Clients come to attorneys for expertise and guidance, but what happens when the legal professional they call upon for help fails to mention he or she is not a licensed law professional at all? At the very least, the client/attorney relationship is shattered. At the same time, the aspiring law professional could not only cause irreparable damage to their careers, but spread consequences to the firm(s) they represent as well.
Not everyone who is employed by a law firm is a licensed attorney. Many legal professionals including paralegals, law clerks and legal assistants regularly take part in casework. The individuals are crucial to a smooth-running law firm, but they also welcome risk should they be misrepresented as licensed attorneys.
The Michigan Attorney Discipline Board issued a one-year suspension earlier this year to law clerk Garret C. Kerr after failing to apply for admission to the State Bar of Michigan and presenting himself as a licensed Michigan attorney. Kerr was found to have provided legal counsel, signed retainer agreements and intended to accept payment for legal services. In addition to Kerr’s suspension, he must disclose his disciplinary action if he chooses to seek State Bar admission in Michigan. He was also ordered to pay nearly $2000 in fines.
Beyond Kerr’s personal repercussions, clients failed to receive adequate and compliant legal counsel, challenging the integrity of the entire law firm.
Identifying the risks
Again, the legal industry depends on paralegals, law clerks and legal assistants to assist with workloads, communicate with clients, keep law firms on schedule and much more. However, given the access law firm support staff have to clients and caseloads, they could present risks to law firms if not properly supported and informed on the risks of misrepresentation. Risks might include:
- Unauthorized practice of law: Often, law firm support staff is very knowledgeable about cases, law and the legal industry, prompting clients to ask them questions or prompting attorneys to ask for a quick favor in a time crunch that might require them to practice law. As illustrated in Kerr’s case above, practicing law without a license could result in termination and impact one’s standing with the Bar Association, not to mention fail clients and breach their trust in the process.
- Confidentiality: Just like attorneys, law firm support staff are bound to client confidentiality and could be subject to termination, as well as threaten a client’s case and the attorney’s relationship with them.
- Clerical errors: The responsibilities of law firm support staff require they have access to document and case information. Often, they are tasked with drafting early versions of documents, incorporating edits or managing scheduling that could include sensitive deadlines. As a result, support staff could inadvertently include errors in documents, either small typos or misinterpreted information, or miss important deadlines. Such scenarios could prompt malpractice claims from clients.
Properly managing law firm support staff
At the core of law firm support staff risk mitigation is adequate management. Consider the following strategies to ensure support staff are set up for success and clients and law firms are protected:
- Understand the rules: The American Bar Association’s Rule 5.3 of the Model Rules of Professional Conduct establishes an attorney’s responsibilities regarding nonlawyer assistance to outline how they should approach managing unlicensed law professionals. Some state bar associations have additional rules specific to support staff. Attorneys with support staff reporting to them should familiarize themselves with all applicable rules to gain a keen understanding of their responsibilities as well as the tasks where their support staff can and cannot assist.
- Supervise: Managing attorneys should ensure support staff is never in a position to give legal advice or to discuss a case without a licensed attorney present. All documents they assist with must also be thoroughly reviewed and all deadlines should be regularly communicated with the managing attorney. Support staff should be included in case processes to ensure they have all necessary information to do their jobs, but it is crucial their managing attorney is actively involved. Regular check in meetings, defined approval protocols and allowing space for support staff to say no to a task that toes an ethical line can all help instill systems of accountability.
- Insurance: A law firm’s legal malpractice insurance policy usually includes paralegals and legal assistants, as well as other support staff positions.When mistakes happen or clients are left unhappy, law firm leadership will want to make sure their firms and staff are protected. An insurance professional who understands the legal industry can help make certain a law firm’s insurance policies cover all aspects of the business, support staff included.
Without support staff, the legal industry would not be able to keep up with the demand for quality legal counsel. But in an industry of sensitivities, attorneys and law firm leadership must take final responsibility over their staff to ensure clients receive proper counsel. If your law firm employs support staff, consider implementing a few risk management strategies that can help to safeguard the business and set employees up for success.