By Mary Evelyn McNamara and Kay Redburn
With apologies to Ben E. King, who wrote the iconic song “Stand by Me,” here’s one attorney’s ode to all of the phenomenal family law paralegals who stand by us and enhance our service to our clients in so many ways, especially in this era of virtual hearings and trials:
When the trial is nigh
And the stakes are high
And the Zoom screen is the only light we’ll see
No I won’t be afraid (of a missing exhibit)
Oh, I won’t be afraid (of a missing witness)
Because the paralegal has been standing, standing by me (maybe virtually, but standing by nevertheless).
In this paper, we will delve into paralegal standards, best practices, and ever-important ethics applying to paralegals and attorneys. And a special word to attorneys: Please thank your paralegals early and often. They are vital to the hard work we do for families.
II. Paralegal Standards in Texas
A. Definition of “Paralegal”
In 2005, the State Bar of Texas Board of Directors, and the Paralegal Division of the State Bar of Texas, adopted the following definition of “Paralegal”:
A paralegal is a person, qualified through various combinations of education, training, or work experience, who is employed or engaged by a lawyer, law office, governmental agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of a licensed attorney, of specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal principles and procedures that, absent such a person, an attorney would be required to perform the task.
By comparison, the current American Bar Association definition of “Paralegal,” adopted in February 2020, is as follows:
A paralegal is a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.
It is important to note that the 2020 version of the ABA definition removes the term “legal assistant” to reflect the terminology that more accurately represents the type of substantive work that paralegals perform. Therefore, in a distinct change, “legal assistant” and “paralegal” are no longer synonymous under the revised American Bar Association definition.
B. State Bar of Texas Paralegal Standards
In 2006, the State Bar of Texas Board of Directors approved amending the definition of “Paralegal” by including the following “Standards,” which are intended to assist the public in obtaining quality legal services, assist attorneys in their utilization of paralegals, and assist judges in determining whether paralegal work is a reimbursable cost when granting attorney fees:
Support for Education, Training, and Work Experience:
Attorneys are encouraged to promote:
- paralegal attendance at continuing legal education programs;
- paralegal board certification through the Texas Board of Legal Specialization (TBLS);
- certification through a national paralegal organization such as the National Association of Legal Assistants (NALA) or the National Federation of Paralegal Associations (NFPA); and
- membership in the Paralegal Division of the State Bar and/or local paralegal organizations.
In hiring paralegals and determining whether they possess the requisite education, attorneys are encouraged to consider the following:
- A specialty certification conferred by TBLS; or
- A CLA/CP certification conferred by NALA.; or
- A PACE certification conferred by NFPA; or
- A bachelor’s or higher degree in any field together with a minimum of one (1) year of employment experience performing substantive legal work under the direct supervision of a duly licensed attorney AND completion of 15 hours of Continuing Legal Education within that year; or
- A certificate of completion from an ABA-approved program of education and training for paralegals; or
- A certificate of completion from a paralegal program administered by any college or university accredited or approved by the Texas Higher Education Coordinating Board or its equivalent in another state.
Although it is desirable that an employer hire a paralegal who has received legal instruction from a formal education program, the State Bar recognizes that some paralegals are nevertheless qualified if they received their training through previous work experience. In the event an applicant does not meet the educational criteria, it is suggested that only those applicants who have obtained a minimum of four (4) years previous work experience in performing substantive legal work, as that term is defined below, be considered a paralegal.
Delegation of Substantive Legal Work:
“Substantive legal work” includes, but is not limited to, the following: conducting client interviews and maintaining general contact with the client; locating and interviewing witnesses; conducting investigations and statistical and documentary research; drafting documents, correspondence, and pleadings; summarizing depositions, interrogatories, and testimony; and attending executions of wills, real estate closings, depositions, court or administrative hearings, and trials with an attorney.
“Substantive legal work” does not include clerical or administrative work. Accordingly, a court may refuse to provide recovery of paralegal time for such non-substantive work. Gill Sav. Ass’n v. Int’l Supply Co., Inc., 759 S.W.2d 697, 705 (Tex. App.—Dallas 1988, writ denied).
Consideration of Ethical Obligations:
- Attorney. The employing attorney has the responsibility for ensuring that the conduct of the paralegal performing the services is compatible with the professional obligations of the attorney. It also remains the obligation of the employing or supervising attorney to fully inform a client as to whether a paralegal will work on the legal matter, what the paralegal’s fee will be, and whether the client will be billed for any non-substantive work performed by the paralegal.
- Paralegal. A paralegal is prohibited from engaging in the practice of law, providing legal advice, signing pleadings, negotiating settlement agreements, soliciting legal business on behalf of an attorney, setting a legal fee, accepting a case, or advertising or contracting with members of the general public for the performance of legal functions.
III. Role of the Paralegal
A. What a Paralegal Cannot Do
A paralegal cannot practice law or set fees, including:
- representing a client in court;
- signing pleadings;
- giving legal advice;
- accepting clients, or
- setting or quoting fees independently of an attorney.
NO Signing of Pleadings or Discovery
Only an attorney (or a party if not represented by an attorney) may sign a pleading. The only person who may “sign by permission” for a licensed attorney is another licensed attorney. See Tex. R. Civ. P. 57. This is because the signature of an attorney (or party) constitutes a certificate that the attorney or party has read the pleading, and that to the best of his or her knowledge, information and belief formed after reasonable inquiry that the instrument is not groundless and brought in bad faith or groundless and not brought for the purpose of harassment. See Tex. R. Civ. P. 13.
Similarly, only an attorney may sign a certificate of service because it is prima facie evidence of the fact of service. See Tex. R. Civ. P. 21a. The only person who may “sign by permission” for a licensed attorney is another licensed attorney.
B. What A Paralegal Can Do: Best Practices
Typical duties of a paralegal include, but are not limited to, the following:
- Conducting client interviews and maintain general contact with the client.
- Locating and interviewing witnesses.
- Conducting investigations, statistical, and documentary research.
- Conducting legal research.
- Drafting legal documents, correspondence and pleadings.
- Summarizing depositions, interrogatories and testimony.
- Attending depositions, hearings, and trials with the attorney.
- Authoring and signing correspondence, provided the paralegal status is clearly indicated and the correspondence does not contain independent legal opinions or legal advice.
Within the constraints set forth above, the services performed by a paralegal are limited only by training, experience, and the instructions of the supervising attorney. Small firms may require that paralegals perform all of their own clerical duties, as well as the billable ones. Many paralegals find themselves wearing many other hats, such as: Secretary, Receptionist, Runner, Billing, Accounts Payable/Receivable, Supply Stocker, etc. Paralegals in larger firms may have the luxury of secretarial support, law office administrators, and other support staff to handle the legal filings, ordering supplies, etc. Of course, this frees the paralegal to perform more client-related, and billable, services.
