June 1998

Ethics And The Law
Ethical Responsibilities of Lawyers Regarding Nonlawyer Assistants

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

Nonlawyer assistants are a valuable and necessary part of lawyers' practices, allowing lawyers to serve their clients more effectively and economically. This article outlines the ethical responsibilities a lawyer has under the Rules of Professional Conduct (RPCs) with respect to nonlawyer assistants. 

Overview of RPC 5.3

RPC 5.3 sets out a lawyer's basic ethical responsibilities "with respect to any nonlawyer employed or retained by or associated with a lawyer." These responsibilities apply whether the nonlawyer is an employee, an independent contractor, or a volunteer. The rule's approach is primarily one of preventative maintenance. It requires that reasonable efforts be made, through preventative measures and supervision, to assure that a nonlawyer's conduct is "compatible" with the professional obligations of the lawyer.

The terms "nonlawyer" and "nonlawyer assistants" are not defined in the RPCs. They appear to include anyone not admitted to (and anyone suspended or disbarred from) practice in the jurisdiction in which the lawyer practices. In many law offices, nonlawyer assistants outnumber lawyers. The nonlawyers may include, among others, firm administrators, paralegals or legal assistants, law school interns or "summer associates," Rule 9 interns, paralegal interns, investigators, secretaries, computer specialists and data processing clerks, docket and file clerks, librarians, switchboard operators, receptionists, messengers, accountants and bookkeepers, human resources administrators, and marketing or client development staff. For prosecutors, "nonlawyers" would include, in at least some situations, police and others assisting or associated with the prosecutor. (See, for example, RPC 3.8(e) regarding restrictions on extrajudicial statements). Regardless of the tasks or functions of the nonlawyers, the lawyer has ethical responsibilities with respect to them.

RPC 5.3(a) describes the responsibilities of "a partner in a law firm" as that term is defined in the RPCs, while RPC 5.3(b) describes the responsibilities of a "lawyer having direct supervisory authority" over a nonlawyer. In many cases, of course, the partner may also be the directly supervising lawyer, and in many cases the provisions of RPC 5.3(a) and (b) will overlap. Both RPC 5.3(a) and (b) require the partner or lawyer to make "reasonable efforts." 

Duties of a Partner

RPC 5.3(a) requires that "a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the [nonlawyer] person's conduct is compatible with the professional obligations of the lawyer." If the partner has made those reasonable efforts, yet nevertheless a nonlawyer's actual conduct violates the required ethical standards, the partner will have satisfied his or her requirements under RPC 5.3(a). He or she may still have liability, however, for that nonlawyer's conduct under RPC 5.3(b) if he or she directly supervised the nonlawyer, or under RPC 5.3(c), discussed below, if he or she ordered or ratified the conduct or failed to timely remedy it.

The "terminology" section of the RPCs defines the term "partner" as denoting "a member of a partnership and a shareholder in a law firm organized as a professional corporation," and the terms "firm" or "law firm" as denoting "a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization and lawyers employed in a legal services organization." Thus, as the term "partner" is defined, it does not include sole practitioners, nor does it include senior lawyers who are not partners or shareholders in a professional corporation, nor does it include heads of corporate or governmental legal departments, since they are not organized as professional corporations. Thus, none of these lawyers is subject to RPC 5.3(a). Each will, however, likely be covered by RPC 5.3(b), which imposes similar obligations, and RPC 5.3(c). Cf. Hazard & Hodes, The Law of Lawyering (Second Edition), §5.1:201 and §5.3:201.

