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The Unauthorized Practice of Law by Paralegals (us)

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Etats-Unis >  Justice >  Paralegal 
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Auteur : Kelly Bauer, Grace Lee, Ali Ahsani, Laure Park
Avocats au barreau du District de Columbia, D.C. Bar
Publié le 15/10/2013 dans Journal of the Bar Association of the District of Columbia (B.A.D.C.)



Paralegals and legal assistants make up a group of paraprofessionals who assist the attorneys in effecting the delivery of legal and professional services and are usually delegated tasks that a lawyer would assume; however, attorneys must appropriately train their non-lawyer staff and always supervise the work product. As both attorneys and clients increasingly understand and come to value the role of these legal paraprofessionals, the paralegal becomes increasingly more susceptible to engaging in the unauthorized practice of law. Regardless of whether a paralegal has the ability to do the work independently and successfully, lawyers retain ultimate responsibility for their non-lawyer legal staff’s conduct and work performance.


The Attorney/Paralegal Relationship

The District of Columbia’s Rules of Professional Conduct (“RPC”) Rule 5.3 requires lawyers with managerial or supervisory authority over the work of a non-lawyers to make reasonable efforts in establishing internal policies and procedures to provide reasonable assurance that non-lawyers will act in a way compatible with the RPC. The RPC sets the minimum ethical standards for the practice of law and promulgates a set of rules that govern the professional conduct of all lawyers in the D.C. jurisdiction[1]. Although paralegals are not directly governed by these rules, they are expected to act in accordance with them.

Lawyers must recognize the implications of failure to take such measures. They have to take into account that their non-lawyer paraprofessionals do not have the same legal training and are not subject to the same professional disciplinary actions as those for lawyers. The attorney, not the paralegal, must answer to the Office of Bar Counsel, Board of Professional

Responsibility, and/or District of Columbia Court of Appeals for their non-lawyer staff’s work-related activities and conduct in the work environment[2].

In the case In re Toppelberg, the Court of Appeals suspended an attorney for a year, at which time the Court could readmit him only upon receiving “proof of fitness to practice law.” The attorney had violated RPC Rule 5.3 in his failure to supervise his non-lawyer secretary and to take proper measures, specifically in terms of employee training, to ensure her compliance with the Rules of Professional Conduct[3]. The Hearing Committees of the Board on Professional Responsibility acknowledged that the non-lawyer staff member had committed errors and misjudgments while working on the client’s case, but the Board directly attributed her misconduct to the lawyer’s failure to train his staff regarding the RPC. Here, the lawyer contended that, in finding that he had violated Rule 5.3, the Board was essentially burdening lawyers with the impossible task of “cross-check[ing] every action undertaken by an employee.”[4] The Court, however, dismissed this argument, stating that the Rule requires only the showing of “reasonable effort” in ensuring that an employee’s conduct meets the standards of the RPC. According to the Court, “[a]ppropriate training in the Rules, systems controls, and regular oversight would meet these requirements.”[5]


UPL Defined

The District of Columbia’s Court of Appeals Rule 49 governs the unauthorized practice of law. The D.C. Court of Appeals not only has the “inherent and exclusive authority to define and regulate the practice of law in the District of Columbia” but “also exercises some [but not exclusive] authority over the unauthorized practice of law by nonlawyers.”[6] As such, the Court establishes that “[n]o person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law the D.C. unless enrolled as an active member of the D.C. Bar, except as otherwise permitted.”[7] Rule 49 also outlines the function of the Committee on Unauthorized Practice of Law which, “[s]ubject to the approval of the court, […] shall adopt such rules and regulations as it deems necessary to carry out the provisions of this rule.”[8]

Rule 5.5 under the D.C. Rules of Professional Conduct further addresses the issue of UPL, stating that a lawyer shall not “[a]ssist a person who is not a member of the bar [such as a paralegal] in the performance of activity that constitutes the unauthorized practice of law.”[9] However, it clarifies that this does not prohibit a lawyer from effectively utilizing paralegals and delegating certain tasks to them, “so long as the lawyer supervises the delegated work and retains responsibility for their work.”[10]


Reciprocal Discipline

In contrast to many other jurisdictions, applicants are allowed to apply for membership to the D.C. Bar by motion and do not have to wait a specific number of years before requesting admission. As a result, a large number of members of the D.C. Bar hold more than one license. Attorneys holding multiple licenses can be held responsible for unauthorized practice of law by non-lawyer employees and be subject to disciplinary measures imposed by the D.C. Court of Appeals for misconduct occurring outside of the District of Columbia. Reciprocal discipline is more commonly instituted in the D.C. and “account[s] for a significant percentage of disciplinary actions in the District of Columbia.”[11]

