The Role of Legal Assistants in the Estate Planning Practice

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Abstract
The employment of legal assistants, paralegals, and similar personnel by the legal community has rapidly gained momentum since the 1960s. The explosion of the profession of paralegals is a result of attorneys in general, as well as those who specialize in estate planning, realizing the tremendous cost effectiveness and efficiency that may result from the prudent use of legal assistants. Despite the valuable services which may be rendered by legal assistants, however, attorneys must exercise caution in their employment, supervision, and education.This article discusses the reasons to use paralegals in an estate planning practice, regulation of the paralegal profession, the benefits and problems with using legal assistants, and concludes with recommendations for the selection, hiring, training, and supervision of paralegals.
Electronic copy available at: http://ssrn.com/abstract=1991353
ESTATE PLANNING
D E V E L O P M E N T S
THE ROLE OF LEGAL
ASSISTANTS IN THE
ESTATE PLANNING PRACTICE
I. INTRODUCTION
The employment of legal assistants, paralegals, and similar
personnel by the legal community has rapidly gained momentum
since the 1960s. The legal community promptly recognized the
benefits of paralegals and began to define and organize the
emerging profession.
The State Bar of Texas created a Legal Assistant Committee (now
known as the “Paralegal Committee”) in 1977 and a Division of the
Bar (now known as the “Paralegal Division of the State Bar of
Texas”) in 1981. Hector A. Beltrán & Michele M. Boerder,
What
Can Your Paralegal Do?
1, 2, STATE BAR OF TEXAS: SUCCESS
STRATEGIES AND KEY LESSONS FOR YOUNG LAWYERS 2010 (Nov. 12,
2010) [hereinafter Beltrán]. The paralegal profession was first
defined in 1986 when the American Bar Association adopted the
definition of the term “legal assistant,and the legal community
began to use the term interchangeably with “paralegal” soon
thereafter. Deirdre Trotter,
American Legal System: Paralegals,
15
T
EX. PARALEGAL J. 16, 16 (Fall 2009). In 2005, the State Bar of Texas
Board of Directors, the Paralegal Division of the State Bar of Texas,
and the State Bar of Texas Standing Committee on Paralegals
adopted a new definition for the term “paralegal”:
A paralegal is a person, qualified through various
combinations of education, training, or work
experience, who is employed or engaged by a lawyer,
law office, governmental agency, or other entity in a
capacity or function which involves the performance,
under the ultimate direction and supervision of a
licensed attorney, of specifically delegated substantive
legal work, which work, for the most part, requires a
sufficient knowledge of legal principles and procedures
that, absent such person, an attorney would be
required to perform the task.
Standing Committee on Paralegals,
State Bar of Texas. In 2006, the
State Bar of Texas Board of Directors approved amending this
definition by adding standards for paralegals that promote
education, training, certification, and work experience. While the
State Bar of Texas recommends that attorneys hire paralegals from
a formal education program, it recognizes that some paralegals
who do not meet the educational criteria are nevertheless qualified
to be considered a paralegal if they have obtained a minimum of
four years work experience in performing substantive legal work.
Today the Paralegal Division of the State Bar of Texas has over
1,500 members, and 27% of the members surveyed in 2010 stated
that their billable rate is over $125 per hour.
2010 Paralegal
Division Compensation Survey,
State Bar of Texas Department of
Research and Analysis. The explosion of the profession of
paralegals is a result of attorneys in general, as well as those who
specialize in estate planning, realizing the tremendous cost
effectiveness and efficiency that may result from the prudent use of
legal assistants. Despite the valuable services which may be
rendered by legal assistants, however, attorneys must exercise
caution in their employment, supervision, and education.
II. REASONS TO USE PARALEGALS
IN THE ESTATE PLANNING
PROCESS
The use of a paralegal allows an estate planning attorney to
provide economical services, increase efficiency, improve the
quality of the work product, provide the client with an additional
contact person, and promote good client relations and retention.
