Dear Ethics Chair

Laurie Borski

On June 1st our website is scheduled to debut a new addition: Ethics FAQs.  From time to time, we receive inquiries from paralegals and the public on topics related to paralegal ethics via our website (http://www.txpd.org) and/or by e-mail.  In the interest of education, and as a "preview" of sorts, I am sharing some of the types of questions we have received with you.  (None of the names are real and the inquiries have been changed to be more general and to protect personal information.)

Q: Dear Ethics Chair, I contacted someone listed in the telephone book for paralegal services in connection with a family matter.  The person did not act in a professional manner, demanded that I pay a retainer up front (which I paid), and has not done the work they were paid to do.  Do you think the person was not a paralegal and that I was scammed?  Signed, Worried.

A: Dear Worried, I’m afraid you were scammed, regardless of whether the person was a paralegal.  In the State of Texas, it is against the law for paralegals to give legal advice directly to the public.  The Texas Disciplinary Rules of Professional Conduct state that "the public has a right to be protected from the mistakes of the untrained, and the schemes of the unscrupulous, who are not subject to the judicially imposed disciplinary standards of competence, responsibility and accountability."  All paralegals in Texas must work under the direct supervision of an attorney who is licensed to practice law in Texas.  Only a licensed attorney can decide whether to accept you as a client and what to charge you for legal services.  I’m afraid there is nothing you can do but call the police and report this incident.  In addition, I encourage you to report this person to the Texas Supreme Court’s Unauthorized Practice of Law (UPL) Committee.  To file a grievance with the UPL Committee, go to http://www.txuplc.org.  Signed, EC.

Q: I know someone who claims to render paralegal services directly to the public in the Houston area and I have some really interesting information on that person!  Signed, In The Know.

A: Dear In The Know, I am authorized to take action against this person only if he/she is a member of the Division.  I checked my roster for the name you have provided to me, and the person is not a member.  Therefore, I suggest you provide whatever credible information you happen to possess on this person to the Unauthorized Practice of Law (UPL) Committee.  You may contact the Committee through the State Bar of Texas at 1.800.204.2222 or on the web at http://www.txuplc.org.  Signed, EC.

Q: I am a paralegal in another state or work for a paralegal services company that provides nationwide legal document preparation services.  Do you have to be licensed to practice law in Texas in order to provide basic legal document preparation services?  Are there any laws or guidelines on legal document preparation in Texas?  Signed, Seeking New Markets

A: Dear Seeking, the venture you describe appears to be the unauthorized practice of law.  In the State of Texas, one who provides legal services directly to the public must be licensed to practice law in Texas.  Section 81.101 of the Texas Government Code states in part that "the "practice of law" means the preparation of a pleading or other document incident to an action or special proceeding " including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined."  Preparing a "legal document" would certainly fall under the provision of legal services directly to the public as would the choice of the proper form to use for the circumstances.  Paralegals in Texas must work under the supervision of an attorney licensed to practice law in the State of Texas.  From your inquiry, it sounds as if your business provides legal services directly to the public without attorney involvement.  In Texas, no one but an attorney may own a business that renders legal services directly to the public.  In the rendering of legal services, the decision on whether or not to accept someone as a client and what fee to charge for the services provided is reserved for licensed attorneys.  You may wish to review the Texas Disciplinary Rules for Professional Conduct for more detailed information.  They can be found at http://www.texasbar.com.  Signed, EC.

Q: My attorney is out of the office all week and we have discovery responses due tomorrow.  As a paralegal, am I allowed to sign his name by permission to the responses or should I just negotiate an extension?  Signed, Out of Time.

A: Dear Out, only an attorney who is licensed to practice law in the State of Texas, or the party if not represented by an attorney, may sign a pleading, either in hand or by stamp.  T.R.C.P. 45(d).  The signatures of attorneys or parties constitutes a certificate by them that they have read the pleading, that to the best of their knowledge, information and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.  T.R.C.P. 13.  With the exception of parties not represented by an attorney, nonlawyers are not permitted to sign certificates of service or certificates of mailing.  The certificate by an attorney or party shall be prima facie evidence of the fact of service.  T.R.C.P. 21a.   As for the extension, only a licensed attorney may enter into an enforceable agreement.  T.R.C.P. 11.  I’m sorry, but unless there is another licensed attorney in your office who could speak with your attorney and obtain permission to sign the pleadings, you appear to be . . . out of time on this one.  Signed, EC.

Q: Is it legal for paralegals to form a business entity for legal services and keep an attorney on staff in the supervisory/responsibility role?  Can paralegals form a company that offers paralegal services?  Signed, Curious.

A: Dear Curious, anyone who provides legal services directly to the public must be licensed to practice law in Texas.  As paralegals, all of our work is done under the supervision of a licensed attorney.  If you form a business in which paralegals provide legal services directly to the public and an attorney would "supervise" or "be responsible" by merely being "on staff", it would be, or would come very close to, engaging in the unauthorized practice of law.  It is not adequate to have an attorney "on staff" if that attorney is not the one providing legal services directly to the public.  If you are thinking along the lines of a freelance paralegal that contracts work to attorneys or law firms, I don’t see a problem.  In Texas, no one but an attorney may own a business that renders legal services to the public.  In the rendering of legal services, the decision on whether or not to accept someone as a client and what fee to charge for the services provided is reserved for licensed attorneys.  By the way, in making this reply to you, I want to be clear that I am not a licensed attorney nor should my reply be construed as an offer, or an intent to offer, legal or business advice. Signed, EC.

Q: I am a paralegal and have a question about continuing legal education (CLE).  I have registered and paid to attend an online CLE course.  Another paralegal in my office wants to sit in with me during the course.  Will that be a problem?  Signed, Saving Money

A: Dear Saving, it would only be a problem if your co-worker expects to claim credit for attendance without the benefit of having registered and paid for the course.  Let me ask you this: would it be ethical for the other paralegal to attend a live CLE presentation without having registered or paid and yet claim full credit for attendance?  Or, would it be ethical for the other paralegal to register and pay for a course, attend but leave early, yet still claim credit for full attendance?  (Hint: the correct answer to both is "no.")  The online courses are offered as a convenience and savings to paralegals who may find it difficult to attend live presentations due to location, financial and/or work constraints.  Everyone who participates is expected to act responsibly and ethically to ensure the integrity of the system.  Leave early from a CLE seminar if you must, but do so knowing that you are entitled to claim credit only for that portion of the seminar you actually attended.  Reading the seminar materials on your own time (or on the plane ride home) would count as "self study," and not as "attendance."  Signed, EC.

Q: Can a person work as a paralegal in Texas if they have pled guilty to a felony and are currently serving adjudicated probation?  Can a person who has been disbarred or suspended from the practice of law work as a paralegal in Texas?  Signed, This Question Was A Class Assignment.

A: Dear Class, the answer to both questions is yes, so long as they are working under the direct supervision of an attorney licensed to practice law in Texas.  There is nothing of which I am aware that would preclude such persons from working as a paralegal in Texas.  However, the Paralegal Division of the State Bar of Texas specifically excludes those who have committed a felony from membership.  It is possible that local paralegal organizations might also exclude such persons from membership.  This response should earn a passing grade!  Signed, EC.

Laurie Borski is Chair of the Professional Ethics Committee of the Paralegal Division, State Bar of Texas.  She has served on the Division’s Annual Meeting and Election Committees and is a past president of the Alamo Area Professional Legal Assistants in San Antonio.