ReadABA Model Guidelines For The Utilization Of Paralegal Services, Guidelines 5, 7, 8, 9, 10 And Comments. Write A Clear, Specific, And Detailed Answer To

ReadABA Model Guidelines For The Utilization Of Paralegal Services, Guidelines 5, 7, 8, 9, 10 And Comments. Write A Clear, Specific, And Detailed Answer To

Click here to Order a Custom answer to this Question from our writers. It’s fast and plagiarism-free.

  • ReadABA Model Guidelines for the Utilization of Paralegal Services, Guidelines 5, 7, 8, 9, 10 and Comments.
  • Write a clear, specific, and detailed answer to each guideline.

Instructions:

  • Complete the Discussion: Self-Check—Evaluate Your Understanding of Guideline 5 (20 points)
  • Complete the Discussion: Self-Check—Evaluate Your Understanding of Guideline 7 (20 points)
  • Complete the Discussion: Self-Check—Evaluate Your Understanding of Guideline 8 (10 points)
  • Complete the Discussion: Self-Check—Evaluate Your Understanding of Guideline 9 (10 points)
  • Complete the Discussion: Self-Check—Evaluate Your Understanding of Guideline 10 (10 points)

Guidelines
for the

Utilization of Paralegal Services

American Bar Association
Standing Committee on Paralegals

ABA Model

ABA Model

Guidelines

for the

Utilization of Paralegal Services

____________________________________________________

American Bar Association

Standing Committee on Paralegals

Guidelines

Copyright ©2018 American Bar Association

All rights reserved. The American Bar Association grants permission for reproduction of this
document, in whole or in part, provided that such use is for informational, non-commercial
purposes only and any copy of the materials or portion thereof acknowledges original
publication by the American Bar Association and includes the title of the publication, the name
of the author, and the legend “Copyright 2018 American Bar Association. Reprinted by
permission.” Requests to reproduce materials in any other manner should be addressed to:
Copyrights & Contracts Department, American Bar Association, 321 North Clark Street, Chicago,
Illinois 60654; Telephone (312) 988-6102; Facsimile: (312) 988-6030; E-mail:
copyright@americanbar.org.

ISBN: 978-1-64105-321-1

The materials contained herein represent the opinions of the authors and editors and should
not be construed to be those of the American Bar Association unless adopted pursuant to the
bylaws of the Association. Nothing contained herein is to be considered as the rendering of
legal advice for specific cases, and readers are responsible for obtaining such advice from their
own legal counsel. These materials are intended for educational and informational purposes
only.

Produced by the Standing Committee on Paralegals.

Page 1

ABA MODEL GUIDELINES FOR THE

UTILIZATION OF PARALEGAL SERVICES©

Preamble

The Standing Committee on Paralegals of the American Bar Association drafted,

and the ABA House of Delegates adopted, the ABA Model Guidelines for the Utilization of
Legal Assistant Services in 1991. Most states have also prepared or adopted state‐specific
recommendations or guidelines for the utilization of services provided by paralegals.1 All of
these recommendations or guidelines are intended to provide lawyers with useful and
authoritative guidance in working with paralegals.

The Standing Committee’s intent in updating the Model Guidelines is to include
legal and policy developments that may have taken place since the last update in
2012. A Table of Contents and a Table of Authorities have been added, and the
Commentary is now phrased in a “reader‐friendly” style. The Standing Committee is of the
view that these and other guidelines on paralegal services will encourage lawyers to utilize
those services effectively and promote the continued growth of the paralegal profession.2

The Standing Committee has based these 2018 revisions on the American Bar
Association’s Model Rules of Professional Conduct (hereinafter “Model Rule”) but has also
attempted to take into account existing state recommendations and guidelines, decided
authority and contemporary practice. Lawyers, of course, are to be first directed by Model
Rule 5.3 in the utilization of paralegal services, and nothing contained in these Model

1
In 1986, the ABA Board of Governors approved a definition for the term “legal assistant.” In

1997, the ABA amended the definition of legal assistant by adopting the following language: “A legal
assistant or paralegal is a person qualified by education, training or work experience who is employed
or retained by a lawyer, law office, corporation, governmental agency or other entity who performs
specifically delegated substantive legal work for which a lawyer is responsible.” To comport with
current usage in the profession, these guidelines use the term “paralegal” rather than “legal
assistant;” however, lawyers should be aware that the terms legal assistant and paralegals are often
used interchangeably.