A paralegal may sign correspondence, including e-mail correspondence, so long as legal advice is not given and the paralegal’s name, title, and either the firm name or the name of the supervising attorney is provided. A paralegal may also sign correspondence by an attorney by permission so long as the paralegal’s title is clearly indicated and the letter does not contain legal advice or agreements. If the letter contains legal advice or agreements, the attorney should sign or have another attorney sign by permission.
Paralegals must always identify themselves by name and title on any business correspondence they send. This includes email as well as regular letters or documents. It matters not to whom the letter is addressed or by whom it was requested: if it is business correspondence or documentation on which the paralegal’s name appears, the paralegal’s title must also be included. This also applies to business cards and letterhead on which the paralegal’s name appears.
1. Client Communications
The paralegal is the main gateway for continued communication with the client. But the communication does not stop there. The paralegal should ensure the attorney is informed of all significant contacts with the client, as well as refer all inquiries for advice. The attorney does not have to speak with the client, but the paralegal should always indicate to the client that when a particular question seeks legal advice and that the client either speak directly to the attorney or the paralegal will follow up with the attorney and report back. And follow-up calls should include a reference that the paralegal did speak with the attorney and the attorney said ‘x’ or that it needs to be handled in a certain manner.
While the paralegal’s contact with the client is an invaluable assistance to most attorneys, it can never supplant the attorney’s main duty to maintain a direct relationship to the client. The paralegal should always, therefore, provide the attorney with a brief synopsis of the substance of each conversation. This enables the attorney to keep abreast of new facts or developments in the case while saving them the embarrassment of being ignorant to relevant facts when they actually do talk to the client. A brief “memo to the file” is a good way to save these notes for retrieval and reference. The best practice is to set the information down on paper, an electronic notes file, or in an email soon after the conversation so details are not lost as time passes.
Recall that rarely in law does an emergency arise that requires immediate action. Calls and e-mails do not have to be responded to immediately. But don’t forget that lack of communication with the client is the largest source of grievances. If the client calls or e-mails, the better course of conduct may be quickly to confirm with the client that you are aware of their question and you will get back to them by a date and time certain. This allows the team of attorney and paralegal to consider the query thoughtfully and provide an appropriate, timely response. However, be wary of responding with an email or a call after regular business hours. Clients may come to expect a response at 9 p.m. or on Saturday afternoon.
2. Drafting Pleadings, Motions, Decrees, Orders, and Closing Documents
In most cases, it is simply not economically efficient for the lawyer to draft a fifty-page decree, much of which consists of form language. By using the paralegal’s skill and experience in drafting various pleadings, motions, decrees, and orders, the lawyer can spend time on more substantive issues while lowering costs to the client. The paralegal may gather all of the preliminary information needed to assist the lawyer in determining what issues should be pled, which methods of discovery are appropriate and should be implemented. If the paralegal is present in the courtroom when the Judge renders his/her decision, then are two sets of notes from which to draft, and the lawyer does not have to come back from court and repeat the outcome or “translate” the lawyer’s notes.
The paralegal can also prepare drafts of ancillary closing documents, such as real estate transfer deeds and other transfer documents. When closing the file, the paralegal can draft the closing letter to include important dates and deadlines, such as:
- Date(s) any settlement payments are due.
- Deadlines and obligations related to the non-employee spouse’s health insurance coverage under COBRA.
- Deadlines and obligations for changing life insurance beneficiary designations and providing proof of coverage.
- Notice dates required by the possession order and any other significant dates related to possession of the children. Obligation and deadlines for notifying the former spouse, the court, and the child support collection agency of any changes of employer, employer’s address, and client’s address.
3. File Organization
The paralegal should have complete control over file organization. Exhibits, correspondence, document production, and anything else that finds its way into a client’s file should ultimately pass through the paralegal’s hands. This is true whether the file is paper or paperless. This ensures that at least one person in the office can locate every item in a given file. To further ensure that the file is well-organized and documents do not “disappear,” the lawyer should never touch anything in the file without the paralegal’s permission. It may be a good idea to make “working copies” for the attorneys and allow the original documents to stay in the file.
Discovery is often the most time-consuming aspect of litigation. The paralegal can reduce costs and minimize attorney time by handling discovery drafting and information gathering under the attorney’s supervision. After receiving basic instructions from the attorney, an experienced paralegal can draft every type of discovery request. This reduces the attorney’s time spent on preparing discovery requests to a simple review of previously drafted documents.
As to organizing and reviewing responses to discovery, the paralegal is again the ideal choice. As noted above, the paralegal often has a superior knowledge of the facts in the case and the location of documents in the case file. With this advantage, an experienced paralegal can organize voluminous amounts of documents in a fraction of the time it would take the attorney. Once organized and indexed, documents and other discovery expenses can be reviewed by the attorney. In fact, if the attorney points out a specific focus or issue to the paralegal, precious time can be saved because the paralegal can guide the attorney to relevant information or documents.
Having the client involved in the process is an absolute necessity. The attorneys can answer some of the discovery we know are “form answers” but as to the actual information and documents, the client is the only one that can provide this information. Let them know from the beginning that this is their responsibility. Tell them that they will be working with the paralegal to complete this task and the importance of providing complete information in a timely manner. Also, make sure the client is aware of the consequences of not fulling responding or not responding at all, such as Motions to Compel and for Sanctions.
5. Mediation, Hearing, and Trial Preparation
During the pendency of the case, a paralegal is indispensable to the lawyer’s mediation, hearing and trial preparation. From the file organization duties discussed above to preparation and organization of the trial notebook, an involved paralegal can streamline and focus trial preparation, thereby saving the client money and allowing for more effective use of the lawyer’s time.
If the paralegal is actively involved with a case from the beginning, the paralegal may have more knowledge of the facts than the lawyer. This is especially true if the paralegal is present during the initial client interview, reads and summarizes deposition transcripts, and interviews witnesses. The paralegal, familiar with the facts, can assist in drafting outlines for the attorney to use depositions, hearings, and trials.
The paralegal’s responsibilities normally also extend to the preparation of the trial or mediation notebook (whether paper or electronic). Although the lawyer should provide organizational input, the paralegal is usually the person who knows where everything is. By delegating the notebook preparation duties to the paralegal, the lawyer can again save the client money and focus his or her time on other matters.
