Bar (now known as the âParalegal Division of the State Bar of. Texasâ) in 1981. Hector A. Beltrán & Michele M. Boerder, What. Can Your Paralegal Do?
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for Texas Professionals THE ROLE OF LEGAL ASSISTANTS IN THE ESTATE PLANNING PRACTICE I. INTRODUCTION The employment of legal assistants, paralegals, and similar personnel by the legal community has rapidly gained momentum since the 1960s. The legal community promptly recognized the benefits of paralegals and began to define and organize the emerging profession. The State Bar of Texas created a Legal Assistant Committee (now known as the “Paralegal Committee”) in 1977 and a Division of the Bar (now known as the “Paralegal Division of the State Bar of Texas”) in 1981. Hector A. Beltrán & Michele M. Boerder, What Can Your Paralegal Do? 1, 2, STATE BAR OF TEXAS: SUCCESS STRATEGIES AND KEY LESSONS FOR YOUNG LAWYERS 2010 (Nov. 12, 2010) [hereinafter Beltrán]. The paralegal profession was first defined in 1986 when the American Bar Association adopted the definition of the term “legal assistant,” and the legal community began to use the term interchangeably with “paralegal” soon thereafter. Deirdre Trotter, American Legal System: Paralegals, 15 TEX. PARALEGAL J. 16, 16 (Fall 2009). In 2005, the State Bar of Texas Board of Directors, the Paralegal Division of the State Bar of Texas, and the State Bar of Texas Standing Committee on Paralegals adopted a new definition for the term “paralegal”: A paralegal is a person, qualified through various combinations of education, training, or work experience, who is employed or engaged by a lawyer, law office, governmental agency, or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of a licensed attorney, of specifically delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal principles and procedures that, absent such person, an attorney would be required to perform the task.
Standing Committee on Paralegals, State Bar of Texas. In 2006, the State Bar of Texas Board of Directors approved amending this definition by adding standards for paralegals that promote education, training, certification, and work experience. While the State Bar of Texas recommends that attorneys hire paralegals from a formal education program, it recognizes that some paralegals who do not meet the educational criteria are nevertheless qualified to be considered a paralegal if they have obtained a minimum of four years work experience in performing substantive legal work. Today the Paralegal Division of the State Bar of Texas has over 1,500 members, and 27% of the members surveyed in 2010 stated that their billable rate is over $125 per hour. 2010 Paralegal Division Compensation Survey, State Bar of Texas Department of Research and Analysis. The explosion of the profession of paralegals is a result of attorneys in general, as well as those who specialize in estate planning, realizing the tremendous cost
Gerry W. Beyer Governor Preston E. Smith Regents Professor of Law Texas Tech University School of Law Lubbock, Texas and Kerri M. Griffin Associate The Blum Firm, P.C., Dallas, Texas
effectiveness and efficiency that may result from the prudent use of legal assistants. Despite the valuable services which may be rendered by legal assistants, however, attorneys must exercise caution in their employment, supervision, and education.
II. REASONS TO USE PARALEGALS IN THE ESTATE PLANNING PROCESS The use of a paralegal allows an estate planning attorney to provide economical services, increase efficiency, improve the quality of the work product, provide the client with an additional contact person, and promote good client relations and retention. A. Provide Economical Services
Many of the tasks in the estate planning process are timeconsuming and tedious, e.g., proofreading lengthy documents; gathering family, financial, and other information; obtaining copies of important documents from courthouses, insurance companies, and other sources; making telephone calls and spending considerable time on “ignore,” etc. In Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989), the United States Supreme Court noted that the lower courts frequently recognize that “paralegals are capable of carrying out many tasks, under the supervision of an attorney, that might otherwise be performed by a lawyer and billed at a higher rate.” A legal assistant can competently complete these tasks and thus permit the attorney to charge less for estate planning services because the hourly rate of a legal assistant is considerably less than that of an attorney. Beltrán at 1. B. Increase Efficiency of Attorney
The delegation of time-consuming tasks to legal assistants may directly result in an increase in the attorney’s efficiency. Estate plans may be prepared in a more timely fashion much to the delight of the client. As a result, the attorney will have more time to devote to complex issues or in obtaining new clients. Ultimately, this may lead to a more profitable practice. C. Improve Quality of Work Product
A knowledgeable and thorough legal assistant may also improve the quality of an attorney’s work product. Instead of having only the attorney reviewing an estate plan, there are now two trained individuals with a working knowledge of the facts and the law overseeing the project. Accordingly, errors, both major and minor, are more likely to be detected. In addition, the attorney may concentrate on difficult aspects of the estate plan because the legal assistant has relieved the attorney of many routine tasks. D. Provide Client With Additional Contact Person
A legal assistant may be more accessible to the client than the lawyer. If the client understands that the legal assistant’s time is billed at a lower rate than the lawyer’s time, the client may call the legal assistant directly. If the legal assistant can answer the client’s
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questions without rendering legal advice, the legal assistant should be able to handle the call. If the lawyer is unavailable when the client wishes to speak to him, the call can be directed to the legal assistant. A client often feels more comfortable leaving a message with someone who knows the facts of his or her case. E. Promote Good Client Relations and Retention
In today’s fast-paced legal environment, it is common for an estate planner to have very little contact with the client. After the initial interview, the lawyer and the client may communicate only via e-mail or telephone and not meet again until the execution ceremony. Under these circumstances, it is difficult for a lawyer to maintain a relationship with each client. A legal assistant may form a relationship with these clients by spending time speaking with the client throughout the drafting process and focusing on the “small talk.” The legal assistant can keep the attorney abreast of the major events in the client’s life. A legal assistant may also help the attorney retain clients by keeping in touch with the client after the legal relationship has ended, for example, by sending birthday or holiday cards each year.
