CHAPTER...matters, such as uncontested divorces and simple individual bankruptcies. Although not a complete answer to the prob-lem of high legal costs, the paralegal offers the client

SUMMARY OF KEY CONCEPTS

Section 1. The ParalegalProfessionIn most regions of the United States, the terms“paralegal” and “legal assistant” are used inter-changeably to identify the same occupation. Aparalegal (or legal assistant) is a non-attorney pro-fessional who:

• has specialized training or education in thelaw;

• works under the direction and supervision ofa licensed attorney; and,

• applies his or her legal knowledge and skillsto tasks which, otherwise, an attorney wouldperform.

Just as paramedics possess specialized medicalskills, but work under the direction of medical doc-tors, paralegals fill a similar role in the practice of law.

Paralegal tasks cover a very broad range, frombasic to very complex. In general, however, thesetasks require paralegals to understand the legal ef-fects and implications of what they do. Paralegalsoften must apply legal analysis to the materialswith which they work and must exercise judgmentbased upon their understanding of the law. Parale-gals provide professional support for the attor-neys who direct and supervise them.

PARALEGALS ANDLEGAL ASSISTANTS

1C H A P T E R

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The legal assistant career probably developedfrom that of the legal secretary. As legal secretariesbecame more knowledgeable about the law, it be-came apparent to attorneys that some of them couldtake on increasingly greater responsibilities. Becauseof their professional knowledge and skills, they cameto be regarded as paraprofessionals—and, hence, asparalegals. Now that they were doing work for whichattorneys customarily billed their clients, the parale-gals’ time was billed to the client, as well—althoughat a significantly lower hourly rate.

The majority of legal assistants work in civil lit-igation (i.e., the prosecution or defense of civillawsuits). Most of these litigation paralegals workin law firms, but others work in the offices of in-surance companies, manufacturers, land develop-ment, and construction companies, and so forth.In addition to litigation, however, legal assistantsare employed in a wide variety of legal specialties,such as bankruptcy, intellectual property, real es-tate, banking, and immigration.

Section 2. The ParalegalProfessionalLegal assistants do not give legal advice. Except inrare and unusual circumstances, legal assistantsdo not appear in court on behalf of clients. How-ever, under attorney supervision, legal assistantscan do almost anything else an attorney would do,including legal research, drafting and negotiating

2 CHAPTER 1 � Paralegals and Legal Assistants

contracts, writing motions to be submitted to thecourt, and so on. The dividing line between the rolesof attorney and legal assistant vary from one lawoffice to another.

From the client’s perspective, paralegals oftenare more accessible than attorneys. From the at-torney’s perspective, a paralegal often can keepthe client informed of the status of a legal matterwithout interrupting the attorney’s busy schedule.For most clients, however, the paralegal’s more im-portant contribution is in providing high quality le-gal services at a lower cost.

The high cost of legal services has generatedsubstantial controversy in the United States. It hasled, also, to a rapid increase in the number of un-supervised, unlicensed, self-styled “paralegals”who provide legal services directly to the public.While the legal profession has established non-profit “legal aid” offices in most communities, theycannot meet the demand for economical legal serv-ices. Some states have considered the possible li-censure of non-attorney legal professionals to pro-vide inexpensive legal services in uncomplicatedmatters, such as uncontested divorces and simpleindividual bankruptcies.

Although not a complete answer to the prob-lem of high legal costs, the paralegal offers theclient substantial savings in both simple and com-plex legal matters. Because paralegals bill theclient at a lower hourly rate, all of the work whichthe paralegal does becomes less expensive to theclient. In addition, the lower cost can make it pos-sible to do some work—for example, additional le-gal research—which an attorney might otherwisedeem too expensive to justify the cost to the client.

Using a legal assistant reduces the time an at-torney spends on a given client matter. That meansthe attorney may be able to take on additionalclient matters. In other words, paralegals make itpossible to expand the attorney’s practice.

When attorneys establish their billing rates, theymust take into consideration all of their overheadcosts: rent, office equipment, utilities, office staff, lawbooks, etc. When they hire additional attorneys(known as “associates”) to work in their office, theyset the associate attorney’s billing rate high enoughto cover the associate’s salary, a portion of that of-fice overhead, and a profit for the law office.

Billing rates for legal assistants are establishedin the same manner. Consequently, a busy parale-gal not only generates enough in legal fees to coverher own salary and a share of the office over-head—she also generates a profit for the attorneywho employs her. In effect, the legal assistant be-comes a source of profits at the same time she isreducing the overall cost of legal services for the

client. Everyone wins—the client, the paralegal,and the employing attorney.