The "measures" with which RPC 5.3(a) requires that a partner make "reasonable efforts to assure that the firm has in effect" will vary with the firm and the nature of the nonlawyers. They would likely include normal hiring interviews and reference checks to verify the apparent honesty of the nonlawyer job candidate. The partner would also want to assure that procedures are in place to verify that a nonlawyer job candidate is not a suspended or disbarred lawyer since Rule 1.1(h) of the Rules for Lawyer Discipline and WSBA Formal Opinion 184 (1990) prohibit practicing with, or in cooperation with, or maintaining an office with, a suspended or disbarred lawyer, and RPC 5.5 prohibits a lawyer from helping a nonlawyer practice law. The "measures" would likely also include establishment of conflicts checks for nonlawyer assistants to verify that, for example, a secretarial or paralegal job candidate was not currently employed at a law office representing an opposing party, since such a person would likely have had access to confidential information. If he or she were so employed, it would be necessary to determine whether "screening" in some way could remedy the conflict so as to meet the spirit of the conflict of interest provisions set out in RPCs 1.7 through 1.11.

The "measures" would likely also include inquiring into the training and skills of the nonlawyer to assure that he or she can do the required tasks and understands the lawyer's ethical obligations. In hiring an inexperienced paralegal, for example, the partner might want to ascertain whether the person graduated from a paralegal training program approved by the American Bar Association Standing Committee on Legal Assistants, as such programs must train paralegals in various ABA specified criteria, including training in legal ethics. The only paralegal programs in Washington currently approved by the ABA are those at Highline, Edmonds, Spokane and Skagit Valley Community Colleges.

If the firm wants to hire a nonlawyer who does not already have the requisite substantive or ethical training, the partner should make reasonable efforts to ensure that his or her office has procedures in place initially to train the employee, and on an ongoing basis, update nonlawyers so that they understand the ethical standards applicable to lawyers. All nonlawyers, regardless of their job functions, should be trained in the RPC 1.6 provisions requiring confidentiality since all are likely to have access to confidential client information.

Depending on the nature of the nonlawyer's duties in the office, it may also be appropriate that he or she have at least a general understanding of the RPC 1.3 provisions requiring diligence and promptness, the RPC 4.1 requirement of truthfulness to third persons, the RPC 4.2 restrictions in communicating with persons represented by counsel, and the RPC 4.3 provisions relating to dealing with unrepresented persons.

The failure of a lawyer to establish preventative procedures and to supervise nonlawyer staff engaged in the unauthorized practice of law is a common violation of RPC 5.3. Indeed, most of what paralegals do in a law office would be unauthorized practice of law if it were not done under the supervision of a lawyer. Wolfram, Modern Legal Ethics (1986) §16.3.2. Thus, nonlawyer staff should also understand RPC 5.5 and other restrictions relating to the unauthorized practice of law. WSBA Formal Opinion 18 (1952), for example, concludes that it is unethical for a lawyer to permit a client to file pleadings using the lawyer's name without the lawyer being involved as to each case. Similarly, WSBA Formal Opinion 80 (1962) concludes it is unethical for the lawyer to sign pleadings prepared by nonlawyer employees of a collection agency client without the lawyer having any file on the facts of the cases and where the lawyer merely refers inquiries on the cases to the collection agency. Cf. WSBA Formal Opinion 76 (1960). Aside from issues of unauthorized practice of law, in each of these cases the lawyer would in effect have been failing to assure that the conduct of a person acting as a nonlawyer assistant (in these cases, the client) was compatible with the ethical obligations of the lawyer.

Nonlawyers should also understand and implement, particularly if the firm has a volume practice or relies heavily on nonlawyers to communicate with its clients, the RPC 1.4 provisions governing communication with clients. This is particularly important since many disciplinary grievances have their origin in alleged failures by lawyers and their staff to satisfy this duty to communicate with clients.

