All occupations, from beauticians to doctors, are affected by laws governing conduct. As responsibilities and capabilities of legal assistants expand, their interest in the development of the legal assistant profession is bona fide. This article examines the basic precept of regulation of a profession, addresses ethical considerations, and reviews licensure. Whether licensing legal assistants is in the public interest will be the central question in deciding to regulate legal assistants as professionals. The decisive question will not be whether material benefits will or will not increase for legal assistants as a result of licensing. This basic precept is reflected in the Preamble to the State Bar Rules, Art. 10, § 9, Texas Disciplinary Rules of Professional Conduct:
8. The legal profession has a responsibility to assure that its regulation is undertaken in the public interest rather than in furtherance of parochial or self-interested concerns of the bar, and to insist that every lawyer both comply with its minimum disciplinary standards and aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.1
The State Bar's regulations reflect the sometimes competing duties of the legal profession and provide the reasoning behind the regulation of lawyers and for a lawyer's autonomy. Lawyers must discern conflicting interests of their clients' objectives, the law, and the legal system. Will legal assistant licensure benefit the public?
Legal assistants are utilized extensively in law practice and the relationship between interests of legal assistants, lawyers, and the public are significant, yet avenues for legal assistants to reconcile obligations unique to them are inadequate. For instance, legal assistant fees are commonly charged to the client/public. In return, clients are owed a standard of quality in exchange for fees charged. Yet some law firms underemploy their legal assistants and some are allowing less-qualified employees to act as legal assistants. Lack of information and statutory regulation of legal assistants becloud the public perception of legal assistants and perpetuate the public's confusion over the role of the legal assistant. These factors decrease the value the client/public receives in exchange for payment of legal fees.
The use of nonlawyer assistants is recognized in the State Bar Rules, but only the ethical violations of lawyers in their utilization of legal assistants are regulated. This regulation is found at Rule 5.03, entitled "Responsibilities Regarding Nonlawyer Assistants" which states, in part, the following:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(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; ...2
Comment 1 to Rule 5.03 notes the following:
"Such assistants act for the lawyer in rendition of the lawyer's professional services. ... The measures employed in supervising non-lawyers should take account of the fact that they do not have legal training and are not subject to professional discipline."3
The Legal Assistants Division of the State Bar of Texas does have a Code of Ethics which is enforced against its members (The Code of Ethics and Professional Responsibility of the Legal Assistant Division of the State Bar of Texas), nevertheless, it lacks statutory authority.
In addition to Rule 5.03, attorneys' utilization of legal assistants is controlled by Rule 5.05 of the State Bar Rules, entitled "Unauthorized Practice of Law," which states in relevant part:
A lawyer shall not:
(b) assist a person who is not a member of the bar in performance of activity that constitutes the unauthorized practice of law.4[emphasis added]
While the Legal Assistants Division of the State Bar of Texas monitors ethical conduct of its members, it has no authority to discipline unethical conduct other than to revoke membership status, although legal assistants are not required to join the Division. Unfortunately, numerous examples of opprobrious conduct exist that affect the public. They are enumerated monthly in the Texas Bar Journal.
The moral and ethical considerations that guide the legal profession in serving the public determine the respect and confidence an open society has in a self-regulated justice system. The duty of a lawyer is to work honestly, with candor and fairness "in fulfilling his [or her] primary duty to a client, [while] a lawyer must be ever mindful of the profession's broader duty to the legal system."5
In order to work in the interest of the public one must understand ethical concepts as they pertain to the regulated profession and the public. Ethical conduct is founded on the premise that an obligation exists. Obligations bring with them duties and rights of the actors. In this section the ethical concepts of autonomy and distributive justice are discussed in relation to the regulation of legal assistants. Legal assistant autonomy is presented here not as a concept to infringe upon lawyer autonomy but to strengthen the ethical provision of legal services to the public and the work environment legal assistants encounter.
There are universal concepts of ethical behavior, but there are also ethical concepts that require instruction to prevent error. How we utilize our intellect in choosing one act over another is an important part of ethics training. Autonomy is a factor of our human nature. It basically consists of a balance between knowledge and consent and the exercise of our own will. The development of the autonomy of each person to make choices is essential to the exercise of our human nature and the development of us as persons of ethical disposition.6 "Ethics is a matter of each individual person's making a judgment (founded, indeed, on ethical principles) about his or her unique action-an action whose circumstances are probably unreduplicated anywhere in human history, at least in some of their particulars. The gaining of one's final end is the personal responsibility of each moral adult."7 Ethical training and knowledge of the philosophical basis for autonomy gives each person an understanding of their rights and helps them deal with unethical conduct appropriately with confidence.