A. Provide Economical Services
Many of the tasks in the estate planning process are time-
consuming and tedious, e.g., proofreading lengthy documents;
gathering family, financial, and other information; obtaining copies
of important documents from courthouses, insurance companies,
and other sources; making telephone calls and spending
considerable time on “ignore,etc. In
Missouri v. Jenkins,
491 U.S.
274, 288 n.10 (1989), the United States Supreme Court noted that
the lower courts frequently recognize that paralegals are capable
of carrying out many tasks, under the supervision of an attorney,
that might otherwise be performed by a lawyer and billed at a
higher rate.A legal assistant can competently complete these tasks
and thus permit the attorney to charge less for estate planning
services because the hourly rate of a legal assistant is considerably
less than that of an attorney. Beltrán at 1.
B. Increase Efficiency of Attorney
The delegation of time-consuming tasks to legal assistants may
directly result in an increase in the attorney’s efficiency. Estate
plans may be prepared in a more timely fashion much to the
delight of the client. As a result, the attorney will have more time
to devote to complex issues or in obtaining new clients. Ultimately,
this may lead to a more profitable practice.
C. Improve Quality of Work Product
A knowledgeable and thorough legal assistant may also improve
the quality of an attorney’s work product. Instead of having only
the attorney reviewing an estate plan, there are now two trained
individuals with a working knowledge of the facts and the law
overseeing the project. Accordingly, errors, both major and minor,
are more likely to be detected. In addition, the attorney may
concentrate on difficult aspects of the estate plan because the legal
assistant has relieved the attorney of many routine tasks.
D. Provide Client With Additional Contact Person
A legal assistant may be more accessible to the client than the
lawyer. If the client understands that the legal assistant’s time is
billed at a lower rate than the lawyer’s time, the client may call the
legal assistant directly. If the legal assistant can answer the client’s
for Texas Professionals
G
erry W. Beyer
Governor Preston E. Smith Regents
Professor of Law
Texas Tech University School of Law
L
ubbock, Texas
and
Kerri M. Griffin
A
ssociate
T
he Blum Firm, P.C., Dallas, Texas
January 2012
Electronic copy available at: http://ssrn.com/abstract=1991353
questions without rendering legal advice, the legal assistant should be able to
h
andle the call. If the lawyer is unavailable when the client wishes to speak to him,
the call can be directed to the legal assistant. A client often feels more comfortable
leaving a message with someone who knows the facts of his or her case.
E. Promote Good Client Relations and Retention
In today’s fast-paced legal environment, it is common for an estate planner to
have very little contact with the client. After the initial interview, the lawyer and
the client may communicate only via e-mail or telephone and not meet again
until the execution ceremony. Under these circumstances, it is difficult for a
lawyer to maintain a relationship with each client. A legal assistant may form a
relationship with these clients by spending time speaking with the client
throughout the drafting process and focusing on the small talk. The legal
assistant can keep the attorney abreast of the major events in the client’s life. A
legal assistant may also help the attorney retain clients by keeping in touch with
the client after the legal relationship has ended, for example, by sending birthday
or holiday cards each year.
III. REGULATION OF THE PARALEGAL
PROFESSION
In Texas, legal assistants are primarily regulated through their supervising
attorneys under the Texas Disciplinary Rules of Professional Conduct. Joseph W.
Kline,
Ethical Utilization of Paralegals and Other Non-Lawyer Assistants
1, 2,
S
TATE BAR OF TEXAS: STATE BAR COLLEGE “SUMMER SCHOOL (July 16-18, 2009)
[hereinafter Kline]. Under the Disciplinary Rules, only the lawyer may be directly
sanctioned by the State Bar of Texas, and mistakes made by a paralegal are
imputed to the supervising attorney.
Cunningham v. Columbia/St. David’s
Healthcare System, L.P.,
185 S.W.3d 7 (Tex. App. Austin 2006, no pet.). The
delegation of a task to a legal assistant who lacks competence to perform the task
would constitute a violation of the attorney’s duty to provide competent
representation under Rule 1.01. Kline at 3. In addition, Rule 5.03,
Responsibilities
Regarding Nonlawyer Assistants,
states that a lawyer having direct supervisory
authority over the nonlawyer” will be subject to discipline if the lawyer does not
“make reasonable efforts to ensure that the person’s conduct is compatible with the
professional obligations of the lawyer.Finally, Rule 5.05(b) subjects attorneys to
discipline if they assist their paralegals “in the performance of activity that
constitutes the unauthorized practice of law” by failing to supervise them
adequately.