The American Bar Association (ABA) encour-ages the use of legal assistants if they are properlysupervised by an attorney. As part of that supervi-sion, the attorney is expected to ensure that thelegal assistant conforms to the same ethical stan-dards which attorneys must observe. The ABAModel Guidelines for the Utilization of Legal Assis-tant Services appear as Appendix F to the textbook.

Section 3. Choosing a ParalegalCareerPeople are drawn to the paralegal career for a vari-ety of reasons. One of the profession’s greatest at-tractions, however, is the opportunity to workwithin the field of law. Most legal assistants find lawan intriguing and exciting field in which to work.And legal assistants are able to do the kinds of workthat attorneys do—without the commitment tothree years of law school. Career changers oftenfind that a certain synergy exists between their for-mer careers and the practice of law. Registerednurses, engineers, real estate agents, accountants,and others discover that their professional expert-ise is needed and valued in the practice of law.

Some prospective attorneys first become legalassistants as a method of “testing the waters” be-fore committing to law school, and then find thatworking as a paralegal gives them invaluable“hands on” experience in the practice of law.

Successful legal assistants generally possesskey skills and personal traits. Among the most im-portant skills are strong verbal communication—especially writing skills—and correct English usage.The ability to work independently and manage mul-tiple unrelated assignments is also important. Para-legals also need to reason logically and understandlegal principles. Computer skills have become in-creasingly important over the past decade or so.

Among essential personal traits, integrity anda strong ethical sense are paramount. Flexibilityand the temperament of an effective team memberare also important. Accuracy and attention to de-tail are indispensable traits for the successful para-legal. Skills can be learned, but these personaltraits can be more difficult to acquire as an adult.

Every legal assistant must understand and re-spect the concept of fiduciary duty—the ethical ob-ligation to put the client’s interests before our own.This is a duty which attorneys share with otherprofessionals who hold or control the property orlegal interests of other persons. Our fiduciary dutyprohibits conflicts of interest, because its most im-portant element is loyalty to the client.

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A variety of factors influence how paralegals arecompensated: education and experience, workplacesetting, legal specialty, etc. There are even regionaldifferences across the nation. It is common for legalassistants to receive annual bonuses, and many re-ceive employer-paid health benefits, as well.

A continuing controversy over paralegal com-pensation concerns overtime pay. The federal FairLabor Standards Act generally requires that overtimecompensation be paid to employees who are not“professional” or “administrative” employees. TheU.S. Department of Labor does not recognize legalassistants as professionals under that act. However,many law firms disagree with that interpretation andalso argue that paralegals are compensated in otherways for overtime (e.g., annual bonuses).

Individuals qualify to become legal assistantsin a variety of ways. Some train on-the-job as legalsecretaries or as “paralegal-trainees.” Today, mostnew paralegals have completed a formal course ofstudy leading to a paralegal degree or certificate,and each paralegal school or program establishesits own entry requirements. In recent years, how-ever, there has been more emphasis placed uponhaving an associate or bachelor degree. The Na-tional Federation of Paralegal Associations (NFPA)and the Legal Assistant Management Association(LAMA) have taken the position that a four-yeardegree is becoming the minimum qualification forthe paralegal career field.

REVIEW QUESTIONSFill in the blank space(s) to complete the followingstatements. The correct answers appear at the endof this chapter.

1. The paralegal profession has drawn upon thejob descriptions of both __________ and__________ .

2. The professional guidelines for the use oflegal assistants, published by the AmericanBar Association and some state barassociations, actually govern the conduct of __________.

3. The term “paralegal” is derived from the moregeneric word “__________.”

4. Chapter 1 offers four reasons that professionalstatus is important for legal assistants. Brieflyparaphrase those reasons here:

A.________________________________________

B.________________________________________

C.________________________________________

D.________________________________________

5. More paralegals practice in civil__________than in any other legal specialty.

6. Legal assistants make economic sense forseveral reasons:

A. They make possible lower __________ forclients.

B. They permit the supervising attorney totake on additional __________.

C. They generate __________ for theemploying attorney.

7. If the cost of a paralegal’s salary and benefits is$37,000 per year, and her share of officeoverhead is $21,000, she must bill clients atleast __________ hours annually at $75/hour topay the combined cost of her compensationand office overhead. If she billed the samenumber of hours annually at $90/hour, the firmwould make a profit of $ __________ from herbillings.

8. The Standing Committee on Legal Assistantsof the __________ grants approval to paralegalprograms that meet specified standards andpass on-site reviews.

9. Newly created paralegal positions for legalassistants are expected to grow by 84,000positions during the ten-year periodbetween 1998 and 2008. By comparison,newly created positions for __________ areexpected to grow by only 37,000 positions inthe same period.