The significance of developing an appropriate level of professional autonomy in the legal assistant profession is exemplified by the following example. An attorney who had just completed his mediation training, in order to develop mediation business, forwarded a letter, addressed "To the legal assistant of: (here he inserted an attorney's name)." In the letter he offered the legal assistant a $100.00 gift certificate to Neiman Marcus every time he/she did one thing. The attorney/mediator wanted the legal assistant to select him as the mediator the next time a case the legal assistant was working on was referred to mediation. He did not send this letter to the attorney. He sent it only to the legal assistant (who may or may not be a member of the Legal Assistants Division of the State Bar of Texas and who may or may not be familiar with the Legal Assistants Division's Code of Ethics). What is the problem with this? First of all, the attorney has violated ethical standards by creating a conflict of interest between himself as the mediator and the parties in interest by creating a financial relationship with one of the parties to the conflict. In addition, he may have violated Rule 5.04 by promising to share fees with a non-lawyer. He also may have violated standards for mediators. This leads us to the issue of distributive justice.
Distributive justice is an ethical concept that is a subset of justice. "In general, justice is that virtue by which we give to each one that which is his or her own. ... [Distributive justice] is not a relationship of justice among equals, but rather one between a superior (of whatever sort) and his, her, or its inferiors; ... [Distributive justice] is a relationship that exists between a community (taken as a whole) and its members, i.e., that relationship which requires a fair distribution of both benefits and burdens among the members of a given society."8
The significance of the economic effect of legal assistants' contributions to the delivery of legal services is recognized by the courts through case law. The most profound example of this type of regulation in common law is the awarding of legal assistant fees. Three influential cases addressing this topic are Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), Gill Savings Association v. International Supply Company, Inc., 759 S.W. 2d 697 (Tex.App.-Dallas 1988, writ denied), and Missouri v. Jenkins, 109 S.Ct. 2463 (1989). The majority opinions in both Gill Savings and Missouri are alike in that both reflect the development of common law with respect to an issue that affects the public interest when no statute exists.
In Johnson the court was called upon to review the reasonableness of attorney's fees. The court set forth 12 guidelines as "standards to better enable district courts to arrive at just compensation" in attorney fee awards.9 The court also held that it was "an abuse of discretion not to consider the factors ..., and that a meaningful review requires a record that reflects such consideration."10 Gill Savings was a case of first impression in Texas in which the Dallas Court of Appeals "set out a rule for proving legal assistant's fees so that they are recoverable under a statute authorizing the award of attorney's fees."11 The case set forth 5 specific requirements of proof and tracks the language in a 1981 version of a brochure entitled General Guidelines for the Utilization of the Services of Legal Assistants by Attorneys. In setting forth this new rule, the court reinterpreted all Texas statutes that provide for the recovery of attorney's fees as a remedy.
In Missouri v. Jenkins, 109 S.Ct. 2463 (1989), the United States Supreme Court decided the issue for federal cases. The majority opinion held that "a `reasonable attorney's fee' cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney."12 A dissenting opinion was written by Chief Justice Rehnquist. His reasoning is germane. He said the statute allowing reasonable attorney's fees is not to be read as authorizing a `reasonable' fee for an attorney's work product. He noted the following:
"But the statute itself simply uses the very familiar term `a reasonable attorney's fee,' which to those untutored in the Court's linguistic juggling means a fee charged for services rendered by an individual who has been licensed to practice law. Because law clerks and paralegals have not been licensed to practice law in Missouri, it is difficult to see how charges for their services may be separately billed as part of "attorney's fees."
But I do not think Congress intended the meaning of the statutory term "attorney's fee" to expand and contract with each and every vagary of local billing practice. Under the Court's logic, prevailing parties could recover at market rates for the cost of secretaries, private investigators, and other types of lay personnel who assist the attorney in preparing his case, so long as they could show that the prevailing practice in the local market was to bill separately for these services. Such a result would be a sufficiently drastic departure from the traditional concept of "attorney's fees" that I believe new statutory authorization should be required for it. That permitting separate billing of law clerk and paralegal hours at market rates might "`reduc[e] the spiraling cost of civil rights litigation'" by encouraging attorneys to delegate to these individuals tasks which they would otherwise perform themselves at higher cost, ante, at 2471, and n.10, may be a persuasive reason for Congress to enact such additional legislation. It is not, however, a persuasive reason for us to rewrite the legislation which Congress has in fact enacted." [emphasis added]13
Chief Justice Rehnquist said the statute at issue in that case includes the familiar language "attorney's fee" and that language should not be expanded to include fees billed to the public by persons not licensed.
The common law has played a positive role in the regulation of legal assistants by allowing clients to recover legal assistant fees, however, the role legal assistants play in developing that form of regulation consists only of the work performed and billed to the client. So legal assistants have no professional autonomy but they share in both the responsibilities in the lawyer/client relationship and responsibilities unique to legal assistants in the legal assistant/client relationship and the lawyer/legal assistant relationship. Distributive justice presupposes that as members of the legal and public communities, legal assistants should be given an opportunity to fully participate in regulation affecting their profession.
