Ethics Roundtable

Competence and Supervision

By Therese A. Cannon, Nancy B. Heller, RP, and Stacey Hunt, CLA, CAS

January/February 2008 Table of Contents

Question:

What is the ethical duty of a paralegal regarding his or her competent and adequate supervision by an attorney? The specific scenario is a duly licensed, practicing litigation attorney supervising a senior paralegal working in corporate securities. The litigation attorney, although learned in his field, only has a very basic understanding of corporate securities, and the transaction at hand is complex. Even though there is attorney supervision, would the supervision be considered inadequate since the attorney’s knowledge of the subject matter is so limited? If so, how should the paralegal proceed?

Cannon: What constitutes adequate supervision is an important question for both the paralegal and the lawyer. Inadequate supervision can by itself be an ethical breach, and also can lead to mistakes that impair the quality of work done on behalf of a client. The concept of supervision covers selecting the right person for the work, assigning work effectively and reviewing work appropriately. American Bar Association Model Rule 5.3, adopted in some form in most states, generally says that lawyers are responsible for the conduct of nonlawyers they supervise and that lawyers must “make reasonable efforts to ensure … that the person’s conduct is compatible with the professional obligations of the lawyer.”

In this situation, the issue of supervision is mixed with the issue of the lawyer’s competence to perform the level and kind of work assigned to him or her. ABA Model Rule 1.1 defines competent representation as “the legal know­ledge, skills, thoroughness and prep­aration reasonably necessary for the representation.” Lawyers who are not sufficiently familiar with a practice area are expected to bring in another lawyer with the required expertise or decline representation.

To ascertain whether the lawyer in this case is acting ethically (and with competence), we would need to know more facts. How experienced is the lawyer generally? How complex is the case? Are there other lawyers associated with the case and supporting the lawyer or sharing supervision? Could another lawyer in the firm provide this support? What is the lawyer asking the paralegal to do? How complex is this work? How carefully is the lawyer reviewing this work?

My advice is to use good judgment and carefully assess whether the lawyer is working above his or her competence in the matter and therefore can’t provide adequate supervision. If this seems to be the case, the paralegal should talk to the lawyer about how to remedy the situation most effectively. Bringing in a lawyer who is experienced in this area of practice might be the best solution.

Hunt: This can be a very tricky situation for paralegals. In my work as a contract paralegal, I find it arising more often in smaller firms or with sole practitioners. Medium-size and larger firms have a greater breadth of attorneys with varying specialties on which to draw. Small firms often are reluctant to turn away work, and in small towns, there simply might not be an attorney who is familiar with that particular practice area. Before taking on a project outside of the attorney’s range of experience, I ask myself the following questions:

How far outside the attorney’s usual area of expertise is this project? For example, I am not going to work on a trademark matter for a family law attorney. However, I might work on an unlawful detainer for an attorney who already is a litigator, but who never has done an eviction before. Because unlawful detainers basically are a subspecialty of litigation, an experienced litigator will quickly pick up the concepts.

How involved is the attorney willing to be on the project? If an attorney never tried anything new, he or she would never learn any area of expertise. If the attorney asks me to learn a new practice area with him, and we are going to do it together, then count me in. If I am supposed to figure it out by myself and then tell him what to do, forget it. I worked for a litigator who eventually took and passed the patent bar. He had never done a patent in his life, but wanted to focus his practice in intellectual property. He asked me to learn with him and we did. He was there for me every step of the way and took responsibility for everything I did.

How available is help from someone who truly is an expert? I work for an attorney who has practiced for many years in a variety of areas. We had an issue come up recently where a client was asking a lender to remove a lien on a piece of real property that had a secured loan on it that expired. The attorney asked me to find out how to go about that. He had done real estate work, but that particular question never had come up. Because I had a friend who operated a foreclosure company for 15 years, I felt comfortable calling her for advice. I gave her recommendations and my research to the attorney and let him make the final decision.

