The Ethics of In-House Paralegals and UPL

Ellen Lockwood, CLAS

Ellen Lockwood, CLAS

Most of us make every effort not to commit UPL (unauthorized practice of law), particularly giving legal advice. However, some in-house paralegals are allowed to do things they would never have considered doing while working for a law firm. In-house paralegals are dealing not with clients who are members of the general public, but employees of the same company. Because of this special attorney-client relationship, some in-house attorneys have determined that they have no problem with their paralegals giving what would otherwise be considered legal advice.

I asked in-house paralegals on the LAD email forum as well as the Legal Assistant Today email forum for their experiences and found that they varied widely. A few in-house paralegals are under the same restrictions as those who work for outside counsel. Even if they know the answer to the client’s question, they must ask their attorneys each and every time if they may give the client a particular answer, then tell the client the attorney said the answer to the question is X.

Several in-house paralegals reported they have broad discretion to answer questions from the people in their companies. One labor and employment paralegal advises managers on termination issues, provides information to employees on how to proceed with personnel issues, gives approval for terminations in standard situations, and drafts and finalizes standard termination agreements.

A former in-house paralegal for a large brokerage firm says that the paralegals were trained by the in-house counsel to review organizational documents and the applicable state and federal laws to determine if potential entity customers had the legal authority to open brokerage accounts and trade in particular types of securities. These “opinions” were used by the customer service department and the company’s brokers in establishing the accounts.

One of the legal assistants I interviewed noted that someone whose job title is “risk manager” or “vice president of real estate” can give advice to the corporation about applicable laws without fear of committing UPL. However, because we are legal assistants, he believes we are bound by UPL rules. Another paralegal disagreed, noting a risk manager may be a paralegal by education and training, but may hold a title that does not include the term “paralegal.”  She also believes corporations do not need the same UPL protection as the public.

Intellectual Property (IP) appears to be an area where many in-house paralegals have quite a bit of leeway. I heard from several paralegals, particularly those who work with trademarks, and who are the primary contact in their companies for initial information about using trademarks. They perform and review trademark searches, determine whether to recommend filing a trademark application, whether to send a cease and desist letter, and work with outside counsel when necessary. 

In every case where paralegals had broad responsibilities, the following were the issues that had to be addressed:

• The type of broader responsibilities.

• The general comfort level of the attorney with assigning broader responsibilities to the paralegal.

• The experience level of the paralegal.

• The comfort level of the paralegal in taking on broader responsibilities.

• The attorney’s confidence in the paralegal’s ability to handle broader responsibilities.

Most of the paralegals with broader responsibilities said these responsibilities came over time. Usually the responsibilities are in areas where the same situation comes up again and again and the attorney and paralegal have agreed on how those particular situations are to be handled. For example, one of the in-house IP paralegals I contacted has worked out with her attorney how to respond to requests for filing trademark applications. She and her attorney prepared a Trademark Basics document and a Trademark Search Request Form which she emails to all requestors. She also copies her attorney on all emails, even in boilerplate situations. Her attorney has confidence in her ability to know when to bring things to his attention. She also advises him of other situations, even if his involvement is not required at that time. Her philosophy is that she never wants someone else in the company to mention an issue to him without his having already been made aware of it. She and her attorney also meet once a week to review non-urgent issues, follow up on others, and discuss long-range plans for IP within their company.

In some smaller companies, the legal department may not include an attorney. Instead, companies may hire a legal assistant who works with outside counsel, but who does not work under the direct supervision of an attorney. In those instances it would probably be more likely that a paralegal would be committing UPL since she is not supervised by an attorney.

One of the companies leading the way in allowing legal assistants to work more independently is Reebok International Ltd. in Canton, Massachusetts. As outlined in an article in NALA’s Facts & Findings 2000 Career Journal published in January 2001, Reebok has developed job descriptions and an organization/career path matrix for their legal managers, particularly those working with trademarks. Depending upon the level of the legal manager (associate, I, II, or senior), the position provides for more or less attorney supervision.

I spoke to Curtis Krechevsky, Esq.1, the author of the article mentioned above, and he said thus far, no one has complained to the Massachusetts Bar Association regarding any concerns about Reebok’s legal managers committing UPL. He acknowledges, though, the legal manager structure may not work in every corporation or state.

As best as I was able to determine, there have been no UPL complaints for giving legal advice filed in Texas against in-house paralegals. In the absence of clear UPL guidelines, it is up to each attorney-paralegal team and each corporation to determine how much authority to give its in-house paralegals.

Mr. Krechevsky is a former Assistant General Counsel and Trademark Counsel for Reebok International Ltd. He is currently an attorney with the firm of Hutchins, Wheeler & Dittmar, in Boston, Massachusetts.

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.