In addition to the Disciplinary Rules, regulatory groups have published guidelines,
such as the ABA Model Guidelines for the Utilization of Paralegal Services, the
National Association of Legal Assistants Model Standards and Guidelines for
Utilization of Paralegals, the General Guidelines for the Utilization of the Services
of Legal Assistants by Attorneys, and the Texas Paralegal Standards as approved
by the State Bar of Texas Board of Directors. Major paralegal associations have
also adopted codes of ethics, such as the National Association of Legal Assistants’
Code of Ethics and Professional Responsibility and the State Bar of Texas
Paralegal Division’s Code of Ethics and Professional Responsibility.
While only the attorney may be sanctioned by the State Bar of Texas for violations
of the Disciplinary Rules and most of the previously-mentioned guidelines are
directed towards attorneys, a paralegal may be personally punished under Texas
criminal laws. A paralegal may be held criminally liable for barratry and
solicitation of professional employment under Texas Penal Code § 38.12, falsely
holding oneself out as a lawyer under Texas Penal Code § 38.122, and for the
unauthorized practice of law under Texas Penal Code § 38.123. Kline at 3.
IV. IMPROPER USE OF LEGAL ASSISTANTS
This section applies the above-mentioned guidelines and Disciplinary Rules to the
estate planning context and describes various actions of a legal assistant that may
subject the estate planning attorney to discipline.
A. Appearing in Court on Behalf of a Client
Section 81.101 of the Texas Government Code includes in its definition of
“practice of law” the “preparation of a pleading or other document incident to an
action or special proceeding or the management of the action or proceeding on
behalf of a client before a judge in court.Thus, a paralegal who works for an estate
planning attorney may not appear in court to probate a will, conduct an heirship
proceeding, or raise any objections to the administration of an estate. A paralegal
also cannot sign pleadings, motions, or other formal documents.
B. Giving Legal Advice to Clients
Section 81.101 of the Texas Government Code further defines the “practice of law
to include “the giving of advice or the rendering of any service requiring the use
o
f legal skill or knowledge.” A legal assistant may have frequent contact with the
client, especially in gathering the facts, documents, and other materials necessary
to prepare the estate plan. The legal assistant needs to be aware of how easy it is
to cross the line between mere conversation to the giving of legal advice. For
example, a client may ask what would happen if various contingencies were to
occur (e.g., a child being born or predeceasing, a divorce or marriage, or a specific
gift not being in the estate.). The fact that the legal assistant has acquired a
specialized area of competence and knows the answer does not warrant the legal
assistant to engage in the business of offering legal advice based on his or her
knowledge of the subject.
See In re Roel,
144 N.E.2d 24, 28 (N.Y. 1957). The legal
assistant must be instructed not to answer any of these types of questions, and the
attorney has a duty to ensure that the legal assistant does not give legal advice to
the client during the estate planning process or at any other time.
C. Supervising the Will Execution Ceremony
In
Palmer v. Unauthorized Practice Comm. of State Bar of Tex.,
438 S.W.2d 374
(Tex. Civ. App.—Houston [14th Dist.] 1969, no writ), the court was confronted with
an individual who was offering for sale to the general public will forms containing
blanks to be filled in by the non-attorney user. In holding that such conduct
constituted the unlicensed practice of law, the court stated that supervising the
execution of wills is [the] practice of law” and that such “duties cannot be
performed by an unlicensed person, not an attorney.” Cases in other jurisdictions
have reached a similar result. In
In re Flynn’s Estate,
253 N.Y.S. 638, 639 (N.Y.
Sur.1931), the New York Surrogate’s Court condemned the supervision of a will
execution ceremony by a notary public and denied probate of the will because the
execution ceremony lacked substantial compliance with statutory requirements.
