Ethics Opinions Every South Carolina Attorney Should Know: Part XII, Letting Your Paralegal Practice Law

Posted Friday, June 11th, 2010 by Gregory Forman
Filed under Of Interest to Family Law Attorneys, Rules of Professional (Lawyer) Conduct, South Carolina Specific

It took mere months of legal practice for me to determine that the time I spent managing a paralegal was taking away from time I could spend creatively thinking about how to solve my clients’ problems.  While I didn’t find the trade-off worthwhile, for most attorneys the gains in efficiency from having a paralegal handle forms and paperwork makes up for the time spent managing staff.  In certain paper intensive areas of law paralegals are almost mandatory.

The temptation to allow the paralegal to go beyond paperwork preparation to actually handling legal work, especially when the attorney is suddenly called away, seemed to strike a number of real estate attorneys earlier this decade.  Many of these attorneys had other disciplinary problems in conjunction with allowing the paralegal to handle closings unsupervised: failing to file paperwork; failing to properly disburse funds; falsifying witness signatures on documents or having witness signatures “notarized” without the notary witnessing the signature.

However, In the Matter of Harrell, 365 S.C. 313, 617 S.E.2d 368 (2005) is an example of discipline solely for failing to properly supervise one’s paralegal when handling real estate closings.  This behavior merited a public reprimand for violations of South Carolina Professional Conduct Rule 5.3 (lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure the person’s conduct is compatible with the professional obligation of the lawyer);  Rule 5.5 (lawyer shall not assist a person in the performance of activity which constitutes the unauthorized practice of law);  Rule 8.4(a) (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct); and Rule 8.4(d) (it is professional misconduct for lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation).

The lesson of Harrell: don’t let your paralegal practice law.

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