The Ethics of Recovering Paralegal Fees

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

When attorneys seek to recover fees, the standard is that the fees must be reasonable and, in some cases, justified. In addition to providing redacted copies of itemized invoices, attorneys often utilize experts to testify to the reasonableness of the attorneys’ fees.

When seeking to recover fees for paralegal services, the reasonableness standard also applies. However, since paralegals are not regulated in Texas, there are often additional hurdles to overcome for a judge to accept that the paralegal’s fees are also recoverable.

Attorneys must often provide evidence that the paralegal is qualified to provide paralegal services. In the absence of paralegal regulation, he best method is to present evidence that the paralegal meets the qualifications set out in the Texas Paralegal Standards. The general definition of a paralegal states as follows:

A paralegal is a person, qualified through various combinations of education, training, or work experience, who is employed or engaged by a lawyer, law office, governmental agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of a licensed attorney, of specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal principles and procedures that, absent such a person, an attorney would be required to perform the task.

The Texas Paralegal Standards outline criteria for minimum qualifications for paralegals, including education, experience, or combination of both. Providing a paralegal’s resume and highlighting the relevant education and/or experience is an effective way to demonstrate the paralegal’s qualifications.

Attorneys must also demonstrate the paralegal’s work was substantive legal work. Again, the Texas Paralegal Standards provide the definition of substantive legal work:

“Substantive legal work” includes, but is not limited to, the following: conducting client interviews and maintaining general contact with the client; locating and interviewing witnesses; conducting investigations and statistical and documentary research; drafting documents, correspondence, and pleadings; summarizing depositions, interrogatories, and testimony; and attending executions of wills, real estate closings, depositions, court or administrative hearings, and trials with an attorney.

“Substantive legal work” does not include clerical or administrative work. Accordingly, a court may refuse to provide recovery of paralegal time for such non-substantive work. Gill Sav. Ass’n v. Int’l Supply Co., Inc., 759 S.W.2d 697, 705 (Tex. App. Dallas 1988, writ denied).

Once the paralegal’s qualifications have been proven, and the paralegal’s work has been shown to be substantive, then, assuming the attorney’s fees have been shown to be reasonable (and, in some cases, justified), in most cases, the paralegal’s fees should also be accepted by the court.

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.