or the law firm. Such communication concerning the status of the paralegal should be given prior to all oral communications with clients, opposite parties, and other attorneys unless previous contacts with such persons would justify the paralegal in believing that their status was clearly known to such persons.[100]

 

 

 

 

  • Notably, the Lawclerk Marketplace similarly prohibits the duties set forth in subsections 1-7 above.

 

  • The Lawclerks are prohibited from signing any documents.

 

  • The Lawclerks are engaged on a project-by-project basis and their names do not appear on any letterhead, office doors, or business cards.

 

  • The Lawclerks do not communicate with the client, the court, opposing counsel, or any other party to the project for which the Lawclerk has been engaged.

 

  • A paralegal may not be a partner in a law firm nor have a financial interest that amounts to a partnership interest in such firm other than participation in a profit sharing plan allowed under Bar ethics rules. [DR 2-102 (A)][101]

 

  • As the paralegal is the agent of the attorney, the paralegal has a duty to protect

 

and preserve the confidences and secrets of the firm’s clients. [EC 4-2 and DR 4-102] [102]

 

  • As the paralegal is an agent of the lawyer or law firm, it is the duty of the supervising lawyer to carefully instruct the paralegal so that the paralegal will avoid taking any action which the attorney himself is prohibited from taking, including avoidance of solicitation of cases or clients for the lawyer or the law firm and avoiding any other activity which would be improper activity if performed by the supervising lawyer or his firm.[103]

 

Commenting on Advisory Opinion No. 21, the Supreme Court of Georgia explained:

 

It is our opinion, however, that applying the lists of tasks in Advisory Opinion No. 21 in a categorical manner runs risks of both over regulation and under regulation of the use of nonlawyers and, thereby, risks both the loss of the efficiency nonlawyers can provide and the loss of adequate protection of the public from unauthorized practice. Rather than being applied categorically, these lists should instead be considered good general guidance for the more particular determination of whether the representation of the client has been turned over, effectively, to the nonlawyer by the lawyer permitting a substitution of the nonlawyer’s legal knowledge and judgment for that of his or her own. If such substitution has occurred then the lawyer is aiding the nonlawyer in the unauthorized practice of law whether or not the conduct is proscribed by any list.[104]

 

Formal Advisory Opinion No. 05-9 further explains that it is ethically proper for lawyers to work for other lawyers on a temporary basis. However, firms employing temporary lawyers should: (i) carefully evaluate each proposed employment for conflicting interests and potentially conflicting interests; (ii) if conflicting or potentially conflicting interests exist, then determine if imputed disqualification rules will impute the conflict to the firm; (iii) screen each temporary

 

 

  • The Lawclerks are engaged on a project by project basis and are not partners in the engaging Lawyer’s law firm and they do not have a financial interest that amounts to a partnership interest in such firm.

 

  • Prior to commencing an engagement, the Lawclerk must review the Rules of Professional Conduct and affirm that s/he will comply with them, expressly including the duty to protect and preserve client confidences.
  •  

 

  • Formal Advisory Opinion No. 00-2, issued by the Supreme Court of Georgia, Feb. 11, 2000, available at https://www.gabar.org/barrules/handbookdetail.cfm?what=rule&id=466 (emphasis added).

 

lawyer from all information relating to clients for which a temporary lawyer does not work, to the extent practicable; (iv) make sure the client is fully informed as to all matters relating to the temporary lawyer’s representation; and (v) maintain complete records on all matters upon which each temporary lawyer works.105

 

Beyond the satisfaction of the public policy goals, Lawclerk.legal permits Attorneys to obtain cost-effective paraprofessional assistance to perform some, but not all, of the services that the Georgia State Disciplinary Board has determined may be delegated, subject to lawyer supervision, to a paraprofessional. At all times, however, Lawclerk.legal prohibits any direct contact with the Attorney’s client and opposing counsel, thereby ensuring that only the Attorney provides legal advice to his/her client. Additionally, the Attorney is solely responsible for the Lawclerk’s work product and only the Attorney receives the Lawclerk’s work product, thereby ensuring that “the representation of the client has [not] been turned over, effectively, to the nonlawyer by the lawyer permitting a substitution of the nonlawyer’s legal knowledge and judgment for that of his or her own.” Finally, the conflicts check system allows Attorneys to evaluate whether any actual or potential conflict will arise from the engagement of the Lawclerk prior to engaging the Lawclerk.

 

Hawaii.

 

Hawaii has not defined the practice of law as the Hawaii legislature recognizes that:

 

the practice of law is not limited to appearing before the courts. It consists, among other things of the giving of advice, the preparation of any document or the rendition of any service to a third party affecting the legal rights ... of such party, where such advice, drafting or rendition of service requires the use of any degree of legal knowledge, skill or advocacy.[106]

 

Hawaii courts have found the unauthorized practice of law where a nonlawyer seeks to represent a corporation, a third party, or a trust.107 Additionally, addressing the issue of whether the court may tax fees for the services of extrajurisdictional legal counsel who assist local counsel in the conduct of litigation among parties, who are themselves domiciled in a different jurisdiction, the Supreme Court of Hawaii explained that the evolution of the economy from a local to a global one and the evolution of technology requires rethinking how HRS § 605-14108 is applied stating:

 

105 Formal Advisory Opinion No. 05-9, issued by the Supreme Court of Georgia, April 13, 2016, available athttps://www.gabar.org/barrules/handbookdetail.cfm?renderforprint=1&what=rule&id=461.

 

  • See Fought & Co. v. Steel Eng’g & Erection, Inc., 951 P.2d 487, 495 (Haw. 1998) (quoting Sen. Stand. Comm. No. 700, in 1955 Senate Journal. at 661 and Hse. Stand. Comm. Rep. No. 612, in 1955 House Journal, at 783).

 

  • See, e.g., Oahu Plumbing & Sheet Metal, Ltd. v. Kona Const., Inc., 590 P.2d 570 (Haw. 1979); Tradewinds Hotel, Inc. v. Cochran, 799 P.2d 60, 66 (1990) (“The general rule is that a trustee may not represent the trust in litigation unless, having the right sought to be enforced, he is the real party in interest.”).

 

  • HRS § 605-14 is titled “Unauthorized practice of law prohibited” and provides in pertinent part “It shall be unlawful for any person, firm, association, or corporation to engage in or attempt to engage in or to offer to engage

 

While the scope of these statutes must be expansive enough to afford the public needed protection from incompetent legal advice and counsel, the transformation of our economy from a local to a global one has generated compelling policy reasons for refraining from adopting an application so broad that a law firm, which is located outside the state of Hawai‘i, may automatically be deemed to have practiced law ‘within the jurisdiction’ merely by advising a client regarding the effect of Hawai‘i law or by ‘virtually entering’ the jurisdiction on behalf of a client via ‘telephone, fax, computer, or other modern technological means.’ See Birbrower, 70 Cal.Rptr.2d at 309, 949 P.2d at 6. A case such as this—involving parties domiciled in at least five different jurisdictions—only emphasizes what seems intuitively obvious: a commercial entity that serves interstate and/or international markets is likely to receive more effective and efficient representation when its general counsel, who is based close to its home office or headquarters and is familiar with the details of its operations, supervises the work of local counsel in each of the various jurisdictions in which it does business. Undoubtedly, many Hawai‘i corporations follow the same practice.[109]

 

While this case is not directly applicable to Lawclerk.legal as it involves lawyers providing services in their capacity as lawyers (verses paraprofessionals), it highlights the continuing evolution of the legal market and the need for flexibility in the application of the prohibition against the unauthorized practice of law, while ensuring that the policy behind the prohibition (i.e., the protection of the public) is not jeopardized. Lawclerk.legal serves this very goal.

