![2. Under what circumstances may a paralegal conduct a settlement conference?
ANALYSIS
1. Can a paralegal interview client for the purpose of providing the client with fee
and representative information?
Courts generally rule that the lawyer may hire lay assistants and paralegals and
delegate tasks to them so long as they are properly supervised.
The Maryland Court of Appeals, in Attorney Grievance Commission of Maryland v.
Hallmon, 343 Md. 390 681 A.2d 510 (1996), stated that:
The Rule 5.5 comment states that the 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….” [A.G. Greene and K.
Williams-Fortin] opine that under the supervision of a licensed attorney,
a legal assistant… may obtain facts from the client, communicate
information [from the lawyer] to the client.... (emphasis added)
In that Maryland case, Hallmon, the lawyer, was accused of assisting an unlicensed
person in the unauthorized practice of law by failing to supervise lay legal assistants
adequately in preparing for a church zoning hearing. The court decided to suspend the
attorney.
Whereas Hallmon allowed his paralegals to do everything to prepare for the case, and
in so doing remaining unaware of the facts of the case, in the instant case, you asked
me to interview the client to obtain facts material to the case. At the same time, you
asked me to pass along information regarding your interest in the case as well as
standard attorney and paralegal fees. It would therefore appear that such actions are
ethical, since you supervised my actions.
2. Under what circumstances may a paralegal conduct a settlement conference?
Courts and statutes have generally ruled that a paralegal may not practice law.
In the Maryland Court of Appeals decision Attorney Grievance Commission of Maryland
v. Hallmon, 343 Md. 390 681 A.2d 510 (1996), the court held that
[Paralegals] may not give legal advice, set fees, appear in court, plan
strategy, make legal decisions, or ‘chart the course of the case’…. [And]](https://image.slidesharecdn.com/a8b37f4a-28de-446b-b864-ea081fe17b8b-161220062037/85/Alistair-Jones-Interoffice-Memorandum-Assignment-2-320.jpg)
![If I were to attend the settlement conference in your place, I might be put in a position
where I might make legal decisions that affect their client’s case. Moreover, whereas
Milner allowed this by neglecting to supervise her paralegal, you are implicitly asking me
to make legal judgments regarding whether or not to accept certain proposals by asking
me to go to the conference in your place. Therefore, in the instant case, you would be
intentionally assisting in the unauthorized practice of law, which would be grounds for
disbarment.
Additional court authority has established that an attorney may be held to have assisted
in the unauthorized practice of law even if he advises his paralegals not to give legal
opinions.
In the Supreme Court of Oregon case In re Conduct of Morin, 319 Or. 547 (1994), a
lawyer was accused of a number of ethical violations, including aiding a non-lawyer in
the unlawful practice of law by failing to supervise the paralegal, which resulted in the
paralegal giving legal advice that was tailored to the facts of the client’s case. In
ordering the lawyer to be disbarred, the court held that:
Although the accused told his paralegals not to practice law, he
did not tell them the precise contours of what constituted the
practice of law. Moreover, the accused created the situation in
which… one of his paralegals had the opportunity to practice law.
The accused sent the paralegals to meet with clients alone, and
he failed to supervise them properly. Thus… he assisted in that
unlawful practice by allowing them too much freedom with clients,
thereby allowing [the paralegal] to provide legal advice to those
clients
Therefore, based on the cited authority, an attorney should not ask a paralegal to attend
a settlement conference by himself, even with the warning not to give legal opinions, as
doing so would place the paralegal in the position where he would have to give legal
advice to the client, which would constitute unauthorized practice of law.](https://image.slidesharecdn.com/a8b37f4a-28de-446b-b864-ea081fe17b8b-161220062037/85/Alistair-Jones-Interoffice-Memorandum-Assignment-4-320.jpg)
Alistair Jones Interoffice Memorandum Assignment
- 1. INTEROFFICE MEMORANDUM To: Jane Simpson, Attorney From: Alistair Jones Date: October 1, 2016 Re: Tom Sawyer; Ethical question of paralegal activities ASSIGNMENT Research case law and review statutes to determine whether a paralegal can interview a client with the intention of providing fees and representative information, as well as what circumstances allow a paralegal to conduct a settlement conference FACTS Six weeks ago, the firm was approached by Tom Sawyer, the CEO of a major oil company, who was being sued for allegedly violating the Pregnancy Discrimination Act and Title VII of the Civil Rights Act. You asked me to conduct the initial interview in order to gather the facts. Two weeks ago, attorneys representing the plaintiffs called your office. Shortly after you got off the phone, you approached me to tell me that you had scheduled a conference with the plaintiffs and their lawyers, and you were thinking of having me represent you and make determinations about whether to reject or accept certain proposals, since you had tickets to a baseball game that was at the same time. The day after, however, you called me into your office and shared with me your concerns that you had regarding the ethical implications of the actions I had conducted on your behalf in regards to Tom’s case and wanted me to research whether or not they were ethical and whether or not you could continue to delegate these actions to me. You have never had an complaint filed with the bar alleging misconduct. ISSUES 1. Can a paralegal interview clients for the purpose of providing the client with fee and representative information?
