NY

CL

A-

CL

E

IN

st

It

ut

E

2 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS (also NJ): This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional & Non-Transitional credit hours: 2 Ethics

This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 2hours of total CLE credit. Of these, 2 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credittoward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

A LAwyers Guide to enGAGinG LeGAL ProfessionALs And

LeverAGinG technoLoGy to Meet their ethicAL obLiGAtions

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

presented on Thursday, September 6, 2012.

P r o g r A m C o - s P o N s o r :

NYCLA’s Ethics Institute

P r o g r A m m o d E r A t o r :

Christy Burke, Burke & Company LLC

P r o g r A m F A C u L t Y :

Oliver Gierke, Litigation Case Manager, White & Case LLPKenneth Moltner, Bressler, Amery & Ross, P.C.

Vicki Voisin, ACP, past president of the National Association of Legal Assistants (NALA)

Information Regarding CLE Credits and Certification A Lawyer’s Guide to Engaging Legal Professionals and Leveraging Technology to

Meet their Ethical Obligations September 6, 2012; 6:00 PM to 8:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

A Lawyer’s Guide to Engaging Legal Professionals and Leveraging Technology to Meet their Ethical Obligations

September 6, 2012 6:00 PM-8:00 PM

AGENDA

Program Co-sponsor: NYCLA's Ethics Institute Moderator: Christy Burke, Burke & Company LLC Faculty: Oliver Gierke, Litigation Case Manager, White & Case LLP;

Kenneth Moltner, Bressler, Amery & Ross, P.C. Vicki Voisin, ACP, past president of the National Association of Legal Assistants (NALA)

5:30PM – 6:00PM Registration 6:00PM – 6:10PM Introductions and Announcements 6:10PM – 8:00PM Discussion

NYCLA Bios for Sept. 6, 2012 Ethics Presentation 

 

Christy Burke ‐ Moderator Christy Burke is president of Burke & Company, a leading legal technology communications agency based in Manhattan.  She has focused on the legal tech industry for 12 years and writes a column for Legal IT Professionals about trends in legal software and electronic discovery.  She has also published articles in Legal Management, Law.com, Legal Tech and ALM’s Marketing the Law Firm, where she covered lawyer networking strategies. 

Ms. Burke recently produced a 6‐week project entitled Legal Technology Observer which was a daily publication of articles, essays and surveys created by Burke’s writing team and distinguished experts about law technology trends – past, present and future.  She is a member of the New York City Paralegals Association Advisory Panel and has spoken several times at NYCLA and also at the New York City Bar and New York’s Women in eDiscovery chapter.  For her complete bio, visit: http://www.burke‐company.com/bios.htm.  

***  Oliver Gierke ‐ Panelist Oliver Gierke is a litigation case manager in the New York office of White & Case and handles complex litigation matters in the firm’s competition practice.  With over 17 years of experience in civil litigation in federal and state courts as well as in arbitration proceedings, he currently works primarily on antitrust and patent disputes.    Oliver has written numerous articles on a wide range of topics for publications such as “Paralegal Today” and “The Paralegal Journal”, and his article on “The Paralegal/Attorney Working Relationship” was published in “The Empowered Paralegal Professionalism Anthology” in 2011. He has presented educational seminars and participated in panels on a variety of topics including complex litigation case management, vendor selection, technology‐related issues of the litigation process, and the interaction between paralegals and litigation support staff.  He is a member of the Advisory Council of the Organization of Legal Professionals, and of the Advisory Board of the New York City Paralegal Association.  For his complete bio, visit: http://www.whitecase.com/ogierke/.   *** 

Kenneth M. Moltner, Esq. ‐ Panelist Kenneth M. Moltner, who is counsel to Bressler, Amery & Ross, P.C., practices complex litigation and matrimonial law.  He has been an adjunct professor teaching legal courses in the Hunter College Continuing Education Legal Studies Program and at New York University SCPS, has taught paralegal studies at law firms, and has presented Continuing Legal Education lectures on New York Practice at the New York City Bar Association and New York County Lawyers Association.  Mr. Moltner was a member of 

the 2010 New York City Charter Revision Commission and a former Chair of a Community Board in Manhattan.  For his complete bio, visit: http://www.bressler.com/attorney_profile.asp?id=92.  

