LAWCLERK is the only freelance marketplace that is designed to comply with every state’s ethical rules. While you can read our 50-state survey HERE, the punchline is that the freelance lawyers on LAWCLERK (called Lawclerks) work in a paraprofessional capacity for the hiring attorney which complies with the requirements of Model Rules 5.3 and 5.5. This allows the hiring attorney to harness the skill and knowledge of freelance attorneys from across the country.
Beyond the Model Rules, the services provided by Lawclerks to attorneys are consistent with the parameters set forth in the Second Edition of the American Jurisprudence addressing the services that may be provided by a law clerk:
The functions of an unlicensed law clerk should be limited to work of a preparatory nature, such as research, investigation of details, assemblage of data, and like work that will enable the attorney/employer to carry a given matter to a conclusion through his or her own examination, approval, or additional effort; the activities of a law clerk do not constitute the practice of law so long as they are thus limited. [footnote omitted] On the other hand, an unlicensed law clerk who engages in activities requiring legal knowledge or training, such as handling probate matters, examination of abstract titles, and preparation of wills, leases, mortgages, bills of sales, or contracts, without supervision from his or her employer, thereby engages in the unauthorized practice of law.[[1]]
Further, while paralegals and legal assistants may not serve as Lawclerks, the guidelines, rules, and case law analyzing the services that may be provided by legal assistants and paralegals is nonetheless instructive as to what services may be employed by a paraprofessional without engaging in the unauthorized practice of law. For instance, the National Association of Legal Assistants (NALA) has formulated its Code of Ethics and Professional Responsibility (the “NALA Code”), as well as Model Standards and Guidelines for Utilization of Paralegals (the “NALA Guidelines”) that its members must follow to remain a member in good stating with the organization.[2] Most applicable here, the NALA Guidelines, citing to Model Rule 5.3, provide that “a paralegal is allowed to perform any task which is properly delegated and supervised by a lawyer, as long as the lawyer is ultimately responsible to the client and assumes complete professional responsibility for the work product.”[3]
The NALA Code further instructs that the attorney and not the paralegal must form and maintain the direct relationship with the client and that the paralegal is prohibited from: (i) engaging in, encouraging, or contributing to any act that could constitute the practice of law; (ii) establishing attorney-client relationships, setting fees, giving legal opinions or advice, or representing a client before a court or agency unless specifically authorized by that court or agency; and (iii) engaging in conduct or taking any action that would assist or involve the lawyer in a violation of professional ethics or giving the appearance of impropriety.[4] However, such restrictions do not alter the requirement that a paralegal must use discretion and professional judgment commensurate with his knowledge and experience, but must not render independent legal judgment in place of a lawyer; rather, any legal opinion may only be rendered to the attorney.[5]
The ABA Standing Committee on Paralegals has additionally prepared its Model Guidelines for the Utilization of Legal Assistant Services (the “ABA Guidelines”). While the ABA Guidelines refer to paralegals, the term is intended to include legal assistants.[6] ABA Guideline No. 2 states that “[p]rovided the lawyer maintains responsibility for the work product, a lawyer may delegate to a paralegal any task normally performed by the lawyer” unless there is a statute, court rule, administrative rule or regulation, controlling authority, the applicable rule of professional conduct of the jurisdiction in which the attorney practices, or the Guidelines that expressly precludes the attorney from delegating the specific task to a nonlawyer.[7] The ABA Guidelines then identify three responsibilities that may not be delegated to a paralegal: (i) responsibility for establishing a lawyer-client relationship; (ii) responsibility for establishing the amount of a fee to be charged for a legal service; and (iii) responsibility for a legal opinion rendered to a client.[8] Conversely, the preparation of factual investigation and research, legal research, and the preparation of legal documents are identified as tasks that may be delegated to paralegals subject to appropriate attorney supervision.[9]
Consistent with the foregoing legal authorities and guidelines, LAWCLERK requires the attorney to supervise the Lawclerk and to maintain responsibility for the Lawclerk’s work product. However, LAWCLERK is far more restrictive than the foregoing guidelines for paralegals, law clerks, and legal assistants and more protective of the public as it precludes Lawclerks from engaging in any contact with clients, opposing counsel, witnesses, or any other party to the project for which the Lawclerk has been engaged.
Thus, by using LAWCLERK, you can take advantage of LAWCLERK’s nationwide network of skilled freelance lawyers and grow and improve your practice while being compliant with the prohibition on the unauthorized practice of law.
[1] 7 Am. Jur. 2d Attorneys at Law § 130 (emphasis added).
[2] NALA Code, available at https://www.nala.org/sites/default/files/codeofethics.pdfsee also NULA Guidelines, available at https://www.nala.org/sites/default/files/modelstandards.pdf.
[3] NALA Guideline No. 2; NALA Code Canon 2.
[4] See NALA Code Canons 2 and 3; NALA Guidelines 2 and 3.
[5] See NALA Code Canon 4; see also 122 Am. Jur. Proof of Facts 3d § 279.
[6]See ABA Guidelines, at Preamble and n. 1, available at https://apps.americanbar.org/legalservices/paralegals/downloads/modelguidelines.pdf.
[7] See id. at Guideline No. 2 (emphasis added).
[8] See id. at Guideline No. 3.
[9] See id. at Comment to Guideline No. 2.
