Watching Over, Watching Out: Lawyers’ Responsibilities for Nonlawyer Assistants - Douglas R. Richmond
Watching Over, Watching Out: Lawyers’ Responsibilities for Nonlawyer Assistants
Douglas R. Richmond*
I. INTRODUCTION Lawyers depend on the efforts and support of many different nonlawyer assistants to practice. Law firms could not operate without nonlawyer staff. Legal secretaries perform numerous tasks essential to lawyers’ work. Accounting staff create and send bills, process fee payments, and manage operating and trust accounts. In litigation practices, legal assistants—paralegals, if you prefer—manage various aspects of cases, prepare discovery responses, conduct fact investigations, research expert witnesses, and more. In transactional practices, legal assistants frequently handle Uniform Commercial Code filings and other key submissions, perform various records searches, and coordinate the assembly and collection of closing documents. Law firms with intellectual property practices employ patent agents to perform patent searches, prepare and record patent assignments, and prepare, file, and prosecute patent applications. Summer associates and law clerks perform important legal research, draft documents for review by lawyers, and undertake a variety of other practical responsibilities. Lawyers reach outside their firms for assistance from appraisers, private investigators, process servers, and e-discovery vendors. Large law firms outsource various projects to a range of service providers. The list of nonlawyers who regularly assist lawyers goes on. [...] This Article analyzes lawyers’ professional responsibilities regarding their nonlawyer assistants. Part II focuses on the duties imposed on lawyers by Rule 5.3 and state equivalents. Importantly, Part II explains that Rule 5.3 does not impose vicarious liability on lawyers.15 Part III discusses Rule 8.4(a), which states that it is unethical for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”16 Cases in which lawyers are charged with violating Rule 5.3 frequently involve alleged Rule 8.4(a) violations, as well. Part IV discusses the other leading standard governing lawyers’ conduct in this context: section 11 of the Restatement (Third) of the Law Governing Lawyers.17 Section 11 addresses both professional discipline and lawyers’ civil liability.18 Part IV also discusses lawyers’ potential vicarious liability for their nonlawyer assistants’ alleged misconduct under the respondeat superior doctrine, as well as their direct liability for negligent supervision under the common law. Finally, Part V explores four special supervisory concerns for lawyers: (a) the employment of family members, (b) the employment of disbarred lawyers as nonlawyer assistants, (c) the use of private investigators, and (d) the professional responsibility challenges that outsourcing poses when the outsourced work will be done by nonlawyers. [...]