III. REGULATION OF THE PARALEGAL PROFESSION In Texas, legal assistants are primarily regulated through their supervising attorneys under the Texas Disciplinary Rules of Professional Conduct. Joseph W. Kline, Ethical Utilization of Paralegals and Other Non-Lawyer Assistants 1, 2, STATE BAR OF TEXAS: STATE BAR COLLEGE “SUMMER SCHOOL” (July 16-18, 2009) [hereinafter Kline]. Under the Disciplinary Rules, only the lawyer may be directly sanctioned by the State Bar of Texas, and mistakes made by a paralegal are imputed to the supervising attorney. Cunningham v. Columbia/St. David’s Healthcare System, L.P., 185 S.W.3d 7 (Tex. App. – Austin 2006, no pet.). The delegation of a task to a legal assistant who lacks competence to perform the task would constitute a violation of the attorney’s duty to provide competent representation under Rule 1.01. Kline at 3. In addition, Rule 5.03, Responsibilities Regarding Nonlawyer Assistants, states that “a lawyer having direct supervisory authority over the nonlawyer” will be subject to discipline if the lawyer does not “make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” Finally, Rule 5.05(b) subjects attorneys to discipline if they assist their paralegals “in the performance of activity that constitutes the unauthorized practice of law” by failing to supervise them adequately. In addition to the Disciplinary Rules, regulatory groups have published guidelines, such as the ABA Model Guidelines for the Utilization of Paralegal Services, the National Association of Legal Assistants’ Model Standards and Guidelines for Utilization of Paralegals, the General Guidelines for the Utilization of the Services of Legal Assistants by Attorneys, and the Texas Paralegal Standards as approved by the State Bar of Texas Board of Directors. Major paralegal associations have also adopted codes of ethics, such as the National Association of Legal Assistants’ Code of Ethics and Professional Responsibility and the State Bar of Texas Paralegal Division’s Code of Ethics and Professional Responsibility. While only the attorney may be sanctioned by the State Bar of Texas for violations of the Disciplinary Rules and most of the previously-mentioned guidelines are directed towards attorneys, a paralegal may be personally punished under Texas criminal laws. A paralegal may be held criminally liable for barratry and solicitation of professional employment under Texas Penal Code § 38.12, falsely holding oneself out as a lawyer under Texas Penal Code § 38.122, and for the unauthorized practice of law under Texas Penal Code § 38.123. Kline at 3.
