UPL is the unauthorized practice of law and is a criminal offense. UPL includes giving legal advice, accepting cases or clients, setting fees, signing pleadings, appearing in a representative capacity in a court of law, holding oneself out as an attorney, or doing anything only a licensed attorney may do. Courts have generally prohibited UPL because of a perceived need to protect individuals and the public from the mistakes of the untrained and the schemes of the unscrupulous, who are not subject to the judicially imposed disciplinary standards of competence, responsibility and accountability. See Tex. Disciplinary R. Prof. Conduct 5.05 and Canons 1, 2 and 3. See also www.txuplc.org
No, only an attorney or a party if not represented by an attorney may sign a pleading. The only person who may “sign by permission” for a licensed attorney is another licensed attorney. See T.R.C.P. 57. The signatures of attorneys or parties constitutes a certificate by them that they have read the pleading, that to the best of their knowledge, information and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment. See T.R.C.P. 13.
No, only an attorney may sign a certificate of service. The certificate by an attorney or party shall be prima facie evidence of the fact of service. See T.R.C.P. 21a. The only person who may “sign by permission” for a licensed attorney is another licensed attorney.
A paralegal may have a business card with the firm name on it provided the status of the paralegal is clearly disclosed. The business card is designed to identify the paralegal and to state by whom the paralegal is employed. A lawyer who permits their name or the name of a law firm to appear on the business card of a paralegal is charged with ensuring that the card meets the same standards of dignity and accuracy as would be required for the lawyer’s own card. Generally, office address, telephone and facsimile numbers and e-mail address are also listed. See Texas Ethics Opinion 403 at www.legalethicstexas.com.
The Texas Disciplinary Rules of Professional Conduct do not prohibit the listing on firm letterhead of the name and any certification of paralegals employed by the firm with a further designation that the person is a paralegal and is not licensed to practice law. See Texas Ethics Opinion 436 at www.legalethicstexas.com.
A paralegal supervised by an attorney can sign letters on the law firm letterhead if the signature block contains the paralegal’s name and title. See Texas Ethics Opinion 381 at www.legalethicstexas.com.
Yes. Not to correct this assumption could expose the paralegal to charges of UPL, which is a crime.
A paralegal may provide information regarding current and prior legal matters on which the paralegal has worked in order for the prospective employer to comply with conflict of interest rules as long as the prospective employer agrees that the information will be considered confidential and solely be used for determining whether conflicts of interest exist. See Texas Ethics Opinion 607 at www.legalethicstexas.com.
Paralegals are obligated to preserve and protect the confidences and secrets of a client. Confidential information includes both privileged information and unprivileged information. Unprivileged information means all information relating to a client or furnished by the client acquired by the lawyer during the course of or by reason of the representation of the client. Unless it is public record, even the fact that the client has retained the lawyer should be considered confidential information. Thus, as tempting as it may be, it is best not to discuss anything concerning your lawyer’s cases with friends or family. See Tex. Disciplinary R. Prof. Conduct 1.05 and Canon 4.
No. This is referred to as “double billing” and is tantamount to stealing. If you use part of the travel time to do another client’s work, subtract that amount of time from the travel time billed to the first client. In other words, partition your time and charge each client for the time actually spent working on their file or while traveling in connection with business.
No. It is unethical to charge a client for work you did not perform and is tantamount to stealing. Only the person who performed the work on behalf of a client may charge for it.
The general rule for paralegals is as follows:
A paralegal may sign correspondence, including e-mail correspondence, so long as no legal advice is given and the paralegal’s name, title, and either the firm name or the name of her supervising attorney are given.
A paralegal may sign correspondence from an attorney by permission so long as the paralegal’s title is clearly indicated and the letter does not contain legal advice or agreements. If the letter contains legal advice or agreements, the attorney should sign or have another attorney sign by permission.
A paralegal is not allowed to sign legal agreements, pleadings or certificates of service.
Written complaints should be submitted to Paralegal Division Coordinator, Paralegal Division, State Bar of Texas by e-mail to pd@txpd.org. For more details on the grievance process, see the menu above: ABOUT > Standing Rules (PDF).
As paralegals must be appropriately supervised by attorneys, ethics complaints against paralegals that are not members of the Paralegal Division may be filed against the subject paralegal’s supervising attorney through the State Bar of Texas. The Bar may be contacted at 800.207.2222 or online at www.texasbar.com (follow the links for “Client Assistance & Grievance”). The Chief Disciplinary Counsel of the State Bar of Texas administers the attorney grievance system in accordance with the Rules of Disciplinary Procedure.