Pursuant to D.C. Bar Rule XI, §2(b)(2) and §11, reciprocal discipline may be imposed by the D.C. Court of Appeals when an attorney has been disbarred, suspended, or placed on probation by another disciplining court.[12] Even if the discipline does not include suspension or disbarment, the Court will order publication of the fact that the discipline occurred.[13] Additionally, the Court has adopted a more rigid standard in cases regarding attorney discipline. There is a presumption for the Court to impose identical reciprocal discipline unless an attorney can establish with clear and convincing evidence that one or more exemptions set forth in D.C. Bar R. XI § 11(c) exist. [14]

In re Kline, the Board on Professional Responsibility considered what type of reciprocal discipline to impose on conduct that occurred in another jurisdiction.[15] Maryland Bar disbarred one of its members for allowing one of his employees to be sworn in before a court, and falsely testifying under oath, thereby violating several provisions of the Maryland Rules of Professional Conduct including rules pertaining to responsibilities regarding non-lawyer assistants. The Court directed the Board on Professional Responsibility to investigate and recommend “whether identical, greater, or lesser discipline should be imposed as reciprocal discipline or whether it should proceed de novo.” Upon receiving the Board’s recommendation, the D.C. Court of Appeals imposed identical discipline and disbarred the Respondent from the practice of law, which was consistent with discipline imposed for similar misconduct in other cases.

Additionally, D.C. Bar members who do not practice in D.C. and remain on “inactive status” are also subject to reciprocal discipline imposed by the D.C. Court of Appeals. In re Aimar, Respondent, a member of the Nevada and California Bar and an inactive member of the D.C. Bar, was suspended from the practice of law by the Supreme Court of Nevada for violating several Nevada Supreme Court Rules (“SCR”) including provisions pertaining to responsibility regarding non-lawyer assistants and the unauthorized practice of law.[16] Although, the Respondent had remained on inactive status, the D.C. Court of Appeals found that his conduct also violated the D.C. Rules of Professional Conduct and imposed identical reciprocal discipline in the instant case.


Exceptions to UPL

Paralegals particularly are among those who are not authorized to practice law in the District of Columbia under D.C. Court of Appeals Rule 49. This rule contains, however, exceptions, especially where activities do not constitute the unauthorized practice of law. Not only are these areas where non-lawyers may assist in the delivery of legal services but, also, in special circumstances are permitted to independently perform certain types of law-related services.

Paralegals and Alternative Dispute Resolution

One of these exceptions extends to practice of mediation and other Alternative Dispute Resolution (“ADR”) services. This new exception under Rule 49 “furthers the strong public policy favoring the efficient and expeditious resolution of disputes outside the judicial process, to the extent consistent with the broader public interest.”[17] Although this exception applies specifically to lawyers who represent clients in ADR proceedings, it is important to note that Rule 49 distinguishes ADR services from the ordinary practice of law and recognizes that lawyers who serve as third-party neutrals in ADR proceedings are not engaging in the practice of law.[18]

The “practice of law,” according to Rule 49, refers to the provision of professional legal advice or services where there is a client relationship of trust or reliance.[19] This rule highlights these two essential components that, together, define and constitute the “practice of law”: (1) the “provision of legal advice or services,” and (2) “a client relationship of trust or reliance.” The Committee on Unauthorized Practice of Law’s commentary on Rule 49, which is to be considered when interpreting this definition of the “practice of law” as adopted by the rule, provides that paralegals and other non-lawyers are not engaging in the unauthorized practice of law where they are not legally advising clients or otherwise purporting to have the authority to practice law and specifies that Rule 49 is “not intended to cover conduct which lacks the essential features of an attorney-client relationship [of trust or reliance].”[20] No such relationship exists in the context of ADR services. Furthermore, the Rule commonly requires that third-party neutrals take special measures to explicitly inform the parties to the proceeding that they are not legal counselors and that they do not have the authority to furnish any legal advice or services.[21] Rule 2.4 of the D.C. Rules of Professional Conduct also differentiates the role of a third-party neutral from the role of a client representative and expresses the absolute need to disclose this difference, especially when a lawyer, whose primary role is to represent clients, serves as a third-party neutral. The subsequent comment to the Rule further acknowledges that the role of a third-party neutral is not exclusive to lawyers, although there are certain types of matters that only a lawyer may direct.[22]