*** 

Vicki Voisin, ACP ‐ Panelist Vicki Voisin, ACP, "The Paralegal Mentor", delivers simple strategies for paralegals and other professionals to create success and satisfaction by setting goals and determining the direction they will take their careers.  

She is the co‐author of The Professional Paralegal: A Guide to Finding a Job and Career Success. Vicki publishes Paralegal Strategies, a weekly e‐newsletter for paralegals, and co‐hosts The Paralegal Voice, a monthly podcast produced by Legal Talk Network.  More information is available at www.paralegalmentor.com where subscribers receive Vicki's 151 Tips for Your Career Success.  For her complete bio, visit: http://paralegalmentor.com/voisin-biography. 

 

Lawyers’ Responsibility for Conduct of Non-Lawyers according to Rule 5.3; Legal Staff’s Responsibility to Uphold Ethics

Kenneth M. Moltner1

I. American Bar Association Model Guidelines for the Utilization of Paralegal Services

A. Preamble notes that “[s]pecific ethical considerations and case law in particular states must also be taken into account by each lawyer that reviews these guidelines.”

B. The guidelines: 1. “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.”

2. “PROVIDED THE LAWYER MAINTAINS RESPONSIBILITY FOR THE WORK PRODUCT, A LAWYER MAY DELEGATE TO A PARALEGAL ANY TASK NORMALLY PERFORMED BY THE LAWYER EXCEPT THOSE TASKS PROSCRIBED TO A NONLAWYER BY STATUTE, COURT RULE, ADMINISTRATIVE RULE, OR REGULATION, CONTROLLING AUTHORITY, THE APPLICABLE RULE OF PROFESSIONAL CONDUCT OF THE JURISDICTION IN WHICH THE LAWYER PRACTICES, OR THESE GUIDELINES.”

3. “A LAWYER MAY NOT DELEGATE TO A PARALEGAL

(A) RESPONSIBILITY FOR ESTABLISHING AN ATTORNEY-CLIENT RELATIONSHIP.

1 This presentation and the handouts are for general informational purposes and are intended to provide useful suggestions. They are not intended to and do not constitute legal advice or a legal opinion as to any particular matter and are not a substitute for such advice which should be sought from an appropriate professional. No participant should act on the basis of any information presented without consulting first with his or her legal or other professional advisor with respect to the advisability of any specific course or action and the applicable law. While effort is made to provide accurate information, no claim or guarantee is made in regard to accuracy, completeness or currency. The views expressed may not be construed to be those of Bressler, Amery & Ross, P.C. or any of its other attorneys or clients.

1

(B) RESPONSIBILITY FOR ESTABLISHING THE AMOUNT OF A FEE TO BE CHARGED FOR A LEGAL SERVICE.

(C) RESPONSIBILITY FOR A LEGAL OPINION RENDERED TO A CLIENT.”

4. “A LAWYER IS RESPONSIBLE FOR TAKING REASONABLE MEASURES TO ENSURE THAT CLIENTS, COURTS, AND OTHER LAWYERS ARE AWARE THAT A PARALEGAL, WHOSE SERVICES ARE UTILIZED BY THE LAWYER IN PERFORMING LEGAL SERVICES, IS NOT LICENSED TO PRACTICE LAW.”

5. “A LAWYER MAY IDENTIFY PARALEGALS BY NAME AND TITLE ON THE LAWYER’S LETTERHEAD AND ON BUSINESS CARDS IDENTIFYING THE LAWYER’S FIRM.”

6. “A LAWYER IS RESPONSIBLE FOR TAKING REASONABLE MEASURES TO ENSURE THAT ALL CLIENT CONFIDENCES ARE PRESERVED BY A PARALEGAL.”

7. “A LAWYER SHOULD TAKE REASONABLE MEASURES TO PREVENT CONFLICTS OF INTEREST RESULTING FROM A PARALEGAL’S OTHER EMPLOYMENT OR INTERESTS.”