C. Support Help for the Paralegal
There are businesses that offer services to assist your paralegal with research, drafting, and discovery. To locate one in your area, ask other attorneys that have used contracted services or search for “paralegal services your city.” Additionally, the financial expert that you are using may provide document management services and assist with preparing Inventory & Appraisements, Mediation Spreadsheets, and Responses to Requests for Production.
Outside Document Management Services should offer the following:
- Consultation and evaluation: Assessment of your organizational and document requirements. This is the most crucial element, as the ultimate success of a using an outside service or contractor is dependent upon defining each of your case’s individual requirements. You, your paralegal, and the outside provider must have a relationship built on trust and dependability, just like the relationship between you and your paralegal.
- Document organization and inventory: Firms offer the ability to use key words in a searchable database, as well as uniquely identifying all documents and ultimately bates stamping documents that are produced.
- Document preparation: Documents need to be thoroughly prepared for scanning: all staples, binders and fasteners removed, torn pages repaired, etc. Once scanned, documents need to be returned to their original condition: bound, stapled, etc.
- Document Scanning and Image Enhancement: Use of state-of-the-art scanners will scan documents converting every page and every graphic to a digital file. If needed, they provider may be able to electronically enhance the digital images to make them better than the originals. By applying these enhancements, the documents will be clean and easier to read. However, images should be retained as the original, captured image, to ensure they are available if needed.
- Delivery of Digital Documents: This will usually be offered on line through a secure information exchange portal. Digital documents may also be delivered in a format compatible to your in-house Document Management System.
The use of a contracted document management provider allows for:
- Handling of a large case: Allows solo practitioners/small firms the ability to take on the complex, document intensive cases involving huge amounts of discovery and/or production.
- Increased productivity: Employees spend less time searching for data and can devote more time to your core business.
- Improved customer service: Because it is faster to find information, your clients, opposing counsel—and you—receive needed answers quicker.
- Saves valuable office space : There is no need for bulky file cabinets or messy file boxes that take up valuable office space. By converting paper documents to digital files, you can operate more efficiently in a smaller space. And with the costs of office space spiraling upwards every year, this can mean a significant savings in the long run. It will also save on overhead: With the need for less space, you save on air conditioning, heating, and electricity. The long-term impact of this on your bottom line can be substantial.
- Financial expert assistance with preparing Inventory & Appraisements, Mediation Spreadsheets, and Responses to Requests for Production: Your financial expert, already reviewing and analyzing documents, often can accurately and quickly summarize and condense vast amounts of information into digestible portions for the attorney/paralegal team to assimilate into the relevant portions of the case.
IV. Ethical Considerations for Paralegals and Their Supervising Attorneys
A. Texas Paralegal’s Creed
“I am committed to this Creed for no other reason than it is right.” That is the last line of the first paragraph of the Texas Lawyer’s Creed. That commitment is based on one’s personal moral compass—not on what organization you happen to belong to or what license you hold.
It seems logical that not only lawyers should adhere to the highest ethical standards, but also should paralegals. After all, if an ethical attorney had an unethical paralegal working in the firm, what havoc could that wreak?
So, the Texas Lawyer’s Creed was used as the guideline and was modified to conform to the paralegal’s role in providing legal services alongside a supervising attorney. In 2012, the State Bar of Texas Standing Committee on Paralegals, chaired then by Chief Justice Linda Thomas (Ret.), reviewed the Texas Paralegal’s Creed, made revisions the Standing Committee deemed necessary, and then presented it to the State Bar Board of Directors, requesting their approval.
On January 25, 2013, the State Bar Board of Directors considered the Texas Paralegal’s Creed on their consent agenda and approved it. A copy of The Texas Paralegal’s Creed is attached as Appendix A. The State Bar now includes a copy of the Texas Paralegal’s Creed in CLE materials with the Texas Lawyer’s Creed. Pass a copy on to your paralegals and other attorneys in your firm, as well as your clients as a declaration of your continued commitment to professionalism.
B. Texas Disciplinary Rules of Professional Conduct
Paralegals must heed the Texas Disciplinary Rules of Professional Conduct (TDPRC), or their supervising attorneys could face grievance and/or disciplinary actions. Paralegals who are members of the Paralegal Division of the State Bar of Texas must adhere to the Canons of Ethics (attached in Appendix B) to maintain membership and avoid disciplinary proceedings. In this section is a summary of some of the rules more applicable to paralegals:
Caveat: This section often paraphrases the rules that are cited. This is not a substitute for reading the complete text of a rule.
Below is an overview of only some of the rules and their applicability to the paralegal profession. Before discussing the individual rules, one must first understand the purpose and scope of the Texas Disciplinary Rules of Professional Conduct. The Preamble to the Rules states that they are “rules of reason” and “define proper conduct for purposes of professional discipline.” (emphasis added) The preamble also states the Rules are not for the following purposes:
- Do Not exhaust the moral and ethical considerations that should guide a lawyer.
- Not an attempt to prescribe either disciplinary procedures or penalties for violation of a rule.
- Do Not undertake to define standards of civil liability of lawyers for professional conduct.
- Violation of a rule does not give rise to a private cause of action nor does it create any presumption that a legal duty to a client has been breached.
- Not designed to be standards for procedural decisions.
- Not intended to govern or affect judicial applications of either the attorney-client or work product privilege.
The Rules are divided into eight major categories: (1) Client-Lawyer Relationship, (2) Counselor, (3) Advocate, (4) Non-Client Relationships, (5) Law Firms and Associations, (6) Public Service, (7) Information About Legal Services, and (8) Maintaining the Integrity of the Profession. This section addresses only chapters 1, 3, 5 and 8. It’s always a good idea to take the time to review the entire TDRPC.
1. Client-Lawyer Relationship
The first section of the Texas Disciplinary Rules of Professional Conduct involves the client-lawyer relationship. This Section includes fifteen separate rules and is the subject from which most of the litigation against lawyers has arisen. Be mindful of the fact that even though these rules were written for lawyers, paralegals should adhere to these rules where appropriate, and assist their supervising attorneys in maintaining the integrity of the legal profession. The “Comments” referred to below can be found in the text of the Rules, and are not included in this article. Of special note to paralegals are the following sub-sections:
Rule 1.03: Communication
This Rule requires a lawyer to keep the client reasonably informed about the status of a matter and promptly respond with reasonable requests for information. Rule 1.03(a). The premise behind this Rule is that a client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued. Comment 1. The extent of the communication is dependent upon the type of advice or assistance involved. Comment 2. In certain situations of practical exigency, a lawyer may be required to act for a client without prior consultation. Id.
