Guideline 1 of the American Bar Association Model Guidelines for the Utilization of Paralegal Services states the following:
A lawyer is responsible for all of the professional actions of a paralegal performing services at the lawyer’s direction and should take reasonable measures to ensure that the paralegal’s conduct is consistent with the lawyer’s obligations under the rules of professional conduct of the jurisdiction in which the lawyer practices.
In other words, if your law firm outsources paralegal services, you are ultimately responsible for all tasks delegated to the paralegal service provider and the quality of work performed. But what constitutes “reasonable measures” when determining whether the paralegal’s conduct is consistent with your ethical obligations to your client and your profession?
For many solo and small law firms, delegating tasks to a paralegal is a daunting, but critical step towards cost-effectively delivering exceptional service and growing the practice. However, certain steps should be followed before outsourcing to minimize the risk of legal and ethical issues.
- Communicate Your Requirements
Obviously, a paralegal service provider will work with multiple law firms. Each law firm has different preferences and requirements for performing various tasks. If you’re going to outsource paralegal services, you must clearly communicate how you expect work to be done. You must also familiarize paralegals with all relevant provisions of your state’s rules of professional conduct.
For example, what types of information may be disclosed by email, and what types may not? How must client data be protected on computer networks? Do you require the use of encryption? If so, what encryption standard do you require? What is your policy for tracking time? These and other requirements should be documented to avoid confusion and minimize the risk of ethical and professional violations.
- Protect Client Confidentiality
Client confidentiality is sacred. Paralegals must understand and fulfill their duty to preserve and protect client confidentiality on behalf of your law firm. No information related to the representation should be revealed under any circumstances, in or out of the office.
It is reasonable to expect that confidential client information will be exposed to non-lawyers, including both in-house and third-party personnel, who perform work on a particular case. However, the lawyer is obligated to carefully train, instruct and supervise such personnel to ensure that all client confidences and secrets are respected. Most states have specific guidelines related to protecting client confidentiality when the services of associates, legal assistants, paralegals, etc. are utilized.
Confidentiality procedures and policies should be documented to provide assurance that paralegals will adhere to all relevant rules of professional conduct. At the same time, it is incumbent upon the paralegal to learn and understand guidelines related to the preservation of confidentiality to minimize the risk of an ethics violation.
- Identify and Avoid Conflicts
Just like an attorney should work solely for the benefit of the client, the attorney must also demand the same from a paralegal to prevent conflicts of interest. Because paralegals are often employed by multiple law firms simultaneously, attorneys should screen paralegals to determine if personal relationships, financial interests, previous employment, etc. would cause a conflict.
For example, some states suggest that a law firm should not hire a paralegal that was previously employed by a firm that is representing an opposing party. Although disqualification rules that might apply to a lawyer do not apply to a paralegal, every effort should be taken to ensure client confidentiality and avoid conflict of interest.
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