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Memphis, Tennessee, United States
Small town paralegal in the city. Once ran a law office, now being run by one. Med mal defense litigation. I think it's growing on me.

Sunday, August 9, 2009

Swimming in the Gray

I don't know about anyone else, but the most worrisome part of the NALA certification exam, for me, was Ethics. I am a very ethical person, if I do say so myself, to the point of avoiding any and all situations that could possibly be construed as borderline unethical. Unfortunately, this is precisely what causes me trouble when it comes to book ethics. In the run-up to the exam, I found myself missing practice questions because I was trying too hard to stay on the ethical side of the line.

Take this question, for example:

Your attorney supervisor is out of town for the day, but calls you frantically with instructions to draft and file a motion she failed to file before she left that morning. She wants you to e-file it, and sign the bottom with her electronic signature. What should you do?

a) Refuse to file the document until she reviews and approves it for her signature.
b) Do as she says. You've drafted motions like this several times before.
c) Draft and file the motion, but indicate somewhere on the document that it was e-signed by you outside of her presence for timeliness.
d) None of the above.

My first instinct, especially without having ever been in a situation like this or having seen the correct answer, would be A. Is this the correct one, though? Since I made up this question, I don't have the book answer for you, reader. In my experience, though, the book answers usually fall into the gray area, which is where paralegals spend much of our time. After all, we are neither lawyers nor lay people, authorized to do legal work but not to practice law. Our very existence is the thin line, and we learn early on to tread carefully lest we slip into the abyss that is the unauthorized practice of law.

One tricky situation is the prospective client inquiring about the cost of something. I know my attorney charges x dollars per hour, but I refuse to talk fees with prospective clients. I may be too cautious in this area, but I dread hearing, "Well the paralegal told me it would only be $750." One time, a man prodded me for several minutes attempting to get a price out of me. "Come on," he kept saying, "You have to have some idea what it will cost." The problem is that I usually don't. And even if I do have an idea, even if I am sure and my quote is spot on, giving a quote would at least appear to be fee-setting, and that is not in my job description. In fact, fee-setting is on my "never ever ever ever to do" list. That's what my boss went to law school for. Now, if he ever gives me a price list of fees that he has set on his own, I will gladly quote from the list, and no more.

Another tricky situation is the client who calls for a simple update. As all legal professionals know within a week of their entry into this field, nothing in law is ever simple. The simple update can easily turn into a very gray conversation. I avoid these by saying exactly what I feel I can legally say and following up with, "I am the paralegal, and I cannot give you any more information. I will have the attorney call you to explain more thoroughly if you would like." Many times, I know the answer to the client's question. Sometimes, I could probably ethically give it because it would not be legal advice. But like commas, legal information is best left out when the user is in doubt. I know that this gives my Boss a longer call-back list than he needs some days, but until I have a full and comfortable grasp on where the line marking UPL is, I want to stay as far away from it as possible.

Our tight-wire walk is even more difficult when judges and lawyers have a hard time grasping the rope themselves. I once read an ethics opinion regarding paralegals where the paralegal used the terms "we" and "our" regarding the law firm and its clients. The judge stated that paralegals do not represent firm clients (agreed), and that therefore, it was improper for the paralegal to refer to firm clients with a possessive pronoun (disagreed). This opinion would not bode well for me, as I have referred to the firm as "we" and used the term "our" to describe firm clients. After all, the clients employ the firm, and I am a part of the firm. I do not personally represent our clients, but as an employee, I represent the firm that represents them. When such strange restrictions are suggested, though, it shrinks the already small but shifting intangible space in which I work. It makes me second guess every seemingly insignificant thing I do and say, and I am one of the ethical ones.

This opinion is the main reason I had so much trouble with the ethics part of the certification exam. On every question, I wanted to choose the answer that was the farthest away from UPL; however, on the exam, the right answer is usually a half-step closer to that uncrossable line. In practice, if I always chose the answer that kept me the farthest from UPL, I would not be working in a law office.

Please do not read any this as an acceptance of the unauthorized practice of law or as intent to buck the system. I hope I have made it clear that I stay as far away from even the appearance of UPL as possible.

However, by very use of the prefix "para," our career indicates just how gray and murkey the field can be. The more experience I gain, the easier it is for me to feel my way around the dangerous spots on the job, the clearer the line becomes, and the more confidence I have in what I am allowed and not allowed to do. Every day, I live by the creed, "When in doubt, leave it out..." even if it means making the client wait for a call-back from the attorney.


  1. Great post!! I'm in Georgia and the Bar here is very strict when it comes to UPL. They actually have a list of offenders listed on their website.

  2. As a general rule, you CAN provide general legal information, but you CANNOT represent a client. Based on that I think you've got more leeway than you give yourself, ethically speaking. Practically speaking you are still dealing with a client, so you want to only give out information you know to be correct.

    For the example set out by you above (the e-filing), you are correct on choice A. Any pleading filed without the signature of an attorney is a nullity (at least based on the Civ Pro Rules of my state and the Federal Rules of Civ Pro), so you just can't do it. If your atty would ask you to do that, (s)he would violate quite a number of the Rules of Professional Conduct (see here:
    (for starters, Rules 5.3 and 8.4).

  3. Another issue we face today is the electronic signature. I don't think this problem was anticipated when the rules were written.

    It's impossible to tell on a document's face whether the attorney actually placed the e-signature. With no handwriting to compare it to, no blue ink to prove the original, and none of the other lawyerly signature tricks possible, courts and bars just have to have faith that a lawyer's e-file password serves as enough barrier to keep unauthorized documents from being filed. And if the lawyer is authorizing staff to place his name on the document right before filing... how do you catch and/or prove something like that? I will be very interested to watch the legal world's evolution with all these new changes over the next few years.

  4. My solution to your hypothetical question would be to draft and email the motion for review. Then the attorney can give permission to another attorney in the firm who is barred in the same jurisdiction to sign the pleading on the first attorney's behalf. I realize that, unfortunately, that doesn't work in a solo practice firm, but it's one answer.