In addition to amounting to the unauthorized practice of law, the supervision of
the will execution ceremony needs to be performed by the attorney to prevent
future litigation surrounding the will. A New York ethical opinion stated that the
will execution ceremony was “tantamount to counseling a client about law matters
and [therewith] permitting a paralegal to engage in the practice of law. Not only
is strict compliance with a statute required, but the presence of the attorney
provides added assurance that the Will was properly executed by a competent
testator.Opinion No. 343, 46 N.Y. ST. B.J. 462 (1974). The requirements for a
valid will include many elements which cannot be detected from a mere
examination of the executed documents, e.g., the testator’s capacity and
formalities such as the witnesses attesting in the testator’s presence. Attorneys are
more likely to know these will execution requirements, so there is an inference
that if an attorney supervised the execution, the execution was made in
accordance with statutory requirements, and future will contests are less likely. C.
Raymond Radigan & Frank J. Gobes,
Additional Means to Avoid Contested
Probate,
N.Y. L.J., July 29, 2005.
Although allowing a legal assistant to conduct the will execution ceremony
amounts to the unauthorized practice of law and could potentially lead to future
litigation, a legal assistant may nonetheless participate in and assist the attorney
during the will execution ceremony. The legal assistant can help make certain all
formalities are satisfied. If the legal assistant is also a notary, he or she can
notarize the self-proving affidavit.
D. Making Discretionary Decisions
The attorney may not delegate discretionary decisions to the legal assistant.
Assembling an estate plan requires an understanding of trusts, fiduciary duties
and powers, legal and equitable estates, taxation laws, business entity succession,
and many other complex concepts. The decisions regarding which estate planning
tools should be utilized in a particular client’s situation necessarily involves
the practice of law and can only be performed by licensed attorneys. See
Fadia
v. Unauthorized Practice of Law Comm.,
830 S.W.2d 162, 164 (Tex. App.—
Dallas 1992, writ denied).
The legal assistant’s role is to provide help with time-consuming tasks that are
necessary in many aspects of the estate planning process. However,
discretionary decisions, such as the type of marital deduction provision to
include in a will, must be made by the attorney. Although the legal assistant
may make suggestions, the attorney needs to be the final arbiter of such
decisions.
E. Accepting or Rejecting Clients; Setting Fees
for Legal Services
Independent of the lawyers instruction, a legal assistant may not engage,
accept, or reject a client, or set the fee for the legal services to be performed.
Beltrán at 2. Fee setting is a core function of a lawyer, and legal assistants
would be engaging in the unauthorized practice of law if they did it. Even if
the attorney typically charges one amount for the drafting of a will, the
attorney should review each case and personally discuss the fees with the
client. Each client is different, and the time expended on each project will
vary. The decision whether to engage in the attorney-client relationship, as
well as the determination of fees, may only be made by the attorney.
F. Negotiating Settlement Agreements
A paralegal is prohibited from negotiating settlement agreements. Texas
Paralegal Standards, § C(2). The client is entitled to an attorney’s judgment
regarding the sufficiency of offers and counter-offers.
See
Frequently Asked
Questions, State Bar of Texas Paralegal Division. Thus, if an attorney is
working with battling beneficiaries of an estate or trust, the paralegal may not
step in and negotiate a settlement agreement among the beneficiaries. Only
the attorney may perform this task.
V. PROPER USE OF LEGAL ASSISTANTS
This section reviews some of the tasks for which legal assistants are best
suited. This discussion is not intended to provide an exclusive list but rather
to demonstrate the wide range of responsibilities which a legal assistant may
assume.
A. Gather Information
It is nearly impossible for the attorney to acquire all necessary information at
an initial client interview. Kay Redburn,
The Ethical and Effective Use of
Paralegals in the Practice of Law
1, 7, State Bar of Texas (December 5, 2007)
[hereinafter Redburn]. The development of facts and client history will
continue throughout the duration of each individual case. One of the chief
functions of a legal assistant is to gather and organize the information that
the attorney needs to prepare estate plans and administer estates. If the
attorney explains to the client that dealing with the paralegal will be faster
and more economical, the client will work with the paralegal willingly. The
legal assistant can obtain information from the client through interviews,
telephone calls, faxes, letters, or e-mails. Likewise, the legal assistant can
track down important data and documents from other sources such as family
members, courthouses, insurance companies, financial advisors, and banks.