The Multi-Door Dispute Resolution Division of the D.C. Superior Court assists parties in settling disputes and reaching agreements through mediation and other ADR techniques. Multi-Door’s objective, through the administration of ADR programs, is to create more efficient options for the potential settlement of disputes. Before Multi-Door, there was only litigation. However, “people can now come to the courthouse to litigate or to mediate or to arbitrate or to be referred to community programs that offer a variety of alternative dispute resolution services.”[23] Multi-Door directly trains its mediators and dispute resolution specialists and prepares them for a range of cases covering different areas of the law. Mediation is the most popular form of dispute resolution among the programs offered and the one most closely concerned with paralegals and other non-lawyers. All mediation, as it occurs within D.C. Superior Court, must go through Multi-Door, and mediators in the courts must be staff or volunteers of Multi-Door’s Mediation Program. There are different qualifications for different types of mediators. Some mediator positions, such as that for small claims, require basic qualifications including the completion of an orientation and a certain number of hours of training as well as actual performance alongside mentors. Other positions, such as that of a civil court mediator, entail the additional qualification of being a licensed attorney. However, the mediator, both lawyer and non-lawyer alike, neither represents a client nor expends legal advice. Therefore, paralegals who volunteer as third-party neutrals and become mediators in an appropriate program that permits non-lawyer participation are not engaging in the unauthorized practice of law but rather lawfully and necessarily aiding in dispute resolution.


Paralegals in the Government and Administrative Agencies

D.C. Court of Appeals Rule 49 provides for a second exception to the exclusive practice of law provisions for attorneys unlicensed in DC and employees of government and federal agencies. The District of Columbia has an exception to this status because of its location as the headquarters of the federal government. Rule 49 includes an exception for the practice before federal departments and agencies that allow persons not admitted to the D.C. Bar to practice before them.[24] Rule 49 states that “no person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia bar,” unless they fall under an exception. This Rule specifically applies to lawyers and not paralegals because they need a license to practice law in specific jurisdictions. Individuals must disclose that they are not admitted in the District of Columbia, but their practice is limited pursuant to Rule 49.


Paralegals in the Armed Services

The United States Armed Forces has important bases located in the District of Columbia. Within these bases, cadet life is governed by the Uniform Code of Military Justice, a part of the Code of Federal Regulations. The services recruit and train of a large number of military and civilian lawyers and paralegals that help enforce this section of administrative law.[25] Legal professionals in the nation’s capital should therefore pay close attention to this important cadre. Also, a snapshot of work in the U.S. Army is representative of the larger picture of legal professionals in the other services, such as the Navy and Air Force.

Army paralegals in the nation’s capital are regulated by three codes: the Army’s 1987 Rules of Professional Conduct that replaced the American Bar Association (“ABA”) Rules which the Army had used for decades, the Soldier’s Training Manual-Paralegal Specialist 27D, and Rules of the District of Columbia Court of Appeals. These three regulatory sources, together with the ABA Rules, govern the work of Army legal professionals.

As mentioned above, under the exceptions that accompany Rule 49 of the D.C. Court of Appeals Rules, legal professionals may represent clients in a “special court, department or agency of the United States.”[26] The exceptions also stipulate that the agency concerned should set the parameters of legal representation, having “adopted a rule expressly permitting and regulating such practice” In other words, D.C. law grants the Army considerable leeway regulating legal practice.

For decades, the Army had regulated legal practice using the ABA’s Rules of Professional Conduct. In 1987, it developed its own rules that were more suited to military necessity. However, a look at Rule 5.3, as well as with the commentary that accompanies it, shows a verbatim borrowing from the ABA Model Rules. The adaptations of the ABA Rules to military life is not apparent in its language. Instead, Soldier’s Training Manual-Paralegal Specialist-27 D designates tasks to and defines the responsibilities of paralegals. The Army’s unique and, for civilians, somewhat puzzling ways are best captured in the following interpretation of the widely used Rule 5.3:

Supervisors must make reasonable efforts to ensure subordinates comply with the Rules (Army Rule 5.1), including non-lawyers under their supervision (Army Rule 5.3). A supervisor assumes imputed responsibility for acts of subordinates if the lawyer orders or ratifies a subordinate’s violation, or the lawyer knows of and fails to take remedial action to avoid or mitigate the consequences of a violation. Thus, when a lawyer or attorney is referred to hereafter that includes you, the paralegal.

