Ethical Considerations in Utilization of Virtual Paralegals

Michelle Heigelmann
June 14, 2011 — 2,143 views  
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Use of paralegals can be traced back to the 1960s when the government, law firms and the American Bar Association recognized the need to increase public access to legal services by providing such services at more widely affordable rates.  At the time, most early paralegals were experienced legal secretaries who received extra on-the-job training to increase their legal knowledge and to gain the skills necessary to perform more complex legal tasks that had previously been considered within attorney purview.

As attorney use of non-lawyers evolved and increased, the ABA issued a formal ethics opinion in 1967 that clarified the appropriate delegation of legal work to non-lawyers.   In 1986, the ABA officially defined the term "legal assistant" as

a person, qualified through education, training, or work experience, who is employed or retained by a lawyer, law office, governmental agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifically-delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts that, absent such assistant, the attorney would perform the task.

A virtual paralegal is a highly skilled legal professional who contracts their services to attorneys, law offices, corporations, government agencies, or other entities. Virtual paralegals, like paralegals more traditionally employed by attorneys in law firms, corporations or governmental entities, can only work under the direct supervision of a licensed attorney, and are bound by the same codes of professional conduct as attorneys.

In 1991, the ABA adopted its Model Guidelines for the Utilization of Legal Assistant Services ("Model Guidelines") to help ensure attorney utilization of paralegals complies with codes of professional conduct and to help obviate the possibility of the unauthorized practice of law by unlicensed non-lawyers.  The ABA revised its model guidelines in 2003.

The Model Guidelines provide commentary to each discreet guideline that elucidates the spirit and intent of each.  However, following are the guidelines themselves:

Guideline 1:  A lawyer is responsible for all of the professional actions of a paralegal performing services at the lawyer's direction and should take reasonable measures to ensure that the paralegal's conduct is consistent with the lawyer's obligations under the rules of professional conduct of the jurisdiction in which the lawyer practices.

Guideline 2:   Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a paralegal any task normally performed by the lawyer except those tasks proscribed to a nonlawyer by statute, court rule, administrative rule or regulation, controlling authority, the applicable rule of professional conduct of the jurisdiction in which the lawyer practices, or these guidelines.

Guideline 3:   A lawyer may not delegate to a paralegal:

(a)        responsibility for establishing an attorney-client relationship.

(b)        responsibility for establishing the amount of a fee to be charged for a legal service.

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

Guideline 4:    A lawyer is responsible for taking reasonable measures to ensure that clients, courts, and other lawyers are aware that a paralegal, whose services are utilized by the lawyer in performing legal services, is not licensed to practice law.

Guideline 5:    A lawyer may identify paralegals by name and title on the lawyer's letterhead and on business cards identifying the lawyer's firm.

Guideline 6:   A lawyer is responsible for taking reasonable measures to ensure that all client confidences are preserved by a paralegal.

Guideline 7:   A lawyer should take reasonable measures to prevent conflicts of interest resulting from a paralegal's other employment or interests.

Guideline 8:   A lawyer may include a charge for the work performed by a paralegal in setting a charge and/or billing for legal services.

Guideline 9:   A lawyer may not split legal fees with a paralegal nor pay a paralegal for the referral of legal business. A lawyer may compensate a paralegal based on the quantity and quality of the paralegal's work and the value of that work to a law practice, but the paralegal's compensation may not be contingent, by advance agreement, upon the outcome of a particular case or class of cases.

Guideline 10: A lawyer who employs a paralegal should facilitate the paralegal's participation in appropriate continuing education and pro bono publico activities.

The paralegal profession is by nature closely related to the legal profession. Most states' codes of professional responsibility do not directly govern paralegals except through a supervising attorney.  The Model Guidelines help attorneys ensure utilization of virtual paralegals, as well as paralegals employed in more traditional settings, comply with codes of professional conduct. 

Ultimately, lawyers are responsible for the work product of the virtual paralegals they engage, and that responsibility inures to their ethical conduct.  Any transgression by a virtual paralegal may subject the lawyer to professional discipline pursuant to Rule 5.3 of the Model Rules of Professional Conduct, so lawyers who supervise paralegals, either virtual or those employed in more traditional settings, must develop, implement and enforce policies to ensure the conduct of those paralegals conforms to lawyer professional obligations.  Further, the attorney should be sure to a) communicate the policies to the paralegal; b) enforce the policy; and d) have a system of review and feedback to ensure the policy is being followed.

Conversely, if utilizing the services of a virtual paralegal, an attorney should ask if the virtual paralegal has his or her own ethics policy, and what procedures and processes the paralegal may have in place to ensure none of the actions taken by the paralegal or the work performed by the paralegal would violate the Code of Professional Responsibility for the state(s) where the attorney is licensed.  It is incumbent upon paralegals to know the provisions of their state's Code of Professional Responsibility, and avoid any action which might involve an attorney in a violation of that code or even the appearance of professional impropriety.

In conclusion, an attorney's supervisory obligations over a virtual paralegal are essentially no different compared to one he may conventionally employ.  With forethought, planning and proper supervision, an attorney may utilize a virtual paralegal and ensure that both he and the virtual paralegal are in compliance with their professional ethical obligations.


Michelle Heigelmann - About the Author:

About Michelle Mee Heigelmann:  Michelle is the owner/founder of Houston Virtual Paralegals.  Michelle has been a paralegal for 20 years, specializing in litigation.

Michelle Heigelmann