The Missouri Bar
Practicing With
Paralegals
Answers to Frequently Asked Questions
and
The Missouri Bar Guidelines
Published by
The Missouri Bar
Post Office Box 119
Jefferson City, MO 65102
A variety of public information materials are available for your use through The
Missouri Bar. For further information, call or write:
The Missouri Bar
Communications Department
P.O. Box 119
Jefferson City, Missouri 65102-0119
Phone: 573/635-4128
Fax: 573/635-2811
e-mail: mobar@mobar.org
ACKNOWLEDGEMENTS
For additional informationregarding the 2003 edition of this booklet,
please contact committee Chairperson B. Joyce Yeager at 913-648-6673 or
committee council member Constance Anderson at 314-421-4134.
B. Joyce Yeager, Chair
The Missouri Bar Committee on Paralegals
Copyright, 2003
The Missouri Bar
The Missouri Bar
Guidelines for
Practicing With Paralegals
Questions and Answers
Questions and Answers
Who is a Paralegal?
A paralegal, qualified through education, training or work experience, is employed or retained by an attorney, law firm, government agency, corporation, or
other entity to perform substantive and procedural legal work under the ultimate
direction and supervision of an attorney or as authorized by administrative, statutory, or court authority.
Paralegal Experience
Paralegal experience shall mean the performance of substantive legal work,
non-clerical or non-adminstative in nature, that absent a paralegal, an attorney
would perform. (Adopted by the Committee on Paralegals of The Missouri Bar,
November 9, 2001).
What education should a paralegal have?
1. Formal legal education - The American Association for Paralegal Education
(AAfPE) and the American Bar Association (ABA) have endorsed minimum
standards for paralegal education. An educational program approved by the ABA
must require no less than 60 hours of classroom study. AAfPE has endorsed the
ABA’s minimum standard and has developed a model set of core competencies
for paralegal education.
2. Content
The formal education of a paralegal should include:
(a) instruction in professional ethics;
(b) legal research;
(c) analysis of legal materials;
(d) knowledge in drafting legal documents;
(e) knowledge of judicial and administrative procedures;
(f) knowledge of substantive areas of law;
(g) knowledge of law office systems and technology;
(h) oral and written communication skills.
3. Degree Levels
Formal education for paralegals is available in a wide variety of formats. Colleges, universities, community colleges and proprietary institutions provide the
following types of educational credentials:
(a) post graduate (both master’s in legal studies and post-graduate certificates);
(b) baccalaureate degrees
(i) specific bachelor’s degree in legal studies;
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(ii) bachelor’s degree in a different major (e.g., criminal justice, history,
political science, business) with emphasis in legal studies or with a minor in legal
studies;
(iii) a paralegal certificate tied to the completion of a bachelor’s degree in
any field;
(c) associate’s degrees (of arts or science or applied science) in legal studies;
(d) undergraduate certificate: an educational program normally completed in
one year of study or less.
A certificate awarded from an educational institution is the document verifying
the completion of a course of study. This should not be confused with certification,
a voluntary process, usually administered by a professional association, that is given
to a person who has demonstrated some level of professional competency.
What can a paralegal do?
Paralegals can do tasks delegated to them by an attorney, provided the attorney
supervises the work and maintains responsibility for the work product. Examples
of some of these duties may be:
(a) researching cases and other legal authority;
(b) factual investigation;
(c) preparing legal documents;
(d) reviewing and organizing case files;
(e) assisting at and preparing a case for trial;
(f) assisting at depositions;
(g) summarizing depositions;
(h) drafting interrogatory questions and answers;
(i) interviewing clients and witnesses;
(j) assisting in court;
(k) handling administrative matters;
(l) communicating information to clients and other people.
May a paralegal represent a client in court?
Generally paralegals may not appear as an advocate. However, specific exceptions to the unauthorized practice of law statute have been created through statutes
and regulations that permit paralegals to represent clients in court.
The Federal Administrative Procedures Act, 5 U.S.C. 555(b), permits any person
to represent another if allowed by the agency. Examples include the Social Security
Administration, Internal Revenue Service, Consumer Product Safety Commission,
Department of Labor, and Environmental Protection Agency.
Can paralegals answer clients’ questions?
Yes. Paralegals may give factual and procedural information. The paralegal
cannot give legal opinions in response to client questions.
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If a client asks a paralegal for a legal opinion, can a paralegal answer the
question?
Paralegals must inform clients that they cannot give legal advice. A paralegal
may relay advice specifically given to him by his supervising attorney. A lawyer
shall not place a paralegal in the position of being perceived as giving legal advice
to a client.
May a paralegal directly communicate with an opposing party who is represented by counsel?