8. “A LAWYER MAY INCLUDE A CHARGE FOR THE WORK PERFORMED BY A PARALEGAL IN SETTING A CHARGE AND/OR BILLING FOR LEGAL SERVICES.”

9. “A LAWYER MAY NOT SPLIT LEGAL FEES WITH A PARALEGAL NOR PAY A PARALEGAL FOR THE REFERRAL OF LEGAL BUSINESS. A LAWYER MAY COMPENSATE A PARALEGAL BASED ON THE QUANTITY AND QUALITY OF THE PARALEGAL’S WORK AND THE VALUE OF THAT WORK TO A LAW PRACTICE, BUT THE PARALEGAL’S COMPENSATION MAY NOT BE CONTINGENT, BY ADVANCE AGREEMENT, UPON THE OUTCOME OF A PARTICULAR CASE OR CLASS OF CASES.”

10. “A LAWYER WHO EMPLOYS A PARALEGAL SHOULD FACILITATE THE PARALEGAL’S PARTICIPATION IN APPROPRIATE CONTINUING EDUCATION AND PRO BONO PUBLICO ACTIVITIES.”

2

II. Rule 5.3:

“ (a) A law firm shall ensure that the work of nonlawyers who work for the firm is adequately supervised, as appropriate. A lawyer with direct supervisory authority over a nonlawyer shall adequately supervise the work of the nonlawyer, as appropriate. In either case, the degree of supervision required is that which is reasonable under the circumstances, taking into account factors such as the experience of the person whose work is being supervised, the amount of work involved in a particular matter and the likelihood that ethical problems might arise in the course of working on the matter.

(b) A lawyer shall be responsible for the conduct of a nonlawyer employed or retained by or associated with the lawyer that would be a violation of these rules if engaged in by a lawyer, if:

(1) The lawyers orders or directs the specific conduct or, with knowledge of the specific conduct, ratifies it; or

(2) The lawyer is a partner in a law firm or is a lawyer who individually or together with other lawyers possesses comparable managerial responsibility in a law firm in which the nonlawyer is employed or is a lawyer who has supervisory authority of the nonlawyer; and (i) Knows of such conduct at a time when it could be

prevented or its consequences avoided or mitigated but fails to take reasonable remedial action; or

(ii) In the exercise of reasonable management or supervisory authority should have known of the conduct so that the reasonable remedial action could have been taken at a time when the consequences of the conduct could have been avoided or mitigated.”

III. New York County Lawyers’ Association commentary on Rule 5.3

A. Commentary— “[1] This rule requires a law firm to ensure that work of

nonlawyers is appropriately supervised. In addition, a lawyer with direct supervisory authority over the work of nonlawyers must adequately supervise those nonlawyers. Comments [2] and [3] to rule 5.1, which concern supervision of lawyers, provide guidance by analogy for the methods and extent of supervising nonlawyers.”

B. Practice pointers— “The lawyers are also responsible for nonlawyer misconduct if they knew of the misconduct and did not prevent or mitigate it, or failed to take appropriate action.” “Proper supervisory procedures must be put in place to provide reasonable oversight for the nonlawyers under the circumstances considering the experience of the nonlawyer, the amount of work the nonlawyer is

3

responsible for and the likelihood that ethical issues will arise. Lawyers must be vigilant and creative in discharging their duties to supervise nonlawyers.” [footnote omitted]

C. “Although the term ‘non-lawyer’ is not defined in the rule, to us it means anyone who is not admitted to the practice of law in New York State.” This includes foreign lawyers and outsourcing of legal services.

D. Responsibilities include conflict check of paralegal by hiring firm. IV. New York State Bar Association Rules

A. Compare to ABA Guidelines B. The Guidelines:

I. “LAWYERS’ PROFESSIONAL RESPONSIBILITY – A LAWYER MAY PERMIT A LEGAL ASSISTANT TO PERFORM SERVICES IN THE REPRESENTATION OF A CLIENT PROVIDED THE LAWYER:

(A) RETAINS A DIRECT RELATIONSHIP WITH THE CLIENT

(B) SUPERVISES THE LEGAL ASSISTANT’S PERFORMANCE OF DUTIES; AND

(C) REMAINS FULLY RESPONSIBLE FOR SUCH REPRESENTATION, INCLUDING ALL ACTIONS TAKEN OR NOT TAKEN IN CONNECTION THEREWITH BY THE LEGAL ASSISTANT, EXCEPT AS OTHERWISE PROVIDED BY STATUTE, COURT RULE OR DECISION, ADMINISTRATIVE RULE OR REGULATION, OR BY THE CODE OF PROFESSIONAL RESPONSIBILITY.”