The attorney should periodically review the information the paralegal
acquired and note any gaps that need to be filled in with additional
information.
B. File Organization
The paralegal may be given control over the organization of files.
Correspondence, document production, exhibits, and everything else
related to a particular client should pass through the paralegal so that at
least one person in the office can locate every item in a particular file. To
keep the attorney abreast of new facts and developments, the paralegal
should draft a memo to the file to record the substance of each client
interaction. Redburn at 8.
C. Draft and Proofread Documents
Another primary function of a legal assistant is to draft and proofread
documents. The legal assistant may prepare initial drafts of many types of
documents, such as client letters, wills, trusts, tax returns, and pleadings. If
the attorney has an established set of forms and accompanying instructions,
the legal assistant can prepare documents for the attorneys review that are
practically in final form. Prior to the execution of any document, the legal
assistant’s careful proofreading is likely to detect mistakes, both typographical
and substantive, which have not yet been noticed.
D. Legal Research
A properly trained legal assistant will be able to perform legal research. The
legal assistant can locate relevant cases, statutes, and rulings and IRS forms
using the internet and legal databases to which the attorney subscribes such
as the State Bar of Texas online CLE library, Casemaker, BNA, RIA
Checkpoint, Westlaw, and Lexis Nexis. The legal assistant may also perform
traditional research at the local law school or county law library.
VI. RECOMMENDATIONS
To maximize the benefits of the services provided by legal assistants, the
attorney must give consideration to the role they are to play in the estate
planning process. Obviously, the legal assistant needs to avoid the conduct
previously discussed in this article. In addition, the attorney should take the
following steps to obtain further protection from claims of improperly using
the services of legal assistants.
A. Select Legal Assistants With Care
Selecting the individual to work as a legal assistant is not a decision to be
made quickly, casually, or without careful deliberation. An attorney should
begin by considering the desired education, experience, personality, and work
characteristics of the paralegal. Some key skills for paralegals include
meticulous attention to detail, excellent written and oral communications,
organization, an even disposition in dealing with difficult clients, and the
ability to assess a situation and summarize key concepts for the attorney.
Beltrán at 1. Attorneys should be careful not to limit their options based on
certain qualifications. For example, there are highly qualified paralegals who
have only received on-the-job training rather than a paralegal education who
would be excellent additions to a law practice. Redburn at 9.
In addition, the legal assistant should be someone who will display loyalty to
the attorney and the law firm. Six months or more will usually be needed to
familiarize a new legal assistant with an attorney’s practice and to learn the
basics of estate planning and probate. If this newly trained person were to quit
and go work for another firm, re-locate, return to school, etc., a tremendous
investment of time, effort, and money would be lost.
It is also important for attorneys to consider conflicts of interest when
selecting paralegals. In
Phoenix Founders, Inc. v. Marshall,
887 S.W.2d 831
(Tex. 1994), the Texas Supreme Court addressed standards with regard to
disqualifying paralegals from working on a particular case. The court
determined that there is a conclusive presumption that a paralegal obtained
confidential information while working on the case at the first firm and a
rebuttable presumption that the paralegal shared confidential information
with the new firm. If an attorney wants to hire a paralegal who has previously
worked at another estate planning firm, the attorney needs to determine if
there are any conflicts. If there are, the attorney must ensure the paralegal
does no work in connection with matters on which the paralegal previously
worked. Beltrán at 3.
Finally, if the legal assistant is inept, the employment should be terminated;
incompetent legal assistants can cause more problems than they solve,
including dissatisfied clients who may bring legal action against the attorney.