IV. IMPROPER USE OF LEGAL ASSISTANTS This section applies the above-mentioned guidelines and Disciplinary Rules to the estate planning context and describes various actions of a legal assistant that may subject the estate planning attorney to discipline. A. Appearing in Court on Behalf of a Client
Section 81.101 of the Texas Government Code includes in its definition of “practice of law” the “preparation of a pleading or other document incident to an
action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court.” Thus, a paralegal who works for an estate planning attorney may not appear in court to probate a will, conduct an heirship proceeding, or raise any objections to the administration of an estate. A paralegal also cannot sign pleadings, motions, or other formal documents. B. Giving Legal Advice to Clients
Section 81.101 of the Texas Government Code further defines the “practice of law” to include “the giving of advice or the rendering of any service requiring the use of legal skill or knowledge.” A legal assistant may have frequent contact with the client, especially in gathering the facts, documents, and other materials necessary to prepare the estate plan. The legal assistant needs to be aware of how easy it is to cross the line between mere conversation to the giving of legal advice. For example, a client may ask what would happen if various contingencies were to occur (e.g., a child being born or predeceasing, a divorce or marriage, or a specific gift not being in the estate.). The fact that the legal assistant has acquired a specialized area of competence and knows the answer does not warrant the legal assistant to engage in the business of offering legal advice based on his or her knowledge of the subject. See In re Roel, 144 N.E.2d 24, 28 (N.Y. 1957). The legal assistant must be instructed not to answer any of these types of questions, and the attorney has a duty to ensure that the legal assistant does not give legal advice to the client during the estate planning process or at any other time. C. Supervising the Will Execution Ceremony
In Palmer v. Unauthorized Practice Comm. of State Bar of Tex., 438 S.W.2d 374 (Tex. Civ. App.—Houston [14th Dist.] 1969, no writ), the court was confronted with an individual who was offering for sale to the general public will forms containing blanks to be filled in by the non-attorney user. In holding that such conduct constituted the unlicensed practice of law, the court stated that “supervising the execution of wills is [the] practice of law” and that such “duties cannot be performed by an unlicensed person, not an attorney.” Cases in other jurisdictions have reached a similar result. In In re Flynn’s Estate, 253 N.Y.S. 638, 639 (N.Y. Sur.1931), the New York Surrogate’s Court condemned the supervision of a will execution ceremony by a notary public and denied probate of the will because the execution ceremony lacked substantial compliance with statutory requirements. In addition to amounting to the unauthorized practice of law, the supervision of the will execution ceremony needs to be performed by the attorney to prevent future litigation surrounding the will. A New York ethical opinion stated that the will execution ceremony was “tantamount to counseling a client about law matters and [therewith] permitting a paralegal to engage in the practice of law. Not only is strict compliance with a statute required, but the presence of the attorney provides added assurance that the Will was properly executed by a competent testator.” Opinion No. 343, 46 N.Y. ST. B.J. 462 (1974). The requirements for a valid will include many elements which cannot be detected from a mere examination of the executed documents, e.g., the testator’s capacity and formalities such as the witnesses attesting in the testator’s presence. Attorneys are more likely to know these will execution requirements, so there is an inference that if an attorney supervised the execution, the execution was made in accordance with statutory requirements, and future will contests are less likely. C. Raymond Radigan & Frank J. Gobes, Additional Means to Avoid Contested Probate, N.Y. L.J., July 29, 2005. Although allowing a legal assistant to conduct the will execution ceremony amounts to the unauthorized practice of law and could potentially lead to future litigation, a legal assistant may nonetheless participate in and assist the attorney during the will execution ceremony. The legal assistant can help make certain all formalities are satisfied. If the legal assistant is also a notary, he or she can notarize the self-proving affidavit. D. Making Discretionary Decisions
The attorney may not delegate discretionary decisions to the legal assistant. Assembling an estate plan requires an understanding of trusts, fiduciary duties and powers, legal and equitable estates, taxation laws, business entity succession, and many other complex concepts. The decisions regarding which estate planning
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tools should be utilized in a particular client’s situation necessarily involves the practice of law and can only be performed by licensed attorneys. See Fadia v. Unauthorized Practice of Law Comm., 830 S.W.2d 162, 164 (Tex. App.— Dallas 1992, writ denied). The legal assistant’s role is to provide help with time-consuming tasks that are necessary in many aspects of the estate planning process. However, discretionary decisions, such as the type of marital deduction provision to include in a will, must be made by the attorney. Although the legal assistant may make suggestions, the attorney needs to be the final arbiter of such decisions. E. Accepting or Rejecting Clients; Setting Fees for Legal Services
Independent of the lawyer’s instruction, a legal assistant may not engage, accept, or reject a client, or set the fee for the legal services to be performed. Beltrán at 2. Fee setting is a core function of a lawyer, and legal assistants would be engaging in the unauthorized practice of law if they did it. Even if the attorney typically charges one amount for the drafting of a will, the attorney should review each case and personally discuss the fees with the client. Each client is different, and the time expended on each project will vary. The decision whether to engage in the attorney-client relationship, as well as the determination of fees, may only be made by the attorney. F. Negotiating Settlement Agreements
A paralegal is prohibited from negotiating settlement agreements. Texas Paralegal Standards, § C(2). The client is entitled to an attorney’s judgment regarding the sufficiency of offers and counter-offers. See Frequently Asked Questions, State Bar of Texas Paralegal Division. Thus, if an attorney is working with battling beneficiaries of an estate or trust, the paralegal may not step in and negotiate a settlement agreement among the beneficiaries. Only the attorney may perform this task.