2
While necessarily mentioning paralegal conduct, lawyers are the intended audience of these

Guidelines. The Guidelines, therefore, are addressed to lawyer conduct and not directly to the
conduct of the paralegal.

Page 2

Guidelines is intended to be inconsistent with that rule.3 Specific ethical considerations and
case law in particular states must also be taken into account by each lawyer that reviews
these guidelines. In the commentary after each Guideline, we have attempted to identify
the basis for the Guideline and any issues of which we are aware that the Guideline may
present. We have also included selected references to state and paralegal association
guidelines where we believed it would be helpful to the reader. Model documents from
two national paralegal associations are referenced throughout this publication. These
documents are the National Federation of Paralegal Associations (NFPA), Model Code of
Ethics and Professional Responsibility and Guidelines for Enforcement [hereinafter “NFPA
Guidelines”];4 and the National Association of Legal Assistants (NALA), Code of Ethics and
Professional Responsibility [hereinafter “NALA Ethics”].5 Rather than continually reference
the web address for these documents throughout the publication, they are provided here:

National Association of Legal Assistants (NALA): www.nala.org
(http://www.nala.org/code.aspx)

National Federation of Paralegal Associations (NFPA): www.paralegals.org
(http://www.paralegals.org/associations/2270/files/modelcode.html

3
The ABA Commission on Ethics 20/20 amended several of the Model Rules referenced in

this publication, including Rules 1.1, 1.4, 1.6, 5.3, 5.4, 5.5, in 2012. The amendments to Model Rule 5.3
changed the words “nonlawyer assistants” to “nonlawyer assistance” in the title and amended the
Comments to Model Rule 5.3. These changes are meant to highlight that lawyers have an obligation to
make reasonable efforts to ensure that all nonlawyers that assist them act in a manner that is
consistent with the attorney’s professional obligations – whether paralegals /assistants within the
firm or others employed from outside the firm (outsourcing). The Committee does not believe these
changes affect the way that Rule 5.3 is applied to paralegal practice.

4
The NFPA Model Code of Ethics and Professional Responsibility was initially adopted in

1993. The revision used in this publication was made on June 9, 2006. The current version is
available on the NFPA web site indicated above.

5
The NALA Code of Ethics and Professional Responsibility was originally adopted 1975, and

revised 1979, 1988, 1995, and 2007. The 2007 version is used in this publication. The current version
is available at the web site referenced above.

Page 3

Table of Contents

The Guidelines
Guideline 1: ……………………………………………………………………………………………………………….. 4

A lawyer is responsible for all of the professional actions of a paralegal performing
services at the lawyer’s direction and should take reasonable measures to
ensure that the paralegal’s conduct is consistent with the lawyer’s obligations under the
rules of professional conduct of the jurisdiction in which the lawyer practices.

Guideline 2: ………………………………………………………………………………………………………………. 5
Provided the lawyer maintains responsibility for the work product, a lawyer may
delegate to a paralegal any task normally performed by the lawyer except those tasks
proscribed to a nonlawyer by statute, court rule, administrative rule or regulation,
controlling authority, the applicable rule of professional conduct of the jurisdiction in
which the lawyer practices, or these Guidelines.

Guideline 3: ……………………………………………………………………………………………………………….. 9
A lawyer may not delegate to a paralegal:

(a) Responsibility for establishing an attorney‐client relationship.
(b) Responsibility for establishing the amount of a fee to be charged for a

legal service.
(c) Responsibility for a legal opinion rendered to a client.

Guideline 4: ……………………………………………………………………………………………………………… 10
A lawyer is responsible for taking reasonable measures to ensure that clients, courts,
and other lawyers are aware that a paralegal, whose services are utilized by the lawyer
in performing legal services, is not licensed to practice law.

Guideline 5: ……………………………………………………………………………………………………………… 11
A lawyer may identify paralegals by name and title on the lawyer’s letterhead and on
business cards identifying the lawyer’s firm.

