Guide to Dos & Don’ts for Paralegals

By Lazar Emanuel

[Originally published in NYPRR September 1998]

Legal assistants and paralegals have become an indispensable part of a modern law office. In its booklet, Guidelines for the Utilization by Lawyers of the Services of Legal Assistants (6/28/1997), the New York State Bar Association declared: “The legal profession recognizes legal assistants as dedicated professionals with skills and abilities which contribute to the delivery of cost-effective high quality legal services.” The Association recommended that court and Ethics rules developed to encourage the expanded use of legal assistants.

In preparation of this chart this NYPRR surveyed 13 of its subscriber law firms. Together, the firms have 3,707 lawyers and 1,021 paralegals, a ratio of 3.6 to 1. Clearly, legal assistants are performing critical tasks in significant numbers.

As a service to its readers, NYPRR has prepared a list of dos and don’ts in the assignment of work to paralegals. References are to the NYSBA Guidelines, the Judiciary Law, the New York Code of Professional Responsibility, Ethics Opinions, the Code of Ethics and Professional Responsibility of National Association of Legal Assistants, Inc. (NALA), and the Model Code of Ethics and Professional Responsibility of the National Federation of Paralegal Associations, Inc. (NFPA).

Item or Function: Practicing law

Paralegal Work: NO

Authority/Commentary: Only a lawyer may practice law or hold himself out to give legal services. [N.Y. Judiciary Law 478.]

Item or Function: Communicating with client

Paralegal Work: YES

Authority/Commentary: Subject to supervision by lawyer and the obligation of the lawyer to be available to the client at all reasonable times. [N.Y.S. 677 (1995); NALA Canon 3(b).]

Item or Function: Setting fees

Paralegal Work: NO

Authority/Commentary: Only a lawyer may set fees. [N.Y. Cty. 682 (1990); NALA Canon 3(b).]

Item or Function: Researching legal issues and matters

Paralegal Work: YES

Authority/Commentary: Subject to the lawyer’s supervision. [N.Y.S. 667; Nassau Cty. 90-13 (1990).]

Item or Function: Preparing and interpreting legal documents

Paralegal Work: YES

Authority/Commentary: Subject to the lawyer’s supervision. [NFPA EC 3.6.]

Item or Function: Representing a client in court

Paralegal Work: NO

Authority/Commentary: Only a lawyer may perform the functions embraced in the term “practice of law.” [N.Y.S. 667; Nassau Cty. 90-13 (1990).]

Item or Function: Attending calendar calls & other ministerial court functions

Paralegal Work: YES

Authority/Commentary: Subject to each judge’s rules, but only a lawyer may participating in or initiate oral argument on any substantive issue. [N.Y.S. 667; Nassau Cty. 90-13.]

Item or Function: Selecting, compiling & using technical information

Paralegal Work: YES

Authority/Commentary: As directed by the supervising lawyer. [N.Y.S. 667; Nassau Cty. 90-13.]

Item or Function: Attending & handling real estate closings

Paralegal Work: YES

Authority/Commentary: Subject to the strict supervision of the attorney. [N.Y.S. 667; Nassau Cty. 90-13.]

Item or Function: Sharing in fees of attorney

Paralegal Work: NO

Authority/Commentary: Prohibited. [DR 3-102.] Except that any may include a legal assistant in a retirement plan even though the plan is based on a profit sharing arrangement. [DR 3-102.]

Item or Function: Forming partnership with lawyer

Paralegal Work: NO

Authority/Commentary: Prohibited. [N.Y. Judiciary Law 478 (1986).]

Item or Function: Disclosing status as non-lawyer (from the outset)

Paralegal Work: YES

Authority/Commentary: A legal assistant must disclose that he is not a lawyer to clients, other lawyers, the courts and administrative agencies. [N.Y.S. 882 (1973); N.Y.C. 884 (1974); N.Y.C. 884 (1974).]

Item or Function: Receiving bonus tied not to specific fees but to the net profits of the law firm.

Paralegal Work: YES

Authority/Commentary: But a lawyer may not share a legal fee with a non-lawyer. [DR 3-102; N.Y.C. 1995-11.]

Item or Function: Appearance before administrative agencies

Paralegal Work: YES

Authority/Commentary: Many federal agencies permit paralegal appearances. For example, Immigration & Naturalization Service; IRS; NLRGB. Some New York State agencies do not. [Civil Service Law §§71, 72 & 75.]

Item or Function: Certification or license by state

Paralegal Work: NO

Authority/Commentary: New York has no system in place for testing or certifying the qualifications of legal assistants.

Item or Function: Continuing education after employment

Paralegal Work: NO

Authority/Commentary: New York does not require a program of continuing education by legal assistants.

Item or Function: Recognizing and avoiding conflicts of interest

Paralegal Work: YES

Authority/Commentary: A legal assistant is expected to avoid conflicts of interest and to decline to participate or work on any matter involving a conflict. The lawyer is required to build an ethical wall around the assistant who has a conflict. [DR 9-101; see also NFPA EC-8.]

Item or Function: Protecting client confidences

Paralegal Work: YES

Authority/Commentary: As the lawyer’s employee, a paralegal is under an obligation to protect the client’s confidences. [DR 4-101(d).] [See NALA Model & Guidelines for Utilization of Legal Assistants, §V; NFPA EC 5.]

Item or Function: Observing ethical guidelines

Paralegal Work: YES

Authority/Commentary: The lawyer has an obligation to train the legal assistant on issues of ethics. [Nassau Cty. 90-13 (190).] The legal assistant should be familiar with the Code of Professional Responsibility, with the NALA Code of Ethics and with the NFPA Model Code of Ethics and Professional Responsibility.

Lazar Emanuel is the Publisher of NYPRR.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

Lazar Emanuel Paralegals