 

Formal Opinion No. 47 of the Supreme Court of Hawaii, which discusses how costs for contract lawyers must be billed, provides that because a contract lawyer is an employee of the lawyer or the firm, the engaging lawyer or law firm must charge the client the same amount that the lawyer or firm is paying the contract lawyer unless otherwise disclosed to the client and the client consents, preferably in writing.110 While providing guidance as to the billing of contract lawyers, this opinion also expresses an acceptance of the practice of engaging legal assistance on

 

 

 

 

in the practice of law, or to do so or attempt to do so or offer to do an act constituting the practice of law, except and to the extent that the person, firm, or association is licensed or authorized to do or offer to do by an appropriate court, agency, or office or by a statute of the State or of the United States.”

 

  • Fought & Co., 951 P.2d at 497 (holding that Oregon general counsel did not practice law within the jurisdiction of Hawaii where the services rendered by the Oregon general counsel were rendered in Oregon (where the firm’s attorneys are licensed), and Oregon general counsel did not file draft or sign any of the filed papers, did not appear in court, and did not communicate with counsel for other parties on behalf of the client; rather, Oregon general counsel’s role was strictly one of consultant to the client for which it is general counsel and the client’s Hawaii counsel).

 

  • Formal Opinion No. 47 of the Hawaii Supreme Court, January 28, 2004, available at http://www.odchawaii.com/uploads/FO_47_-_COST_TO_CLIENT_FOR_USE_OF_A_CONTRACT_ATTORNEY.pdf.

 

a temporary basis and thereby lends support for Lawclerk.legal’s model of connecting Attorneys in need of paraprofessional assistance with available paraprofessionals that have legal training.

 

Idaho.

 

While Idaho does not have a statute defining the unauthorized practice of law,111 Idaho courts have consistently applied the following framework when discussing the practice of law:

 

The practice of law as generally understood, is the doing or performing services in a court of justice, in any matter depending [sic] therein, throughout its various stages, and in conformity with the adopted rules of procedure. But in a larger sense, it includes legal advice and counsel, and the preparation of instruments

 

and contracts by which legal rights are secured, although such matter may or may not be depending [sic] in a court.[112]

 

The Idaho courts have generally found the unauthorized practice of law where a nonlawyer seeks to represent a third-party, corporation, or trust in a judicial proceeding or before a public agency or service commission that adjudicates legal rights and duties, as well as where a nonlawyer, without supervision from a lawyer in good standing with the bar, prepares documents by which legal rights are secured, negotiates settlements and interprets settlement documents for the client, and provides legal advice to clients about their legal rights concerning personal and property damage, probate, and legal defenses.113

 

While the Idaho cases analyzing the unauthorized practice of law is more sparse than other states, the same overarching themes of requiring paraprofessionals to be supervised by a lawyer and prohibiting paraprofessionals from appearing in judicial proceeding and providing legal advice directly to clients appear. Consistent with the foregoing discussions, Lawclerk.legal’s requirements and restrictions ensure that the Lawclerk’s work product is solely provided to the Attorney, the Attorney is solely responsible for the work product, and precludes the Lawclerk from appearing in any judicial or administrative proceeding and from having any client contact.

 

Illinois.

 

 

 

 

 

 

 

 

  • Idaho Code Ann. § 3-420 (Section 3-420 of the Idaho Code prohibits the unauthorized practice of law and codifies the sanctions for engaging in the unauthorized practice of law).

 

  • Idaho State Bar v. Meservey, 80 Idaho 504, 508, 335 P.2d 62, 64 (1959) (quoting In re Mathews, 62 P.2d 578, 581 (Idaho 1936)). In Meservey, the court held that the preparation of adoption documents by a nonattorney constituted the unauthorized practice of law. See id.

 

  • See, e.g., Kyle v. Beco Corp., 707 P.2d 378 (Idaho 1985); Indian Springs LLC v. Indian Springs Land Investment, LLC, 215 P.3d 457 (Idaho 2009); Idaho State Bar v. Villegas, 879 P.2d 1124, 1126 (Idaho 1994).

 

Under Illinois law, there is no bright line test to distinguish what constitutes the practice of law. Where a paralegal is engaged by a lawyer, the Illinois courts have held that the paralegal does not independently practice law, but simply serves as an assistant to the lawyer.114

 

The Illinois Code of Paralegal Ethics outlines the scope of professional duties for paralegals as follows:

 

  • The paralegal shall be familiar with and heed the directives found in the Illinois Rules of Professional Conduct or the Illinois Code of Paralegal Ethics. A paralegal shall not undertake any behavior which the Illinois Rules of Professional Conduct prohibit the supervising attorney from doing.

 

  • A paralegal shall refrain from engaging in the unauthorized practice of law.

 

  • The paralegal shall not work with a lawyer's client unless the paralegal’s work is supervised by an attorney.

 

  • The paralegal shall not draft pleadings or papers on behalf of a lawyer’s client unless the paralegal’s work is supervised by an attorney.

 

  • The paralegal shall not sign pleadings or papers filed in a court or other judicial tribunal on behalf of a lawyer’s client.

 

  • The paralegal shall not appear as an advocate in a representative capacity in a court or other judicial tribunal on behalf of a lawyer’s client.

 

  • The paralegal shall not set legal fees.

 

  • The paralegal shall not provide legal advice to a lawyer’s client.[115]

 

While only advisory, the foregoing categorization recognizes the broad scope of services that may be provided to a lawyer by a paraprofessional as long as the paraprofessional is properly supervised and cannot provide legal advice to the client. Notably, Lawclerk.legal’s restrictions on the services that may be provided to an Attorney by a Lawclerk are far more restrictive and protective, ensuring that only the Attorney provides legal advice and maintains the relationship with his/her client.

 

The Illinois courts have cautioned members of the bar against employing disbarred and suspended lawyers; however, the basis for such caution is the opportunity for the disbarred or

 

  • People v. Hill, 2012 WL 6935080 *3 (Ct. App. Ill., 4th 2012) (quoting In re Estate of Divine, 635 N.E.2d 581,
  • (Ill. 1994)). In Hill, a paralegal was held to have engaged in the unauthorized practice of law where the paralegal, without attorney supervision, prepared a post-conviction petition on another person’s behalf and charged a fee to so do. See id.

 

  • Illinois Code of Paralegal Ethics, Rule One, available at

 

http://www.ipaonline.org/content.aspx?page_id=22&club_id=812874&module_id=186400.

 

suspended lawyer to violate the line between the services properly performed by a law clerk or a paralegal verses a lawyer, as well as concern that allowing the public to see a disciplined lawyer providing what the public might consider to be legal services will lessen the public’s regard for the effectiveness of the discipline and promote the belief that the public is not being protected from unethical lawyer.116 While Lawclerk.legal precludes Lawclerk and client contact, thereby resolving these concerns, Lawclerk.legal nonetheless precludes suspended or disbarred lawyers from being a Lawclerk.