II. “UNAUTHORIZED PRACTICE OF LAW – A LAWYER SHALL NOT ASSIST A LEGAL ASSISTANT IN THE PERFORMANCE OF AN ACTIVITY THAT CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW.”

III. “AUTHORIZED PRACTICE - A LEGAL ASSISTANT MAY PERFORM CERTAIN FUNCTIONS OTHERWISE PROHIBITED WHEN AND ONLY TO THE EXTENT AUTHORIZED BY STATUTE, COURT RULE OR DECISION, OR ADMINISTRATIVE RULE OR REGULATION.”

IV. “CONFIDENTIALITY & CONFLICT OF INTEREST - IT IS THE RESPONSIBILITY OF A LAWYER TO TAKE REASONABLE MEASURES TO ENSURE THAT ALL CLIENT CONFERENCES ARE PRESERVED BY THE LEGAL ASSISTANT TAKE APPROPRIATE MEASURES TO AVOID POTENTIAL CONFLICTS OF INTEREST ARISING FROM EMPLOYMENT OF LEGAL ASSISTANTS.”

V. “PROFESSIONAL INDEPENDENCE OF LAWYERS - A LAWYER SHALL NOT FORM A PARTNERSHIP WITH A LEGAL

4

5

ASSISTANT IF ANY PART OF THE FIRM’S ACTIVITIES CONSISTS OF THE PRACTICE OF LAW, NOR SHALL A LAWYER SHARE LEGAL FEES WITH THE LAWYER’S LEGAL ASSISTANT.”

VI. “DISCLOSURE OF NON-LAWYER STATUS – A LAWYER SHALL REQUIRE THAT A LEGAL ASSISTANT, WHEN DEALING WITH A CLIENT, DISCLOSE AT THE OUTSET THAT THE LEGAL ASSISTANT IS NOT A LAWYER. THE LAWYER SHALL ALSO REQUIRE SUCH DISCLOSURE AT THE OUTSET WHEN THE LEGAL ASSISTANT IS DEALING WITH A COURT, AN ADMINISTRATIVE AGENCY, ATTORNEYS OR THE PUBLIC IF THERE IS ANY REASON FOR THEIR BELIEVING THAT THE LEGAL ASSISTANT IS A LAWYER OR ASSOCIATED WITH A LAWYER.”

VII. “PROFESSIONAL DEVELOPMENT - A LAWYER SHOULD PROMOTE THE PROFESSIONAL DEVELOPMENT OF THE LEGAL ASSISTANT.”

Rule 5.3: Lawyer’s Responsibility for Conduct of Nonlawyers

I. TEXT OF RULE 5.31

(a) A law firm shall ensure that the work of nonlawyers who work for the firm is adequately supervised, as appropriate. A lawyer with direct supervisory authority over a nonlawyer shall adequately supervise the work of the nonlawyer, as appropriate. In either case, the degree of supervision required is that which is reasonable under the circumstances, taking into account factors such as the experience of the person whose work is being supervised, the amount of work involved in a particular matter and the likelihood that ethical problems might arise in the course of working on the matter.

(b) A lawyer shall be responsible for conduct of a nonlawyer employed or retained by or associated with the lawyer that would be a violation of these Rules if engaged in by a lawyer, if:

(1) the lawyer orders or directs the specific conduct or, with knowledge of the specific conduct, ratifies it; or

(2) the lawyer is a partner in a law firm or is a lawyer who individually or together with other lawyers possesses comparable managerial responsibility in a law firm in which the nonlawyer is employed or is a lawyer who has supervisory authority over the nonlawyer; and

(i) knows of such conduct at a time when it could be prevented or its consequences avoided or mitigated but fails to take reasonable remedial action; or

(ii) in the exercise of reasonable management or supervisory authority should have known of the conduct so that reasonable remedial action could have been taken at a time when the consequences of the conduct could have been avoided or mitigated.