If the complaint involves the unauthorized practice of law, the complaint may be filed through the Supreme Court of Texas Unauthorized Practice of Law Committee at www.txuplc.org. Members of local subcommittees that are appointed by the Committee are charged with investigating UPL complaints.
Ethics complaints against attorneys may be filed through the State Bar of Texas. The Bar may be contacted at 800.204.2222 or on-line at www.texasbar.com (follow the links for “Client Assistance & Grievance”). The Chief Disciplinary Counsel of the State Bar administers the attorney grievance system in accordance with the Rules of Disciplinary Procedure.
Under no circumstances may a paralegal, or anyone who is not a licensed attorney, accept a referral fee from an attorney. Receipt of and making these payments are considered a felony. See Tex. Disciplinary R. Prof. Conduct 7.03 and 38.12, Barratry and Solicitation of Professional Employment, Texas Penal Code.
A paralegal may not solicit legal business, either for herself or for an attorney. This is not to say that freelance paralegals cannot solicit attorney clients; they just cannot solicit non-attorney clients for whom they provide direct legal services. See Tex. Disciplinary R. Prof. Conduct 7.03 and Canon 5. See also Texas Penal Code 38.12, Barratry and Solicitation of Professional Employment.
Keep in mind that this is a stamp of the attorney’s signature, not just the attorney’s name, so using an attorney signature stamp is the equivalent of a paralegal signing the attorney’s name “by permission.” For letters that do not include legal advice or that deal with some administrative matters, using a stamp is probably fine. However, using an attorney stamp on pleadings, engagement letters, settlement offers and documents, correspondence that includes legal advice and particular court documents is never appropriate. If you have any doubt as to the use of an attorney signature stamp, insist that the attorney sign the document. It is always safer, and never incorrect, to have an original attorney signature.
The Texas Criminal Court of Appeals has held that the use of a signature stamp on a notice of appeal was “ineffective to show personal authorization” and did not “comply with the legislatively mandated guarantee that the only person permitted by statute to make an appeal on behalf of the State actually participated in the process.” See State of Texas v. Shelton, 830 S.W.2d. 605 (Tex. Crim. App. 1992). See also State of Texas v. Roberts, 940 S.W. 2d 655 (Tex. Crim. App. 1996). The logical assumption from these cases is that is is never correct to use an attorney’s signature stamp on a pleading, settlement agreement, or other official document, even if the attorney instructs you to do so.
Tex. Disciplinary R. Prof. Conduct 1.01 requires that a lawyer provide “competent and diligent representation” to a client. According to Texas Ethics Opinion 396 “the offers and counter-offers that constitute realistic bargaining for settlement, the judgment of the defendant’s attorney as to when and how much should be offered, and of the Plaintiff’s attorney as to the adequacy of the offer, is itself a measure of competence. The client is entitled to this full measure of competence from his attorney in the bargaining process, and to the benefit of his attorney’s analysis and recommendation concerning all offers of settlement. After the full disclosure and recommendation from the attorney, the burden of decision then shifts to the “client.” Therefore, it would seem that paralegals are precluded from negotiating settlement agreements.
An ethical wall is a device by which a paralegal helps to preserve and protect the confidences and secrets of a client and avoid conflicts of interest pertaining to a client. Paralegals are not in a position to determine whether a potential conflict is of concern and should let their supervising attorney make that determination. Freelance and contract paralegals have a particular responsibility to keep up with the cases on which they have worked and the parties and attorneys involved to avoid possible disqualification of an attorney for whom they may work in the future. In any event, a paralegal is obligated to inform the supervising attorney of the existence of any possible conflict. See Canon 7.
When a firm hires a paralegal who formerly worked for opposing counsel or an opposing client, the entire firm should be notified that an ethical wall is to be erected around the paralegal and that no one may: (1) discuss the case in the presence of the paralegal; (2) allow the paralegal access to any documents, including keeping files locked away from any cabinets to which the paralegal would normally have access; and (3) engage in any discussions with the paralegal about prior work on the case or work his or her previous firm may have done. These precautions are necessary to avoid the firm’s possible disqualification in the case. Texas case law is clear that it is presumed that a paralegal receives confidential information while working on a case. See Phoenix Founders, Inc. v. Marshal, 877 S.W.2d. 834 (Tex. 1994). See also In Re American Home Products Corporation, 985 S.W.2d. 68 (Tex. 1998).