Guideline 6: ……………………………………………………………………………………………………………… 12
A lawyer is responsible for taking reasonable measures to ensure that all client
confidences are preserved by a paralegal.

Guideline 7: ……………………………………………………………………………………………………………… 14
A lawyer should take reasonable measures to prevent conflicts of interest resulting from
a paralegal’s other employment or interests.

Guideline 8: ……………………………………………………………………………………………………………… 17
A lawyer may include a charge for the work performed by a paralegal in setting a charge
and/or billing for legal services.

Guideline 9: ……………………………………………………………………………………………………………… 18
A lawyer may not split legal fees with a paralegal nor pay a paralegal for the referral of
legal business. A lawyer may compensate a paralegal based on the quantity and quality
of the paralegal’s work and the value of that work to a law practice, but the paralegal’s
compensation may not be contingent, by advance agreement, upon the outcome of a
particular case or class of cases.

Guideline 10: ……………………………………………………………………………………………………………. 20
A lawyer who employs a paralegal should facilitate the paralegal’s participation in
appropriate continuing education and pro bono publico activities.

Page 4

GUIDELINE 1: A lawyer is responsible for all of the professional actions of a
paralegal performing services at the lawyer’s direction and should take reasonable
measures to ensure that the paralegal’s conduct is consistent with the lawyer’s
obligations under the rules of professional conduct of the jurisdiction in which
the lawyer practices.

COMMENT

▪ Guideline 1 principles are incorporated within all guidelines.

The Standing Committee on Paralegals (“Standing Committee”) regards Guideline 1 as a
comprehensive statement of general principle governing the utilization of paralegals in the
practice of law. As such, the principles contained in Guideline 1 express the overarching
principle that although a lawyer may delegate tasks to a paralegal, a lawyer must always
assume ultimate responsibility for the delegated tasks and exercise independent
professional judgment with respect to all aspects of the representation of the client.

▪ Application of the Model Rules and Ethical Considerations of the Model Code

Under principles of agency law and the rules of professional conduct, lawyers are
responsible for the actions and the work product of nonlawyers they employ. Model Rule

5.36 requires that supervising lawyers ensure that the conduct of nonlawyer assistants7 is
compatible with the lawyer’s professional obligations.

Ethical Consideration 3‐6 of the Model Code encourages lawyers to delegate tasks to
paralegals so that legal services can be rendered more economically and efficiently. Ethical
Consideration 3‐6 further provides, however, that such delegation is only proper if the
lawyer “maintains a direct relationship with his client, supervises the delegated work, and
has complete professional responsibility for the work product.” The adoption of Model
Rule 5.3, which incorporates these principles, reaffirms this encouragement.

6
The Model Rules were first adopted by the ABA House of Delegates in August of 1983.

Almost all U.S. jurisdictions have adopted the Model Rules to govern the professional conduct of
lawyers licensed in those states. However, because a few jurisdictions still utilize a version of the ABA
Model Code of Professional Responsibility (“Model Code”), these comments will refer to both the
Model Rules and the predecessor Model Code (and to the Ethical Considerations (hereinafter “EC”)
and Disciplinary Rules (hereinafter “DR”) found under the canons in the Model Codes). In 1997, the
ABA formed the Commission on Evaluation of the Rules of Professional Conduct (“Ethics 2000
Commission”) to undertake a comprehensive review and revision of the Model Rules. The ABA House
of Delegates completed its review of the Commission’s recommended revisions in February 2002.
Visit https://www.americanbar.org/groups/professional_responsibility/policy.html (last visited June
13, 2018) for information regarding the status of each state supreme court’s adoption of the Ethics
2000 revisions to the Model Rules as well as copies of both the model rules and model code.

7
See supra note 3 regarding a change to the terminology in Rule 5.3 effective in 2012.

Page 5

▪ Lawyers must instruct paralegals on professional conduct rules and supervise
paralegals consistent with the rules.

To conform to Guideline 1, a lawyer must give appropriate instruction to paralegals
supervised by the lawyer about the rules governing the lawyer’s professional conduct, and
require paralegals to act in accordance with those rules. See Comment to Model Rule 5.3;
see also National Association of Legal Assistant’s Model Standards and Guidelines for the
Utilization of Legal Assistants, Guidelines 1 and 4 (1985, revised 1990, 1997, 2005)
(hereafter “NALA Guidelines”).