 

Indiana.

 

Subject to the provisions of Rule 5.3 of the Indiana Rules of Professional Conduct, Rule 5.3 of the Indiana Rules of Professional Conduct provide that a lawyer may use nonlawyer assistants in accordance with certain guidelines, including the following pertinent guidelines:

 

Guideline 9.1. Supervision

 

A non-lawyer assistant shall perform services only under the direct supervision of a lawyer authorized to practice in the State of Indiana and in the employ of the lawyer or the lawyer’s employer. Independent non-lawyer assistants, to-wit, those not employed by a specific firm or by specific lawyers are prohibited. A lawyer is responsible for all of the professional actions of a non-lawyer assistant performing services at the lawyer’s direction and should take reasonable measures to insure that the non-lawyer assistant’s conduct is consistent with the lawyer’s obligations under the Rules of Professional Conduct.

 

Guideline 9.2. Permissible Delegation

 

Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a non-lawyer assistant or paralegal any task normally performed by the lawyer; however, any task prohibited by statute, court rule, administrative rule or regulation, controlling authority, or the Indiana Rules of Professional Conduct may not be assigned to a non-lawyer.

 

Guideline 9.3. Prohibited Delegation

 

A lawyer may not delegate to a non-lawyer assistant:

 

  • responsibility for establishing an attorney-client relationship;

 

  • responsibility for establishing the amount of a fee to be charged for a legal service; or

 

  • In re Discipio, 645 N.E.2d 906, 911 (1994) (quoting In re Kuta, 427 N.E. 2d 136 (Ill. 1981) and citing In re Schelly,

 

  • E. 2d 236 (Ill. 1983) and In re Parker, 595 N.E.2d 549 (Ill. 1992)).

 

(c) responsibility for a legal opinion rendered to a client.

 

Guideline 9.10. Legal Assistant Ethics

 

All lawyers who employ non-lawyer assistants in the State of Indiana shall assure that such non-lawyer assistants conform their conduct to be consistent with the following ethical standards:

 

  • A non-lawyer assistant may perform any task delegated and supervised by a lawyer so long as the lawyer is responsible to the client, maintains a direct relationship with the client, and assumes full professional responsibility for the work product.

 

  • A non-lawyer assistant shall not engage in the unauthorized practice

 

of law.

 

  • A non-lawyer assistant shall serve the public interest by contributing to the delivery of quality legal services and the improvement of the legal system.

 

  • A non-lawyer assistant shall achieve and maintain a high level of competence, as well as a high level of personal and professional integrity and conduct.

 

  • A non-lawyer assistant’s title shall be fully disclosed in all business and professional communications.

 

  • A non-lawyer assistant shall preserve all confidential information provided by the client or acquired from other sources before, during, and after the course of the professional relationship.

 

  • A non-lawyer assistant shall avoid conflicts of interest and shall disclose any possible conflict to the employer or client, as well as to the prospective employers or clients.

 

  • A non-lawyer assistant shall act within the bounds of the law, uncompromisingly for the benefit of the client.

 

  • A non-lawyer assistant shall do all things incidental, necessary, or expedient for the attainment of the ethics and responsibilities imposed by statute or rule of court.

 

  • A non-lawyer assistant shall be governed by the Indiana Rules of Professional Conduct.

 

 

 

 

  • For purposes of this Guideline, a non-lawyer assistant includes but shall not be limited to: paralegals, legal assistants, investigators, law students and paraprofessionals.

 

Applying Guideline 9.1, the Supreme Court of Indiana determined that a lawyer violated Rule 5.3 of the Indiana Rules of Professional Conduct when he employed an incarcerated legal assistant to assist in researching and preparing a post-conviction relief proceeding petition for the client.117 In reaching this conclusion, the Supreme Court of Indiana focused on the fact that due to the incarceration, it was impossible for the lawyer to supervise properly the assistant’s work, to prevent client confidences from being compromised, and to ensure that the inmate would comply with the Rules of Professional Conduct where the inmate had limited access to communication, no expectation of privacy, and limited access to research resources.118 In a second case, the Indiana Supreme Court held that a lawyer that employed a convicted murder as a paralegal on a contract basis compensated by a combination of cash and legal representation in two criminal cases and a divorce, as well as free lodging violated Rule 5.3 and Guideline 9.1.119

 

It should be noted, however, that Guideline 9.1 conflicts with Comment 1 to Rule 5.3 of the Indiana Rules of Professional Conduct, which provides:

 

Attorneys generally employ assistants in their practice, including secretaries, investigators, law student interns, paralegals and other 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 may not have legal training and are not subject to professional discipline.[120]

 

Neither of the two published cases finding a violation of Guideline 9.1 because the lawyer engaged a paraprofessional on a contract basis (verses as an employee) address this conflict. Additionally, in both of these cases, the circumstances of the engagement were sufficiently distinct to call into question whether the court would reach the same conclusion in the context of a contract paralegal that was neither incarcerated nor working in exchange for legal services.

 

As expressed in the comments to Rule 5.5 of the Indiana Professional Conduct, Rule 5.5 does not prohibit a lawyer from employing the services of paraprofessionals and delegating

 

  • See In re Anonymous, 929 N.E.2d 778, 779 (Ind. 2010).

 

  • See id. at 780.

 

  • See In re Stern, 11 N.E. 3d 917 (Ind. 2014).

 

  • IN St. RPC Rule 5.3 (emphasis added).

 

functions to them, so long as the lawyer supervises the delegated work and retains responsibility for the work.121 Consistent therewith, when a disbarred lawyer is engaged as a paraprofessional by a lawyer in good standing with the bar and the lawyer fails to supervise the disbarred lawyer and allows the disbarred lawyer to use the lawyer’s office to meet with his clients to counsel them regarding their legal affairs, the lawyer and the disbarred lawyer have violated Rules 5.3 and 5.5, respectively, of the Indiana Rules of Professional Conduct.122 This case affirms, however, that where a disbarred or suspended lawyer is properly supervised, such disbarred or suspended lawyer may be engaged as a paraprofessional.

 

Because the Attorneys in Lawclerk.legal do not employ the Lawclerks, Lawclerk.legal violates Guideline 9.1. However, Lawclerk.legal complies with Rule 5.3, which expressly contemplates the use of independent contractor paraprofessionals by lawyers as long as their services are supervised by a barred lawyer. This conflict raises ambiguity as to whether the Indiana State Bar and courts would determine that Lawclerk.legal is engaged in the unauthorized practice of law. As such, Lawclerk.legal does not permit use by Attorneys solely barred in Indiana.

 

Iowa.

 

The Iowa Supreme Court has held that it is not appropriate to formulate an all-inclusive definition of the practice of law, instead each case should be decided on its own facts taking into account prior cases. However, the Iowa Supreme Court has also articulated that the practice of law includes, but is not limited to:

 

representing another before the courts; giving of legal advice and counsel to others relating to their rights and obligations under the law; and preparation or approval of the use of legal instruments by which legal rights of others are either obtained, secured or transferred even if such matters never become the subject of a court proceeding. 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, nonlawyers, such as 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

 

 

 

 

 

 

  • See In re Scott, 739 N.E.2d 658, 659 (Ind. 2000), reinstatement granted, 894 N.E.2d 561 (Ind. 2008) (citing the comments to Rule 5.5 of the Indiana Rules of Professional Conduct).