V. PROPER USE OF LEGAL ASSISTANTS This section reviews some of the tasks for which legal assistants are best suited. This discussion is not intended to provide an exclusive list but rather to demonstrate the wide range of responsibilities which a legal assistant may assume. A. Gather Information
It is nearly impossible for the attorney to acquire all necessary information at an initial client interview. Kay Redburn, The Ethical and Effective Use of Paralegals in the Practice of Law 1, 7, State Bar of Texas (December 5, 2007) [hereinafter Redburn]. The development of facts and client history will continue throughout the duration of each individual case. One of the chief functions of a legal assistant is to gather and organize the information that the attorney needs to prepare estate plans and administer estates. If the attorney explains to the client that dealing with the paralegal will be faster and more economical, the client will work with the paralegal willingly. The legal assistant can obtain information from the client through interviews, telephone calls, faxes, letters, or e-mails. Likewise, the legal assistant can track down important data and documents from other sources such as family members, courthouses, insurance companies, financial advisors, and banks. The attorney should periodically review the information the paralegal acquired and note any gaps that need to be filled in with additional information. B. File Organization
The paralegal may be given control over the organization of files. Correspondence, document production, exhibits, and everything else related to a particular client should pass through the paralegal so that at least one person in the office can locate every item in a particular file. To keep the attorney abreast of new facts and developments, the paralegal should draft a memo to the file to record the substance of each client interaction. Redburn at 8.
C. Draft and Proofread Documents
Another primary function of a legal assistant is to draft and proofread documents. The legal assistant may prepare initial drafts of many types of documents, such as client letters, wills, trusts, tax returns, and pleadings. If the attorney has an established set of forms and accompanying instructions, the legal assistant can prepare documents for the attorney’s review that are practically in final form. Prior to the execution of any document, the legal assistant’s careful proofreading is likely to detect mistakes, both typographical and substantive, which have not yet been noticed. D. Legal Research
A properly trained legal assistant will be able to perform legal research. The legal assistant can locate relevant cases, statutes, and rulings and IRS forms using the internet and legal databases to which the attorney subscribes such as the State Bar of Texas online CLE library, Casemaker, BNA, RIA Checkpoint, Westlaw, and Lexis Nexis. The legal assistant may also perform traditional research at the local law school or county law library.
VI. RECOMMENDATIONS To maximize the benefits of the services provided by legal assistants, the attorney must give consideration to the role they are to play in the estate planning process. Obviously, the legal assistant needs to avoid the conduct previously discussed in this article. In addition, the attorney should take the following steps to obtain further protection from claims of improperly using the services of legal assistants. A. Select Legal Assistants With Care
Selecting the individual to work as a legal assistant is not a decision to be made quickly, casually, or without careful deliberation. An attorney should begin by considering the desired education, experience, personality, and work characteristics of the paralegal. Some key skills for paralegals include meticulous attention to detail, excellent written and oral communications, organization, an even disposition in dealing with difficult clients, and the ability to assess a situation and summarize key concepts for the attorney. Beltrán at 1. Attorneys should be careful not to limit their options based on certain qualifications. For example, there are highly qualified paralegals who have only received on-the-job training rather than a paralegal education who would be excellent additions to a law practice. Redburn at 9. In addition, the legal assistant should be someone who will display loyalty to the attorney and the law firm. Six months or more will usually be needed to familiarize a new legal assistant with an attorney’s practice and to learn the basics of estate planning and probate. If this newly trained person were to quit and go work for another firm, re-locate, return to school, etc., a tremendous investment of time, effort, and money would be lost. It is also important for attorneys to consider conflicts of interest when selecting paralegals. In Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994), the Texas Supreme Court addressed standards with regard to disqualifying paralegals from working on a particular case. The court determined that there is a conclusive presumption that a paralegal obtained confidential information while working on the case at the first firm and a rebuttable presumption that the paralegal shared confidential information with the new firm. If an attorney wants to hire a paralegal who has previously worked at another estate planning firm, the attorney needs to determine if there are any conflicts. If there are, the attorney must ensure the paralegal does no work in connection with matters on which the paralegal previously worked. Beltrán at 3. Finally, if the legal assistant is inept, the employment should be terminated; incompetent legal assistants can cause more problems than they solve, including dissatisfied clients who may bring legal action against the attorney. B. Consider Hiring Board Certified Paralegal
