Attorneys’ Ethical Obligations to Paralegals

One visitor to this blog arrived via an inquiry regarding an attorney’s ethical obligations to his or her paralegal.  Certainly attorneys have at least the same ethical obligations to their paralegals as any employer has to their employees. (In my opinion there is a vast variance between an employer’s legal obligations to employees and an employer’s ethical obligations, a variance greater than in many other areas.) One ethical obligation, however, stands out because it is specifically incorporated into the ABA Model Rules – the duty to supervise. Model Rule 5.3 states,

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Thus, the attorney has an ethical obligation to supervise paralegals that incorporates all other ethical obligations. Now, this obligation is frequently viewed as a rule imposed as an additional protection of the public similar to vicarious liability and the doctrine of respondeat superior. It certainly serves that role. However, I would argue that this is also an ethical obligation that the attorney owes to the paralegal. Yes, a paralegal has a right to adequate supervision from his attorney.

After all, the attorney and paralegal form an essential part of the legal team. Part of the teamwork requires that the attorney supervise the paralegal. The attorney cannot rightly simply send the paralegal off to accomplish a task without adequate instruction, training, and supervision, and then complain when the task is not completed to the attorney’s liking. At the very least the attorney must be available and open to communication from the paralegal seeking guidance.

This obligation to supervise is somewhat confusing as there is a lack of specificity as to what the constituent elements of “reasonable supervision” are. As previously discussed on this blog, there is also a great deal of confusion arising from uncertainty among the bar as to exactly what a paralegal is and what they can do. Nonetheless, it is the attorney’s responsibility to provide “reasonable supervision.”

This, in my view, is not a one-way obligation. There is confusion and the confusion is understandable given the current status of the paralegal profession. There is, however, at least,one member of the legal team that does know the capabilities of the paralegal and how much instruction, training, guidance and supervision is needed by the paralegal. That person is the paralegal.

You, the paralegal, have a right to reasonable and adequate supervision. You know when you need guidance. You know when you are not receiving adequate instruction. Take it upon yourself to make your needs known to your attorney through honest, direct, non-manipulative communication. If this is done diplomatically, both you and your attorney will benefit from the improved ability to work as a team

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