ATTORNEYS – IS YOUR LICENSE ON THE LINE!

Unauthorized practice of law – seems like something someone else would do, you would never engage in it – or be guilty of it – would you? How about this? Do your paralegals write to clients and sign letters in their name? or to the Court, or another attorney.

How many of you know that is a violation of Opinion 611 of the Supreme Court of New Jersey.

Here’s another question: You are out of town – a client comes in that you know quite well – he wants to discuss his case with your paralegal – wants to know if they think he has a good chance of winning and what he needs to do to make this happen. Do they answer him? Absolutely not – that would be the unauthorized practice of law.

Now if that same client asked your paralegal how much it would be to incorporate in Delaware, could they tell him – yes, that does not require a legal opinion. These are the fine lines your paralegals need to walk in order to avoid any unethical practices.

There are several opinions NJ Supreme Court Advisory Committee on Professional Ethics that deal directly with paralegals:

Opinion 611, 121 N.J.L.J. 293. at 301 (1988): permits paralegals to sign letterhead in connection with routine tasks in many fields of law such as gathering factual information and documents from governmental agencies (other than tribunals), but requires that the paralegal be identified in the signature. This opinion prohibits paralegals from signing correspondence to the attorney’s client or to other attorneys and prohibits paralegals from signing correspondence to the tribunal.

Opinion 647, 126 N.J.L.J. 1525 (1990): permits the use of business cards by a paralegal, provided the paralegal is working under the direct supervision of an attorney, its issuance is authorized by the law firm or attorney by whom the paralegal is employed, the name [and address and telephone number] of the attorney or law firm appears on the card, the paralegal is designated as such on the business card and the applicable Rules of Professional Responsibility and Court Rules are followed.

Opinion 665, 131 NJ.L.J. 1074 (1992): recognizes the possibility of a conflict of interest arising when a paralegal changes employment, and modifies prior ACPE Opinion 546. It permits an ethical wall to be created with appropriate screening and disclosure in the event that a conflict of interest arises.

Opinions of the N.J. Supreme court Advisory Committee on the Unauthorized Practice of Law

Opinion 24, In re Opinion 24 of the Committee on the Unauthorized Practice of Law, 128 N.J 114 (1992), the Court decided that the evidence does not support a categorical ban on all independent paralegals practicing in New Jersey, and in fact, “that given the appropriate instructions and supervision, paralegals, whether as employees or independent contractors, are valuable and necessary members of an attorney’s team in the effective and efficient practice of law.” Id, pg. 135

CONFIDENTIALITY

Confidentiality is one of the oldest and most important rules in the legal profession. Clients must be able to confide in their attorneys so that the attorney may best represent that client’s interests. It may be very easy to relate a story over lunch or during a coffee break. Is it ethical? Certainly not! It is very tempting at times for your staff to discuss a particularly interesting case, or some aspect of a case with a co-worker or a friend or even a spouse. They can deal with this temptation by deciding, as a matter of policy, never to discuss anything that concerns your work, with anyone; or they can limit their discussion to issues and comments that will not reveal the identity of your client. Violations of the confidentiality rule may happen simply by oversight. Your paralegal may be walking down a hallway discussing a matter with someone in your support staff, someone who is working on the same case. They stop in front of an elevator not realizing that their conversation is being overheard by someone around the corner from them. They have no way of knowing they are there. One way to avoid revealing information unwittingly is by making a rule for employees never to discuss confidential information when they are in a common area, such as a hallway, elevator, or cafeteria where they may be overheard.

Another situation may arise when your paralegal is at a party with other paralegals. They tell a paralegal they know quite well a confidential bit of news - that paralegal promises to keep the information to themselves, however, they relay the information to their husband, who in turn tells a co-worker, who in turn tells a friend, etc. etc. etc. Within a few days the information reaches the press and the result is irreparable harm to your client.

Setting strict standards for your staff is imperative to your practice.

In order to avoid the unauthorized practice of law, a paralegal may not perform the following services:

1. A paralegal may not give advice.
2. A paralegal may not set a fee.
3. A paralegal may not appear in court.

There are, however, many services that the paralegal may perform:

• Conduct interviews, maintain general contact with client
• Conduct legal research for review by the attorney
• Draft legal documents for review by the attorney
• Draft correspondence and pleadings for review by and signature by the attorney
• Summarize depositions, interrogatories and testimony for review by the attorney
• Conduct investigations and statistical and documentary research
• Author and sign letters provided the paralegal’s status is clearly indicated
• Attend executions of wills, real estate closing, depositions, court or administrative hearings and trials with the attorney.

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