The manual defines imputed responsibility as vicarious responsibility. Hence, the code, while drawing on the language of the ABA, sees the paralegal as a lawyer. The rest of the training manual will show that given the nature of combat situations, where everyone pitches in, a strict separation between lawyers and paralegals is not practically feasible, as it is in the civilian world. As such, paralegal supervision in the army manual reflects the hierarchical command structure of military ranks and not a qualitative difference between lawyers and non-lawyers as seen in the civilian world. The section entitled Comply with the Rules of Professional Responsibility explicitly establishes the tasks and duties of army lawyers. In short, a paralegal is expected to follow a lawyer. While military personnel view paralegals as doing the same kind of work as lawyers, they have lower in the rank structure. This manual defines in great detail the specifically legal work of an army paralegal. The section entitled “Comply with the Law of War” highlights the significantly greater role of the paralegal in the administration of army justice. The section starts off with possible scenarios that an Army paralegal might face.

Conditions: You are a Paralegal working in a Brigade Operational Law team. You must be able to identify, understand and comply with the Law of War, to include prohibitions on targets and weapons; humane treatment of prisoners of war, wounded and sick, and civilians; rights and obligations of prisoners of war, and responsibility to disobey criminal orders. You have access to provisions of Customary Law of War, Geneva and Hague Conventions, the Operational Law Handbook and FM 27-10.

As the paralegal is also a combat soldier, he or she participates in warfare, the main function of the army. And since an important part of army law consists of international conventions regulating warfare, the army paralegal should be well versed in this body of international law. Thus, in today’s conduct of warfare, the army paralegal acts like a lawyer.

In contrast, paralegals in the civilian world do not share comparable responsibilities with lawyers and do not share in the firm’s profits. These kinds of distinctions are important to note, for those in the civilian legal professionals who interact with military counterparts. Legal professionals from the civilian should understand that their army colleagues shoulder greater responsibilities. This will help reduce misunderstandings and thereby facilitate communication.


Conclusion

Lawyers bear the ultimate responsibility for their non-lawyer legal staff’s conduct and work performance. Under the District of Columbia’s Rules of Professional Conduct Rule 5.3, Rule 5.5, and the District of Columbia’s Court of Appeals Rule 49, lawyers are punished if they do not properly supervise and train their non-lawyer staff. Paraprofessionals are not subject to the same discipline as lawyers, and therefore, they must be cognizant of the Rules and act in accordance with them.


Notes et références

  1. D.C. Rules of Professional Conduct Rule 5.3(a) and (b).
  2. D.C. Rules of Professional Conduct Rule 5.3 Comment [1].
  3. In re Toppelberg, 966 A.2d 852 (D.C. 2009).
  4. Id.
  5. Id.
  6. In re Banks, 805 A.2d 990 (D.C. 2002) (quoting Brookens v. Committee on Unauthorized Practice of Law, 538 A.2d 1120, 1125 (D.C. 1988), and citing D.C. Code § 11-2501 (2001)).
  7. D.C. R. 49(a).
  8. D.C. R. 49(d).
  9. D.C. Rules of Professional Conduct Rule 5.5(b).
  10. D.C. Rules of Professional Conduct Rule 5.5 Comment [2].
  11. In re Zdravkovich, 831 A.2d 964, 968 (D.C. 2003).
  12. D.C. Bar R. XI, §2(b)(2) and §11
  13. Id.
  14. The five exemptions under D.C. Bar R. XI, § (c) are as follows: (1) The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or (2) There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept as final the conclusion on that subject; or (3) The imposition of the same discipline by the Court would result in grave injustice; or (4) The misconduct established warrants substantially different discipline in the District of Columbia; or (5) The misconduct elsewhere does not constitute misconduct in the District of Columbia.
  15. In re Kline, 955 A.2d 155 (D.C. 2008).
  16. In re Aimar, 926 A.2d 167 (D.C. 2007)
  17. D.C. Rule Commentary 49(c)(12)
  18. Id.
  19. D.C. R. 49(b)(2).
  20. D.C. R. Commentary to 49(b)(2).
  21. Id.
  22. D.C. Rules of Professional Conduct R. 2.4 Comments [2] and [3].
  23. Impressive Ceremony Marks Opening of Multi-Door Dispute Resolution Program, The Afro American, Apr. 13, 1985, at 16.
  24. D.C. R. 49(c)(B).
  25. Soldier’s Training Manual-Paralegal Specialist 27 D, The Judge Advocate General’s Legal Center and School, Charlottesville, VA, 15 April 2011, at 5.
  26. DC Cir. R. 49(c)2.


Voir aussi

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