 

  • See id. at 659.

 

services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required.[123]

 

Iowa Ethics Opinion 13-03 advises that contract lawyers may be engaged by Iowa lawyers, but only with the consent of the client.124 The opinion also provides that the same calculus used in determining an associate’s billing rate or charges should be used to determine the billing rate or charges for the contracted lawyer as it is presumed that the retaining lawyer has adopted the work as his or her own and accordingly stands by it.

 

Kansas.

 

Kansas courts have recognized that lawyers often delegate certain tasks to nonlawyers, which delegation “is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product.”125 This is consistent with Comments 2 and 3 to Model Rule 5.3, which are also Comments to Rule 5.3 of the Kansas Rules of Professional Conduct.

 

The Kansas Supreme Court has also held that while determining what constitutes the unauthorized practice of law must be determined on a case by case basis, actions of counseling and advising clients on their legal rights and rendering services requiring knowledge of legal principles are included within the definition of practicing law.126 In Flack, the lawyer was determined to have assisted a nonlawyer in the unauthorized practice of law where the nonlawyer directly met with and counseled and advised clients on their legal rights.127 In Martinez, an insurance claims consultant was determined to be engaged in the unauthorized practice of law where the claims consultant was not a lawyer yet he compiled a settlement packet of relevant information, made written demand upon insurance companies, analyzed and advised the claimant

 

 

  • Bergantzel v. Mlynarik, 619 N.W.2d 309, 312 (Iowa 2000) (quoting Ethical Consideration 3-5 of the Iowa Code of Professional Responsibility) (holding that where a nonlawyer insurance adjuster that was not acting under the supervision of a lawyer negotiates a settlement of a personal injury claim, the adjuster engaged in the unauthorized practice of law because her actions required the exercise of professional judgment on a legal issue or question that affected the rights of a third party).

 

  • See IA Ethics Opinion 13-03 (The Use of Contracted Lawyers) dated August 27, 2013, available at http://205.209.45.153/iabar/ethics.nsf/e61beed77a215f6686256497004ce492/0c024e596ff08b0686257bdd005ca595/ $FILE/IA%20Ethics%20Opinion%20%2013-03%20Use%20of%20Contracted%20Lawyers%20.pdf.

 

  • In re Flack, 33 P.3d 1281, 1286-1287 (Kan. 2001) (finding that a lawyer had violated Rule 5.3(b) and (c) of the Kansas Rules of Professional Conduct, among others, in entering into a services agreement with a marketing company that sent mass mailings to targeted groups soliciting trusts, wills, powers of attorney, and asset transfer document preparation services to be performed by the lawyer, effectuated the engagement of the lawyer by the client, collected the attorney’s fees, conducted interviews of the client, provided explanations of the different types of trusts, wills, powers of attorney, and other documents, ultimately reviewed the documents the lawyer had prepared with the client and obtained the client’s execution, and would facilitate asset transfers).

 

  • See id. at 1287 (citing State ex rel. Stephan v. Williams, 793 P.2d 234 (Kan. 1990) and State ex rel. Stovall v. Martinez, 996 P.2d 371 (Kan. 2000).

 

  • See id.

 

on the merit of their claims and the reasonableness of the proposed settlement, and negotiated with insurance companies on behalf of the claimant.128

 

Further illustrating that by prohibiting the Lawclerks from having any client contact and appearing in court or otherwise interacting with other parties to the project, the Lawclerks are not engaged in the unauthorized practice of law, the Kansas Supreme Court has explained that disbarred or suspended lawyers may be engaged as law clerks as long as they do not have client contact or appear in court.

 

In addition to that general definition, the Court has set forth what suspended and disbarred attorneys may and may not do:

 

‘The consensus is that an attorney suspended from the practice of law may obtain employment as a law clerk, providing there are certain limitations upon the suspended attorney's activities. Regarding limitations, we are persuaded the better rule is that an attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, paralegal, or in any capacity as a lay person for a licensed attorney-employer if the suspended lawyer's functions are limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer and does not involve client contact. Any contact with a client is prohibited. Although not an inclusive list, the following restrictions apply: a suspended or disbarred lawyer may not be present during conferences with clients, talk to clients either directly or on the telephone, sign correspondence to them, or contact them either directly or indirectly.

 

‘Obviously, we do not accept that a disbarred or suspended lawyer may engage in all activities that a nonlawyer may perform. By barring contact with the licensed attorney-employer's clients, we prohibit a disbarred or suspended attorney from being present in the courtroom or present during any court proceedings involving clients.’ In re Wilkinson, 251 Kan. 546, 553-54, 834 P.2d 1356 (1992) (emphasis added).[129]

 

Kentucky.

 

Kentucky Supreme Court Rule 3.020 defines the practice of law as follows:

 

 

 

  • State ex rel. Stovall v. Martinez, 996 P.2d 371, 374-375 (Kan. 2000).

 

  • In re Juhnke, 41 P.3d 855, 860 (Kan. 2002) (holding that a lawyer violated Rule 5.5(b) of the Kansas Rules of Professional Conduct where the lawyer engaged a disbarred lawyer as a law clerk and permitted him to meet with clients, maintaining client files, and provide legal advice to clients) (emphasis added); see also In re Wiles, 210 P.3d 613, 618 (Kan. 2009) (holding that a lawyer licensed in Kansas and Missouri but suspended in Missouri had violated Rule 5.5(b) of the Kansas Rules of Professional Conduct where “he worked alone, unsupervised, and continued to represent McKinney in a Missouri case and to hold himself as a Missouri attorney on his professional letterhead”).

 

The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor. An appearance in the small claims division of the district court by a person who is an officer of or who is regularly employed in a managerial capacity by a corporation or partnership which is a party to the litigation in which the appearance is made shall not be considered as unauthorized practice of law.[130]

 

Kentucky courts have consistently held that paralegals, law clerks, legal assistants, and other paraprofessionals do not engage in the unauthorized practice of law as long as they are acting under the direct supervision of a lawyer that is responsible for their conduct.131

 

Additionally, Rule 3.700 of the Kentucky Supreme Court Rules132 is entitled “Provisions relating to paralegals” and provides:

 

PRELIMINARY STATEMENT: The availability of legal services to the public at a price it can afford is a goal to which the Bar is committed, and one which finds support in Canons 2 and 8 of the Code of Professional Responsibility. The employment of paralegals furnishes a means by which lawyers may expand the public's opportunity for utilization of their services at a reduced cost.

 

For purposes of this rule, a paralegal is a person under the supervision and direction of a licensed lawyer, who may apply knowledge of law and legal procedures in rendering direct assistance to lawyers engaged in legal research; design, develop or plan modifications or new procedures, techniques, services, processes or applications; prepare or interpret legal documents and write detailed procedures for practicing in certain fields of law; select, compile and use technical information from such references as digests, encyclopedias or practice manuals; and analyze and follow procedural problems that involve independent decisions.

 

 

 

  • KY ST S CT Rule 3.020.

