A few months ago, an emeritus member of the Division who is now attending law school contacted me to discuss a statement her professor had made in her Professional Responsibility class. The professor gave the class a hypothetical situation wherein a paralegal interviewed a new client and completed the intake process, but calendared the statute of limitations deadline incorrectly based on an incorrect accident date provided by the client. The incorrect calendaring of the accident date caused the lawsuit to be filed too late. The question for the class was whether the attorney could be sued for malpractice. Of course, the answer was that the attorney certainly could be sued for malpractice, but the PD member questioned whether the attorney-client relationship ever existed. In the hypothetical situation, there was no mention of the attorney ever speaking with the client or accepting the case. The professor stated that the paralegal could accept the case because the paralegal is acting as the agent of the attorney. As an experienced paralegal, the PD member was confused about her professor’s statement and hoped I could help her understand the basis for her professor’s assertion.
Agent: One who agrees and is authorized to act on behalf of another, a principal, to legally bind an individual in particular business transactions with third parties pursuant to an agency relationship (West’s Encyclopedia of American Law, edition 2. (2008).)
As the definition above states, an agent may make legal commitments and agreements for the principal. However, rules 5.03, 5.04, and 5.05 of the Texas Disciplinary Rules of Professional Conduct do not refer to non-attorney staff ever being agents for attorneys, although the rules do emphasize that attorneys have a duty to supervise non-attorney staff, including paralegals. Further, the State Bar’s definition of a paralegal and the associated guidelines, as well as the PD ethics cannons, make it clear that paralegals may never serve as agents for attorneys in legal matters.
In the hypothetical situation presented to the law class, an attorney could be sued for malpractice if the paralegal incorrectly calendars a deadline, since attorneys must directly supervise paralegals. However, if the attorney had not yet met with the client and agreed to take the case, then there should have been some sort of form for the potential client to sign making clear that the intake interview did not establish an attorney-client relationship, and the attorney had not yet agreed to take the case. In that situation, while the attorney still might have been sued for malpractice, a potential defense would be that no attorney-client relationship existed. Of course, the date of the accident should have been verified by the paralegal by checking the police report or another source so the deadline for filing could have been accurately entered into the calendaring system.
While many attorneys are under the mistaken impression that paralegals may sign pleadings and perform other actions that only an attorney may do, perhaps some of them, like this law professor, believe that paralegals may act as agents for attorneys. Unfortunately, it is unclear where they have obtained that false information.
One of our professional responsibilities as paralegals is to educate the public and attorneys regarding the limits of the duties we may perform. Apparently, this also includes correcting some attorneys’ mistaken beliefs that paralegals may serve as agents for attorneys.
Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.