A lawyer may be justified in delaying transmission of information when the lawyer reasonably believes the client would be likely to react imprudently to an immediate communication. Comment 4. Occasionally, rules or court orders may provide that certain information that is supplied to the lawyer may not be disclosed to the client. Id. A lawyer may not, however, withhold information to serve the lawyer’s own interest or convenience. Id.
A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Rule 1.03(b). When a client is under a disability, a lawyer should seek to maintain reasonable communication insofar as possible. Comment 5. The extent of communication may be dependent upon the extent of the client’s competence and vary from case to case. Id.
The foregoing Rule 1.03 is the most applicable to the role of paralegal. Paralegals oftentimes are the first line of communication for the client, and may have the most interaction with the client. Many times, it will be up to the paralegal to keep the client informed, either by telephone or email. Always, always, always send your client copies of incoming and outgoing correspondence. Always, always, always return your client’s phone calls. If you look through the Texas Bar Journal at the “Public and Private Reprimand” section, you will find that most of the actions taken against lawyers were, at least in part, for not keeping the client informed. Before you read any further, go back and read this section again. It’s important.
Rule 1.05: Confidentiality of Information
“Confidential Information” includes both “privileged information” as defined in the Texas Rules of Evidence and “unprivileged client information.” “Unprivileged information” is defined as all information relating to a client or furnished by a client, other than privileged information, acquired by the lawyer during the course or by reason of the representation of the client. Rule 1.05(a).
Except under a few narrow exceptions, a lawyer shall not knowingly reveal confidential information of a client or a former client. Rule 1.05(b). The lawyer’s obligation to protect the confidential information of a client facilitates the proper representation of the client and encourages potential clients to seek early legal assistance. Comment 1. A lawyer cannot use confidential information of a client or a former client to that client’s disadvantage or to the advantage of a lawyer of a third person unless the client consents after consultation. Rule 1.05(b)(2), (3) & (4).
Protection of client confidentiality is an area of prime importance to paralegals. Paralegals have full knowledge of the client’s case, their personal financial matters, and the deepest innermost secrets of the person and their family. Great damage can be done to a client, the case, and the lawyer if the confidential information of a client is not protected scrupulously by the lawyer and the entire staff of the firm. This is a tenet to which lawyers and paralegals must adhere. Do not discuss the juicy details of a client’s case on the elevator or in public places. Do not “name drop” if you represent a famous person or family. Resist the temptation to let people know that you know all about the inner workings of your client’s well-known business.
TDRPC 1.05 (d) states that a lawyer may reveal confidential information in the following circumstances:
- Express authorization to carry out the representation.
- Client consents after consultation.
- To the client, the client’s representatives or the members, associates, and employees of the lawyer’s firm, except when otherwise instructed by the client.
- The lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.
- To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
- To establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer or the lawyer’s associate based upon conduct involving the client or the representation of the client.
The best rule of thumb for a paralegal to follow is to NEVER, NEVER, NEVER reveal any details of a client’s case. It is up to the lawyer to determine what is privileged and what is confidential.
A lawyer is required to reveal confidential information when a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act which is likely to result in death or substantial bodily harm to a person. Rule 1.05(e). Under those circumstances, the lawyer must reveal the confidential information only to the extent it reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. Id. If a paralegal finds himself/herself in possession of information that comes under Rule 1.05(e), the attorney should be immediately informed. Let the lawyer make the determination if such information should be disclosed.
Maintaining Confidentiality of Information on Social Media: A Cautionary Tale
Maintaining confidentiality of information of course includes a prohibition on disseminating confidential information on social media. Lawyers need to be sensitive not only about their own social media activities but also about the activities of their staff. Here’s a cautionary tale that reminds lawyers and paralegals to talk early and often about preserving confidences across all platforms:
In August 2019, a paralegal who had worked at the U.S. Attorney’s office in New Jersey for nine years was indicted on witness tampering, obstruction of justice, conspiracy, and obtaining information from a governmental computer. The allegations included that she used her position and Department of Justice-issued computer at the U.S. Attorney’s office to help her son, a member of a street gang. Among the allegations:
- In 2016, at the request of a high-ranking gang member, the paralegal used her work computer to find sensitive information in databases of criminal cases to help the gang find cooperating witnesses, as well as to obtain the personal information of a rival gang member.
- In 2018, during the pending robbery case against the paralegal’s son, his co-defendant gave a post-arrest statement to the police. The paralegal obtained the video footage of the statement, which was part of the discovery material for her son’s pending court case. She then allegedly posted the video on YouTube to prove that the co-defendant was “snitching.” She allegedly titled the video, “NYC Brim Gang Member Snitching Pt. 1.” The posting of the video led to the co-defendant and his family receiving death threats from fellow gang members.
- In a search of the paralegal’s home, investigators found video interviews with her son’s co-defendant and another accomplice on her computer. Investigators also recovered text messages from the paralegal in which she complained that the co-defendant was “giving up murders, victims, shooters and all” and that her son “has no line of defense because his co-d told everything.”
The paralegal pled not guilty, was released on a $75,000 bond, and was ordered to wear an ankle monitor, stay off social media, and refrain from contact with her son and other gang members.
Rule 1.06: Conflict of Interest: General Rule
In the TDRPC, the first and foremost rule is that a lawyer shall not represent opposing parties to the same litigation. Rule 1.06(a). In other situations and except to the extent permitted by other subsections, a lawyer shall not represent a person if the representation of that person:
1. Involves a substantially related matter in which that person’s interests are materially and directly adverse to the interest of another client of the lawyer or the lawyer’s firm; or
2. Reasonably appear to become adversely limited by the lawyer or law firm’s responsibility to another client or to a third person or the lawyer’s or law firm’s own interest.
A lawyer may represent a client in circumstances outlined above in Subsection (b) only if:
1. Their lawyer reasonably believes the representation of each client will not be materially affected;
2. Each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications and possible adverse consequences of the common representations and advantages involved, if any.
Rule 1.06 ( c)
The meaning of “directly adverse” is the lawyer’s independent judgment on behalf of a client or the lawyer’s ability or willingness to consider, recommend or carry out a course of action which will be or is reasonably likely to be adversely affected by the lawyer’s representation of, or responsibilities to, the other client. Comment 6.
A lawyer representing a criminal defendant was required to withdraw under Rule 1.06 because one of his law partners was married to the prosecuting attorney assigned to the case. Haley v. Boles, 824 S.W.2d 796 (Tex. App.—Tyler 1992, no writ).
A lawyer who has represented multiple parties in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute. Rule 1.06(d). The term “opposing parties” contemplates a situation where judgment favorable to one of the parties will directly impact unfavorably upon the other party. Comment 2.