10. According to the textbook, the single mostimportant skill for a successful paralegal is__________ communication.

11. Vitally important personal traits for legalassistants are personal __________ andscrupulous regard for __________.

12. Part of an attorney’s __________ duty is theprotection of client confidences.

13. Under the federal Fair Labor Standards Act, professional and administrativeemployees are considered to be “__________employees” for the purpose of overtimecompensation.

14. The textbook suggests four reasons for theincreasing emphasis on college degrees foraspiring legal assistants. Paraphrase thosefour reasons here:

A.________________________________________

B.________________________________________

C.________________________________________

D.________________________________________

KEY TERMSFor each Key Term below, write your own “best def-inition,” based upon your understanding at thispoint. (This is not a test—it is a learning exercise!)After you have written your definitions, comparethem to the definitions given in the textbook’sGlossary. You might want to consult one or moredictionaries, as well, although that is optional. Fi-nally, revise your definition (as needed) to elimi-nate any inaccuracies or ambiguities.

American Bar Association

Your “best effort” definition:

Your revised definition:

civil litigation



fiduciary duty



legal technician



legal assistant



litigation



malpractice



paralegal



substantive law



summer associate



unauthorized practice of law



WORKING ON-LINEGo to the Web site for each of these organizations,and find the latest salary survey information avail-able at that site:

National Association of Legal Assistantshttp://www.nala.org

National Federation of Paralegal Associationshttp://www.paralegals.org

Prepare a brief report on the available informa-tion, emphasizing those differences (the criteriaused, data organization, etc.) which make a di-rect comparison of their survey results difficultor invalid.


ETHICAL CHALLENGEAnita is finishing her first year as a legal assistant atMyers, Risko & Morella. When she applied for thejob, she listed on her resume several professionalmemberships and honors that she had earned as areal estate agent. Although the firm’s civil litigationpractice seldom involves real estate issues, herqualifications in that field were discussed at somelength during her job interviews for this position. Asa legal assistant, Anita has not worked on any casesinvolving real estate. Her supervising attorney haspraised her work and her professionalism.

Shortly before Anita left her real estate prac-tice, a client filed a complaint with the state real es-tate commissioner accusing Anita of concealingmaterial facts in a real estate transaction. Anita re-sponded to the complaint by stating that she wasnot aware that the undisclosed facts would be sig-nificant to the client, because the client had con-cealed from her his intent to later obtain a zoningchange for the property in question. Anita has al-ways considered the former client’s complaint tobe without any merit.

The real estate commissioner has summonedAnita to appear next month before an administrativelaw judge in the commissioner’s office to answer thecomplaint. Anita will have to take several days offfrom work to travel to the state capital and attendthe hearing. Should Anita disclose to her supervis-ing attorney the reason for taking time off? Shouldshe have disclosed to the firm, before accepting em-ployment, the pending complaint against her?

ETHICAL ANALYSISObviously, Anita should not lie (e.g., say she is ill)to get the time off to attend the hearing. However,if the firm’s leave policy permits “personal neces-sity leave,” or something similar, that will not be aproblem. The more important significance of thefirst question relates to the issue in the secondquestion: Is Anita obligated to disclose to her pres-ent employer a charge of unethical (or unprofes-sional) conduct arising from her prior employ-ment? Is her obligation to disclose eliminated ordiminished if she sincerely believes the allegationsare without merit?

In this case, she is accused of conduct (i.e.,concealment or intentional non-disclosure of im-portant facts) which could be considered unethi-cal in the practice of law. So, she would be wise totreat the disclosure issue just as she would if thecharges had arisen from prior employment as a le-gal assistant.

It does not appear that an adverse finding bythe administrative law judge would hinder Anita’sability to perform her current duties as a legal as-sistant. But, could her employer be harmed inother ways? Could publicity embarrass the firm be-fore its clients? Could a revocation of Anita’s realestate license diminish her future contributions asa legal assistant in the firm? If the firm can beharmed, Anita’s personal belief that the chargesare without merit does not excuse her from failingto disclose the matter to her supervising attorney.

Perhaps Anita considered the former client’scomplaint to be frivolous and inconsequentialwhen she accepted the job at Myers, Risko &Morella. But now, things have changed. The com-missioner is requiring her to answer the accusa-tion in an official hearing. Anita will have to missseveral days of work. The outcome is unpre-dictable. Her employer will feel betrayed if the firmdiscovers after-the-fact that Anita failed to disclosethe allegation or her need to miss work so that shecould attend the hearing. With advance notice, thefirm could prepare to deal with any fallout from theadministrative law hearing. Without notice, thefirm could be blind sided. Anita’s present ethicalobligation is not changed by the possibility thatthe firm will dismiss her—perhaps unfairly—forher prior non-disclosure.

