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Ethics Opinion

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THIS OPINION HAS BEEN MODIFIED BY RI-349

RI-128

April 21, 1992

SYLLABUS

    A lawyer must exercise a lawyer's professional judgment in handling a client's legal business.

    A legal assistant is not adequately trained to exercise the professional judgment expected of a lawyer.

    A lawyer may not avoid all direct client contact by employing a legal assistant.

    A lawyer who, without ever meeting the client or discussing the representation matter directly with the client, takes information collected by the lawyer's legal assistant relating to the client's matter, drafts documents and returns them to the legal assistant for delivery to the client, or drafts and files pleadings in a matter based on the legal assistant's information, fails to exercise the requisite professional judgment.

    References: MRPC 1.1, 1.4(b), 2.1, 3.1, 5.3, 5.5; R-1, R-9; RI-125.

TEXT

A lawyer in general practice is considering hiring a legal assistant whose duties would include initial screening of prospective clients for conflicts of interest and collecting preliminary information about the client's legal matter. The lawyer asks several questions regarding the scope of supervision over the legal assistant, as follows:

  1.  If the client is seeking a will, contract or written document, may the lawyer take the information collected by the legal assistant relating to the client's matter, draft the document, and return it to the legal assistant for delivery to the client, without the lawyer and client ever meeting or discussing the matter directly?
  2. If the client is a party in a lawsuit, may the lawyer take the information collected by the legal assistant relating to the client's legal matter, draft and file pleadings in the matter based on the legal assistant's information, without meeting or discussing the matter directly with the client?

Use of legal assistants is governed by MRPC 5.3 and 5.5. MRPC 5.5 states:

    "A lawyer shall not:

      "(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

      "(b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law."

What constitutes the unauthorized practice of law in a particular jurisdiction is a matter for determination by the courts of that jurisdiction. Questions of law are beyond the scope of the Committee's jurisdiction. R-1.

According to the Comment to Rule 5.5, "Limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons." The Comment goes on to point out this rule does not prohibit the employment of paraprofessionals but restricts such employment to

cases where, in accord with MRPC 5.3, the lawyer supervises the work of a nonlawyer assistant and retains responsibility for the work.

On the surface, it would seem that as long as the lawyer maintains close supervision over the legal assistant and assumes the ultimate responsibility for any services provided to the client, the proposed activity does not run afoul of MRPC 5.3 or 5.5.

On the other hand, several other ethics rules must be taken into consideration before implementation of such a plan. MRPC 1.1 states:

    "A lawyer shall provide competent representation to a client. A lawyer shall not:

      "(a) handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it:

      "(b) handle a legal matter without preparation adequate in the circumstances.

      "(c) neglect a legal matter entrusted to the lawyer."

MRPC 2.1 states, "In representing a client, a lawyer shall exercise independent professional judgment and shall render candid advice. In rendering advice, a lawyer may refer not only to law, but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."

The Comment to MRPC 2.1 makes the following observation:

    "A client is entitled to straightforward advice expressing the lawyer's honest assessment . . . . Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendation of experts . . . . A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest."

Taken as a whole, the recurrent theme found in these three rules and comments is that a lawyer's expertise and professional judgment are an integral part of the service provided to a client. While legal assistants may behave in a very professional manner while interacting with clients and carrying out the multitude of other duties they perform on a regular basis, the fact of the matter is that a legal assistant has not received the extensive, in depth legal training which is required of a lawyer. Without such training, it is possible, perhaps even likely, that a legal assistant, having the only interaction with the client, may not spot an issue or issues that could make a difference in the drafting or representation provided. The Comment to MRPC 5.3 points out, "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." It seems the better approach would be, rather than having the client meet with the legal assistant who then passes the information obtained on to the supervising lawyer, the lawyer should meet with the client, exercise professional judgment

in gathering information, then delegate the responsibility of drafting any necessary documents including pleadings to a legal assistant with appropriate direction and supervision being given.

R-1 came to the conclusion that one lawyer could not adequately supervise the quality of legal services rendered by 24 legal assistants to a prospective client population of 4,500 prisoners. Among the reasons supporting that conclusion were the concerns that:

    "There is a distinct possibility and, in all likelihood, a probability that [the legal assistants] will be engaged in advising clients of their legal rights, and further, [t]his system does not provide the quality legal service to which the clients are entitled and the Michigan Rules of Professional Conduct require of lawyers." R-1.

Likewise, in this proposal, it is impossible to see how the legal assistant, being the only contact with the law office, could refrain from giving legal advice. Certainly, any client will have questions regarding legal advice, and if the lawyer is not directly interacting with the client, any advice must be delivered through the legal assistant.

In RI-125 we addressed whether a legal assistant who was authorized to represent claimants in administrative agency proceedings could unilaterally accept cases which the legal assistant would handle on behalf of the firm. We stated:

    "Since the lawyer is responsible for the employees of the firm, the lawyer is responsible for determining what cases and clients will be accepted by the firm. Substantive decisions concerning whether representation may be ethically undertaken, and business decisions concerning workload, allocation of firm resources, and capabilities of legal assistant employees available for assignment to the prospective client's case, must be made by the lawyer, not the legal assistant. The lawyer must exercise independent professional judgment regarding the complexity of the matter, determine whether there are elements which go beyond the administrative representation that the legal assistant may not be asked to handle, and counsel and communicate with the client regarding the legal assistant's role in the matter." MRPC 1.2(a) and (b), 1.4., 5.4.

With regard to the lawyer filing pleadings based solely upon the information provided by the legal assistant, MRPC 3.1 states:

    "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous. A lawyer may offer a good-faith argument for an extension, modification, or reversal of existing law . . . ."

In R-9, we addressed whether a lawyer violated this rule by relying solely on uncorroborated and uninvestigated facts provided by the client. We stated:

    "Although MRPC 3.1 does not specifically identify the nature of the investigation the lawyer should undertake or which of the two tests it adopts, this Committee has held in previous opinions that the objective test of a 'disinterested lawyer' should be used. See, RI-25, RI-37 . . . ." Emphasis added.

Thus compliance with MRPC 3.1 depends upon the lawyer's judgment regarding the merit of the claim, and the lawyer's judgment regarding whether a good faith legal argument can be made for the client's position. Using the legal assistant as intermediary in these situations, without the lawyer exercising independent judgment, is not proper.

For these reasons, the proposed plan is in conflict with ethics rules and is not employable in its present form.

 
     

 

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