No. Neither lawyers nor paralegals may communicate with an opposing party
who is represented by counsel without the express written permission of opposing
counsel.
May a paralegal prepare and draft legal documents?
Yes. However, the lawyer is responsible for reviewing and approving the contents
of the document.
May a paralegal engage in legal research?
Yes.
May a paralegal take a deposition?
No. A paralegal may attend a deposition and assist the lawyer during the deposition by taking notes and coordinating documents and exhibits.
May a paralegal sit at the counsel table in court?
Yes, if permitted by local court rules. (Paralegals can be of great assistance to
lawyers at trial and often sit at counsel tables if court rules do not restrict their
presence).
May a paralegal have business cards?
Yes. A paralegal may have business cards on which he/she is clearly identified
as a paralegal.
May a paralegal’s name be included on law office letterhead?
Yes. The paralegal’s name may be used provided he/she is clearly identified as
a paralegal.
May a paralegal sign correspondence from a law firm?
Yes, as long as the paralegal’s status is clearly identified.
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Example:
Very truly yours,
TAYLOR & JONES
By________________________________________
John J. Smith
Paralegal
May an attorney have his/her paralegal sign the attorney’s name to documents?
The attorney may direct the paralegal to sign the attorney’s name to correspondence/pleadings on a document by document basis after the attorney has reviewed,
supervised production, and approved the content of the document. The paralegal
should indicate that he/she signed the attorney’s name to the document. One method
of indicating this fact is for the paralegal to initial the signature.
Can paralegals be paid based upon the profitability of the firm?
Yes. Law firms may give paralegals pensions, profit sharing plans and salary
increases based upon the firm’s profitability. These benefits can be given based
upon individual performance and/or the firm’s profitability. However, a firm may
not base compensation upon the outcome of a case.
How is a paralegal’s time billed to a client?
The substantive legal work of a paralegal (work normally performed by an
attorney in the absence of a paralegal) may be billed directly to the client in the
same way an attorney’s work is billed. To be billable, the work paralegals perform
must not be clerical or ministerial. In circumstances where “attorneys fees” are
reviewed or awarded by a court, the paralegal hours may be recovered as part of
the attorney fee that is reviewed or awarded.
May a paralegal be a partner or shareholder in the law firm?
No. A lawyer shall not practice with or in the form of a professional corporation,
limited liability company, or association, if:
(a) a paralegal owns any interest in it (except as a fiduciary representative
of the estate of a lawyer);
(b) a paralegal is a corporate director, officer or manager of the limited liability
company; or
(c) a paralegal has the right to direct or control the professional judgment of
the lawyer.
What are the ethical responsibilities of a paralegal?
The Rules of Professional Conduct and Guidelines do not regulate paralegals.
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Paralegals who are members of national, state and local paralegal associations are
required to follow the Codes of Ethics of those associations. These codes contain
the following requirements, which are similar to the requirements governing the
ethical conduct of lawyers:
(a) Maintaining a high level of competence and personal and professional
integrity;
(b) Maintaining a high standard of professional conduct;
(c) Serving the public interest by contributing to the delivery of quality legal
services and the improvement of the legal system;
(d) Preserving all confidential information provided by the client or acquired
from other sources before, during and after the course of the professional relationship;
(e) Disclosing one’s status and title;
(f) Avoiding the unauthorized practice of law;
(g) Avoiding conflicts of interest and disclosing conflicts to employers/clients
and prospective employers/clients.
What are the ethical responsibilities of a lawyer who employs a paralegal?
The lawyer is ultimately responsible for the work product and ethical conduct
of a paralegal. Paralegals are not subject to professional discipline. The lawyer
must give ethical guidance and direction to the paralegal. The supervising attorney
must ensure that the paralegal’s work product and conduct comply with the Rules
of Professional Conduct and these Guidelines. The attorney should:
(a) develop policies regarding the delegation and supervision of the work
product and conduct of the paralegal;
(b) communicate the policy to the paralegal;
(c) enforce the policy; and
(d) have a system of review and feedback to ensure the policy is being followed.
If a paralegal’s activities violate the Rules of Professional Conduct, is the
paralegal’s employer at fault?
Yes. The lawyer employer is responsible for the paralegal’s direction and ethical
guidance. The supervisory measures that the lawyer applies should take account
of the fact that paralegals are not subject to professional discipline. The lawyer is
ultimately responsible for the work product and ethical conduct of the paralegal.
How should a paralegal be identified to others?
At the beginning of all professional communications with others, the paralegal
shall disclose that he or she is a paralegal. The lawyer shall instruct the paralegal
to make this disclosure. If the lawyer is present, the lawyer should introduce the
paralegal and identify him/her as a paralegal.
