Avoiding the Appearance of Representing a Client

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

Canon 1 of the Paralegal Division Code of Ethics and Responsibility states, in part, as follows:

A paralegal shall not engage in the practice of law as defined by statutes or court decisions, including but not limited to . . . appearing in a representative capacity in court or before an administrative or regulatory agency (unless otherwise authorized by statute, court or agency rules) . . . . Code of Ethics and Professional Responsibility, Canon 1.

The canon cited above appears straightforward and easy to follow. However, paralegals should take care not to inadvertently give even the appearance they are representing a client.

A frequent question is whether a paralegal may attend a deposition without the attorney. This situation usually occurs in matters with numerous parties. Given the many depositions associated with those matters, an attorney may choose not to attend the depositions of witnesses who are less likely to have information important to the client’s case. In that situation, the attorney may choose to have her paralegal attend the deposition to take notes and provide a summary of the examination. A paralegal may certainly attend the deposition without the attorney as long as the paralegal ensures all others attending the deposition understand that the paralegal:

• Is merely attending as an observer
• Is listed in the transcript as attending the deposition
• Is not representing the party represented by the law firm
• Is not defending the deponent
• Will not ask any questions
• Will not ask an attorney at the deposition to ask any questions
• Will not raise any objections or make any agreements on behalf of the party represented by the law firm or the deponent
• Will not ask an attorney at the deposition to raise any objections or make any agreements on behalf of the party represented by the law firm or the deponent

Another situation that can lead to a misunderstanding about the paralegal’s role is a docket call or other similar situation. Some attorneys are under the impression that if the court appearance does not involve making legal arguments or presenting evidence, a non-attorney may appear instead of the attorney. Unfortunately, this is not the case. Appearing before a judge or court, even without the attorney’s client, is technically still acting as the client’s legal representative. Therefore, even announcing “ready” or “present” crosses the ethical line.

If a paralegal is attending a hearing or docket call with the attorney and the attorney has stepped out when the case or attorney is called, the paralegal may advise the court that she is the attorney’s paralegal and the attorney has left the courtroom for a moment. The paralegal should then follow the court’s instructions to either fetch the attorney or let the court know when the attorney has returned. If the court requests that the paralegal provide the response for the attorney, the paralegal should respectfully decline and politely state that the attorney will need to provide that information. Even if the paralegal knows the answer, and the court is requesting the paralegal provide the answer, the paralegal should inform the court that she does not have that information and repeat that the attorney will need to provide the answer. Although the court is requesting the paralegal provide the requested information, doing so is still an ethical violation and may give the appearance that the paralegal represents the client. Of course, this assumes that the attorney recognizes the limitations on the information a paralegal may provide to the court in that situation.

Although it may appear obvious to the paralegal that she is not appearing in a representative capacity at a deposition, hearing, docket call, or other situation, that is not the standard. Paralegals must take extra precautions to be certain others understand her role in the proceeding. 

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.