II. NYSBA COMMENTARY

[1] This Rule requires a law firm to ensure that work of nonlawyers is appropriately supervised. In addition, a lawyer with direct supervisory authority over the work of nonlawyers must adequately supervise those nonlawyers. Comments [2] and [3] to Rule 5.1, which concern supervision of lawyers, provide guidance by analogy for the methods and extent of supervising nonlawyers.

[2] With regard to nonlawyers, who are not themselves subject to these Rules, the purpose of the supervision is to give reasonable assurance that the conduct of all nonlawyers employed by or retained by or associated with the law firm is compatible with the professional obligations of the lawyers and firm. Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns and paraprofessionals. Such assistants, whether they are employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A law firm must ensure that such assistants are given appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. A law firm should make reasonable efforts to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with these Rules. A lawyer with direct supervisory authority over a nonlawyer has a parallel duty to provide appropriate supervision of the supervised nonlawyer.

[3] Paragraph (b) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of these Rules if engaged in by a lawyer. For guidance by analogy, see Rule 5.1, Comments [5]-[8].

III. CROSS-REFERENCES

1 Rules Editor Deborah Scalise, Scalise & Hamilton.

III.1 Former New York Code of Professional Responsibility

Rule 5.3 is essentially similar to former DR 1-104(C) (D).

III.2 ABA Model Rules

Despite language differences, both the New York Rule and the Model Rule require reasonable supervision of nonlawyers under the circumstances. The New York Rule provides factors which may be considered in assessing reasonableness. Both Rules provide that a supervisory lawyer shall be responsible for the misconduct of a nonlawyer if the lawyer orders or ratifies the misconduct, or knows of the misconduct and fails to take appropriate action. The New York Rule also states that a supervisory lawyer is responsible for the misconduct of a nonlawyer if the lawyer should have known of the misconduct at a time when remedying the misconduct was possible.

IV. PRACTICE POINTERS

1. Lawyers who ordered or ratified the misconduct of a nonlawyer, regardless of whether they are supervisory or managerial lawyers, are responsible for the nonlawyer’s misconduct. The lawyers are also responsible for nonlawyer misconduct if they knew of the misconduct and did not prevent or mitigate it, or failed to take appropriate action.

2. A “nonlawyer” includes any person who is not admitted to practice in New York, including any foreign lawyers that a firm may employ.

3. A law firm must ensure that nonlawyers are given appropriate training concerning the ethical aspects of their jobs. Reasonable efforts should be made to establish internal policies and procedures designed to provide adequate assurances that nonlawyers will act in a way compatible with the Rules.

4. Proper supervisory procedures must be put in place to provide reasonable oversight for the nonlawyers under the circumstances considering the experience of the nonlawyer, the amount of work the nonlawyer is responsible for and the likelihood that ethical issues will arise. Lawyers must be “vigilant and creative” in discharging their duties to supervise nonlawyers.2

5. When hiring foreign nonlawyers, background and reference checks should be performed and some sort of interview conducted, even if by phone. There must be frequent and sufficient contact between the New York lawyer and foreign non-lawyer, with the nonlawyer’s work product reviewed frequently.

V. ANALYSIS

V.1 Purpose of Rule 5.3

Rule 5.3 contains two distinct mandates. The first mandate is that law firms and lawyer supervisors put into place adequate supervisory procedures so that nonlawyer employees have sufficient oversight that they do not violate the rules by which law firms and lawyers must conduct themselves. Since nonlawyers are not subject to the Rules of Professional Conduct, the second mandate addresses the responsibility for what would be misconduct by nonlawyer employees by placing responsibility for nonlawyer misconduct firmly on the shoulders of lawyer supervisors and managers.