If a lawyer has accepted representation in violation of Rule 1.06 or if multiple representation becomes improper under Rule 1.06, the lawyer must withdraw to the extent necessary for the remaining representation not to be in violation of these rules. Rule 1.06(e).
If a lawyer is prohibited by Rule 1.06 from engaging in a particular conduct, no other lawyer while a member or associate with that lawyer’s firm may engage in that conduct. Rule 1.06(f).
The rule regarding Conflict of Interest has become more prominent in the paralegal profession. Disqualification of firms because of non-lawyer employees (paralegals, among others) has resulted in litigation that has gone all the way to the Texas Supreme Court.
Even in the largest of Texas cities, the family law community is a small, relatively closed group. Many paralegals change firms within a certain geographically defined area over the course of their careers. More and more, it has become of more concern in the family law community, as well as other specialty areas, that a potential conflict of interest exists if a paralegal leaves Firm A and goes to work for Firm B, when Firm B is representing the opposite side of a case against Firm A, and the paralegal has confidential knowledge of the case while employed with Firm A. Before hiring a new paralegal, or changing firms, check to see if there are any cases the two firms have in common, and if a potential conflict might arise. There are ways to protect against a conflict, by using the “Chinese Wall” approach and not letting the new paralegal work on the case. However, it is important that this problem is known in advance, because after the fact may be too late to save your firm from being “conflicted out” of a lucrative case. There are two Supreme Court cases cited here that address this issue specifically: Phoenix Founders, Inc. v. Hon. John McClellan Marshall, 887 S.W.2d 831 (Tex. 1994), and Don Grant v. The Thirteenth Court of Appeals, 888 S.W.2d 466 (Tex. 1994). In both cases, the Texas Supreme Court decided that “disqualification is not required if the rehiring firm is able to establish that it has effectively screened the paralegal from any contact with the underlying suit” See Phoenix Founders, 887 S.W.2d at 831. In the Grant case, the law firm was disqualified because it failed to effectively screen the legal secretary from working on the conflicting case, and further stated, “[W]e recognize a rebuttable presumption that a non-lawyer who switches sides in ongoing litigation, after having gained confidential information at the first firm, will share the information with members of the new firm. The presumption may be rebutted upon a showing that sufficient precautions have been taken to guard against any disclosure of confidences.” See Grant, 888 S.W.2d at 467.
A law firm is not disqualified from representing a client when a paralegal or secretary has taken employment of a party adverse to a client of the paralegal’s former employer, if the supervising lawyer of the paralegal or secretary ensures the nonlawyer’s conduct is compatible with the professional obligations of a lawyer. Tex. Ethics Comm’n Op. 472 (1991).
Note that this DOES NOT APPLY to lawyers. If a lawyer changes firms, then absent the express agreement of all parties, the “Chinese Wall” cannot be used, and the lawyer with the conflict, and that firm, are prohibited from representing the client. This is the fundamental difference between lawyer conflicts and paralegal conflicts. The Texas Supreme Court recognized that if paralegals were held to the same stringent standards as lawyers, then those paralegals who had been in the business for a while who specialize in certain practice areas or who work in small geographic areas would be virtually unemployable by most firms if they wanted to stay in their field of specialty or in their city of choice, and thus would be locked in to working for one employer. Lawyers have licenses, and can work for themselves. Paralegals must work under the supervision of an attorney and do not have the career flexibility that licensed attorneys have.
Rule 3.05: Maintaining Impartiality of Tribunal
Paralegals are under the same obligations as lawyers when it comes to discussing a case with or in the presence of a judge. Make sure that if a member of your staff is at the courthouse, or speaking with a judge, that the paralegal follows the guidelines against ex parte communications set out in Rule 3.05:
This Rule basically prohibits a lawyer from communicating ex parte with the Court. Historically, ex parte contacts between a lawyer and a tribunal have been subjected to stringent control due to the potential for abuse. Comment 3. In addition to this Rule, forms of improper influence upon tribunals are also proscribed by criminal law, by applicable Rules of Practice or Procedure, and the Texas Code of Judicial Conduct. Comment 1.
A lawyer shall not seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable Rules of Practice or Procedure. Rule 3.05(a). A lawyer may communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter only in the following circumstances:
1. In the course of official proceedings in the cause;
2. In writing, if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;
3. Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
3. Law Firms and Associations
This section addresses issues that arise related to law firms and associations.
Rule 5.01: Responsibilities of a Partner or Supervisory Lawyer
A lawyer is not vicariously liable for the acts of another lawyer, but is only exposed to discipline for his or her own knowing actions or failures to act. Comment 5. The Rule subjects a lawyer to discipline because of another lawyer’s violation if:
1. The lawyer is a partner or supervising lawyer and orders, encourages, or knowingly permits the conduct involved; or
2. The lawyer is a partner in a law firm in which the other lawyer practices, is the general counsel of a government agency’s legal department in which the other lawyer is employed, or has direct supervisory authority over the other lawyer, and with knowledge of the other lawyer’s violation of these Rules, knowingly fails to take reasonable remedial action to avoid to mitigate the consequences of the other lawyer’s violation.
Whether a lawyer has “direct supervisory authority over the other lawyer” in a particular circumstance is a question of fact. Comment 3. In some instances, a senior associate may be a supervising attorney. Id.
A partner or other authoritative lawyer as defined by the Rule is required to take reasonable remedial actions to avoid or to mitigate the consequences of the other lawyer’s known violation. Comment 4. The appropriate remedial action is dependent upon the circumstances. Id.
Rule 5.02: Responsibilities of a Supervised Lawyer
When a lawyer acts under the supervision of another person, the lawyer does not violate these Rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional conduct. Rule 5.02. This exception is narrow.
The fundamental concept is that every lawyer is a trained, mature, licensed professional who is sworn to uphold ethical standards and who is responsible for his or her own conduct. Comment 1. This special defense recognizes that the inexperienced lawyer working under the direction or supervision of an employer or senior attorney is not in a favorable position to disagree with reasonable decisions made by the experienced lawyer. Comment 4. Often, the only choices available to the supervised lawyer would be to accept the decision made by the senior lawyer or to resign or to otherwise lose the employment. Id. This Rule is not to be construed as a defense to a supervised lawyer who participates in clearly wrongful conduct. Comment 5.
Rule 5.03: Responsibilities Regarding Nonlawyer Assistance
This Rule governs secretaries, investigators, law students, interns, and paraprofessionals employed by lawyers. Comment 1. The lawyer who has direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. Rule 5.03(a).