If the firm's nonlawyers assist in billing and collecting fees, or otherwise handle money or client property, the careful reference-background checks referred to above to verify the nonlawyer's apparent honesty are especially important. Other "measures" that may be appropriate are possibly the bonding of any such nonlawyers, the establishment and implementation of internal monetary controls and procedures, and the training of such staff to assure that they understand the RPC 1.5 provisions relating to fees, the RPC 1.14 provisions relating to preserving client funds and property, and the importance and practical mechanics of properly handling trust accounts. As irregularities in maintaining a lawyer's trust account are a frequent basis for lawyer discipline, it is imperative that a lawyer's nonlawyer staff be carefully trained and supervised in handling client funds and property, particularly because the lawyer's fiduciary duties with respect to the trust account are not delegable. Likewise, the partners should assure that the nonlawyer understands the RPC 5.4 prohibitions on sharing fees with nonlawyers. 

Duties of Directly Supervising Lawyer

RPC 5.3(b) sets out the responsibilities of a lawyer who has direct supervisory authority over a nonlawyer. It applies whether the lawyer is a sole practitioner, a partner, an employed lawyer, a contract lawyer, or of counsel, and whether the lawyer works in a private law office, or a governmental or corporate law department. To a large degree, it duplicates the responsibilities of RPC 5.3(a), but only as to nonlawyers under the direct supervision of a lawyer. For a sole practitioner, of course, this includes all of his or her nonlawyer assistants. The rule requires that the direct supervisory lawyer "shall make reasonable efforts to ensure that the [nonlawyer] person's conduct is compatible with the professional obligations of the lawyer." Although it clearly envisions that a lawyer can ethically delegate certain duties to nonlawyers, including the day-to-day operation of a lawyer's trust fund, as noted above, a lawyer's fiduciary duty with respect to client funds cannot be delegated.

A large part of a supervising lawyer's required efforts under RPC 5.3(b) will be to make sure that the nonlawyer in fact receives sufficient training, and that adequate procedures have been followed to meet the RPC 5.3(a) requirement to make "reasonable efforts." It will also include the careful supervision and monitoring of the nonlawyer, oversight and review of his or her work product and communications with clients and third parties, and the prompt investigation and remedy of any suspected irregularities. For example, violations of RPC 5.3(b) include failure of a lawyer to supervise a bookkeeper who embezzles funds, or a paralegal who is engaged in the unauthorized practice of law, or an office manager whose negligence results in neglect of case files or failure to maintain properly a litigation or client conflict docket. If the directly supervising lawyer has made reasonable efforts to ensure that the nonlawyer's conduct meets the requisite ethical standards, however, and yet the nonlawyer's actual conduct violates those standards, the lawyer will have satisfied his or her requirements under RPC 5.3(b) and will have no liability under that provision. He or she may still have liability, however, under RPC 5.3(c) for the conduct. 

Liability of Lawyer for Nonlawyer Misconduct

RPC 5.3(c) specifies under what circumstances a lawyer is liable for a nonlawyer's conduct which, if engaged in by a lawyer, would be ethical misconduct. If the nonlawyer engaged in such misconduct, the lawyer may also be subject to discipline, of course, for failure to meet the requirements of RPC 5.3 (a) or (b). Generally, however, a lawyer is not subject to discipline for the misconduct of a nonlawyer unless the lawyer ordered, ratified, or failed to timely remedy the conduct.

RPC 5.3(c) states that the lawyer is responsible for a nonlawyer's misconduct if "(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner in the firm . . . or has direct supervisory authority over the [nonlawyer] 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 directly supervising lawyer does not have a vicarious liability, but only accessory liability, and only if the lawyer falls into one of the two specified categories. In any event, the conduct of such a partner or supervising lawyer who falls within those categories would also appear to violate RPC 8.4(a), which states that it is unprofessional conduct to "violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another."

Conclusion

To a large extent, RPC 5.3 merely requires what any prudent lawyer is very likely already doing. The burdens imposed on partners and directly supervising lawyers in connection with using nonlawyer assistants are far less than the very significant benefits of using them to serve clients and free the lawyer from directly performing many tasks. As most lawyers and clients well know, the dedicated work of the lawyer's paralegals, secretaries, and other nonlawyer staff makes it possible for the lawyers to serve their clients effectively and economically.