 

  • See In re Moffett, 263 B.R. 805, 814 (Bankr. W.D. Ky. 2001) (holding that a bankruptcy petition preparer engaged in the unauthorized practice of law where she provided legal advice and services independent of a supervising lawyer); Turner v. Kentucky Bar Ass’n, 980 S.W. 2d 560, 564 (Ky. 1998) (holding that nonlawyer workers’ compensation specialists may dispense information by telephone, complete request for assistance forms, mediate disputes and assist claimants in filling out their claim forms while under the direct supervision of a lawyer, but may not represent claimants in an adjudicatory tribunal).

 

  • Kentucky was the first state to adopt a paralegal code by Supreme Court Rule. See NALA Guidelines, p. 5, available at https://www.nala.org/sites/default/files/modelstandards.pdf.

 

PURPOSE: Rapid growth in the employment of paralegals increases the desirability and necessity of establishing guidelines for the utilization of paralegals by the legal community. This rule is not intended to stifle the proper development and expansion of paralegal services, but to provide guidance and ensure growth in accordance with the Code of Professional Responsibility, statutes, court rules and decisions, rules and regulations of administrative agencies, and opinions rendered by committees on professional ethics and unauthorized practice of law.

 

While the responsibility for compliance with standards of professional conduct rests with members of the Bar, a paralegal should understand those standards. It is, therefore, incumbent upon the lawyer employing a paralegal to inform him of the restraints and responsibilities incident to the project and supervise the manner in which the work is completed. However, the paralegal does have an independent obligation to refrain from illegal conduct. Additionally, and notwithstanding the fact that the Code of Professional Responsibility is not binding upon lay persons, the very nature of a paralegal's employment imposes an obligation to refrain from conduct which would involve the lawyer in a violation of the Code.

 

SUB-RULE 1

 

A lawyer shall ensure that a paralegal in his employment does not engage in the unauthorized practice of law.

 

SUB-RULE 2

 

For purposes of this rule, the unauthorized practice of law shall not include any service rendered involving legal knowledge or legal advice, whether representation, counsel or advocacy, in or out of court, rendered in respect to the acts, duties, obligations, liabilities or business relations of the one requiring services where:

 

  1. The client understands that the paralegal is not a lawyer;

 

  1. The lawyer supervises the paralegal in the performance of his duties;

 

and

 

  1. The lawyer remains fully responsible for such representation, including all actions taken or not taken in connection therewith by the paralegal to the same extent as if such representation had been furnished entirely by the lawyer and all such actions had been taken or not taken directly by the lawyer.

 

 

 

 

  1. The services rendered under this Rule shall not include appearing formally in any court or administrative tribunal except under Sub-rule 3 below, nor shall it include questioning of witnesses, parties or other persons appearing in any legal or administrative action including but not limited to depositions, trials, and hearings.

 

SUB-RULE 3

 

For purposes of this Rule 3.700, the unauthorized practice of law shall not include representation before any administrative tribunal or court where such service or representation is rendered pursuant to a court rule or decision which authorizes such practice by nonlawyers.

 

SUB-RULE 4

 

A lawyer shall instruct a paralegal employee to preserve the confidences and secrets of a client and shall exercise care that the paralegal does so.

 

SUB-RULE 5

 

A lawyer shall not form a partnership with a paralegal if any part of the partnership's activities consists of the practice of law, nor shall a lawyer share on a proportionate basis, legal fees with a paralegal.

 

SUB-RULE 6

 

The letterhead of a lawyer may include the name of a paralegal where the paralegal's status is clearly indicated: A lawyer may permit his name to be included in a paralegal's business card, provided that the paralegal's status is clearly indicated.

 

SUB-RULE 7

 

A lawyer shall require a paralegal, when dealing with a client, to disclose at the outset that he is not a lawyer. A lawyer shall also require such a disclosure when the paralegal is dealing with a court, administrative agency, attorney or the public, if there is any reason for their believing that the paralegal is a lawyer or is associated with a lawyer.[133]

 

Additionally, Kentucky Bar Association Ethics Opinion E-255 provides that while a suspended or a disbarred lawyer may not be engaged as a paralegal, the suspended or disbarred lawyer may be engaged, subject to the engaging lawyer’s duty to not assist a nonlawyer in the unauthorized practice of law, as follows:

 

  • KY ST S CT Rule 3.700.

 

General Provisos

 

  1. The individual may do anything a lay person could do.

 

  1. The individual may perform such work which is of a preparatory or ministerial nature.

Specific Provisos

 

  1. The individual may not have any contact whatsoever with a client of a lawyer.
  2. The individual is not a Paralegal within SCR 3.700.

 

  1. The individual may not have an office, or place, in the lawyer’s facility.

 

  1. The individual may perform any drafting acts, as long as they are submitted in draft form only to the responsible lawyer for approval.
  2. The individual may perform clerical aspects of a probate matter.

 

  1. The individual may do an abstract title examination.

 

  1. The individual may provide legal research to a lawyer.[134]

 

These provisions all support a determination that Lawclerk.legal does not engage in the unauthorized practice of law.

 

 

 

 

Louisiana.

 

Louisiana courts have consistently held that the statutes and rules dealing with the unauthorized practice of law serve to protect the public.135 Rule 5.5(e)(3) of the Louisiana Rules

 

 

134Ethics Opinion KBA E-255, available at

 

https://c.ymcdn.com/sites/www.kybar.org/resource/resmgr/Ethics_Opinions_(Part_2)_/kba_e-255.pdf. This opinion was decided under the Code of Professional Responsibly that was in effect from 1971 to 1999 and has not been updated based on subsequent amendments.

 

135 Louisiana Claims Adjustment Bureau, Inc. v. State Farm Ins. Co., 877 So.d 294 (La. Ct. App. 2 Cir. 2004) (providing that the Louisiana Claims Adjustment Bureau, Inc. had engaged in the unauthorized practice of law where, without a licensed attorney on staff making the determination, the bureau evaluated the clients’ claims and advised the clients of their causes of action against others).

 

of Professional Conduct state that for purposes of Rule 5.5, the practice of law includes the following:

 

  • holding oneself out as an attorney or lawyer authorized to practice law;

 

  • rendering legal consultation or advice to a client;

 

  • appearing on behalf of a client in any hearing or proceeding, or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, hearing officer, or governmental body operating in an adjudicative capacity, including submission of pleadings, except as may otherwise be permitted by law;

 

  • appearing as a representative of the client at a deposition or other discovery matter;

 

  • negotiating or transacting any matter for or on behalf of a client with third parties;

 

  • otherwise engaging in activities defined by law or Supreme Court decision as constituting the practice of law.

 

Applying Louisiana Disciplinary Rule 3-101,136 a predecessor to Rule 5.3 of the Louisiana Rules of Professional Conduct, the Louisiana Supreme Court held that a lawyer aided and abetted his paralegal in the unauthorized practice of law where the lawyer delegated his exercise of his professional judgment to his paralegal who performed the functions and exercised the professional judgment of a lawyer in evaluating the client’s claim, advising the client as to the merits of his case, entered into the contract to perform the legal services, prepared motions, negotiated a settlement, and handled and distributed the settlement proceeds to the client.137 In reaching this conclusion, the Louisiana Supreme Court explained that the prohibition on the unauthorized practice of law is grounded in the need to protect the public from legal services by persons unskilled in the law who may have divided loyalty or conflicts of interest.138

 

Importantly, the Louisiana Supreme Court also explained that “a lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delectation is proper if the lawyer

 

 

 

 

 

 

  • Louisiana Disciplinary Rule 3-101 provides that a lawyer shall not aid a non-lawyer in the unauthorized practice of law.