Like the development of the common law in awarding legal assistant fees as an element of attorney fee awards, the Long Range Planning Task Force of the Legal Assistants Division of the State Bar of Texas also studied the development of professional definition as it relates to licensure of legal assistants. The development of this issue has come from several sources.
A clear definition of "professional" can be found in any dictionary. The American Heritage Dictionary defines a professional as "one who has an assured competence in a particular field or occupation."14 To have an "assured competence" implies that an individual has met certain standard requirements that can be verified.
Other definitions of a professional are often directly associated with the Department of Labor's Wage and Hour Division classifications for exempt status. But these classifications are not meant to define a professional. Exempt status regulations direct employers' determinations of whether or not an employee is eligible for overtime pay. While exempt status does not define a professional, it has an ambagious influence on professions. Whether legal assistants can be classified as exempt was decided by a jury in Dallas, Texas in 1994 in Robert B. Reich, Secretary of Labor, United States Department of Labor v. Page & Addison. The Page & Addison case was significant because the case could have produced a reported decision in which legal assistants would be defined as professionals who use discretion and independent judgment, thus creating a common law definition in Texas congruent to the Department of Labor's federal regulations classifying exempt status for administrative and professional exemptions.15
The question of whether paralegals exercise discretion and independent judgment is indirectly addressed in Gill Savings. Because a 1981 version of the General Guidelines for the Utilization of the Services of Legal Assistants by Attorneys, developed by the State Bar of Texas Legal Assistants Committee, was utilized in Gill Savings, a lack of cohesion exists between the common law and the federal regulations as to whether legal assistants are professionals and whether they use discretion and independent judgment, and whether these two factors affect the recovery of paralegal fees as an element of attorney's fees awards. The 1981 version of the pamphlet is no longer utilized, however, Gill Savings tends to define legal assistants in accord with the definition of an exempt employee.16 On the other hand, the current version of the Guidelines states in Guideline V(A) "the services performed by the legal assistant do not require the exercise of independent professional legal judgement; ..." (Guidelines, January 22, 1993). It is unclear whether the Guidelines is a legislative fact or an adjudicative fact.17 The development of these differences could create enough confusion for a firm to be sued by the Labor Department, as happened in Page & Addison.
Factors to be considered in contemplating licensure include the creation of an oversight agency, powers and duties, administrative costs of implementing a license, requirements for licensure, how the licensed profession should accommodate unregulated persons, and the effects of licensure. These factors are briefly discussed below. Legislation will be drafted by the Legislative Committee counsel, and perhaps the Judicial Committee. Representatives of legal assistants and the Board of Directors of the State Bar of Texas should be included in this drafting process, as is usual for parties requesting legislation.
1. Oversight Agency. An oversight agency can be free standing or created through an existing entity. Two examples of regulation administered through an existing state agency are (1) the State Bar of Texas which constituted an administrative agency of the Judicial Department of the State (State Bar Act, 1939) and (2) a license enacted in 1993 which regulates tatoo parlors through the Texas Department of Health. An example of a freestanding oversight agency would be state bars in states that do not require bar membership for law practice. The Legal Assistants Division of the State Bar of Texas is an existing entity that could be given oversight authority if legal assistants are licensed.
2. Powers and Duties. Considerations include powers and duties of legal assistants, of a licensing board, and ethics committees, both of legal assistants distinctively and in coordination with lawyers. Consideration should be given to the responsibilities of lawyers and how they will be affected. Models, while they will not apply in all respects, are the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure, both published in the Texas Rules of Court - State. The Division's standing committees are already in place and procedures could be made for oversight authority for the appropriately needed structures. The Division's code of ethics and a statutory definition should be codified and published in the statutes under the Government Code.
3. Administrative Costs and Implementation. The cost structure for administering licensure should be revenue neutral. All operating costs and expenses associated with administering the agency, (including overhead costs, salaries, costs of background checks, MCLE administration, and office administration) should be summed. Estimated membership should be calculated and divided into the costs to obtain an annual licensing fee. Currently, the membership fee for the Division is $50.00. While yet undetermined, it may not be necessary to increase this cost if all legal assistants are required to join the Division.
4. Requirements for Licensure. Legal assistants need a clear concept of licensure requirements. For example, grandfathering in qualified legal assistants, educational requirements, paralegal education, background requirements, employment requirements, experience, maintenance of MCLE, membership in the Division, and proscription from billing to clients fees generated by non-licensed practitioners. An exam is not required in order to create licensure.
5. Accommodations for Unregulated Persons. This may include student membership, grand-fathering, scholarship funds, future development or proscription of the legal technician practice, allowance for law clerks and lawyers to be employed as legal assistants, and a remedy against lawbreakers.