Additionally, the lawyer must directly supervise paralegals employed by the lawyer to
ensure that, in every circumstance, the paralegal is acting in a manner consistent with the
lawyer’s ethical and professional obligations. What constitutes appropriate instruction and
supervision will differ from one state to another and the lawyer has the obligation to make
adjustments accordingly.

GUIDELINE 2: Provided the lawyer maintains responsibility for the work product, a
lawyer may delegate to a paralegal any task normally performed by the lawyer
except those tasks proscribed to a nonlawyer by statute, court rule, administrative
rule or regulation, controlling authority, the applicable rule of professional conduct
of the jurisdiction in which the lawyer practices, or these guidelines.

COMMENT

▪ Many tasks may be delegated to Paralegals so long as they are properly supervised.

The essence of the definition of the term “legal assistant” first adopted by the ABA in 19868
and subsequently amended in 19979 is that, so long as appropriate supervision is
maintained, many tasks normally performed by lawyers may be delegated to paralegals. EC
3‐6 under the Model Code mentioned three specific kinds of tasks that paralegals may
perform under appropriate lawyer supervision: factual investigation and research, legal
research, and the preparation of legal documents. Various states delineate more specific
tasks in their guidelines including attending client conferences, corresponding with and

8
The 1986 ABA definition read: “A legal assistant is a person, qualified through education,

training or work experience, who is employed or retained 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 an attorney, of specifically‐delegated substantive legal work, which work,
for the most part, requires a sufficient knowledge of legal concepts that, absent such assistant, the
attorney would perform the task.”

9
In 1997, the ABA amended the definition of legal assistant by adopting the following

language: “A legal assistant or paralegal is a person qualified by education, training or work
experience who is employed or retained by a lawyer, law office, corporation, governmental agency or
other entity who performs specifically delegated substantive legal work for which a lawyer is
responsible.”

Page 6

obtaining information from clients, witnessing the execution of documents, preparing
transmittal letters, and maintaining estate/guardianship trust accounts. See, e.g., Colorado
Bar Association Guidelines for the Utilization of Paralegals (the Colorado Bar Association
adopted guidelines in 1986 for the use of paralegals in 21 specialty practice areas including
bankruptcy, civil litigation, corporate law and estate planning. The Colorado Bar Association
Guidelines were revised in 2008); NALA Guideline 5.

▪ Paralegals may not, however, engage in the unauthorized practice of law.

While appropriate delegation of tasks is encouraged and a broad array of tasks is properly
delegable to paralegals, improper delegation of tasks will often run afoul of a lawyer’s
obligations under applicable rules of professional conduct. A common consequence of the
improper delegation of tasks is that the lawyer will have assisted the paralegal in the
unauthorized “practice of law” in violation of Model Rule 5.5, Model Code DR 3‐101, and
the professional rules of most states. Neither the Model Rules nor the Model Code defines
the “practice of law.”10 EC 3‐5 under the Model Code gave some guidance by equating the
practice of law to the application of the professional judgment of the lawyer in solving
clients’ legal problems. This approach is consistent with that taken in ABA Opinion 316
(1967) which states: “A lawyer . . . may employ nonlawyers to do any task for him except
counsel clients about law matters, engage directly in the practice of law, appear in court or
appear in formal proceedings as part of the judicial process, so long as it is he who takes the
work and vouches for it to the client and becomes responsible for it to the client.”

▪ Generally Paralegals may not appear before adjudicative bodies.

As a general matter, most state guidelines specify that paralegals may not appear before
courts, administrative tribunals, or other adjudicatory bodies unless the procedural rules of
the adjudicatory body authorize such appearances. See, e.g., State Bar of Arizona,
Committee on the Rules of Prof’l Conduct, Opinion No. 99‐13 (December 1999) (attorney did
not assist in unauthorized practice of law by supervising paralegal in tribal court where
tribal court rules permit non‐attorneys to be licensed tribal advocates).11 Additionally, no
state permits paralegals to conduct depositions or give legal advice to clients. E.g.,
Guideline 2, Connecticut Bar Association Guidelines for Lawyers Who Employ or Retain
Legal Assistants (the “Connecticut Guidelines”); Guideline 2, State Bar of Michigan
Guidelines for Utilization of Legal Assistants; State Bar of Georgia,

10
The ABA formed a task force in 2003 to examine the various state definitions of the

“practice of law.” The report of that task force, as well as related resources are available on the ABA

web site at the following URL:

https://www.americanbar.org/groups/professional_responsibility/task_force_model_definition_pra
ctice_law.html (last visited on June 13, 2018).

