Ethics Roundtable

Paralegals Signing for Attorneys 

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

March/April 2008 Table of Contents

Question:

Is it ethical for a paralegal to sign pleadings or any other documents for the attorney in emergency situations when the attorney is not available? I have always considered that to be the unauthorized practice of law; however, a paralegal friend recently told me that she thought some state bars allow this procedure. Is this correct, and if so, under what circumstances would this be allowed? What kind of safeguards are in place to make sure paralegals are not committing UPL in this type of situation? Also, does the American Bar Association have any rules or guidelines regarding such a procedure?

Hunt: It has long been an accepted rule that paralegals are not allowed to sign pleadings on behalf of an attorney. The act of filing a pleading constitutes an appearance in court, and signing one would constitute UPL on the part of the paralegal signing it. This is not expressed in so many words in the ABA Model Guidelines for the Utilization of Paralegal Services, but would fall under Guideline 1, which states, “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.” One can deduce that encouraging a paralegal to commit UPL by signing pleadings on his or her behalf would not be consistent with a lawyer’s professional obligations under any jurisdiction. This is echoed by the ABA Model Rule of Professional Conduct, Rule 5.3, which states “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”

That being said, 2006 Formal Ethics Opinion 13 of the North Carolina State Bar, passed on Oct. 20, 2006, diverges from this line of thought by allowing an attorney, if warranted by exigent circumstances, to delegate to a paralegal the signing of his or her name to court documents and pleadings “only if 1) the signing of a lawyer’s signature by an agent of the lawyer does not violate any law, court order, local rule, or rule of civil procedure 2) the responsible lawyer has provided the appropriate level of supervision under the circumstances and 3) the signature clearly discloses that another has signed on the lawyer’s behalf.” The opinion goes on to say that the paralegal must never sign the document in his or her own name and states that “to do so violates the statutes prohibiting the unauthorized practice of law.” I find it interesting that the opinion specifically identifies para­legals as appropriate signers in these circumstances and not other non-attorney staff.

I am unaware whether other states have followed North Carolina’s example but it seems like a reasonable exception. You must remember what the ABA Model Guidelines and Model Rules of Professional Conduct were intended to prevent — attorneys delegating the preparation of court documents to paralegals, failing to review the documents or supervise their creation, and then having the paralegals sign the attorney’s name and file them. You should never allow yourself to be put into the type of situation where there is inadequate attorney supervision, no matter what the circumstances are.

Cannon: Stacey is absolutely correct in her analysis. The longstanding, mostly unwritten, rule is that paralegals can’t sign pleadings for lawyers, whether they use their own name or the lawyer’s, because this act would be tantamount to making an appearance in court. The related underlying rationale for this rule is that lawyers are expected to review pleadings before they are filed with the court; the paralegal can draft pleadings for the lawyer but the lawyer is the one who is responsible for ensuring that they are properly prepared and accurate. So having the lawyer sign is a way of verifying that the lawyer takes responsibility for the work product. In practical terms, having the lawyer sign also forces the lawyer to see the document and gives him or her a final chance to review it.

I believe that North Carolina’s ethics opinion is the first in the country to make an exception to the general prohibition on nonlawyers signing pleadings. It is a welcome change as it helps to address an emergency situation when the lawyer might not be available in person but could confer and approve the signature. It also recognizes the importance of the paralegal role and elevates the perception of what a paralegal can and should do.

Keep in mind, however, that other states might take a different stand on nonlawyers signing pleadings, regardless of the circumstances. For example, an earlier Florida State Bar Ethics Opinion, 87-11, passed on April 15, 1988, and updated on July 1, 2005, states “under no circumstances should an attorney permit a nonlawyer employee to sign the attorney’s name, together with the nonlawyer’s initials, to notices of hearing and other pleadings.”

Heller: Stacey and Teri have cited long-standing rules and guidelines, in addition to the more recent ethics opinion of the North Carolina State Bar in 2006, with regard to allowing the signing of pleadings by nonlawyers. I think it’s important to also note that North Carolina’s ethics opinion was passed at a time when the federal courts and some state courts had just implemented the electronic filing system. Most federal courts have now implemented an electronic filing system in an effort to promote greater efficiency. At some point in the not- too-distant future, electronic filing will be mandatory for all federal courts. There also are state courts that have implemented electronic filing systems; however, some states, like Ohio, are doing so on a county-by-county basis. Cuyahoga County (Cleveland) has had an electronic filing system in place for a number of years, yet Franklin County (Columbus and the state capitol) has not yet implemented such a system. Certainly the day is not too far off when all courts will use an electronic filing system.

All of this electronic filing begs the question: If personnel in a law firm, other than the supervising lawyer, can submit an electronic signature on an electronically filed pleading, is the lawyer truly “signing”? Would anyone really know whether the lawyer actually reviewed or virtually “signed” the pleading? Rule 11(a) of the Federal Rules of Civil Procedure neither discusses the concepts of supervision for final review, nor has it yet been amended to incorporate the electronic filing system in place in many courts. The Rule requires that “… every pleading, written motion, and other paper must be signed by at least one attorney of record ….” I believe that it leaves the notion of “signed” open for interpretation with the advanced technology we have today and will have in the future.

As Stacey pointed out, while there are no ABA rules covering the specific issue of paralegals signing court documents for lawyers, Guideline 1 of the ABA Model Guidelines for the Utilization of Paralegal Services does require a lawyer to be responsible for all professional actions of his or her paralegal, and this is reinforced in Rule 5.3 of the ABA Model Rule of Professional Conduct. I believe these must continue to serve as the governing model guidelines for this task, as well as other tasks we might be asked to perform in this age of advanced technology.

[Editors Note: For more information about the North Carolina State Bar’s 2006 Formal Ethics Opinion 13, see “N.C. Bar Passes New Ethics Opinion,” July/August 2007 LAT.]

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.