Consequently, Anita should make a full disclo-sure to the law firm. By doing so, she demonstratesmaturity and a sense of responsibility. This wouldearn the respect and loyalty of many employers. Iffor any reason she loses her job over the situation,she will need to make a preemptive disclosure be-fore accepting employment at another law firm.Ethical conduct isn’t always easy, but it is con-ducive to a good night’s rest.

READING CASE LAWChapter 1 of the textbook includes excerpts fromthe U.S. District Court’s opinion in UnauthorizedPractice of Law Committee v. Parsons Technology,Inc., 1999 WL 47235 (N.D. Texas, 1999). The full textof that opinion appears below. This notation ap-pears at the top of the first page of the court’s opin-ion: “Only the Westlaw citation is currently avail-able.” That notation reveals that this opinion hasnot been published in any official reporter, nor inWest’s regional reporter for Texas. Note that thefootnotes in the Court’s opinion have been in-serted immediately following the paragraphswhich cite them.

Read the full opinion to get a general under-standing of the issues. (This is a rather complex

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case, and the court analyzes a number of differentissues, so don’t be discouraged if everything isn’tclear after your first reading.) When you have ageneral understanding of the case, return to the is-sue, which begins at the top of the right-hand col-umn on page nine of the opinion:

“E. Is the Statute Unconstitutionally Vagueas Applied to Parsons?”

Prepare a brief report on the Court’s discussion ofthis issue. In your report, summarize the Court’sreasons for finding that the Texas statute passesthe constitutional test. Then make an argument op-posing the Court’s conclusion on this issue. (Itdoesn’t matter whether you actually agree or dis-agree with the Court’s conclusion.) In fashioningyour argument, it might help to review again someof the facts about Quicken Family Lawyer in earlierparts of the opinion.

ANSWERS TO REVIEWQUESTIONS

1. The paralegal profession has drawn upon thejob descriptions of both legal secretaries andattorneys.

2. The professional guidelines for the use oflegal assistants, published by the AmericanBar Association and some state barassociations, actually govern the conduct ofthe supervising attorney.

3. The term “paralegal” is derived from the word“paraprofessional.”

4. Chapter 1 offers four reasons thatprofessional status is important for legalassistants. Briefly paraphrase those reasonshere:

A. impacts assignments given by attorneys

B. influences attitudes of clients toward legalassistants

C. influences perquisites and compensation oflegal assistants

D. provides motivation for legal assistants

5. More paralegals practice in civil litigationthan in any other legal specialty.

6. Legal assistants make economic sense forseveral reasons:

A. They make possible lower fees for clients.

B. They permit the supervising attorney totake on additional client matters.

C. They generate profits for the employingattorney.

7. If the cost of a paralegal’s salary and benefitsis $37,000 per year, and her share of officeoverhead is $21,000, she must bill clients atleast 733.33 hours annually at $75/hour to paythe combined cost of her compensation andoffice overhead. If she billed the same numberof hours annually at $90/hour, the firm wouldmake a profit of $11,600 from her billings.

8. The Standing Committee on Legal Assistantsof the American Bar Association grantsapproval to paralegal programs that meetspecified standards and pass on-site reviews.

9. Newly created paralegal positions for legalassistants are expected to grow by 84,000positions during the ten-year period between1998 and 2008. By comparison, newly createdpositions for legal secretaries are expected togrow by only 37,000 positions in the sameperiod.

10. According to the textbook, the single mostimportant skill for a successful paralegal iswritten communication.

11. Vitally important personal traits for legalassistants are personal integrity andscrupulous regard for confidences.

12. Part of an attorney’s fiduciary duty is theprotection of client confidences.

13. Under the federal Fair Labor Standards Act,professional and administrative employeesare considered to be “ exempt employees” forthe purpose of overtime compensation.

14. The textbook suggests four reasons for theincreasing emphasis on college degrees foraspiring legal assistants. Paraphrase thosefour reasons here:

A. presumption that college graduates havesuperior communication skills

B. belief that graduates are more likely tointeract comfortably with clients and otherlegal professionals

C. perception that clients are more receptiveto higher fees for paralegal work

D. law firms more confident in hiring aprofessional who devoted time and effort tocomplete a degree


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Documents

CHAPTER...matters, such as uncontested divorces and simple individual bankruptcies. Although not a complete answer to the prob-lem of high legal costs, the paralegal offers the client