V.2 Requirement to Supervise a Nonlawyer Employee

Subsection (a) sets forth the requirement that a law firm shall ensure that the work of nonlawyers “who work for” a firm is adequately supervised. This places responsibility on the firm, and requires that adequate supervisory procedures are in place and nonlawyers are not working without oversight. Subsection (a) also mandates that a lawyer with direct supervisory responsibility for a nonlawyer adequately supervise the nonlawyer. The standard of adequate supervision is reasonableness under the circumstances, and factors which should be considered in assessing the reasonableness of supervision include the experience of the nonlawyer employee, the amount of work for which the employee is responsible, and the likelihood of whether ethical

2 See N.Y.C. Bar Op. 2006-3 (2006).

issues might arise.

V.3 Responsibility for Misconduct by a Nonlawyer Employee

Subsection (b) addresses the culpability of a lawyer for the actions of a nonlawyer which would violate the Rules if engaged in by a lawyer. The Rule specifies that if misconduct is committed by a nonlawyer, a lawyer, regardless of whether he or she is a supervisor, who ordered or ratified the misconduct is responsible for that misconduct. Managing or supervising lawyers are also responsible for the misconduct of a nonlawyer employee if they knew of the misconduct at a time when it could have been prevented or mitigated, and failed to take appropriate action. Additionally, managing or supervising lawyers are also responsible for nonlawyer misconduct if, in the exercise of reasonable supervisory oversight, they should have known of the misconduct at a time when remedial action could have been taken.

V.4 Nonlawyers

Subsection (b) also makes clear that a supervisory lawyer is responsible not only for the conduct of those nonlawyers actually employed by the lawyer, but also for nonlawyers who are “retained by or associated with” the lawyer. This would include, for example, per diem paralegals retained through a paralegal agency, or private investigators hired by the law firm. “Associated with” would also include professionals who are permitted to enter into a contractual relationship with an attorney pursuant to Rule 5.8.

The question of whether subsection (a)’s language, which appears to limit supervisory responsibility for nonlawyers who “work for” the firm, encompasses nonlawyers who are “retained by or associated with” the law firm, was addressed by the New York City Bar Association in N.Y.C. Bar Op. 2006-3 (2006). The Committee issuing the opinion stated that it was their position that the two phrases “work for” and “employed by, retained by or associated with” had equivalent meanings.

Although the term “nonlawyer” is not defined in the Rule, to us it means anyone who is not admitted to the practice of law in New York State. Very simply put, if a law firm engages in the practice of foreign outsourcing of legal support services, any foreign lawyers doing work for the New York law firm are nonlawyers for the purposes of this rule. The mandate to adequately supervise the work of nonlawyers includes supervising the work of foreign attorneys.

Adequate supervision of foreign nonlawyers can be difficult to assess, bearing in mind that direct on-site supervision of those individuals will most likely not take place. N.Y.C. Bar Op. 2006-3 (2006), which discusses outsourcing of legal support services, states that “Given . . . the hurdles imposed by the physical separation between the New York lawyer and the overseas nonlawyer, the New York lawyer must be both vigilant and creative in discharging the duty to supervise.” First, lawyer supervisors of foreign nonlawyers should ensure that the foreign supplier of legal support services is advised, preferably in writing, that its employees’ activities must conform to the New York Rules of Professional Conduct. N.Y.C. Bar Op. 2006-03 suggests that New York lawyers obtain information relating to the background of the foreign nonlawyers including reference checks, and in a suitable manner, conduct an advance interview with the foreign nonlawyer. New York supervisory attorneys should also make sure that there is frequent and sufficient contact with the foreign nonlawyers to ensure familiarity with the nonlawyers’ methods of working. Work product should be reviewed by the supervising lawyer.

VI. ANNOTATIONS OF ETHICS OPINIONS

VI.1 Requirement to Supervise a Nonlawyer Employee

N.Y.S. Bar Op. 905 (2012) (law firm that hires a lawyer who acquired confidential information while acting as a paralegal or legal assistant must make reasonable effort to ensure that confidential information is not revealed. A conflicts check should be performed. If the lawyer acquired confidential information in a matter while employed as a paralegal or legal assistant, the lawyer must be screened from personally participating in the matter so as not to communicate confidential information to anyone in the firm that the firm has a duty to protect.). N.Y.S. Bar Op. 828 (2009) (staff attorneys who work for a state agency are not obligated to supervise the work of investigators who also work for the agency, as staff attorneys are not a law firm and they do not have direct supervisory authority over the nonlawyer investigators).