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Missouri Bar Guidelines
for Practicing With Paralegals
Scope and Purpose of Guidelines
The Missouri Rules of Professional Conduct require members of the bar to make
legal services available to the public at a price it can afford. To this end, members
of the bar are employing paralegals.
These guidelines supplement and clarify the principles of the Missouri Rules of
Professional Conduct. These guidelines provide standards for lawyers to employ
paralegals in accordance with the Missouri Rules of Professional Conduct, statutes,
court rules and decisions, rules and regulations of administrative agencies, opinions
rendered by the attorney general, and committees on professional ethics and the
unauthorized practice of law.
Except where prohibited by law or the Missouri Rules of Professional Conduct,
an attorney may employ the services of paralegals to assist in the representation
of a client.
Definition of a “Paralegal”
A paralegal, qualified through education, training or work experience, is employed or retained by an attorney, law firm, government agency, corporation, or
other entity to perform substantive and procedural legal work under the ultimate
direction and supervision of an attorney or as authorized by administrative, statutory, or court authority.
I. Lawyer’s Responsibility for Paralegal Conduct
A lawyer is responsible for the professional and ethical conduct of a paralegal
under his or her supervision.
COMMENT:
The lawyer has a responsibility to establish and communicate firm policies concerning ethical and professional conduct to the paralegals in his/her employ.
II. Unauthorized Practice of Law
A lawyer shall not assist a paralegal in the performance of an activity that constitutes the unauthorized practice of law.
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COMMENT:
Missouri Revised Statutes §484.010 and §484.020 define the practice of law and
law business. This law prohibits anyone who is not licensed to practice law from
advocating a person’s claim before a tribunal, drafting legal documents, or giving
advice requiring the application of legal principles. Missouri Rule of Professional
Conduct 5.5 notes that a lawyer should not assist nonlawyers in the performance
of activities that constitute the practice of law. However, Rule 5.3 recognizes the
fact that lawyers employ nonlawyers to assist in the delivery of legal services. A
lawyer may employ a nonlawyer as long as the lawyer supervises the work of the
nonlawyer and ensures that the person’s conduct is compatible with the professional
obligations of the lawyer. A lawyer with direct supervisory responsibility over the
nonlawyer is responsible for his or her conduct.
A major area in which paralegals are confronted with the issue of unauthorized
practice of law is requests from clients for information that would constitute legal
advice.
The lawyer’s responsibility regarding the unauthorized practice of law is:
(a) The lawyer must give clients an understanding of the paralegal’s role in
their case;
(b) The lawyer must define the role of the paralegal in preparing legal documents;
(c) The lawyer must explain the paralegal’s role in assisting a person in proceedings before federal or state courts, administrative agencies, and tribunals.
Case law does not provide much guidance in defining where the actions of a
paralegal cross the line from assisting a lawyer in the practice of law to actually
performing acts that would violate the unauthorized practice of law statute.
For the purposes of these Guidelines, a paralegal is not practicing law if, under
the ultimate direction and supervision of a licensed lawyer, the paralegal is applying
knowledge of law and legal procedures in rendering direct assistance to a licensed
lawyer. This assistance may include but is not limited to:
• researching legal matters;
• developing an action, procedure, technique, service or application;
• preparing and interpreting legal documents;
• selecting, compiling and using technical information;
• assisting the lawyer in court;
• handling administrative matters with the tribunal;
• handling will attestations and real estate closings; and
• analyzing and following procedural problems that involve independent decision.
A paralegal is not practicing law when acting in compliance with statutes, court
rules or decisions, and administrative rules and regulations that permit paralegals or
other lay persons to do what would otherwise be considered the practice of law.
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III. Professional Independence of a Lawyer in
Relationship to a Paralegal
(a) Sharing of Fees
(1) A lawyer or law firm shall not share legal fees with a paralegal. However,
a lawyer or law firm may include paralegal employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing
arrangement.
(b) Ownership and Control of Law Practice
(1) A lawyer shall not form a partnership with a paralegal if any of the activities of the partnership consist of the practice of law.
(2) A lawyer shall not practice with or in the form of a professional corporation, limited liability company, or association authorized to practice law for a profit,
if:
• a paralegal owns any interest in the corporation, limited liability company
or association (except that a fiduciary representative of the estate of a lawyer may
hold the stock or interest of the lawyer for a reasonable time during administration);
• a paralegal is a corporate director or officer of the corporation or manager
of the limited liability company;
• a paralegal has the right to direct or control the professional judgment
of a lawyer.