The lawyer will be subject to discipline for the conduct of a nonlawyer who would be in violation of these Rules if engaged by the lawyer if:
a. The lawyer orders, encourages, or permits the conduct involved; or
b. The lawyer:
1. Is a partner in the law firm in which the person is employed, retained by, or associated with; or
2. Is the general counsel of the government agency’s legal department in which the person is employed, retained by or associated with; or
3. Has direct supervisory authority over such persons and
c. With knowledge of such misconduct by the nonlawyer knowingly fails to take reasonable or remedial action to avoid or mitigate the consequences of that person’s misconduct.
Rule 5.04: Professional Independence of a Lawyer
A lawyer or a law firm is prohibited from sharing or promising to share legal fees with a nonlawyer except as follows:
a. An agreement by a lawyer with the lawyer’s firm, partner, or associate, or a lawful court order may provide for the payment of money, over a reasonable period of time, to the lawyer’s estate for the benefit of the lawyer’s heirs or personal representatives, beneficiaries, or former spouse, after the lawyer’s death or as otherwise provided by law or court order;
b. A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that portion of the total compensation which fairly represents the services rendered by the deceased lawyer; and
c. A lawyer or law firm may include non-lawyer employees in retirements, even though the plan is based in whole or in part on a profit sharing arrangement.
These limitations are designed to prevent solicitation by lay persons of clients for lawyers and to avoid encouraging or assisting nonlawyers in the practice of law. Comment 1. Rule 5.04(a) does not necessarily mandate that employees be paid only on the basis of a fixed salary. Comment 3. The payment of an annual or other bonus does not constitute the sharing of legal fees if the bonus is neither based on a percentage of the law firm’s profits or on a percentage of particular legal fees, nor is given as a reward for conduct forbidden to lawyers. Id.
A lawyer is prohibited from forming a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law. Rule 5.04(b).
A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services. Rule 5.04(c). This situation arises frequently when a third party is paying the legal fees for another. The lawyer should always exercise his professional judgment solely on behalf of the client. Comment 4.
The lawyer is prohibited from forming a professional corporation or association authorized to practice law for profit under the following circumstances:
a. A nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
b. A nonlawyer is a corporate director or officer thereof; or
c. A nonlawyer has the right to direct or control the professional judgment of a lawyer.
Rule 5.05: Unauthorized Practice of Law
A lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction. Rule 5.05(1). A lawyer is further prohibited from assisting a person who is not a member of the Bar in the performance of activity which constitutes the unauthorized practice of law. Rule 5.05(2).
Limiting the practice of law to members of the Bar protects the public against rendition of legal services by unqualified persons. Comment 2. The lawyer may, however, counsel nonlawyers who wish to proceed pro se, because a self-represented litigant is not engaged in the unauthorized practice of law. Comment 4.
Rule 5.05 does not prohibit a lawyer form employing the services of paraprofessionals and delegating functions to them. Id. The lawyer must, however, supervise, the delegated work and retain responsibility for the work. Id.
Rule 5.08: Prohibited Discriminatory Activities
Rule 5.08 provides that lawyers shall not “manifest, by words or conduct” bias or prejudice based on race, sex, color, national origin, religion, disability, age, or sexual orientation toward any person involved in a court proceeding during such proceeding. This does NOT apply, however, to a lawyer’s decision whether to represent a particular person, or to the process of jury selection, or communications protected as “confidential information” under these Rules or to appropriate and necessary advocacy.
A paralegal’s conduct should be the same as the attorney’s, i.e., behaving in such a manner in Court that does not violate Rule 5.08 and subject the attorney to disciplinary procedures.
4. Maintaining the Integrity of the Profession
Rule 8.04: Misconduct
A lawyer shall not:
1. Violate these Rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship;
2. Commit a serious crime, or commit any other criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
3. Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
4. Engage in conduct constituting obstruction of justice;
5. State or imply an ability to influence improperly a government agency or official;
6. Knowingly assist a judge or judicial officer in conduct that is a violation of applicable Rules of Judicial Conduct or other law;
7. Violate any disciplinary or disability order or judgment;
8. Engage in conduct that constitutes barratry as defined by the law of this State;
9. Fail to comply with Article X, Section 32 of the State Bar Rules;
10. Engage in the practice of law when the lawyer’s right to practice has been suspended or terminated, or the lawyer is on inactive status or when under administrative suspension; or
11. Violate any other laws of this state related to the professional conduct of lawyers and for the practice of law.
This Rule provides a comprehensive restatement of all forms of conduct that will subject a lawyer to discipline under either these Rules, the State Bar Act or the State Bar Rules. Comment 2.
Although a lawyer is personally answerable to the entire body of criminal laws, a lawyer should be professionally answerable only for offenses that indicate a lack of those characteristics relevant to fitness to practice of law. Comment 5. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligations that legitimately could call a lawyer’s overall fitness to practice into question. Id.
The term “serious crime” as used in this Rule means any felony involving moral turpitude, any misdemeanor involving theft, embezzlement, or fraudulent misappropriation of money or other property, or any attempt, conspiracy, or solicitation of another to commit any of the foregoing. Rule 8.04(b).
Even though the attorney bears the ultimate responsibility for adherence to these rules, it is incumbent upon paralegals to know what the consequences of their actions could be, for the supervising attorney, the client and the paralegal. The lawyer being unaware of the actions of the non-lawyer employee is not an excuse. “Good faith” is not a defense to attorney malpractice. Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989).
To maintain the integrity of the paralegal profession, every paralegal should be familiar with the Texas Disciplinary Rules of Professional Conduct and uphold them, as well.
V. Paralegal “Crime and Punishment”
Most attorneys are unaware that a grievance procedure exists for paralegals, so let’s enlighten you and your paralegal.
The Paralegal Division of the State Bar of Texas (PD) has promulgated rules for the reporting of ethical violations (“crimes”) of members, and procedures for the investigation and determination of such reports (“punishment”). The paralegal of yesterday was accountable to the supervising attorney. The paralegal of today is accountable not only to the attorney for whom the paralegal works, but also to the legal system, the judicial system, and the public. To paraphrase the preamble to the Disciplinary Rules of Professional Conduct: “A Paralegal, together with the supervising attorney, is a representative of clients, and a public citizen having special responsibility for the quality of justice. Paralegals and Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires and understanding by Paralegals of their relationship with and function in the legal system. A consequent obligation of Paralegals is to maintain the highest standards of ethical conduct.”
