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Of course not you say. Not me, not ever. But are you sure? Let's see you work in a law firm or a corporate legal department. Your supervising attorney is close at hand. So,
every thing you do and say is not UPL, right? Maybe, but maybe not.
Elsewhere in this issue, the Legal Assistant Division has arranged to reprint an article from a recent issue of
Legal Assistant Today which poses some interesting questions. I found it thought-provoking and I hope you (and your supervising attorney) do, too.
In the meantime, a gentle
reminder that the LAD drafted Canons of Ethics for its members which were adopted by the Bar Commission some years ago. They are reprinted below along with the Utilization Guidelines
promulgated some years ago by the Office of Professional Conduct.
Canons of Ethics for Legal Assistants
As a general guide intended to aid legal assistants and attorneys,
the Legal Assistant Division and the Board of Bar Commissioners has approved the following canons of ethics for legal assistants:
Canon 1
- A legal assistant shall not perform any of the duties that attorneys only may perform nor take any actions that attorneys may not take.
Canon 2
- A legal assistant shall not:
a) establish an attorney-client relationship;
b) establish the amount of a fee to be charged for legal services;
c) give legal opinions or advice;
d) represent a client before a court or agency unless so authorized by that court or agency;
e) engage in, encourage, or contribute to any act which would constitute the unauthorized practice of law; and
f) engage in any conduct or take any action, which would assist or
involve the attorney in a violation of professional ethics or give the appearance of professional impropriety.
Canon 3 - A legal assistant may perform any task which is
properly delegated and supervised by an attorney provided the attorney maintains responsibility for the work product, maintains a direct relationship with the client, and maintains
responsibility to the client.
Canon 4
- A legal assistant shall take reasonable measures to ensure that his or her status as a legal assistant is established at the outset of any professional relationship with a client, court or administrative agency, a member of the general public or other lawyers.
Canon 5 - A legal assistant shall ensure that all client confidences are preserved.
Canon 6
- A legal assistant shall take reasonable measures to prevent conflict of interest resulting from his or her employment affiliates, or outside interests.
Canon 7
- A legal assistant must strive to maintain integrity and a high degree of competency through education and training with respect to professional responsibility, local rules and practice, and through continuing education in substantive areas of law to better assist the legal profession in fulfilling its duty to provide legal services.
Canon 8 - A legal assistant shall abide by all court rules, agency rules and statutes, as well as the Utah State Bar's Rules of Professional Conduct.
Guidelines for the Utilization of Legal Assistants
By authority of Rule C 24, Rules of Integration and Management of the Utah State Bar, the following Guidelines for Utilization of
Legal Assistants govern members of the Utah State Bar and Legal Assistant Affiliates:
A. Legal assistants shall:
1.
Disclose their status as legal assistants at the outset of any professional relationship with a client, other attorneys, as court or administrative agency or personnel thereof, or members of the general public;
2. Preserve the confidences and secrets of all clients;
3.
Understand the Rules of Professional conduct, as amended, and these guidelines in order to avoid any action which would involve the attorney in violation of the Rules, or give the appearance of professional impropriety.
B. Legal assistants may perform services for an attorney in the representation of a client, provided:
1. The services performed by the legal assistant do not require the exercise of independent professional legal judgment;
2. The attorney maintains a direct relationship with the client and maintains control of all client matters;
3. The attorney supervises the legal assistant;
4.
The attorney remains professionally responsible for all work on behalf of the client, including any actions taken or not taken by the legal assistant in connection therewith; and
5. The services performed supplement, merge with and become the attorney's work product.
C. In the supervision of legal assistants, attorneys shall:
1. Design work assignments that correspond to the legal assistant's abilities, knowledge, training and experience.
2. Educate and train the legal assistant with respect to professional responsibility, local rules and practices, and firm policies;
3. Monitor the work and professional conduct of the legal assistant to ensure that the work is substantively correct and timely performed;
4.
Provide continuing education for the legal assistant in substantive matters through courses, institutes, workshops, seminars and in-house training; and
5. Encourage and support membership and active participation in professional organizations.
D.
Except as otherwise provided by statute, court rule or decision, administrative rule or regulation or the attorney's Rules of Professional Conduct; and within the preceding parameters and proscriptions, a legal assistant may perform any function delegated by an attorney, including but not limited to the following:
1.
Conduct client interviews and maintain general contact with the client after the establishment of the attorney-client relationship, so long as the client is aware of the status and function of the legal assistant, and the client contact is under the supervision of an attorney;
2. Locate and interview witnesses, so long as the witnesses are aware of the status and function of the legal assistant;
3. Conduct investigations and statistical and documentary research for review bythe attorney;
4. Draft legal documents for review by the attorney;
5. Draft correspondence and pleadings for review by and signature of the attorney;
6. Summarize depositions, interrogatories and testimony for review by the attorney;
7. Attend executions of wills, real estate closings, depositions, court or administrative hearings and trials with the attorney;
8.
Author and sign letters provided the legal assistant's status is clearly indicated and the correspondence does not contain independent legal opinions or legal advice; and
9. Conduct legal research for review by the attorney.
E.
A lawyer may not split fees with a legal assistant nor pay a legal assistant for the referral of legal business. A lawyer may compensate a legal assistant based on the quality of the legal assistant's work and the value of that work to a law practice. A lawyer may not compensate a legal assistant based solely upon a quota of revenues generated for the firm by a legal assistant's work on a specific case or a group of cases within a certain prescribed time period, although a legal assistant may participate in a firm's profit-sharing plan.
Guidelines tailored to a specific practice area may be promulgated from time to time to further guide the Bar in the proper utilization of legal assistants subject to review by
the Supreme Court Advisory Committee and the Utah Supreme Court.
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