Since 1994, the Texas Board of Legal Specialization has administered a voluntary certification program for paralegals through which they can become
Board Certified Paralegals in a specialty area of law. Kline at 2. To become Board Certified in a specialty area, a paralegal must: (1) have five years of paralegal experience (three years in Texas); (2) currently work under the supervision of a licensed attorney practicing in Texas; (3) concentrate at least 50% of paralegal duties in the specialty area; (4) attend continuing education seminars regularly; (5) successfully complete one of several educational programs; (6) have been evaluated by judges, lawyers, and other professionals associated with the specialty area; and (7) pass a four-hour written exam. The Texas Board of Legal Specialization currently certifies paralegals in six specialty areas of law, including one for Estate Planning and Probate Law. Of the over 300 board certified paralegals in Texas, less than 20 are certified in Estate Planning and Probate Law. Board certified paralegals are extremely rare, but attorneys can locate them on the Texas Board of Legal Specialization’s website on the “Search” page. There are also national certification options for paralegals, including becoming a Certified Legal Assistant (CLA) or a Certified Paralegal (CP) through the National Association of Legal Assistants or becoming a PACE Registered Paralegal by taking the Paralegal Advanced Competency Exam through the National Federation of Paralegal Associations. C. Comprehensive Instruction
It is essential that the legal assistant receive comprehensive instruction before working on any case. The legal assistant must have a firm grasp of the basics of estate planning and the type of duties which he or she will be performing. The attorney should, as much as possible, teach the legal assistant the proverbial ropes so that the legal assistant does not flounder on his or her first assignments. It will often be helpful for the legal assistant to read articles and books relating to estate planning (especially, at first, those written for nonlegally trained persons), to enroll in appropriate courses at local colleges or paralegal schools, and to attend relevant seminars. A.B.A. Special Comm. on Legal Assistants, New Careers in Law II 45-72 (1972). In addition, it is equally or even more important for the instruction to include comprehensive coverage of the rules set forth in the Texas Disciplinary Rules of Professional Conduct. The attorney should attempt to instill in the legal assistant a strong sense of responsibility to the client, the law firm, and the legal profession. For example, the legal assistant must fully comprehend the extreme importance of keeping all client matters confidential. The legal assistant needs
to realize that estate planning often requires the client to reveal personal or embarrassing information (e.g., financial status, health conditions, marital discord, and children born out of wedlock) and that this information, which would make good material for gossip with co-workers, families, and friends, must be kept in the strictest confidence. Additionally, even the fact of representation, unless it is a matter of public record, must also be kept confidential. As discussed in Section IV(B) above, the legal assistant must also understand which actions constitute giving legal advice and be firmly warned to avoid any conduct which may be interpreted as the unlicensed practice of law. D. Careful Supervision
Perhaps the most important recommendation is to monitor constantly the conduct and work product of the legal assistant. Not only will this better protect the client’s interests, but it will protect the attorney as the attorney is ultimately responsible for all acts of the legal assistant. In a busy practice, an attorney may become lax and fail to review periodically the legal assistant’s work. The attorney must carefully guard against relinquishing control of the client’s case to the legal assistant. The attorney should not be reluctant to offer constructive criticism of the legal assistant’s work. Only through an honest evaluation of their performance will legal assistants be able to improve their work so it will conform to the required standards. Conversely, the attorney should have realistic expectations of what legal assistants can do; attorneys must remember that their assistants do not have law school educations. E. Inform Client of Legal Assistant’s Status
“An attorney should instruct the legal assistant to disclose at the commencement of communications with any other entity that he or she is not an attorney.” General Guidelines for the Utilization of the Services of Legal Assistants by Attorneys, Commentary to Guideline IV, Board of Directors of State Bar of Texas (May 1993). Early disclosure of the paralegal’s status is necessary to prevent misunderstandings regarding the responsibilities and the role the paralegal will play in the estate planning process. If at any time the paralegal or the attorney becomes aware that the client mistakenly believes the paralegal is an attorney, it should be made clear that the paralegal is not an attorney.
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This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. In publishing this article, neither the author, publisher, nor the sponsoring financial institution is engaged in rendering legal, accounting or other professional service. If legal advice is required, the service of a competent professional should be sought. Any opinions published herein are those of the author and do not necessarily represent those of the publisher or sponsoring financial institution.
© 2012 Gerry W. Beyer and Kerri M. Griffin