For paralegals (and their supervising attorneys), ethical behavior involves following not only internal guiding principles, but also the Texas Disciplinary Rules of Professional Conduct and the Code of Ethics and Professional Responsibility. (See Appendix B)
The Professional Ethics Committee of the PD is responsible for interpreting the Division’s Code of Ethics and Professional Responsibility, serving as a Grievance Committee, and providing the membership with education on ethical issues. This Committee is also responsible for investigating any complaint it receives against a member of the Division pursuant to the Disciplinary Procedures. The Standing Rules provide for a grievance procedure the handles complaints against Division members. The latest version of the Standing Rules (effective June 2019) may be found at: https://txpd.org/files/file/perma-link/PD%20Standing%20Rules.pdf.
If the paralegal against whom a complaint has been lodged is not a member of the PD, there is nothing to stop that person’s unethical behavior, unless it encompasses the unauthorized practice of law as defined in the Texas Government Code, Sec. 81.101, then that person could be subject to injunction and the supervising attorney to disciplinary action.
If the paralegal is a member of the PD, then a written complaint shall be forwarded to the PD Executive Director, who shall in turn forward it to the Chair of the Professional Ethics Committee (“Chair”) for investigation. If a complaint involves an attorney and paralegal, then the Chair shall forward a copy of the complaint to the General Counsel of the State Bar, without comment. All proceedings involving such complaint shall be confidential. Any correspondence concerning a complaint shall be transmitted in an envelope marked “PERSONAL & CONFIDENTIAL: TO BE OPENED BY ADDRESSEE ONLY.”
The investigating committee shall interview the complainant, gather names and addresses of persons with knowledge of relevant facts; interview the paralegal and possibly the supervising attorney, and all persons identified by the complainant and the paralegal; and conduct any other such investigation as necessary. A hearing shall be scheduled within 90 days of receipt of the written complaint. The paralegal shall have 30 days written notice of the hearing, and the paralegal then has 20 days in which to respond. An extension of not more than 30 days may be granted for good cause shown.
At the hearing, all persons testifying shall be sworn to tell the truth; any party may present witnesses to testify and present evidence relevant to the allegations contained in the complaint; the paralegal has the right to be present during all testimony, with counsel, at the paralegal’s expense, if so desired. The Chair shall determine the order of appearance of witnesses; each witness shall be heard privately and out of the presence of the other witnesses. The hearing shall be recorded, then immediately reduced to writing. The original of the recorded hearing and written transcript are sent to the Executive Director, who shall keep such record in the confidential files of the Division. It shall not be available to anyone other than the Professional Ethics Committee and the Board sitting as the Disciplinary Committee.
Within 10 days of the hearing, a finding of “No Professional Misconduct” or “Professional Misconduct” shall be made. A determination of “Professional Misconduct” shall include a recommendation for disciplinary action. A finding of “No Professional Misconduct” will close the file with notice to the paralegal and the Complainant.
A paralegal who has been found to have committed “Professional Misconduct” has ten days from receipt of the notice to appeal. If no appeal is filed, the finding becomes final and the Chair recommends to the Board of Directors disciplinary action. The Board of Directors meets in executive session as a Disciplinary Committee to determine appropriate disciplinary action. The paralegal, the paralegal’s counsel, if any, and the Committee Chair may appear. The Board may consider any testimony or evidence presented.
Sanctions include private reprimand, public reprimand, or suspension or expulsion of membership in the PD. A private reprimand consists of the Board calling the paralegal to appear and hear the reprimand and any conditions connected therewith. The identity of the paralegal remains confidential. A public reprimand is announced in open session along with the sanction. The name, county, and place of business of the paralegal and the sanction imposed shall be published to the general membership. The same is done in the case of suspension or expulsion of membership.
Aside from the obvious deterrents to engaging in unethical behavior, think about the consequences for a paralegal who receives a public reprimand. Not only is the paralegal’s name published to the general membership, but also the paralegal’s employer’s name is in print for all to see. It should also be noted that a paralegal who has been found to have committed professional misconduct will have to report same on any application to the Texas Board of Legal Specialization (TBLS) to sit for the specialty certification examination in any area. The Legal Assistants Advisory Commission and TBLS may deny certification or recertification if a finding by the Professional Ethics Committee or any Paralegals’ organization, an Unauthorized Practice of Law Committee, or court find that an applicant has been guilty of professional misconduct.
VI. Ethical Billing Practices
Law firms sell their time. Whether it is a flat fee, hourly rates, or contingent, billing practices all come down to: how much time did it take to perform a task, and how is that time charged to the client?
Billing practices may begin as early as the very first call the potential client makes to the law firm. Disclosure of the firm’s billing rates in the initial contact the client has with the firm lets the client know you are not trying to “hide the ball” or misrepresent what the fee structure is, and that there is full disclosure about expectations for billing the client and being paid by the client.
Texas Disciplinary Rule of Professional Conduct 1.04 sets out the attorney’s obligations regarding fees. Pursuant to TDRPC 5.03(a), “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.” Therefore, TDRPC 1.04 applies to the conduct of paralegals, where applicable, when looking at billing practices.
Paralegals cannot set the fees. But a paralegal can, under the direction of an attorney, disclose to the client the fee structure in place for the employer attorney or law firm. The paralegal should have a thorough understanding of the firm’s billing practices, philosophies, and expectations. What protocols does the firm have when discussing fees with clients? What does the firm expect of the paralegal regarding this issue? How does the firm bill for time? How much detail does the firm want in the billing that goes to the client?
Some questions regarding ethical billing practices are “black and white,” and some fall in a gray area. Some examples of the “black and white” ethical billing issues are:
- Padding the bill: This may arise when trying to meet a requirement for billing a certain number of hours per month or if a paralegal receives an incentive for billing “extra” hours each month. If a task took one hour, it is unethical to bill for more than that amount of time.
- “Churning”: Doing unnecessary work on a case for which you bill the client. Examples would be drafting a motion that you knew was not going to be needed, or preparing two pieces of correspondence when one would suffice.
- Billing for work you did not do yourself: If you delegate a task to a person in the firm who does not bill time, and then you bill the client for the task as if you performed it, that would be unethical.
- Billing for work you haven’t done yet: Entering billable time for a task that you intend to complete in the future, to meet monthly billing requirements or to make up billable hours.
- Billing multiple clients for work done during the same time period: An example would be billing the client for an hour of drafting a pleading, but during that hour, you took a 15-minute phone call from another client and billed one client for an hour, and the other client for one-quarter of an hour, when you only spent one hour total on both.
- Billing for “sweat equity”: Because of years of experience and software improvements, what used to take 2 hours to prepare may now only take 45 minutes. Or, what takes an inexperienced paralegal 2 hours only takes the experienced paralegal an hour to accomplish.