As Teri said, use good judgment on where to draw the line. If you don’t feel like your work is being adequately supervised, let your supervising attorney know immediately. Although it is his or her license on the line, you don’t want any smudges on your reputation either.

Heller: Supervision is a key area that easily can be overlooked in certain situations. Stacey outlined a scenario that can very easily occur with independent contractors. We had a case in Ohio a number of years ago on point with her question of “How far outside the attorney’s usual area of expertise is this project?” An experienced, highly regarded probate paralegal left a private law firm after 25 years to become an independent contractor. She became inundated with work, not only from the probate lawyers who knew her but from newer practitioners who were aware of her flawless reputation and competence. Quickly, the judge in the county probate court began to see filings by lawyers who had not typically been practicing in his court and learned that they had retained the services of this paralegal to handle this work. Everything came to a head when, coupled with other personal obstacles facing one lawyer, the paralegal found herself in a position of having to complete work unsupervised by the lawyer by telephone authorization.

The paralegal went to the county probate judge to explain her predicament, and the judge filed a complaint that triggered an investigation of unauthorized practice of law by the para­legal. The paralegal had to retain an attorney to defend against the allegations and, fortunately, she prevailed. What this clearly demonstrated was a problem with the lawyer going outside his primary area of expertise and his failure to supervise, and not a problem of a paralegal trying to practice law.

Another situation arose in Ohio a few years later in which a bankruptcy paralegal called the law clerk of a bankruptcy court judge and in his message to the clerk about a particular case, gave the clerk the impression that he was practicing law. The law clerk saved the message for the bankruptcy court judge to hear, and the judge agreed with the clerk’s impression. A complaint alleging UPL was filed, which triggered an investigation. This paralegal was employed by a solo practitioner who apparently delegated a lot of responsibility to the paralegal. It was found that supervision clearly was lacking, and the lawyer was sanctioned by the Ohio Supreme Court.

Both of these examples not only point to the lack of adequate supervision by the lawyers of the paralegals’ work, but also to the lawyers’ lack of knowledge of their duty to supervise. While the ABA Model Rules serve as a valuable resource to lawyers working with paralegals, it’s incumbent upon each of us to continue educating the lawyers with whom we work about their duty to supervise and review the work we perform.

Therese A. Cannon is the asso­ciate director of the Western Association of Schools and Colleges, Senior Commission in Alameda, Calif. She also serves as the educational consultant to the American Bar Association Standing Committee on Paralegals. She is the author of “Ethics and Professional Responsibility for Paralegals” and “A Concise Guide to Paralegal Ethics,” both published by Aspen Publishers, Inc., and is co-author of “Paralegals, Profitability, and the Future,” published by the ABA. She has been teaching and lecturing on legal ethics for more than 25 years.

Nancy B. Heller, RP, has been a litigation paralegal since 1978, and has been employed with the Columbus, Ohio-based law firm of Vorys, Sater, Seymour and Pease for the past 20 years. She has been a frequent seminar lecturer on the topic of ethics and is a co-author of the National Federation of Paralegal Associations’ Model Code of Ethics. Since 1999, she has served on the adjunct faculty for the Capital University Law School Paralegal Program where she teaches Ethics and Law Office Practice and Civil Litigation II: Trial Preparation and Practice. She also is a co-author of the ethics section for NFPA’s Paralegal Advanced Competency Exam Study Manual.

Stacey Hunt, CLA, CAS, is a graduate of the Fresno City College paralegal program and a litigation paralegal with Duggan Smith in San Luis Obispo, Calif. She is the co-author of Evidence Management for the Paralegal (Cengage, 2007), as well as two other paralegal books. Hunt taught legal writing and ethics for the paralegal studies program at California Polytechnic State University in San Luis Obispo. She is a past president of the California Alliance of Paralegal Associations and currently is working on modules for the Commission for Advanced California Paralegal Specialization’s new online program.