As paralegals, we may not provide legal advice to anyone. The one exception would be the legal analysis most paralegals provide on a regular basis to their supervising attorneys. Attorneys rely on their paralegals to research the law, rules, and procedures, and depend on paralegals’ analysis and application of this research to their practice. Of course, attorneys should also verify their paralegals’ conclusions.
But what happens when an attorney is asked to provide legal advice in an area of law in which she does not regularly practice? May her paralegal, who happens to have experience in that area of law, provide legal advice to the attorney?
Most legal professionals appreciate that legal advice for a seemingly simple situation can change if even one fact is different. Often clients will present a legal matter but leave out important information, assuming it isn’t relevant. When the attorney learns of the omitted information, his legal advice may be completely different.
A paralegal may assume that if he is quite experienced in an area of law, he advise the attorney and the attorney may rely on the paralegal’s expertise and legal analysis of a situation involving that area of law. However, it is not advisable for a paralegal to represent that his experience is a particular area of law is a substitute for consulting an attorney who practices in that area.
Paralegals may provide their supervising attorneys information about issues involving an area of law with which the paralegal is experienced, but not the attorney. In fact, doing so may be a convenient way for the attorney to gain a basic understanding of the legal concepts and issues raised in the matter. The paralegal may then assist the attorney in gathering pertinent information from the client and other resources to provide to the expert for review and analysis before the expert advises on how best to proceed.
While this kind of situation may come up in any setting, it is likely more common in corporate legal departments, especially in smaller corporations which may only have a few people in the legal department. While avoiding unnecessary outside counsel fees is always a priority for in-house attorneys, it is unethical for a paralegal to represent to his supervising attorney that his experience and knowledge of an area of law is a substitute for the advice of an attorney who is experienced in that area of law.
Although paralegals always strive to perform their duties in the most effective and cost-efficient way, paralegals should never try to encourage attorneys to rely on their knowledge and experience in an area of law in which the attorney does not regularly practice, rather than consulting an attorney who is an expert in that area of law.
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.