Monday, October 10, 2011

How paralegals avoid unlawfully practicing law

We all know we can get in big trouble (worse than a spanking kind of trouble) for giving legal advice without a bar card.

A newbie paralegal asked me the other day if certain actions existed in our state because she wanted to relay the answer to someone who called on that topic. I told her that whether or not we have that information, you simply cannot provide such information to people. That could be considered legal advice and we could get in trouble for unlawfully practicing law. She acknowledged she knew she couldn't provide legal advice, but didn't know that the information the caller was requesting was considered legal advice.

So, I thought it a worthy topic for a blog post. Here are some examples of practicing law that newbies might not initially understand to be legal advice:

1. Determining whether case facts apply to the law, or how the law applies to facts in a particular case.

2. Offering an opinion about whether something is a "good idea" or "bad idea."

3.  You can summarize a particular rule or statute, but you can't provide an opinion about its application to a case. You also cannot interpret the law for someone. If you're unsure about it, defer the question to an attorney.

4.  Do not direct someone to a particular rule or statute, or decide on your own which rule or statute applies. Now, that's not to say you can't draft a letter to a client with legal advice, you just must have an attorney review and sign it before it leaves the office.

5. Don't offer procedural advice based on other cases. That could be considered an opinion as to the application of the law in the current case.

So, how can you avoid issues with your local bar about the unlawful practice of law?

1.  If you have a conversation with someone who requests legal advice, refer them to the attorney and be sure to make a note of what was said. I like to send myself an email so it has the date and time, then print it right away for the file so that the date printed matches the date of your call. Always anticipate complaints and prepare your file to defend against them.

2. Be upfront with callers and clients that you are a paralegal and cannot provide legal advice or opinions about the law.  Most people have no clue there is a difference between lawyers and paralegals, and if they know there is a difference, they usually don't know what it is.

3. Unless you are confident you are not providing advice or opinions to someone, tell the person you will need to speak with the attorney before responding. New paralegals may feel pressured by the caller/client to answer their questions to be helpful and to avoid bothering the attorney. Don't do it. Why is their question more important than your career?

4. If an attorney asks you to relay information that could be construed to be legal advice, you must relay that it is the attorney's opinion, not your own. This is a difficult scenario to manage. You cannot elaborate or clarify the opinion in any way. Feel free to tell your attorney you aren't comfortable relaying the information because it could lead to conversation about legal opinions you aren't authorized by law to provide. If the attorney doesn't accept your declination, find a new job quickly. Your career isn't worth saving the attorney a five minute phone call.

5. Even if a caller is frustrated that the attorney is not returning his/her calls, and you feel bad for them (this does happen), you should still continue to refer them to the attorney. Then, bug the attorney at least daily to resolve the issue. Remember, attorneys have ethical obligations to return communication requests, you don't.


  1. What are the responsibilities of a paralegal in your jurisdiction? I'm just curious about the difference between paralegals in the states v. in Canada (especially Ontario) because here I am able to provide legal advice and represent clients (in a restricted basis) but my fiance and I might be moving to the states for his job in a few years and I'm worried about losing experience because the job seems to be more similar to what we would call a law clerk. What are your thoughts?

  2. A paralegal can do just about anything an attorney can do, except (a) give legal advice, (b) sign pleadings, and (c) appear in court as the sole representative (except in certain administrative proceedings). What is the difference between lawyers and paralegals in Canada?

  3. Sometimes it gets very difficult to differentiate what is and isn't considered legal advice. I hate to have to give my boss a caller with questions which I readily have the answer to but am afraid that I will overstep my boundaries. I sometimes think my boss thinks I'm an idiot but I'd rather be safe. I think paralegals should be allowed to overstep a little bit when it comes to answering legal questions which are not necessarily advice.

  4. It's a fine line that I think most true paralegals cross all the time. It's hard not to. If you have the information, you feel compelled to help. It's also difficult to keep deferring people to attorneys, who then may have the opinion that you can't do your job (ie: making their life easier). I bet most paralegals would say the ABA needs to relax the regulation.

  5. @Dallas & @Anonymous: I absolutely agree that the regulations should be relaxed a bit. Unfortunately, attorneys run the rules, and they don't want to eliminate the need for their work/billable hours.

  6. I don't know how it is in the rest of Canada, but in Ontario the Paralegal profession is recently regulated, which means that when I graduate from my program I will have to pass a licensing exam, as well as pay dues to the Upper Law Society of Canada (for liability insurance, etc.). If you do not pass this exam you cannot call yourself a Paralegal in Ontario. As I mentioned before, we are still restricted. As Paralegals we are authorized to practice in small claims court (nothing above 25,000$), criminal matters with a maximum penalty of six months; Administrative tribunals; landlord & tenant, immigration board, etc. So I would be able to give advice on these matters, but we are not authorized to practice in areas such as family law, or real estate (although there has been talk of expanding the scope of practice to include aspects of these). I plan on working in a law firm or for the government when I graduate, but since Paralegals can work independently, I would have the option of running my own Paralegal firm if I wanted to. Hope that helps! :)

  7. Our office is strictly bankruptcy. In many instances the time is not billable, but included in the flat fee. Not wasting the atty's time allows him to work on cases where he can bill. It seems sometimes you can tell a client what is needed but not why we need it; you can tell them what the rule is but have to watch your step in how it relates to them. Makes me feel like an ass at times. Which makes me wonder how some paralegals who are doing bankruptcy forms for pro se debtors are not giving legal advice. This could be a great business but it scares me. Anyone out there doing this kind of work?

  8. @Cate: What I wouldn't give... That sounds pretty awesome. I think the US could learn a thing or two from our northern neighbors on this topic. The US won't regulate, but they are too scared to allow paralegals to be at the forefront of the legal society, even though it makes some sense to do so. Say it with me, "Let's get regulated!" Thanks for the info!!!

    @Dallas: I don't see how paralegal firms can possibly function without borderline, or over-the-line, legal advice. I would be too nervous not to have an attorney over me with insurance to cover any mistakes or alleged mistakes. If there is anything worse than practicing law without a license, it's practicing law without insurance. I would certainly be interested to hear the logistics of how such a paralegal firm works. Anyone?