COMMENT:
This section expresses traditional limitations on sharing fees which are designed
to protect the lawyers’ professional independence of judgment. The prohibition
against “fee splitting” is not intended to deny salary or bonuses to paralegals even
though it is tied to the profitability of the firm. Rather, the prohibition is to any
form of compensation directly tied to the existence or amount of a particular legal
fee, where such fee-splitting would influence the lawyer’s professional independent
judgment.
IV. Responsibilities Regarding a Paralegal
A lawyer has a responsibility to:
(a) develop policies that clearly define the delegation of tasks to be performed
by paralegals and address the responsibility of paralegals concerning the Rules of
Professional Conduct;
(b) directly supervise the paralegal to ensure his/her conduct is consistent
with the Rules of Professional Conduct;
(c) directly supervise and maintain responsibility for the paralegal’s work
product;
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(d) provide the paralegal with a copy of these Guidelines, Rule 5.3 of the
Missouri Rules of Professional Conduct and the firm’s written policies;
(e) instruct the paralegal regarding ethical conduct and confidentiality of
client information;
(f) check for conflicts of interest;
(g) check to ensure that the paralegal is qualified to act in the capacity as a
paralegal by reason of education in legal studies, training and/or experience in a
law environment.
COMMENT:
Whether a paralegal is a direct employee of the lawyer or an independent contractor, the paralegal acts for the lawyer in the rendition of the lawyer’s professional
service. If a paralegal would engage in conduct that, if performed by a lawyer,
would constitute a violation of the Rules of Professional Conduct, then the lawyer
would be responsible if:
(a) the lawyer orders, or ratifies, this conduct; or
(b) the lawyer is a partner in the law firm in which the paralegal is employed,
or has direct supervisory authority over the paralegal and knows of the conduct at
a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
V. Identification of a Paralegal
A lawyer has a responsibility to:
(a) instruct the paralegal to disclose that he/she is a paralegal in all dealings
with any other persons;
(b) disclose the paralegal’s title on business cards, stationery, firm profiles, legal directories (such as Martindale-Hubbell) or other means of communications;
(c) instruct the paralegal to identify his/her title on written communications
to others.
COMMENT:
The responsibility of clearly identifying the paralegal is two-fold. Both the
lawyer and the paralegal have the responsibility to clearly identify the paralegal.
If, in the judgment of the lawyer, the client indicates confusion as to the role of the
paralegal, the lawyer must describe the functions of the paralegal.
Identifying the paralegal on letterhead, business cards and other means of
communication also serves to inhibit the misunderstanding of the position of the
paralegal. Such identification can serve as a continual reminder to the client or
other reader the position is one of a paralegal.
A paralegal may sign correspondence on the law firm letterhead provided the
signature is followed by an appropriate identifying designation as a paralegal.
Under no circumstances may any form of communication, either written or
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otherwise, contain the following: false, fraudulent, misleading, or deceptive statements; or claims concerning either the paralegal’s status, authority or relationship
to the lawyer or law firm employing the paralegal.
Missouri Paralegal Associations
Kansas City Paralegal Association (KCPA)
1912 Clay Street
N. Kansas City, MO 64116
Office: 816-421-0302
Fax: 816-421-1991
InfoLine: 913-791-6994
Email: KansasCity@paralegals.org
www.paralegals.org/Kansas City
Missouri Paralegal Association
P.O. Box 1016
Jefferson City, MO 65102-1016
www.missouriparalegalassoc.org
Missouri Roundtable (note: a group of interested individuals investigating issues
relating to paralegal regulation/ licensure)
See: www.missouriparalegalassoc.org
Contact: Jennifer Crisp for information
Meeting Dates: see MPA Calendar
Mid-Missouri Paralegal Association (MMPA)
P.O. Box 1291
Jefferson City, MO 65102
St. Louis Association of Legal Assistants (SLALA)
P.O. Box 69218
St. Louis, MO 63169-0218
Southwest Missouri Paralegal Association (SMPA)
c/o Jackie Harkrider
1154 S. Willow Lane
Springfield, MO 65804
harkriderj@pcis.net
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Paralegal Education Programs In
Missouri And Surrounding States
Webster University
St. Louis, Missouri
Missouri Western State College
St. Joseph, Missouri
Maryville University
St. Louis, Missouri
Johnson County Community College
Overland Park, Kansas
St. Louis Community College
at Meramec
St. Louis, Missouri
Avila College
Kansas City, Missouri
Rockhurst College
Kansas City, Missouri
St. Louis Community College
at Florissant Valley
St. Louis, Missouri
Penn Valley Community College
Kansas City, Missouri
William Woods University
Fulton, Missouri
William Jewell College
Liberty, Missouri
Missouri Southern State College
Joplin, Missouri
Southwest Illinois College
Belleville, Illinois
Phillips Junior College
Springfield, Missouri
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