- Spreading out your billable hours to cover the whole day (or more than the whole day): It is virtually impossible to bill every minute of your workday. Everyone spends some non‑billable time, screening prospective clients, taking restroom breaks, generally organizing your desk, taking non‑client phone calls, and the like.
Then there are the “gray” areas of law firm billing, the What, When, Where, and How (“Who” is not gray—the person performing the task bills for the task):
- What: Sometimes the line between “substantive legal work” and clerical work can become blurry for a paralegal. Are you just copying exhibits for trial, or are your reviewing them as you make copies, determining the application of the exhibits to the issues before the Court, what your supervising attorney may need, in what order, etc.? Should this time be divided between billable and non‑billable? How do you calculate such a division?
- When: If you have to travel an hour to get to the courthouse for a hearing, is it your firm’s policy to bill for that time? Is this disclosed to the client ahead of time?
- Where: If your firm has two separate cases for one client, but the work is substantially the same for both cases, where is the time for the task you performed recorded? If your firm is withdrawing from representing a client, is this recorded as billable or non‑billable time to the client? Does the issue of “the client fired the attorney” or “the attorney fired the client” come into play?
- How: How much detail of work performed should be put into the bill? Are the client’s billing records subject to being produced to the opposing party? Who redacts the confidential information and how much information in the bill is redacted? How are billing errors handled?
There are no easy answers or guidelines that cover all of the above scenarios, but there are ways to help paralegals (and attorneys) avoid unethical billing practices, which include:
- Be aware of all of your supervising attorney’s and/or firm’s billing practices and procedures. When in doubt: ASK. And don’t be afraid to make suggestions that may help the firm. Billing is the lifeline of our profession and the practice of law. Most of us are not lucky enough to be able to work in this business for free, and billing pays our salaries. Become familiar with the billing software used by the firm.
- Be open and forthright with the client about the firm’s billing policies and procedures from the very inception of the attorney/client relationship. Making a client aware of the policies and procedures (in writing, typically in the firm’s fee agreement or engagement letter with the client), then it is more difficult for the client to come back later and complain about a lack of knowledge. And even before the client retains the attorney or firm, provide the client with the firm’s hourly rates, consultation fees, and any other applicable fees that are requested.
- Respond promptly to a client’s questions regarding the billing statement. Ask (in the engagement letter) that the client contact the firm within a certain period of time of receiving a billing statement or invoice with any questions or concerns they may have. If the client waits until the end of a case that took 2 years to litigate to ask questions about the first billing, it will likely be much more difficult to answer after the passage of so much time.
- Correct billing errors as soon as they are found. Provide a full explanation of the error in writing to clients, even if the client did not notice the error.
- Hold periodic billing meetings, where only the billing matters are discussed for each client. If you combine this type of meeting with a case status meeting, it is easy to get off‑track and talk about the case, rather than if the client is timely with their payments, if the attorney is willing to let a receivable wait, if the client needs to be contacted about payment and the like.
- If you provide a service to a client for which you are NOT going to bill the client, then list the service provided on the client’s bill and (usually in capital letters) indicate that it was a NO CHARGE on the bill. The benefits are two‑fold: you are providing the client with information about what services you are providing, and there is a psychological benefit to the client seeing “NO CHARGE” on their bill.
- Do not use abbreviations or terminology on the billing that a client will not understand. If the bill is easy to read and understand, it will be more likely to be paid.
- Review the billing before it goes to the client. This guards against typing errors, as well as any obvious gaps in services performed, e., if you got busy and forgot to enter time for services performed. Read the bill as if it were yours. What would you want to see/not see on the bill? Is it easy to tell what was billed, who provided the service and what is owed? Also, read the bill as if you were the trial judge and the bill is an exhibit. Does it provide the court with the information needed to make an award of fees?
Attorney and law firm billing has come under increasing scrutiny by clients and by the courts. Clients are educating themselves on billing practices and are more sophisticated in reviewing billing statements and asking pertinent questions. Errors in billing statements to the client harm the credibility of the client, the law firm, and the staff at the courthouse. Unethical billing practices are more likely to trigger grievances being filed by clients. Maintaining professionalism and a high standard of ethics in the billing process is paramount in providing quality services to clients, maintaining client satisfaction, and upholding the integrity and reputation of the firm.
VII. Paralegal Education and Training
The educational options for paralegals are as numerous as the opinions on how to streamline the discovery process. The problem is, not all of those educational options are adequate. Questionable online courses abound. When interviewing for a paralegal, pay attention to where the person received educational training. If the school does not sound familiar, investigate. Ask the applicant some questions about the institution, i.e., where it is, how long was the course, scope of classes taken, was a certificate issued, is it ABA-approved? The American Bar Association has instituted a process whereby a school must meet certain criteria, complete extensive forms and information, and submit to an on-site inspection by a team appointed by the ABA’s Standing Committee on Paralegals before it can be ABA-approved There certainly are decent programs that are not ABA-approved, but if you are interviewing someone who has successfully completed an ABA-approved course of study, you can be fairly confident the person has received an intensive education in the paralegal field. You can find a directory of ABA-approved paralegal programs here: https://www.americanbar.org/groups/paralegals/paralegal-resource-directory/.
Be careful not to limit your options, however. There are also highly qualified and experienced paralegals who have received on-the-job training who would be excellent additions to your law practice.
A good family law paralegal requires more than just educational training. Personality and intrinsic traits such as good listening and oral communication skills, an even disposition in dealing with the most difficult clients, sound ethics, good work habits, pride in work, sound judgment, loyalty, and professional responsibility are just some of the essential qualifications for a good paralegal.
It is imperative for a firm to establish consistent qualifications for hiring paralegals, to avoid any dissention or resentment among the paralegals themselves. Consider different requirements for entry-level as compared with experienced paralegals, and what training the firm is able/willing to offer. Determine benefits packages and other incentives for hiring qualified paralegals. Turnover is expensive, so develop a plan to keep your paralegal satisfied with the career and position with your firm. It will pay off in the long run. ♦
Texas Paralegal's Creed
I work with, and under the supervision of, a lawyer who is entrusted by the People of Texas to preserve and improve our legal system. I realize that unethical or improper behavior on my part may result in disciplinary action against my supervising attorney. Read more.
Code of Ethics and Professional Responsibility
On October 23, 1981, the State Bar of Texas became the first bar association in the United States to create a separate division for paralegals. One of the first actions taken by the Board of Directors of the Legal Assistants Division (as it was then known) was to adopt a Code of Ethics and Professional Responsibility (the “Code”). Read more.