- 2. 2. Under what circumstances may a paralegal conduct a settlement conference? ANALYSIS 1. Can a paralegal interview client for the purpose of providing the client with fee and representative information? Courts generally rule that the lawyer may hire lay assistants and paralegals and delegate tasks to them so long as they are properly supervised. The Maryland Court of Appeals, in Attorney Grievance Commission of Maryland v. Hallmon, 343 Md. 390 681 A.2d 510 (1996), stated that: The Rule 5.5 comment states that the 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….” [A.G. Greene and K. Williams-Fortin] opine that under the supervision of a licensed attorney, a legal assistant… may obtain facts from the client, communicate information [from the lawyer] to the client.... (emphasis added) In that Maryland case, Hallmon, the lawyer, was accused of assisting an unlicensed person in the unauthorized practice of law by failing to supervise lay legal assistants adequately in preparing for a church zoning hearing. The court decided to suspend the attorney. Whereas Hallmon allowed his paralegals to do everything to prepare for the case, and in so doing remaining unaware of the facts of the case, in the instant case, you asked me to interview the client to obtain facts material to the case. At the same time, you asked me to pass along information regarding your interest in the case as well as standard attorney and paralegal fees. It would therefore appear that such actions are ethical, since you supervised my actions. 2. Under what circumstances may a paralegal conduct a settlement conference? Courts and statutes have generally ruled that a paralegal may not practice law. In the Maryland Court of Appeals decision Attorney Grievance Commission of Maryland v. Hallmon, 343 Md. 390 681 A.2d 510 (1996), the court held that [Paralegals] may not give legal advice, set fees, appear in court, plan strategy, make legal decisions, or ‘chart the course of the case’…. [And]
- 3. the attorney may not under any circumstance delegate… the exercise of the lawyer’s professional judgment in behalf of the client.” Following this logic, I cannot represent you, and by extension Tom, at a settlement conference, since doing so would require me to make a legal decision that would chart the course of the case, and would require me to exercise the lawyer’s professional judgment in behalf of the client. Furthermore, State Stat. 88.120 states that: An attorney shall not assist a non-lawyer in the unauthorized practice of law. To this end, an attorney shall properly train and supervise those employees under his supervision, and shall take reasonable steps to ensure staff compliance with all ethical rules and standards. This statute applies to the instant case because asking a paralegal to make legal judgments in behalf of the client would require the professional judgment of an attorney and thus would constitute the unauthorized practice of law. Therefore, to avoid violating this statute, you would have to attend. This principle is echoed in the Colorado Supreme Court disciplinary case People v. Milner, 35 P.3d 670 (Nev. 2001). In People v. Milner, the paralegal, without proper supervision by the licensed attorney, gave legal advice to one of the attorney’s clients recommending that the client not seek temporary custody of his children, and that he not discuss his children’s welfare with social services. Ultimately, given the ramifications of the paralegal’s actions, the court ordered Milner to be disbarred, opining that: The charges concerning Milner’s failure to supervise Kemp, her paralegal, and her assisting him in the unauthorized practice of law are of particular concern and warrant a serious sanction…. In addition to the private harm, the public has been harmed by Milner’s misconduct and her failure to supervise Kemp and provide assistance to him in the unauthorized practice of law. Such misconduct causes a heightened sense of public distrust in lawyers and their legal assistants.
- 4. If I were to attend the settlement conference in your place, I might be put in a position where I might make legal decisions that affect their client’s case. Moreover, whereas Milner allowed this by neglecting to supervise her paralegal, you are implicitly asking me to make legal judgments regarding whether or not to accept certain proposals by asking me to go to the conference in your place. Therefore, in the instant case, you would be intentionally assisting in the unauthorized practice of law, which would be grounds for disbarment. Additional court authority has established that an attorney may be held to have assisted in the unauthorized practice of law even if he advises his paralegals not to give legal opinions. In the Supreme Court of Oregon case In re Conduct of Morin, 319 Or. 547 (1994), a lawyer was accused of a number of ethical violations, including aiding a non-lawyer in the unlawful practice of law by failing to supervise the paralegal, which resulted in the paralegal giving legal advice that was tailored to the facts of the client’s case. In ordering the lawyer to be disbarred, the court held that: Although the accused told his paralegals not to practice law, he did not tell them the precise contours of what constituted the practice of law. Moreover, the accused created the situation in which… one of his paralegals had the opportunity to practice law. The accused sent the paralegals to meet with clients alone, and he failed to supervise them properly. Thus… he assisted in that unlawful practice by allowing them too much freedom with clients, thereby allowing [the paralegal] to provide legal advice to those clients Therefore, based on the cited authority, an attorney should not ask a paralegal to attend a settlement conference by himself, even with the warning not to give legal opinions, as doing so would place the paralegal in the position where he would have to give legal advice to the client, which would constitute unauthorized practice of law.
- 5. CONCLUSION 1. A paralegal may interview a client so long as it is to gather the facts from the client and to pass along information from the attorney to the client. 2. In our case, it appears that a paralegal should not go alone to a settlement conference where he would be expected to provide legal advice specific to the client’s case. RECOMMENDATION On the first issue, I would recommend supervising the paralegal during initial interviews with clients to ensure compliance with the rules of ethics. I would also recommend having the paralegal draft a fee agreement using the fees that you set that you are able to review and sign before giving it to a potential client, as simply relaying the information orally is ethically proper so long as the paralegal acts as a medium for the information, having it written down and signed off by the attorney clearly establishes that the fees are set by the attorney, rather than the paralegal. On the second issue, there is nothing suggesting that a paralegal may not attend a settlement conference. However, because paralegals are not authorized to practice law, you are legally and ethically obligated to go with me and make any and all decisions that will affect the outcome of the case.