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.
[…]