 

  • See Louisiana State Bar Ass’n v. Edwins, 540 So. 2d 295, 301 (La. 1989)

 

  • See id. (citing Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 UCLA Rev. 438, 439 (1965)).

 

maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product.”139

 

A lawyer can employ lay secretaries, lay investigators, lay detectives, lay researchers, accountants, lay scriveners, nonlawyer draftsmen or nonlawyer researchers. In fact, he may employ nonlawyers to do any task for him except counsel clients about law matters, engage directly in the practice of law, appear in court or appear in formal proceedings as part of the judicial process, so long as it is he who takes the work and vouches for it to the client and becomes responsible to the client. ABA Comm. on Professional Ethics, Op. 316 (1967). A lawyer cannot delegate his professional responsibility to a law student employed in his office. He may avail himself of the assistance of the student in many of the fields of the lawyer's work, ‘[b]ut the student is not permitted, until he is admitted to the Bar, to perform the professional functions of a lawyer, such as conducting court trials, giving professional advice to clients or drawing legal documents for them. The student in all his work must act as agent for the lawyer employing him, who must supervise his work and be responsible for his good conduct.’ ABA Comm. on Professional Ethics, Op. 85 (1932).140

 

The Louisiana Supreme Court then drew the critical distinction that while a lawyer may delegate various tasks to paralegals, clerks, secretaries, and other nonlawyers, he may not delegated the lawyer’s role in appearing in court or giving legal advice and must supervise closely any person to whom he delegates tasks.141 In two subsequent cases decided after Louisiana’s adoption of the Model Rules, the Louisiana Supreme Court affirmatively cited Edwins and found that the lawyer had violated Rules 5.3 and 5.5 of the Louisiana Rules of Professional conduct where: (i) nonlawyers would initiate the attorney-client relationship, advise prospective clients regarding the execution of legal documents, negotiate and settle cases without the supervision by a barred lawyer, determine probable insurance coverage, and obtain settlement authority from the client;142 and (ii) the lawyer introduced the client to a unbarred law clerk and advised that the law clerk’s services would be limited until the clerk was barred, but then failed to supervise the law clerk who provided incorrect advice to the client prior to being barred.143 Additionally, a lawyer

 

  • at 299 (citing Ethical Consideration 3-6 from the Model Code, which states “A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his 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.”)

 

 

  • at 300.

 

  • See In re Guirard and Pittenger, 11 So. 3d 1017, 1023 (La. 2009).

 

  • See In re Wilkinson, 805 So. 2d 142, 146-147 (La. 2002) (quoting Edwins for the proposition that “[a] lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product ... A lawyer cannot delegate his professional responsibility to a law student employed in his office ... The

 

may not employ, contract with as a consultant, or otherwise engage any person the lawyer knows is a disbarred lawyer or, unless first preceded by the submission of a fully executed employment registration statement to the Office of Disciplinary Counsel, on a registration form provided by the Louisianan Attorney Disciplinary Board, and approved by the Louisiana Supreme Court, a suspended lawyer.144

 

The foregoing cases establish that Lawclerk.legal does not engage in the unauthorized practice of law as the Attorneys establish and maintain the attorney-client relationship, only the Attorney provides legal advice to his/her clients, the Lawclerk solely performs the tasks delegated by the Attorney, and the Attorney supervises the Lawclerk and is solely responsible for his/her work product. Finally, disbarred or suspended attorneys may not work as Lawclerks.

 

Maine.

 

Section 807 of the Maine Revised Statutes, entitled “Unauthorized practice of law” provides in pertinent part that:

 

No person may practice law or profess to practice law within the State or before its courts, or demand or receive any remuneration for those services rendered in this State, unless that person has been admitted to the bar of this State and has complied with section 806-A, or unless that person has been admitted to try cases in the courts of this State under section 802.[145]

 

The Main courts have found the unauthorized practice of law where nonlawyers appear and/or file pleadings in judicial proceedings for third-parties, corporations, and trusts irrespective of the existence of a power of attorney.146 Conversely, Lawclerk.legal prohibits Lawclerks from signing or filing documents and from appearing in any court or administrative proceedings.

 

Maryland.

 

Section 10-101(h)(1) of the Maryland Code, Business Occupations & Professions, defines the practice of law as engaging in any of the following activities: (i) giving legal advice; (ii)

 

 

 

 

 

student in all his work must act as agent for the lawyer employing him, who must supervise his work and be responsible for his good conduct”).

 

  • Louisiana Rules of Professional Conduct, Rule 5.5(e).

 

  • See Rev. Stat. tit. 4, § 807.

 

  • See, e.g., Boutet v. Miller, 2001 WL 1711531, at *1 (Me. Super. Mar. 9, 2001) (holding that a nonlawyer trustee engages in the unauthorized practice of law when he appears in a judicial proceeding); Haynes v. Jackson, 744 A.2d 1050, 1054 (Me. 2000) (finding that a wife has engaged in the unauthorized practice of law by filing pleadings on behalf of her husband under a power of attorney); Land Mgmt., Inc. v. Dep’t of Envtl. Prot., 368 A.2d 602, 604 (Me. 1977) (a nonattorney appearing in a judicial proceeding on behalf of a corporation engages in the unauthorized practice of law).

 

 

representing another person before a unit of the State government or of a political subdivision; or (iii) performing any other service that the Court of Appeals defines as practicing law.147

 

Despite the foregoing definition, the Maryland Court of Appeals has explained that determining what constitutes the practice of law requires a factual analysis of each case to determine whether the facts fall within the intent of the definition and the purpose of the prohibition on the unauthorized practice of law, which is “to protect the public from being preyed upon by those not competent to practice law-from incompetent, unethical, or irresponsible representation.”148 This goal is “achieved, in general, by emphasizing the insulation of the unlicensed person from the public and from tribunals such as courts and certain administrative agencies.”149 Supervision and ensuring that the work product of the paraprofessionals becomes or is merged into the lawyer’s work product are the benchmarks for determining whether paraprofessionals’ services constitute the unauthorized practice of law.150

 

In Hallmon, the court determined that a lawyer had violated Rule 5.5(b) of the Maryland Attorneys’ Rules of Professional Conduct where the lawyer failed to supervise a law school graduate who was not admitted to practice in any jurisdiction. While the court found that the law clerk’s preparation of pleadings, meetings with the client, and meetings with the technical staff of the zoning commission did not violate Rule 5.5(b), the lawyer’s lack of understanding of the legal strategy being employed at the zoning hearing and deferrals to the law clerk to answer the zoning

 

commission’s questions reflected an abdication of supervision by the lawyer in violation of Rule 5.5(b).151

 

Similarly, in Barton, the Maryland Court of Appeals determined that a lawyer had violated Rule 5.5(b) of the Maryland Attorneys’ Rules of Professional Conduct where the office manager engaged by the lawyer handled client intake, quoted fees based on his evaluation of the client’s case, and led the lawyer’s clients to believe that he was a lawyer and provided legal advice to the clients, including advising what type of bankruptcy to file and to stop paying their mortgages.152

 

In the Application of R.G.S., the Maryland Court of Appeals held that an lawyer that had performed significant legal work in Maryland, despite not being barred in Maryland, had not engaged in the unauthorized practice of law where the practitioner was barred in another state, the

 

 

 

 

  • See Code Ann., Bus. Occ. & Prof. § 10–101(h) (1989, 2010 Repl. Vol, 2014 Supp.).

