In this guest post, Adam Kilgore, General Counsel of The Mississippi Bar, discusses what should attorneys do in their practices to ensure that non-lawyer assistants are not engaging in the unauthorized practice of law and other improper conduct.
While technological advances have given attorneys more resources than ever before to accomplish whatever task they face in the everyday practice of law, the need for support staff remains. In most practice areas it is difficult to have a thriving law practice without having a quality secretary or paralegal to rely upon. Likewise, very few law firms are able to operate successfully without the aid of receptionists, runners, investigators, law student interns and other non-lawyer assistants serving as support staff.
As attorneys we place a significant amount of trust in our support staff. The functions they perform require this trust. In many instances the secretary or paralegal knows more about us than some members of our family. They remind us of appointments or obligations we have forgotten. They draft documents at our direction and file them with the appropriate court. Duties can range from interacting with clients to depositing checks at the bank. With this trust there is also the danger that a member of our support staff could knowingly or unknowingly commit an act that could result in an attorney being found to have violated an ethical rule. In addition, support staff access to vital information could also result in their committing a criminal act.
With that in mind, what is our obligation as attorneys to ensure that our support staff is not doing something that could result in us as attorneys being in violation of an ethics rule? Rule 5.3 of the Mississippi Rules of Professional Conduct (MRPC) outlines the responsibilities attorneys have regarding their non-lawyer assistants. Rule 5.3, MRPC, requires each attorney to make reasonable efforts to ensure that his or her office has in effect measures giving reasonable assurance that the conduct of non-lawyer staff is compatible with the obligations of the lawyer. Part (c) of the Rule provides that a lawyer is responsible for the conduct of a non-lawyer assistant, as if engaged in by the lawyer, if the lawyer orders, or with knowledge of the specific conduct, ratifies the conduct involved, or if the lawyer knows of the conduct at a time when its consequences can be avoided or mitigated and fails to take reasonable remedial action.
While Rule 5.3, MRPC, is the only rule that specifically addresses non-lawyer assistants, there are other rules of professional conduct that attorneys should review with their support staff to ensure their compliance with the attorney’s professional responsibilities. Rules 5.5 (Unauthorized Practice of Law), 5.1 (Responsibility of a Partner or Supervisory Lawyer), 7.2(i) (Advertising), 7.3 (Direct Contact with Prospective Clients), 1.6 (Confidentiality of Information), 1.7 (Conflict of Interest: General Rule), 1.9 (Conflict of Interest: Former Client), and 1.15 (Safekeeping Property), MRPC, all deal with issues that could involve non-lawyer assistants. There has been discipline imposed in the last two years by the Committee on Professional Responsibility against attorneys who were found to have violated this rule by having their paralegal or secretary appear on the lawyer’s behalf at real estate closings and depositions. In addition, there have been instances where attorneys were disciplined when non-lawyer assistants gained access to the lawyer trust account and converted client funds to their own use or otherwise misappropriated client funds.
Of major concern over the past several years is Rule 5.5, MRPC, which states that a lawyer shall not assist a person in the performance of an activity that would constitute the unauthorized practice of law. While there is no statutory definition in Mississippi as to the practice of law, two Mississippi Supreme Court cases provide insight into those activities that are considered the practice of law, including “any exercise of intelligent choice in advising another of his legal rights and duties.” See Darby v. Mississippi State Board of Bar Admissions, 185 So.2d 684 (Miss. 1966). See also In Re Williamson, 838 So.2d 226 (Miss. 2003). Miss. Code Ann. Section 73-3-55 (1972, as amended) prohibits practicing law without a license and states “[a]ny person who shall for fee or reward or promise, directly or indirectly, write or dictate any paper or instrument of writing, to be filed in any cause or proceeding pending, or to be instituted in any court in this state, or give any counsel or advice therein, or who shall write or dictate any bill of sale, deed of conveyance, deed of trust, mortgage, contract, or last will and testament, or shall make or certify to any abstract of title to real estate other than his own or in which he may own an interest, shall be engaged in the practice of law.” The statute does provide an exception for title and abstract work in the real estate setting.
What should attorneys do in their practices to ensure that non-lawyer assistants are not engaging in the unauthorized practice of law and other improper conduct?
- Educate the non-lawyer assistants regarding the use of letterhead and forms.
- Do not delegate the management of the lawyer trust account.
- Conduct a conflicts check with all personnel, not just the attorneys, when considering taking on a new client.
- Finally, have non-lawyer assistants execute a confidentiality agreement which outlines their responsibilities and have them review it and renew it on an annual basis.
ABOUT THE AUTHOR
Adam Kilgore is General Counsel for The Mississippi Bar where his duties include reviewing all Bar complaints, conducting investigations regarding Bar complaints, prosecuting attorney discipline cases, handling appeals before the Supreme Court of Mississippi, and serving as Bar liaison for the Board of Bar Commissioners, Committee on Professional Responsibility, and the Ethics Committee. Adam is a member of The Mississippi Bar, National Organization of Bar Counsel, Capital Area Bar Association and the Professional Responsibility Section of the American Bar Association.
Adam earned his Bachelor of Science in Business Administration with a concentration in Communications from Mississippi College in 1992, and graduated from Mississippi College School of Law in 2000 where he was a member of the Moot Court Board. Upon graduation Adam served as a law clerk at the Supreme Court of Mississippi for Chief Justice Edwin Lloyd Pittman. Adam has worked at The Mississippi Bar since 2002, serving as Assistant General Counsel for two years prior to becoming General Counsel in 2004.
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