11
It is important to note that pursuant to federal or state statute, paralegals are permitted to

provide direct client representation in certain administrative proceedings. While this does not obviate
the lawyer’s responsibility for the paralegal’s work, it does change the nature of the lawyer’s
supervision of the paralegal. The opportunity to use such paralegal services has particular benefits to
legal services programs and does not violate Guideline 2. See generally ABA Standards for Providers
of Civil Legal Services to the Poor Std. 6.3, at 6.17‐6.18 (1986).

Page 7

State Disciplinary Board Advisory Opinion No. 21 (September 16, 1977); Doe v. Condon,
532 S.E.2d 879 (S.C. 2000) (it is the unauthorized practice of law for a paralegal to conduct
educational seminars and answer estate planning questions because the paralegal will be
implicitly advising participants that they require estate planning services). See also NALA
Guidelines II, III, and V.

▪ The “practice of law” is defined by the states.

Ultimately, apart from the obvious tasks that virtually all states agree are proscribed to
paralegals, what constitutes the “practice of law” is governed by state law and is a fact
specific question. See, e.g., Louisiana Rules of Prof’l Conduct Rule 5.5 which sets out specific
tasks considered to be the “practice of law” by the Supreme Court of Louisiana. Thus, some
tasks that have been specifically prohibited in some states are expressly delegable in others.
Compare Guideline 2, Connecticut Guidelines (permitting paralegal to attend real estate
closings even though no supervising lawyer is present provided that the paralegal does not
render opinion or judgment about execution of documents, changes in adjustments or price
or other matters involving documents or funds) and The Florida Bar, Opinion 89‐5
(November 1989) (permitting paralegal to handle real estate closing at which no supervising
lawyer is present provided, among other things, that the paralegal will not give legal advice
or make impromptu decisions that should be made by a lawyer) with Supreme Court of
Georgia, Formal Advisory Opinion No. 86‐5 (May 1989) (closing of real estate transactions
constitutes the practice of law and it is ethically improper for a lawyer to permit a paralegal
to close the transaction). It is thus incumbent on the lawyer to determine whether a
particular task is properly delegable in the jurisdiction at issue.

▪ The key to successfully complying with Guideline 2 is proper supervision.

Once the lawyer has determined that a particular task is delegable consistent with the
professional rules, utilization guidelines, and case law of the relevant jurisdiction, the key to
Guideline 2 is proper supervision. A lawyer should start the supervision process by ensuring
that the paralegal has sufficient education, background and experience to handle the task
being assigned. The lawyer should provide adequate instruction when assigning projects
and should also monitor the progress of the project. Finally, it is the lawyer’s obligation to
review the completed project to ensure that the work product is appropriate for the
assigned task. See, e.g., Spencer v. Steinman, 179 F.R.D. 484 (E.D. Penn. 1998) (lawyer
sanctioned under Rule 11 for paralegal’s failure to serve subpoena duces tecum on parties
to the litigation because the lawyer “did not assure himself that [the paralegal] had
adequate training nor did he adequately supervise her once he assigned her the task of
issuing subpoenas”).

▪ Consequences of failure to properly delegate tasks to or to supervise a paralegal
properly.