 

  • Attorney Grievance Comm. of MD v. Hallmon, 681 A.2d 510 (Ct. App. Md. 1996) (citing In re Application of Mark W., 491 A.2d 576, 579 (Md. 1985) (quoting Grievance Comm. v. Payne, 329 A.2d 623, 625 (Conn. 1941)).

 

  • ; see also Attorney Grievance Comm. of MD v. Bocchino, 80 A.3d 222, (Ct. App. Md. 2013) (“The goal of the unauthorized practice statute is achieved, in general, by emphasizing the insulation of the unlicensed person from the public and from tribunals such as courts....” (quoting In re Application of R.G.S., 541 A.2d 977 (1988)).

 

  • See id. (citing Firris v. Snively, 19 P.2d 942, 945-46 (Wash. 1933)).

 

  • See id.

 

  • See 110 A.3d 668, 607 (Md. Ct. App. 2015).

 

work was performed in a way that insulated the practitioner from direct contact with lay clients and the courts, and the work was done under the supervision of a licensed Maryland lawyer.153

 

In Lawclerk.legal, contrary to Hallmon and Barton, it is the Attorney that meets with his/her clients, establishes the fees for services, provides legal advice to his/her clients, and appears in court. Further, consistent with R.G.S., in Lawclerk.legal, the Lawclerk is insulated from any contact with the Attorney’s client and the court and all services performed by the Lawclerk are performed at the direction of, and under the supervision of, the Attorney whom remains solely responsible for the Lawclerk’s work product.

 

Massachusetts.

 

While Massachusetts courts have explained that what constitutes the practice of law must be decided upon its own particular facts because it is impossible to frame any comprehensive or satisfactory definition,154 the practice of law has been held to include:

 

directing and managing the enforcement of legal claims and the establishment of the legal rights of others, where it is necessary to form and to act upon opinions as to what those rights are and as to the legal methods which must be adopted to enforce them, the practice of giving or furnishing legal advice as to such rights and methods and the practice, as an occupation, of drafting documents by which such rights are created, modified, surrendered or secured.[155]

 

Despite the foregoing effort to provide a framework for the unauthorized practice of law analysis, the Massachusetts courts have also recognized that many of the activities described above are also undertaken by persons in other professions and occupations, and the creation of legally binding obligations and commitments is not confined to lawyers.156 “The proposition cannot be maintained, that whenever, for compensation, one person gives to another advice that involves some element of law, or performs for another some service that requires some knowledge of law, or drafts for another some document that has legal effect, he is practicing law;” rather, to be

 

engaged in the unauthorized practice of law, the activity must be “wholly within: the practice of law.”157

 

 

 

  • See In re Application of R.G.S., 541 A.2d 977 (1988)).

 

  • Real Estate Bar Ass’n for Massachusetts, Inc. v. Nat’l Real Estate Info. Servs., 946 N.E.2d 665, 673 (Mass. 2011) (quoting In re Shoe Mfrs. Protective Ass’n, Inc., 3 N.E. 746 (1939)).

 

  • In re Hrones, 933 N.E.2d 622, 628 (Mass. 2010) (quoting Matter of an Application for Admission to the Bar of the Commonwealth, 822 N.E.2d 1206 (Mass. 2005), quoting Matter of the Shoe Mfrs. Protective Ass’n, 3 N.E.2d 746 (Mass. 1936)).

 

  • Real Estate Bar Ass’n for Massachusetts, Inc. v. Nat’l Real Estate Info. Servs., 946 N.E.2d 665, 673 (Mass. 2011).

 

  • (quoting Lowell Bar Ass’n v. Loeb, 52 N.E. 2d 27 (Mass. 1843)).

 

The Massachusetts courts, citing Rule 5.5(b) of the Massachusetts Rules of Professional Conduct and Comment G of the Restatement (Third) of the Law Governing Attorneys,158 have held that many tasks performed by a lawyer may be performed by a paralegal, law clerk, or other paraprofessional as long as the lawyer supervises and retains responsibility for their work.159 Consistent therewith, a lawyer was found to have violated both Rules 5.3 and 5.5 of the Massachusetts Rules of Professional Conduct where the lawyer hired a law school graduate who had not passed the bar examination to work as a paralegal and develop a practice in employment discrimination cases before the Massachusetts Commission Against Discrimination and the United States Equal Employment opportunity Commission and failed to supervise the paralegal.160 More specifically, the lawyer and the paralegal agreed that the lawyer’s firm would enter into the contingent fee agreement’s with the paralegal’s clients and all fees and retainers would be paid to the firm, but that the paralegal would then receive two-thirds of any fees collected. The engaging lawyer did not handle employment or other discrimination cases and it was understood that the paralegal would operate a virtually independent discrimination law practice without substantial supervision by the lawyer or any other lawyer at the firm and, in fact, no supervision was provided.161 The paralegal solicited clients, determined fee arrangements, executed fee agreements, collected fees, filed complaints, drafted pleadings, conducted discovery, counselled clients as to their legal rights, settled cases, and performed all other legal work on the cases.162

 

Additionally, Ethics Opinion No. 75-8 advises that a lawyer who is engaged in general practice of law may offer a legal research service to other lawyers, and may publicize the availability and advantages of such service by means of letters and advertisements directed to other lawyers, but only upon the following conditions: (i) the research service may be provided only to other lawyers; (ii) the publicity for the legal research service may not identify the lawyer by name nor state that the work will be performed or supervised by a lawyer; (iii) the lawyer may not accept any general work that comes to him through the legal research service; and (iv) in the course of his general practice, the lawyer may not indicate on his letterhead, office sign, or professional card

 

 

  • Comment G provides that:

 

Nonlawyer employees of law firms. For obvious reasons of convenience and better service to clients, lawyers and law firms are empowered to retain nonlawyer personnel to assist firm lawyers in providing legal services to clients. In the course of that work, a nonlawyer may conduct activities that, if conducted by that person alone in representing a client, would constitute unauthorized practice. Those activities are permissible and do not constitute unauthorized practice, so long as the responsible lawyer or law firm provides appropriate supervision (see § 11, Comment e), and so long as the nonlawyer is not permitted to own an interest in the law firm, split fees, or exercise management powers with respect to a law-practice aspect of the firm (see § 10).

 

Restatement (Third) of the Law Governing Lawyers § 4 (2000).

 

  • See In re Hrones, 851, 933 N.E.2d 622, 628 (2010).

 

  • See id. at 846.

 

  • See id.

 

  • See id.

