Paralegals and Legal Malpractice

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

We are all aware that attorneys may be sued for legal malpractice. In Texas, paralegals aren’t licensed and only may perform paralegal duties under the direct supervision of an attorney (with a few administrative agency exceptions). Attorney malpractice insurance usually covers any acts that an attorney’s staff may perform that could be considered legal malpractice. After all, attorneys are responsible for supervising their paralegals.

Claims for legal malpractice based on negligence consist of four elements:

• The defendant owed a duty to the plaintiff
• The defendant breached that duty by failing to exercise reasonable care
• The plaintiff suffered losses
• The defendant’s negligent actions were the proximate cause of the plaintiff’s losses

In most situations, a paralegal’s duty to a potential plaintiff only exists because of the attorney-client relationship established by the attorney who directly supervises the paralegal. This would mean that the attorney might be sued for legal malpractice based on some negligent action by his paralegal.

In some cases a paralegal or other non-lawyer may be sued for the unauthorized practice of law, which could be considered a form of legal malpractice. Just because someone is not legally licensed to do what he did doesn’t mean a court cannot hold him responsible for what he did or doing what he did negligently, particularly if the plaintiff was not aware at the time that the paralegal or non-lawyer was not licensed to perform the acts in question.
Some jurisdictions have ruled that a non-lawyer may not be held liable for legal malpractice, including Ohio, Illinois, and California. However, it appears from the available case law that most states have not directly addressed this issue.
In Texas, the controlling case law appears to be Peeler v. Hughes & Luce, 909 S.W. 2d 494 (Tex. 1995), which is followed (and for our purposes, somewhat distinguished) in Golden v. McNeal, 78 S.W.3d 488 (Tex. App. -Houston [14th Dist.] 2002, pet. denied). In Golden, the appeals court states that they have not been offered any evidence by the appellant as to why the reasoning in Peeler regarding sole proximate cause in a criminal conviction would not equally apply to a non-attorney, who in Peeler was an investigator. In fact, the appeals court in Golden continues as follows:

Indeed, the language used in Peeler is certainly broad enough to encompass claims of negligence or malpractice on the part of non-attorneys . . . Furthermore, legal malpractice is essentially a claim of professional negligence . . . It does not matter whether those claims are against an attorney or against an investigator who is aiding the attorney or the pro se defendant. Golden at 493.

If a paralegal is performing paralegal duties not under the direct supervision of an attorney such as before an administrative agency, it stands to reason that such a client-advocate relationship may allow for filing of a legal malpractice claim against the advocate. In such instances, having professional liability insurance would certainly be prudent.
Most of us working in traditional paralegal roles where we are directly supervised by a licensed attorney will probably never be sued for legal malpractice. However, Peeler and Golden certainly allow for that possibility and we should all conduct ourselves accordingly.

Ellen Lockwood, CLAS, is the Chair of the Professional Ethics Committee of the Legal Assistants Division, a position she has held since 1997. She is Treasurer of LAD and a past president of the Alamo Area Professional Legal Assistants in San Antonio.