As a teenager and young adult, I was around lawyers. My mother was in law school and worked as a paralegal for a while in two different states where we resided. Then my sister worked at the courthouse at the same time the famous O.J. Simpson trial in Los Angeles was taking place before heading off to law school. It made me wonder if paralegals can give legal advice?
As a general rule, no, a paralegal cannot give legal advice. Typically, there are guidelines mandated by each state; thus, in some situations, there may be some leeway. For instance, in some states, paralegals are allowed to pass on specific legal advice that was given to them by the attorney they work for, but they are in no way permitted to provide their own legal opinion.
What Is a Paralegal?
A paralegal is a professional who is trained to help lawyers in various legal capacities. They hold multiple responsibilities, such as clerical tasks, but they also do a good amount of substantive legal work.
They will conduct factual and legal research, draft up legal documents that need to be issued or signed, work directly with the clients assisting in any way the lawyer has requested, and take over the management of the caseload.
In order to become a licensed paralegal in the United States, the rules vary some from state to state. But for the most part, they need to fulfill specific education requirements, complete a paralegal certification, and meet other state-level requirements. They also should have excellent oral and written communication skills and be able to think on their feet. They must be knowledgeable about Microsoft Office products, case management systems, e-filing and e-discovery, and have excellent keyboarding and organizational skills.
A paralegal may also interview clients, witnesses, and others, collect and analyze information, summarize depositions and other documents, prepare briefs and pleadings, and assist attorneys with trial and its preparation. In some states, paralegals will even be allowed to draft wills, deeds, and trusts and assist with estates and property, including estate tax returns.
Things a Paralegal Is Not Allowed to Do
A Paralegal Is Not Allowed to Practice Law
Though paralegals often have as much knowledge of the law as the attorneys they work for, they are not licensed to practice law in their state and, thus, cannot practice law. In general, everything a paralegal is allowed to do must be supervised by the attorney they are working for.
According to the American Bar Association’s Guidelines for the Utilization of Paralegal Services, there are many tasks an attorney can delegate to a paralegal, but they must be supervised appropriately, and the lawyer can be at risk of professional misconduct.
Allowing a paralegal to practice law is in violation of Model Rule 5.5, Model Code DR 3-101, and is considered a violation in most states.
It is important to note that what constitutes “practice of law” is defined by each state. For instance, in Louisiana, there are some tasks paralegals are allowed to do that are prohibited in other states. The same goes for guidelines in the state of Connecticut, which will allow a paralegal to attend a real estate closing even though there is no supervising attorney present.
In such cases, a paralegal is not allowed to render an opinion or judgment concerning the execution of documents, changes in adjustments or price, or other matters pertaining to the documents or funds.
Appear in Court Before a Judge
Most states will not allow paralegals to appear before courts, administrative tribunals, or other adjudicatory bodies unless the adjudicatory body’s procedural rules authorize a paralegal’s appearance.
Also, no state allows paralegals to oversee depositions. However, there are some federal or state statutes that will allow paralegals to provide direct client representation in specific administrative proceedings.
Give Legal Advice
Paralegals are in no way allowed to give their opinion or offer any legal advice. Clients are entitled to their lawyers’ professional judgment and opinion, and it is considered in the best interest of the public if only lawyers offer a professional opinion regarding the case at hand. However, when authorized by the attorney, paralegals may communicate a lawyer’s legal advice to a client. They just are not allowed to interpret or expand on that advice.
Establish the Attorney-Client Relationship
Though paralegals can interview potential clients, gather information regarding a possible case, and in some states, prepare a retainer agreement for the client to sign, they cannot decide whether or not to take a case, thereby establishing the attorney-client relationship. This decision belongs solely to the attorney.
Sign Legal Papers and Pleadings on Behalf of the Lawyer Without Disclosing Their Paralegal Status
Most states allow paralegals to sign correspondence as long as their status as a paralegal is clearly indicated. Also, the paralegal’s status as a nonlawyer must be completely made known to the client, and it is the obligation of the lawyer to make sure this is known. This is to avoid confusion whereby someone may be misled to believe the paralegal is actually a lawyer.
Set and Collect Fees for Legal Services Rendered
Paralegals cannot decide and set the amount of fees that the client will be charged for legal services. It is solely the responsibility of the lawyer to set the fee and discuss the basis of that price directly with the client.
An Instance Where a Paralegal Overstepped His Bounds
In 2010, there was a case involving a lawyer, Stephen Hrones, who operated a law firm in Boston. His practices were in the area of criminal defense and civil rights.
Back in 2001, he was introduced to a law school graduate named Lionel Porter. Porter had not passed the bar exam but was knowledgeable in employment discrimination law. He was looking for work, and Hrones allowed Porter to share his office space and use the firm’s support staff. He used Porter as a paralegal and allowed him to develop a practice in employment discrimination.
Porter and the firm agreed that the firm would enter into a contingent fee with Porter’s clients, and all fees and retainers would be paid to the firm. Hrones would, in turn, give Porter two-thirds of any fees collected and retain one-third.
Porter’s name was listed on the firm’s letterhead as a paralegal, and Porter was allowed to use a firm business card where he was identified as a paralegal as well. Though Hrones was supposed to be supervising Porter, the firm really didn’t handle employment or other discrimination cases and had little experience in that area of law. It was Hrones’ intention that Porter would work independently without supervision by the firm. Thus, no one supervised Porter’s work.
In this instance, Porter, a paralegal who was not a licensed attorney, marketed the practice as his own, determined fee arrangements, executed fee agreements, and collected fees. He also filed complaints, drafted pleadings, conducted discovery, counseled clients regarding their legal rights, settled cases, and performed all other duties for the case.
At one point, Porter got into trouble, but Hrones did not take any action against Porter, nor did he do anything to protect the rights of the firm’s discrimination clients. He did not even terminate his relationship with Porter.
Things reached a head when Porter filed an untimely complaint in Federal court using Hrones’ name and without his authority. At the same time, the firm received multiple complaints of neglect, lack of communication, misrepresentation, and other misconduct by Porter. It wasn’t until Hrones learned from Bar Counsel that Porter had not remitted a client’s fee payment that he eventually terminated Porter.
In this case, Hrones had his license suspended for one year, but things were much worse for Porter. After 20 attempts at passing the bar, Porter finally passed almost 30 years after graduating from law school. However, he will not be able to practice law in Massachusetts. The Massachusetts Supreme Judicial Court refused to let Porter become a lawyer because of his unlicensed legal work as a paralegal for Hrones’ firm.
The job of a paralegal is very important. Lawyers rely not only on their expertise but assistance in both mundane and important tasks. A good paralegal is an invaluable asset to any attorney – as long as they work within the boundaries of the law.
Paralegals can sometimes run into trouble when the client, who is used to working with the paralegal and grows to trust them, begins asking for advice or other questions meant for the lawyer. And most of the time, the paralegal knows the answer but cannot say so. When this happens, the paralegal must take all questions to the attorney in charge of the case before passing on any information to the client.
- Legal Assistant vs Paralegal: What’s the Difference?
- What’s the Difference Between a Paralegal and a Lawyer?
- What Is an Associate in a Law Firm?
- Why Do Law Firms Have Partners?
Alexandra Christensen is a freelance writer and editor. When she is not working on an assignment, she can be found hanging around with other writers on Medium.com/@alexandra_creates where she writes mostly about raising foster and adopted kids and those with invisible disabilities.