 

that he operates the legal research service.163 In reaching this conclusion, the Massachusetts Bar Association Committee on Professional Ethics emphasized that as a “lawyer may use the services of a non-lawyer to perform legal research or draft legal documents if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product,” it would follow that a lawyer may properly use the services of another lawyer to perform legal research.164 The Committee also noted that in recent years, a number of legal research service organizations have begun offering research services to lawyers, and discussed one such company – The Research Group Incorporated, which advertises that “our staff includes 50 full-time law graduates who are seasoned professionals at preparing strategy, comprehensive legal memoranda, trial and appellate briefs and pleadings.”165 In reaching its opinion, the Committee accepted the proposition that the operation of a legal research service is not the practice of law and noted that it had been informed that the Committee on Unauthorized Practice of Law of the Massachusetts Bar Association has rendered an informal opinion to the effect that The Research Group Incorporated is not engaged in the unauthorized practice of law in providing research services to lawyers, and we understand that similar committees of other state bar associations have reached the same conclusion. While not addressing Lawclerk.legal, the analysis applies with equal force demonstrating that Lawclerk.legal does not engage in the unauthorized practice of law.

 

Michigan.

 

The Michigan’s prohibition on the unauthorized practice of law is intended to protect and secure the public’s interest in competent legal representation and Section 600.916 is construed with this purpose in mind.166 Applying Rules 5.3 and 5.5 of the Michigan Rules of Professional Conduct, the United States Bankruptcy Court for the Eastern District of Michigan explained that if a nonlawyer is working under the direction and control of a licensed lawyer, then the lawyer is ultimately responsible for the debtor’s representation and is responsible for ensuring that the nonlawyer’s conduct is compatible with the lawyer’s ethical obligations.167 Further elaborating on what constitutes inadequate supervision under Rule 5.3, the court explained that the lawyer is not adequately supervising the nonlawyer if the lawyer does not know about the existence or content of the meetings between the nonlawyer and the client, if the lawyer relies solely on the nonlawyer as the client intermediary and fails to meet directly with the client, or if the lawyer fails

 

 

 

  • See Massachusetts Ethics Opinion 75-8, available at http://www.massbar.org/publications/ethics-opinions/1973-1979/1975/opinion-no-75-8.

 

  • See id.

 

  • See id.

 

  • See Matter of Bright, 171 B.R. 799, 805 (Bankr. E.D. Mich. 1994) (paralegal engaged in unauthorized practice of law by responding to questions from debtors regarding interpretation or definition of terms in bankruptcy forms); see In re Pinkins, 213 B.R. 818, 820 (Bankr. E.D. Mich. 1997); see also Comp. Laws Ann. § 600.916.

 

  • See Matter of Bright, 171 B.R. 799, 805 (Bankr. E.D. Mich. 1994).

 

to use his independent professional judgment to determine which documents prepared by the nonlawyer should be communicated outside the law office.168

 

Applying Rules 5.3 and 5.5 of the Michigan Rules of Professional Conduct, the Michigan courts have found the unauthorized practice of law involving paraprofessionals where: (i) bankruptcy counsel’s legal assistants defined concepts and legal terms of art, explained to prospective clients the difference between Chapter 7 and Chapter 13, rendered advice peculiar to potential debtor’s situation, signed the engagement letters, and used their judgment to determine which client questions to answer themselves and which to refer to the lawyer;169 and (ii) a nonlawyer went beyond advertising for sale and distributing do-it-yourself divorce kits containing forms and documents necessary to effect no-fault divorce and advertised professional guidance to clients, arranged personal conferences with clients to discuss divorce, prepared documents incident to divorce proceeding, occasionally filed completed forms in court and personally advised clients as to proper testimony was engaged in the unauthorized practice of law.170

 

Further, in RI-25,171 the State Bar of Michigan advised that, while the lawyer must supervise the legal assistant in the performance of her services and is ultimately responsible for such services, as long as the necessary disclosures are made to the client, the legal assistant may be assigned to perform the services required to represent the lawyer’s client in the administrative proceeding.172

 

The State Bar of Michigan Board of Commissioner approved the following guidelines for the use of legal assistants on April 23, 1993.173 While the guidelines refer to legal assistants,174 they also state that many of the guidelines apply to the utilization of any other nonlawyer assistants.

 

 

 

 

  • See id.

 

  • See In re Pinkins, 213 B.R. 818 (Bankr. E.D. Mich. 1997).

 

  • See State Bar of Michigan v Cramer, 249 N.W.2d 1 (Mich. 1976), abrogated on other grounds by Dressel v. Ameribank, 664 N.W.2d 151 (Mich. 2003).

 

  • Although ethics opinions are not binding on state or federal courts, they do provide guidance in resolving issues of professional responsibility. See Upjohn Co. v. Aetna Cas. & Sur. Co., 768 F.Supp. 1186, 1214 (W.D. Mich. 1990).

 

  • See State Bar of Michigan’s Opinion Interpreting MRPC, RI-125 April 17, 1992, available at http://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=995&Type=4.

 

  • Role of Nonlawyers in Law Practice: Guidelines for Utilization of Legal Assistant Services, State Bar of Michigan, available at https://www.michbar.org/opinions/ethics/utilization.

 

  • The term “legal assistant” is defined as “[a]ny person currently employed or retained by a lawyer, law office, governmental agency or other entity engaged in the practice of law, in a capacity or function which involves the performance under the direction and supervision of an attorney of specifically-delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts such that, absent that legal assistant, the attorney would perform the task, and which work is not primarily clerical or secretarial in nature....” Role of Nonlawyers in Law Practice: Guidelines for Utilization of Legal Assistant Services, State Bar of Michigan, available at https://www.michbar.org/opinions/ethics/utilization.

 

Guideline 1: A lawyer shall make reasonable efforts to ensure that the conduct of a legal assistant under the lawyer’s direct supervision is compatible with the lawyer’s professional obligations under the Michigan Rules of Professional Conduct. Such efforts should include training in the requirements of those Rules that most directly relate to communications with persons other than the lawyer's clients.175

 

Guideline 2: A lawyer may ethically assign responsibility to a legal assistant for the performance of tasks relating to the representation of a client and the law firm’s delivery of legal services, commensurate with the experience and training of the legal assistant, and where the lawyer directly supervises the legal assistant and reviews the legal assistant’s work product before it is communicated outside the law firm, provided that:

 

  1. The legal assistant’s participation as a nonlawyer is clear;

 

  1. The legal assistant does not convey to persons outside the law firm the legal assistant’s opinion regarding the applicability of laws to the particular legal situation of another, the legal effect of acts or omissions of another, or the legal rights, responsibilities, or obligations of another person regarding their particular legal matter.

 

  1. The legal assistant does not appear on behalf of any person or entity in proceedings before state or federal courts, administrative agencies, and tribunals, and including participation on behalf of another in depositions, discovery, and settlement negotiation, except to the extent that a nonlawyer is authorized by law to represent the interests of another person or entity and the lawyer has obtained the other person’s or entity's consent to the legal assistant's participation as representative in those proceedings.176

 

Guideline 3: A lawyer may not delegate to a legal assistant:

 

Responsibility for establishing a lawyer-client relationship.

 

 

 

 

 

 

  • Consistent with Guideline 1, before performing each project, the Lawclerk must certify that s/he has reviewed the applicable state’s rules of professional conduct and will comply with such rules.

 

  • Consistent with Guideline 2, in the Lawclerk Marketplace, the Lawyer supervises the Lawclerk, the Lawclerks serves in the capacity of a paraprofessional, the Law