6. Effects of Licensure. Since this part of the legislation will be drafted by experts in the field of drafting legislation, most of the work will be done by others. In order to assist in this portion of the process, the following effects should be considered: legal assistant licensing's effect on attorney's fees (minimal effects); paralegal fees (minimal change); public access to the justice system (positive effect); greater public awareness of the judicial system (positive effect); easier recovery of fees (positive effect on judicial resources of time and economy); regulation and control (positive effect on assurance of quality of services and protection of the rights of the public); effects on current law (minimal or easily integrated). Economic effects will be predictable: according to current case law regarding fee recovery, lawyer fees recovered at trial may be reduced if legal assistants are not utilized by attorneys due to market availability of a less costly means of preparing legal work. Clientele also desire the access and stability provided by legal assistants and will demand their presence. Ultimately, the market for legal assistants will find a market price commensurate to value where supply meets demand. These effects will create more economic stability for both the lawyer and legal assistant professions, as well as the public.
This article has focused on the reasoning behind the licensure argument from an ethical and historic standpoint. It will take an understanding of this reasoning to develop a structure that will enable legal assistants to fulfill obligations, duties and rights as licensed professionals. Not addressed in this article are the root causes for the proliferation of professionalization in society, from physicians to tatoo artists, which includes subjects such as the way decision-makers approach solving problems and ethical theory in society. This is also an important topic, but is the subject of another article.
1 State Bar Rules, art. 10, § 9, Texas Disciplinary Rules of Professional Conduct, Preamble, in Texas Rules of Court - State (West Publishing, Inc., 1996), p. 394.
2 State Bar Rules, art. 10, § 9, Texas Disciplinary Rules of Professional Conduct, Rule 5.03, Responsibilities Regarding Nonlawyer Assistants (Adopted eff. Jan. 1, 1990.) in Texas Rules of Court - State (West Publishing, Inc. 1996), pp. 429-430.
3 State Bar Rules, art. 10, § 9, Texas Disciplinary Rules of Professional Conduct, Comment to Rule 5.03, in Texas Rules of Court - State (West Publishing, Inc. 1996), p. 430.
4 State Bar Rules, art. 10, § 9, Texas Disciplinary Rules of Professional Conduct, Rule 5.05, Unauthorized Practice Of Law (Adopted eff. Jan. 1, 1990; amended June 15, 1994, eff. Oct. 1, 1994.) in Texas Rules of Court -State (West Publishing, Inc. 1996), p. 431.
5 The Texas Lawyer's Creed - A Mandate For Professionalism (Adopted November 7, 1989) in Texas Rules of Court - State (West Publishing, Inc. 1996), p. 495.
6 Martin D. O'Keefe, S.J., Known From The Things That Are, Fundamental Theory of the Moral Life (Copyright Center for Thomistic Studies, University of St. Thomas, Houston, Texas, 1987, distributed by the University of Notre Dame Press), pp. 24-30.
7 Id., p. 172.
8 Id., p. 244.
9 Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 715 (5th Cir.1974).
10 Id., p. 720.
11 Gill Savings Association v. International Supply Company, Inc., 759 S.W. 2d 697, 706 (Tex.App.-Dallas 1988, writ denied).
12 Missouri v. Jenkins, 109 S.Ct. 2463, 2470 (1989)
13 Id., p. 2476.
14 The American Heritage Dictionary, (Houghton Mifflin Company, 1985), p. 989.
15 Court's Instruction For Question Number 1, Page 12, in No. 3:91-CV-2655-P; Robert B. Reich, Secretary of Labor, United States Department of Labor v. Page & Addison, In the United States District Court for the Northern District of Texas, Dallas Division, Filed March 9, 1994.
16 See CFR 29 §541.2.
17 See In Interest of J.W.T., 872 S.W.2d 189, 217 (Tex. 1994), dissenting opinion by Justice Cornyn; Office of Public Utility Counsel v. Public Utility Commission of Texas, 878 S.W.2d 598, 600 (Tex. 1994); and Bartlett v. Cinemark USA, Inc., 908 S.W.2d 229, 235, et seq. (Tex.App.-Dallas 1995).
Kristin D. Wilkinson received her B.B.A. in Economics with honors from the University of St. Thomas and is currently studying law at the South Texas College of Law. She is a former Director of the Legal Assistants Division and served on the Division's Long Range Planning Task Force from 1995 to 1997. Prior to entering law school she was employed as a legal assistant in the litigation section of the law department of Exxon Company, U.S.A. As a legal assistant, in June 1994 she became a Board Certified Legal Assistant, Civil Trial Law, Texas Board of Legal Specialization. She wishes to thank Robert Wallis, Sally Andress, and Norma Hackler for their review of this article prior to publication.