Grass: Supervising non-lawyer assistants: duties of lawyers
Non-lawyer assistants, paralegals and other support staff keep law firms running smoothly and provide invaluable services to lawyers. Sometimes you may feel like your support staff knows more about a case than you do. But be careful not to rely too much on non-lawyers in your office. Indiana’s Rules of Professional Conduct direct us: “[A] the lawyer with direct supervisory authority over the non-lawyer must make reasonable efforts to ensure that the person’s conduct is consistent with the lawyer’s professional obligations. Ind. Teacher. Cond. A.5.3(b). Here are three things to know about the requirement to directly supervise non-lawyers.
1. Without the direct supervision of a lawyer, a non-lawyer risks engaging in the unauthorized practice of law.
Non-lawyer assistants are permitted to perform services only under the direct supervision of an attorney licensed to practice law in Indiana and subject to the requirements of Rule 5.3. In 2019, the Indiana Supreme Court issued an order amending Guideline 9.1 of the Indiana Rules of Professional Conduct, which states: “A non-lawyer assistant shall only provide services under the direct supervision of a lawyer licensed to practice in the State of Indiana. Independent non-lawyer assistants are prohibited from establishing a direct relationship with a client to provide legal services“, (emphasis added). This amendment also removed the requirement that independent non-lawyer assistants be employed by a lawyer or law firm, thereby allowing independent contractor relationships between a non-lawyer and a Indiana attorney, but only if the licensed attorney provides direct supervision.
In a recent case prosecuted by the Indiana Attorney General’s Office, Mr. Smith – who is not a licensed attorney – engaged in the unauthorized practice of law by “offering and providing legal assistance without the supervision of an attorney to Indiana residents through a company Smith owns and operates as ‘Self Help Legal Aid Company, LLC’” ex rel. Rokita v. Smith, 185 NE3d 862 (Ind. 2022). Smith’s inadmissible conduct included drafting a motion for post-conviction relief and sentence modification for an incarcerated person, as well as indicating that he would appear as a “legal assistant” at any hearing on the motion for sentence modification. Smith attempted to argue that his conduct was permitted under Rule 5.3 and Guideline 9 for the use of a non-lawyer assistant in assisting pro se litigants to act as their own attorney. The Supreme Court disagreed and concluded that “self-representation allows an individual to speak for their own legal name, but it does not make an individual an attorney, and certainly not a licensed attorney. to directly supervise Smith’s conduct.” ID. at 863. The Supreme Court permanently barred Smith from offering legal services, but clarified that he could be employed or contract independently with a law firm as a non-lawyer assistant, as long as it complies with the terms of the Rules of Professional Conduct and Guideline 9. If you are a paralegal considering going on your own as an independent contractor, ensure that your conduct complies with Guideline 9.1 and is under the direct supervision of a licensed attorney.
2. Certain acts can never be delegated to non-lawyers.
The Guidelines on the Use of Non-Lawyer Assistants in the Rules of Professional Conduct provide that a lawyer cannot delegate responsibility for: establishing a lawyer-client relationship, establishing the amount of fees to be charged for a legal service or for legal advice given to a client.
A lawyer may be held liable for lack of supervision under Rule 5.3 and Guideline 9.3 when delegating such impermissible duties to non-lawyers. An attorney working at an out-of-state debt resolution firm “failed to adequately supervise client onboarding, debt settlement, or trust account administration services provided by non-lawyer staff” in the company. In re RM, 86 NE3d 387, 388 (Ind. 2017). In addition to the trust account violations and disallowed fee agreements, the attorney was found to have violated Rules 5.3(a), (b) and (c) as well as Guidelines 9.1, 9.3, 9.4, 9.8 and 9.10 and received a six month suspension without automatic reinstatement. ID. at 389-390. Citing other cases where attorneys have used an out-of-state company for referrals and case generation, the court noted that “ultimately, these cases all stem from the same core issue; that is, the defendant lends his imprimatur as a lawyer to legal functions carried out largely by non-lawyer personnel of a company, without the required degrees of direct involvement and oversight mandated by our rules governing the conduct of lawyers. ID. at 390.
3. A lawyer may be liable for failing to supervise a non-lawyer under rule 5.3, even when the actions of a non-lawyer are not authorized.
What if your non-lawyer acts without your consent or even does something inappropriate or illegal? A lawyer who delegated “broad authority” to a non-lawyer to handle most office duties (including communicating with clients, banking and e-filing in court) received a 60-day suspension for violation of rules 1.15(a) and 5.3(b). In re JL, 137 NE3d 254 (Ind. 2020). The Indiana Supreme Court found that the non-attorney’s actions of stealing several thousand dollars from the company’s operating account, overdrafting the trust account, and fraudulently creating purported court orders were ” largely made possible by the Respondent’s inability to supervise her appropriately”. ID. at 255.
Similarly, an overdraft investigation by the Disciplinary Commission found that a lawyer’s accountant had committed theft. In re SR, 124 NE3d 595 (Ind. 2019). The accountant was charged with one count of theft and seven counts of forgery, and the respondent was suspended from practicing law for 180 days, all suspended subject to the completion of 18 months probation.
Supervising your non-lawyer assistants also involves supervising their notarial deeds. In Advisory Opinion 1-21, the Disciplinary Committee reminded us: “A lawyer who ratifies the conduct of a non-lawyer assistant and who is in a position of managerial authority, or who directly supervises the non-lawyer assistant, may be subject to disciplinary measures for the non-lawyer/notary assistant. failure to properly notarize a document. (Opinion at p. 1). The Disciplinary Commission warned that “a supervising attorney could violate the rules by knowing and failing to take corrective action where a non-lawyer assistant/notary has habitually notarized affidavits before the grantor’s signature”. (Opinion at p. 2).
Non-lawyer assistants and paralegals are essential members of any law firm, but remember that you are the one who took the oath and you must ensure that ethical rules are followed. Heed the Indiana Supreme Court’s reminder and ensure that when dealing with lay assistants, you exercise the “required degrees of direct involvement and oversight mandated by our Rules Governing the Conduct of Attorneys.” In re RM86 NE3d at 390.•
Stephanie L. Grass is an attorney at the Paganelli Law Group in Indianapolis. The opinions expressed are those of the author.