One should ask the question—how does a legal assistant, an employee working under the supervision and direction of an attorney and following the ethical cannons established for the legal assistant, ever become involved in the Unauthorized Practice of Law (UPL)? After much research, and many interviews I learned the following:
The biggest mistake attorneys make is failing to properly supervise their legal assistants.
Most attorneys will agree that they never tell a newly hired legal assistant her role in the office. It is usually presumed that she knows what she can and cannot do. The supervising attorney does not say "you’re not a lawyer", so "don’t give legal advice", "don’t enter into a contract with another person for legal representation," etc. Why is that conversation not held? The attorney will most likely state that he believes that a legal assistant knows the rules and the guidelines set up for her job, and he in turn presumes that the legal assistants follows not only those rules and guidelines but the ethical guidelines governing her profession as well. Attorneys must realize that this is not always true. Some legal assistants (including those without prior working experience) have not been properly trained in the ways of avoiding UPL such as little acts and conversations that occur on a daily basis that can be considered practicing law. Even attorneys who have worked with a legal assistant over a period of months or maybe years, should never think that she does not need your supervision.
One of the most common errors you can make as a legal assistant is believing that you have as much knowledge as the attorney who employs you. With that confidence you may begin to believe that you don’t need the supervision of your attorney. After all, you know the law and can proceed without the attorney’s input. That can be considered to be the unauthorized practice of law which is a violation of § 38.122 Texas Penal Code, punishable as a third-degree felony.
The following are hypothetical situations. You know the correct answers, but have you ever unintentionally committed UPL?
Your best friend calls, sobbing hysterically about a family law matter. The friend knows that you work as a legal assistant for one of the best family law firms in the state. She asked for just a minor piece of advice regarding a simple waiver divorce. Do you tell her? After all, you know the answer even in your sleep, or do you send your friend to an attorney? Will she understand why you will not help her when she needs you the most. In most cases, your friend will not understand why you can’t give her legal advice. You begin to think surely just telling her a few minor facts pertinent to her case won’t harm anything. After all, who’s going to know? You never think doing so could be UPL. Think again. Giving legal advice without the supervision, or at the direction, of your supervising attorney is practicing law without a license.
You work for an employment law firm as a legal assistant to the managing partner. Your father calls. A legal crisis has occurred and he may lose his job. He only needs information regarding a statute, which ironically you have just briefed for your attorney. What do you say? Do you tell him that you are sorry, but you can’t help him, or do you give him the legal information he needs?
If we are honest, most of us have been guilty of one of the above. Perhaps just to a minor degree in a different set of circumstances, but it is UPL all the same.
In most cases a legal assistant does not intentionally hold herself out to be an attorney, but sometimes fail to properly identify herself this can lead another party to assume that she is in fact an attorney. Even identifying your position does not always guarantee that the other party understands. I feel very uncomfortable receiving a letter addressed to me with the title of attorney at law beneath my name. Fortunately, this type of situation can be easily remedied.
However, the intentional deception of others by not identifying yourself as a legal assistant and leading someone to believe you are a lawyer should never occur. The legal assistant must always identify herself as a legal assistant. She should never miss an opportunity to make clear that when she first becomes acquainted with someone. Falsely holding oneself out to be an attorney is a serious crime, even if done innocently, and is a violation of the Texas Penal Code § 38.122.
When in doubt, ask! Attorneys should inform their legal assistants of their responsibilities. You should always make sure that you are properly supervised by an attorney.
If you think your attorney is asking you to do something that is outside or beyond what you are legally qualified to do under the law—don’t do it! A lawyer, who is a member of the State Bar of Texas’ Grievance Committee and therefore very familiar with attorneys who have malpractice claims, responded to this question. I asked him how far a legal assistant should go when her supervising attorney asks her to do something that she believes is unethical and it could mean her job if she did not? His response, "If you are asked to do something that is illegal and yourjob depends on it—you need to find a new job."
I hope that this article has given you some insight into how easy it is to commit UPL and how it can be done unknowingly. Better yet how it can be done without thinking. Be especially careful when helping your family and friends. It is usually the people closest to us that place us in danger of committing UPL. We all want to help our family and friends. If you are unlucky enough to have given the wrong advice, you will be blamed. You might also jeopardize a legal matter that otherwise would have had a simple outcome. Although we often believe we know the law, remember, only a licensed attorney may practice it!
Brenda Stockton is a Senior Paralegal at Patterson, Lamberty & Robinson, P.C. She has been employed in the legal field since 1978 and a paralegal since 1985. Brenda has been a member of LAD since 1986. She had been involved with the LAD as a member of the Publications Committee since 1994 and advertising coordinator of the TPJ since 1995.