Serious consequences can result from a lawyer’s failure to properly delegate tasks to or to
supervise a paralegal properly. For example, the Supreme Court of Virginia upheld a

Page 8

malpractice verdict against a lawyer based in part on negligent actions of a paralegal in
performing tasks that evidently were properly delegable. Musselman v. Willoughby Corp.,
230 Va. 337, 337 S.E. 2d 724 (1985); see also C. Wolfram, Modern Legal Ethics 236, 896
(1986). Disbarment and suspension from the practice of law have resulted from a lawyer’s
failure to properly supervise the work performed by paralegals. See Matter of Disciplinary
Action Against Nassif, 547 N.W.2d 541 (N.D. 1996) (disbarment for failure to supervise
which resulted in the unauthorized practice of law by office paralegals); Attorney Grievance
Comm’n of Maryland v. Hallmon, 681 A.2d 510 (Md. 1996) (90‐day suspension for, among
other things, abdicating responsibility for a case to paralegal without supervising or
reviewing the paralegal’s work). Lawyers have also been subject to monetary and other
sanctions in federal and state courts for failing to properly utilize and supervise paralegals.
See In re Hessinger & Associates, 192 B.R. 211 (N.D. Cal. 1996) (bankruptcy court directed to
reevaluate its $100,000 sanction but district court finds that law firm violated Rule 3‐110(A)
of the California Rules of Professional Conduct by permitting bankruptcy paralegals to
undertake initial interviews, fill out forms and complete schedules without attorney
supervision).

Finally, it is important to note that although the attorney has the primary obligation to not
permit a nonlawyer to engage in the unauthorized practice of law, some states have
concluded that a paralegal is not relieved from an independent obligation to refrain from
illegal conduct and to work directly under an attorney’s supervision. See In re Opinion No.
24 of the Committee on the Unauthorized Practice of Law, 607 A.2d 962, 969 (N.J. 1992) (a
“paralegal who recognizes that the attorney is not directly supervising his or her work or
that such supervision is illusory because the attorney knows nothing about the field in
which the paralegal is working must understand that he or she is engaged in the
unauthorized practice of law”); Kentucky Supreme Court Rule (SCR) 3.700 (stating that “the
paralegal does have an independent obligation to refrain from illegal conduct”).
Additionally, paralegals must also familiarize themselves with the specific statutes
governing the particular area of law with which they might come into contact while
providing paralegal services. See, e.g., 11 U.S.C. § 110 (provisions governing nonlawyer
preparers of bankruptcy petitions); In Re Moffett, 263 B.R. 805 (W.D. Ky. 2001) (nonlawyer
bankruptcy petition preparer fined for advertising herself as “paralegal” because that is
prohibited by 11 U.S.C. § 110(f). Again, the lawyer must remember that any independent
obligation a paralegal might have under state law to refrain from the unauthorized practice
of law does not in any way diminish or vitiate the lawyer’s obligation to properly delegate
tasks and supervise the paralegal working for the lawyer.

Page 9

GUIDELINE 3: A lawyer may not delegate to a paralegal:

(a) Responsibility for establishing an attorney‐client relationship.
(b) Responsibility for establishing the amount of a fee to be charged

for a legal service.
(c) Responsibility for a legal opinion rendered to a client.

COMMENT

▪ The lawyer must establish and maintain a relationship with the client to ensure that
the client can effectively participate in the representation.

Model Rule 1.4 and most state codes require lawyers to communicate directly with their
clients and to provide their clients information reasonably necessary to make informed
decisions and to effectively participate in the representation. While delegation of legal tasks
to nonlawyers may benefit clients by enabling their lawyers to render legal services more
economically and efficiently, Model Rule 1.4 and EC 3‐6 under the Model Code emphasize
that delegation is proper only if the lawyer “maintains a direct relationship with his client,
supervises the delegated work and has complete professional responsibility for the work
product.” NALA Ethics Canon 2, echoes the Model Rule when it states: “A paralegal may
perform any task which is properly delegated and supervised by an attorney, as long as the
attorney is ultimately responsible to the client, maintains a direct relationship with the
client, and assumes professional responsibility for the work product.” Most state guidelines
also stress the paramount importance of a direct attorney‐client relationship. See New
Mexico Rule 20‐106. The direct personal relationship between client and lawyer is critical to
the exercise of the lawyer’s trained professional judgment.

▪ The lawyer must set fees, and discuss the basis for fees, directly with the client.

Fundamental to

Place your order now for a similar assignment and have exceptional work written by one of our experts, guaranteeing you an A result.

Need an Essay Written?

This sample is available to anyone. If you want a unique paper order it from one of our professional writers.

Get help with your academic paper right away

Quality & Timely Delivery

Free Editing & Plagiarism Check

Security, Privacy & Confidentiality