December 16, 1988
A lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.
A lawyer cannot adequately supervise the quality of legal services rendered by six civilian and eighteen prison paralegals to a prospective client population of 4,500 prisoners located in prisons throughout the State of Michigan, including the upper Peninsula.
References: MRPC 5.3, 5.5.
The director of a legal services organization (LSO) is considering submitting a bid on a legal assistance program which the Michigan Department of Corrections may start pursuant to a recent federal court order. Under the program, LSO would provide assistance, not in-court representation, in post-conviction and conditions of confinement cases to prisoners at six locations in four Michigan prisons. The staff would consist of one lawyer/director, six civilian paralegals, and eighteen prisoner paralegals. The duties of the lawyer/director would include the hiring, training and supervision of the six civilian and eighteen prisoner paralegals at six separate locations throughout the state. While the duties would include other aspects of administering the program, it is the hiring, training and necessary supervision of the paralegals which generate concern. The civilian paralegals would be entrusted with a variety of responsibilities which would include visiting and assisting prisoners in segregation units, responding in writing to requests for legal assistance and supervising an average of three prisoner paralegals and an unknown number of prisoner law library clerks. The prisoner paralegals would be entrusted with duties which would include providing legal research and drafting assistance to civilian paralegals and conducting conferences with prisoner clients.
Estimates of new caseloads range to 1,718 persons per year. Additionally, there are currently 226 open cases. Case estimates are difficult because, first, the prisoner population at any prison constantly changes, thus even though capacity for a given facility may be 500 prisoners, several thousand persons could pass through the facility each year. Second, the percentage of persons requesting assistance fluctuates depending on the quality and speed of the responses. The more efficient and better staffed the LSO becomes, the greater the number of requests.
May the lawyer/director of LSO, ethically accept the responsibility of supervising 24 or more nonlawyers or any number of nonlawyers in so many locations? May civilian paralegals under the lawyer/director's control provide on-site supervision over the work of prisoner paralegals?
Any issue addressed relative to the activities of paralegals operating under the supervision of licensed lawyers must be viewed with MRPC 5.3 and 5.5 in mind. MRPC 5.5 forbids a lawyer from assisting a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. The comment following MRPC 5.5 specifies that paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises and retains responsibility for the delegated work.
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. The inquirer is referred to the following resources: State Bar v. Cramer, 399 Mich 116 (1976); Vol 59 No 3 MBJ 173 (1980); Vol 62 No 8 MBJ 624 (1983); and Vol 56 No 8 MBJ 704 (1977).
MRPC 5.3 further defines and enhances the responsibility of the supervising lawyer by providing that not only does that lawyer have a responsibility not to aid in the unauthorized practice of law, but also must assure that the nonlawyer over whom he or she has direct supervisory authority does not engage in conduct incompatible with the professional obligations of the lawyer, or engage in conduct that would be a violation of the Michigan Rules of Professional Conduct if engaged in by a lawyer. The comment following MRPC 5.3 notes that 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 also says a lawyer should give nonlawyers personal assistance, appropriate instruction, and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and that the lawyer should be responsible for the work product of the nonlawyer.
Given the parameters set forth in MRPC 5.3 and 5.5, for the lawyer/director to assume the responsibilities as outlined would be to invite a violation of MRPC 5.5 and could lead to a violation of MRPC 5.3. While it appears as though the legal assistants under the terms of the plan described would not be expected to engage in the practice of law by making court appearances or providing actual, technical representation, there is a distinct possibility and, in all likelihood, a probability that they will be engaged in advising clients of their legal rights. The proposed legal assistance program will utilize the Technical Assistance Manual on Offender Legal Service prepared by the American Bar Association's Commission on Correctional Facilities and Services as a guide in delivering services. The manual repeatedly stresses two things--the exigencies under which prisoners are operating in securing even the most basic legal services and the role of the lawyer in providing those services. It discusses in detail such prisoner problems as illiteracy, confusion, unsophistication, and lack of access to the system. It also expressly contemplates the extreme reliance of such individuals upon the advice provided by the lawyer. Under the proposal submitted here for examination, it is clear that for all practical purposes, it would be the paralegals (civilian and prisoner) upon whom the bulk of the reliance for advice would be placed. This system does not provide the quality legal service to which the clients are entitled and the Michigan Rules of Professional Conduct require of lawyers.
The reasoning behind the adoption of the rules forbidding the unauthorized practice of law operates to substantiate the opinion that the activities proposed under the plan would present an unavoidable ethical dilemma. Initially, it must be remembered that paralegals are not subject to state licensure, nor are they subject to the requirements and regulations imposed upon the members of the legal profession. A nonlawyer who undertakes to handle legal matters is not governed as to integrity or legal competence by the same rules that govern the conduct of the lawyer. A lawyer is not only subject to license regulation, but also is committed to high standards of ethical conduct. The public is best served in legal matters by a highly trained and regulated profession committed to such standards. Only lawyers are subject to the special fiduciary duties in the lawyer-client relationship and to the regulations of an effectively policed profession.
Moreover, a layperson who seeks legal service often is not in a position to judge whether he or she will receive proper professional attention. The entrustment of a legal matter may well involve the confidences, the reputation, the property, the freedom or even the life of the client. Proper protection of members of the public demands that no person be permitted to act in the confidential and demanding role of a lawyer unless he or she is subject to high standards. In this instance, those who seek the legal services are particularly
disadvantaged, and additional care must be taken to assure that the reliability of the assistance they receive is not impaired.
Given the fact that the lawyer/director would be expected to hire, train and supervise a minimum of six civilian and eighteen prisoner paralegals at six separate locations, it is difficult to perceive how the lawyer/director could provide the direct supervision required for each client and realistically assume full responsibility to each and every client for the actions or nonactions of the legal assistants. Moreover, given the number of paralegals and their locations as well as the potential caseload, it is our opinion that it would be physically impossible for the lawyer/director to provide the supervision required to avoid violating MRPC 5.5 or MRPC 5.3. Additionally, the direct supervision of the prisoner paralegals and an unknown number of prisoner law library clerks by civilian paralegals would be direct contravention of the requirement that they be directly supervised by a lawyer.
Finally, the ABA manual recommends a lawyer to prisoner ratio of one lawyer to four hundred prisoners per year, divided between a variety of "advice only" and more time consuming court action cases. In the plan being considered, the lawyer to client ratio would be one lawyer to 1,944 prisoners. That ratio is incompatible with the appropriate delivery of legal services and the stated purpose of the program to provide meaningful assistance to the prison population.
For the foregoing reasons, the inquirer's participation as supervising lawyer in the LSO as presently structured would violate MRPC 5.3 and 5.5.