B. Consider Hiring Board Certified Paralegal
Since 1994, the Texas Board of Legal Specialization has administered a
voluntary certification program for paralegals through which they can become
Board Certified Paralegals in a specialty area of law. Kline at 2. To become
Board Certified in a specialty area, a paralegal must: (1) have five years of
paralegal experience (three years in Texas); (2) currently work under the
supervision of a licensed attorney practicing in Texas; (3) concentrate at least
5
0% of paralegal duties in the specialty area; (4) attend continuing education
seminars regularly; (5) successfully complete one of several educational
programs; (6) have been evaluated by judges, lawyers, and other professionals
associated with the specialty area; and (7) pass a four-hour written exam. The
Texas Board of Legal Specialization currently certifies paralegals in six specialty
areas of law, including one for Estate Planning and Probate Law. Of the over
300 board certified paralegals in Texas, less than 20 are certified in Estate
Planning and Probate Law. Board certified paralegals are extremely rare, but
attorneys can locate them on the Texas Board of Legal Specialization’s website
on the “Search” page.
There are also national certification options for paralegals, including becoming
a Certified Legal Assistant (CLA) or a Certified Paralegal (CP) through the
National Association of Legal Assistants or becoming a PACE Registered
Paralegal by taking the Paralegal Advanced Competency Exam through the
National Federation of Paralegal Associations.
C. Comprehensive Instruction
It is essential that the legal assistant receive comprehensive instruction before
working on any case. The legal assistant must have a firm grasp of the basics
of estate planning and the type of duties which he or she will be performing.
The attorney should, as much as possible, teach the legal assistant the
proverbial ropes so that the legal assistant does not flounder on his or her first
assignments. It will often be helpful for the legal assistant to read articles and
books relating to estate planning (especially, at first, those written for non-
legally trained persons), to enroll in appropriate courses at local colleges or
paralegal schools, and to attend relevant seminars. A.B.A. Special Comm. on
Legal Assistants,
New Careers in Law II
45-72 (1972).
In addition, it is equally or even more important for the instruction to include
comprehensive coverage of the rules set forth in the Texas Disciplinary Rules
of Professional Conduct. The attorney should attempt to instill in the legal
assistant a strong sense of responsibility to the client, the law firm, and the legal
profession. For example, the legal assistant must fully comprehend the extreme
importance of keeping all client matters confidential. The legal assistant needs
to realize that estate planning often requires the client to reveal personal or
embarrassing information (e.g., financial status, health conditions, marital
discord, and children born out of wedlock) and that this information, which
would make good material for gossip with co-workers, families, and friends,
must be kept in the strictest confidence. Additionally, even the fact of
representation, unless it is a matter of public record, must also be kept
confidential.
As discussed in Section IV(B) above, the legal assistant must also understand
which actions constitute giving legal advice and be firmly warned to avoid any
conduct which may be interpreted as the unlicensed practice of law.
D. Careful Supervision
Perhaps the most important recommendation is to monitor constantly the
conduct and work product of the legal assistant. Not only will this better protect
the client’s interests, but it will protect the attorney as the attorney is ultimately
responsible for all acts of the legal assistant. In a busy practice, an attorney may
become lax and fail to review periodically the legal assistant’s work. The
attorney must carefully guard against relinquishing control of the client’s case
to the legal assistant.
The attorney should not be reluctant to offer constructive criticism of the legal
assistant’s work. Only through an honest evaluation of their performance will
legal assistants be able to improve their work so it will conform to the required
standards. Conversely, the attorney should have realistic expectations of what
legal assistants can do; attorneys must remember that their assistants do not
have law school educations.
E. Inform Client of Legal Assistants Status
An attorney should instruct the legal assistant to disclose at the
commencement of communications with any other entity that he or she is not
an attorney.
General Guidelines for the Utilization of the Services of Legal
Assistants by Attorneys,
Commentary to Guideline IV, Board of Directors of
State Bar of Texas (May 1993). Early disclosure of the paralegal’s status is
necessary to prevent misunderstandings regarding the responsibilities and
the role the paralegal will play in the estate planning process. If at any time
the paralegal or the attorney becomes aware that the client mistakenly
believes the paralegal is an attorney, it should be made clear that the
paralegal is not an attorney.
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. In publishing this article, neither the author, publisher, nor the sponsoring financial institution is
engaged in rendering legal, accounting or other professional service. If legal advice is required, the service of a competent professional should be sought. Any opinions published herein are those of the author and do
not necessarily represent those of the publisher or sponsoring financial institution.
© 2012 Gerry W. Beyer and Kerri M. Griffin
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