In most cases, paralegals are not exempt from overtime under the Department of Labor guidelines. For more information on the portion of the labor code that addresses this, go to http://www.bls.gov/ooh/legal/paralegals-and-legal-assistants.htm and http://webapps.dol.gov/elaws/whd/flsa/overtime/p42a1.htm.
Once you become aware of UPL or other fraudulent activities, you have a duty to report such behavior to the appropriate authorities. To do otherwise is to knowingly assist in the behavior.
A person convicted of a felony offense may work as a paralegal in the state of Texas but is precluded from holding membership in the Paralegal Division of the State Bar of Texas.
Contact the Chair of the Professional Ethics Committee, Paralegal Division, State Bar of Texas, ethics@txpd.org if you have an ethics question.
Paralegals must always identify themselves by name and title on any business correspondence they send. This includes email, faxes (and fax cover sheets) as well as regular “paper” letters or documents. It matters not to whom the letter is addressed or by whom it was requested; if it is business correspondence or documentation on which the paralegal’s name appears, the paralegal’s title must also be included. This applies to business cards and letterhead on which the paralegal’s name appears.
Working as a freelance paralegal (offering services to and under the direct supervision of a duly licensed attorney) is not contrary to the Unauthorized Practice of Law.
Yes, contract paralegal fees can be recovered as part of a settlement or trial verdict. Any paralegal work performed on a case that the attorney is seeking recovery of attorney’s fees, can be included in the amount being sought to be recovered. Of course, there are many types of cases that do not allow for attorneys fees to be recovered. If it is a case where the statutes allow the recovery of attorney’s fees, then the attorney can include a contract paralegal’s work performed on the file. For further explanation, refer to the Gill Savings case* and the Paralegal Definition and Standards here Both paralegals and attorneys should read and become familiar with the Paralegal Standards that were approved by the Paralegal Division and by the State Bar of Texas Board of Directors.
*Gill Savings Association v. International Supply Company, Inc., 759 S.W.2d 697 (Tex. App.- -Dallas 1988, no writ). Gill Savings was a case of first impression in Texas regarding recovery of paralegal fees as part of an attorney’s fee award.
You state that you want to start your own paralegal service. Your business would include drafting of legal documents for law firms and the general public, filing documents with the appropriate agency and payment of the appropriate filing fees. You would also represent persons directly in negotiations.
By law, paralegals are not allowed to directly represent persons in legal matters. A business that directly represents the general public in legal matters is engaged in the unauthorized practice of law (or UPL), which is a felony. Setting fees for legal matters is also reserved for duly licensed attorneys. For a non-lawyer to do the same is to engage in the unauthorized practice of law. Preparing legal documents for the public is also reserved for duly licensed attorneys and to “draft” legal documents for the general public without working under the direct supervision of a licensed attorney is to engage in UPL. Opening a “forms” practice that provides standard legal forms for the general public, may also be engaging in UPL by simply choosing or recommending a particular form. Working as a freelance paralegal under the direct supervision of a duly licensed attorney is not UPL. Representing persons in disputes or negotiations may or may not be UPL, event it that representation does not involve money settlements. And direct representation of a person in legal matters is reserved for duly licensed attorneys.
Simply filing a document with a clerk or other appropriate person and/or paying fees for the filing of such document does not constitute UPL. The simple act of presenting a document for filing, whether in person, by mail or online, is not normally the practice of law but a simple administrative matter. If a legal representation is directly made, an opinion directly given or a signature to an official document is made, that is where UPL might come into the picture. Simply conveying a document from point A (the attorney) to point B (the clerk or other official) is a transportation issue.
Yes, but only in certain instances. If your attorney asks that you contact opposing counsel for scheduling purposes, you may make an agreement as to dates and locations. If your attorney asks that you contact opposing counsel to obtain an extension of time in which to object and respond to discovery requests, you may obtain that agreement on his behalf. Keep in mind that any agreements between attorneys or parties touching on a pending suit must be in writing and filed with the court in order to be enforced. Thus, the Rule 11 letter will bear the signature block of, and be signed by, your attorney and not by you, even “with permission.” See T.R.C.P. 11.
Responsibilities that require the competent professional judgment of the lawyer cannot be delegated. Permitting a non-lawyer employee to prepare and sign correspondence that threatens legal action or provides legal advice or both creates the appearance that the lawyer is not exercising his or her legal knowledge and professional judgment in the matter. See Georgia Formal Advisory Opinion Board, Op. 00-2 (2000).