The current economic downturn in the legal profession poses many dangers for law firms, to be sure. One of those oft-overlooked dangers is overworking and mistreating paralegals in order to meet the bottom line. Between May 2009 and May 2010, the legal sector lost 22,220 jobs, most of them paralegals and younger associates. The legal industry still hasn’t replaced many of those positions, and as a result, they are doling out greater amounts of work—and work of higher difficulty—onto their paralegals. The work of two paralegals is now being done by one. The work that young associates used to be responsible for—you guessed it—a paralegal may be doing.
Paralegals as a class of people are not without options. Most paralegals have college educations and state certifications, and all paralegals have opinions about their bosses. So what happens when a smart, educated, capable, completely employable-elsewhere paralegal becomes overworked, overburdened, ignored and/or verbally abused? The answer is: nothing good.
Recently, paralegals at a Texas law firm filed a class action suit against their firm for working them over 40 hours a workweek while not paying them overtime, which violates the Fair Labor Standards Act. There have been some pitch battles between paralegals and law firms in California as well, regarding independent contractor misclassification and overtime rights.
An Iowan paralegal recently blew the whistle on her former employer, an attorney who allegedly deposited clients’ cash retainers into a desk drawer and then spent the money as she saw fit. Every day, paralegals rant on blogs and Facebook about how much they despise their bosses and their jobs. There have been some nasty fights between paralegals and law firms in California as well,
So the question becomes, what can attorneys do to keep their paralegals happy? The first, most obvious alternative is to recognize their paralegals for the capable workers that they are. Under California Business and Professions Code Section 6450, paralegals are required to have a certificate of completion of a paralegal program, unless they have a higher education and have a certain amount of law-related experience, plus an attorney vouching that they are qualified to perform paralegal tasks. A perusal of paralegal blogs on the Internet shows that most paralegals who are disgruntled with their profession feel that way because they are not given enough validation by the attorneys they work for. One blog, entitled “Paralegal Ethics,” ran an article stating that paralegals are happier when they feel that they are an integral part of the legal team. Attorneys can generate this feeling by ensuring that their paralegals are: “Being involved in the matter from the beginning; being introduced to the client; being involved in discussions regarding how the case will proceed, or at least given the “why” for the assignment; having the professionalism to at least listen to our suggestions and recommendations …”
Other things attorneys can do include supervising a paralegal to make sure that, as Guideline 1 of the ABA Model Guidelines for the Utilization of Paralegal Services suggests, “the lawyer … take reasonable measures to ensure that the paralegal’s conduct is consistent with the lawyer’s obligations under the rule of professional conduct.”
Major areas where paralegal work can run afoul with the Rules of Professional Responsibility include confidentiality, conflict and the unauthorized practice of law.
Confidentiality is often an issue because paralegals have never established an attorney-client relationship. They do not have the same obligations towards the clients as an attorney. But that does not mean that confidentiality is any less important. What happens when a paralegal on a major case is knocking back a few beers at a bar after a Giants game and loudly tells his buddy about the finer details, only to be overheard by an attorney representing the other side? To avoid snafus like this one, attorneys need to instruct their paralegals about the paramount importance of confidentiality. Second, it is important for attorneys to ensure that a prospective paralegal doesn’t have a conflict with the matter they will be working on. Although it is second nature for firms to run conflicts checks of all prospective attorneys, many forget that it is also important to do so for paralegals. The ABA recommends that “As a matter of good ethical practice, all potential new hires [including paralegals] should be screened for conflicts at the time the firm makes an offer of employment and that offer should be contingent on the results of that conflict check.”
Last, an attorney must ensure that a paralegal is not performing tasks that are tantamount to the unauthorized practice of law. Because most firms today have fewer attorneys performing more work, inevitably more work gets passed off onto paralegals. The ABA’s Guideline 3 for the Utilization of Paralegal Services lays out three “hard and fast” rules for making sure that paralegals are not indeed practicing law. A paralegal cannot establish an attorney-client relationship, give legal advice or appear in court on behalf of the client. Since some paralegals are in charge of client intake and other communications with the client, the supervising attorney must be extremely clear with the paralegal as to what is and is not OK to say to clients during these communications. Additionally, as with any paralegal work-product, attorneys should review the notes from paralegal-client interactions to ensure that there is no accidental breaking of these rules.
Overall, an attorney has a duty to ensure that a paralegal’s skill set and abilities match the tasks that they are being assigned, and that they are not in over their heads in terms of workload or difficulty. Because if unhappy paralegals can lead to unhappy situations, happy paralegals can certainly contribute to the productivity, profitability and general well-being of any firm.
Carol M. Langford has a practice in State Bar defense and professional licensing disputes in Walnut Creek. She teaches professional responsibility as an adjunct at U.C. Berkeley, Boalt Hall School of Law and Hastings College of the Law. Additionally, Ms. Langford serves as an expert witness in cases involving complicated ethics issues and presents at conferences and symposiums across the state. She is a past Chair of the California Committee on Professional Responsibility and Conduct.