N.Y.S. Bar Op. 774 (2004) (law firms must adequately supervise nonlawyers who have previously worked at another firm, including instructing them not to disclose confidential information acquired while at the previous firm, and instructing firm lawyers not to use such information if told to them. The hiring law firm may have a duty to inquire as to conflict information regarding current representations.).

VI.2 Nonlawyers

New York: N.Y.S. Bar Op. 843 (2010) (“As long as the lawyer does not ‘friend’ the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction.”).

NYCLA Bar Op. 737 (2007) (unethical for a nongovernment lawyer to employ or utilize an investigator who will use dissemblance if it is unlawful, rises to the level of fraud or perjury, violates the rights of third parties, or otherwise violates the Code of Professional Responsibility. Under certain narrow and exceptional conditions a lawyer may supervise an investigator who uses dissemblance.).

N.Y.C. Bar Op. 2006-3 (2006) (outsourcing of legal support services overseas to a nonlawyer by a New York lawyer is ethical as long as there is rigorous supervision of the nonlawyer to ensure that the nonlawyer is not engaging in the unauthorized practice of law and that the New York lawyer is rendering competent representation while using the foreign legal support services. Client confidentiality must be observed, conflicts must be avoided, billing must be appropriate, and, if necessary, client consent to outsourcing must be obtained.).

N.Y.S. Bar Op. 762 (2003) (law firm must supervise, as appropriate, the work of lawyers licensed in foreign countries who are “non lawyers for the purposes of former DR 1-104(c)” who work at the firm. The law firm is required to make reasonable efforts to ensure that observance of disciplinary rules of the foreign jurisdiction does not run afoul of the New York Code.).

ABA: ABA Formal Op. 08-451 (outsourcing of legal or nonlegal support services by a lawyer is permissible as long as the lawyer remains ultimately responsible for competent legal services to the client pursuant to Model Rule 1.1 and complies with Rules 5.1 and 5.3. A lawyer should exercise reasonable direct supervisory authority over the foreign nonlawyer, including avoidance of the unauthorized practice of law by the nonlawyers. Disclosure, as appropriate, should be made to the client, and client consent should be obtained if the rendering of the outsourced services requires disclosure of confidential information. Outsourcing fees should be reasonable.).

VI.2 Responsibility for Misconduct by a Nonlawyer Employee

N.Y.C. Bar Op. 2010-2 (2010) (since informal discovery has long been favored, an attorney or agent may use his or her real name and profile to “friend” an unrepresented person’s social network site without disclosing why the lawyer or agent is making the request. However, if a lawyer or agent “friends” an unrepresented person under false pretenses (such as when using a false name or a made-up profile) to obtain information, the Rules will be violated.).

VII. ANNOTATIONS OF CASES

VII.1 Responsibility for Misconduct by a Nonlawyer Employee

Matter of Garas, 65 A.D. 3d 164 (4th Dept. 2009) (attorney censured for forming a corporation to perform closing agent services on the sale of HUD foreclosure properties and permitting a nonlawyer employed by that corporation to engage in the unauthorized practice of law in performing functions usually performed by attorneys. The attorney was also guilty of failing to appropriately supervise that employee.).

Matter of Bodow, 54 A.D. 3d 76 (4th Dept. 2008) (attorney censured, inter alia, for failure to supervise nonlawyer employees, which failure caused neglect of a client matter).

Matter of Lenehan, 34 A.D. 3d 13 (4th Dept. 2006) (attorney disciplined for permitting debt collection agencies to pay her to use her law firm name for debt collection. The attorney knew that the agencies were engaging in illegal practices but failed to become meaningfully involved or supervise or control the activities.).

Matter of Iaquinta-Snigur, 30 A.D. 3d 67 (2d Dept. 2006) (attorney suspended for three years for, inter alia, failure to

properly inspect and review the work of her law office staff members regarding her escrow account). Matter of Duboff, 21 A.D.3d 206 (2d Dept. 2005) (attorney turned control of his law firm and trust accounts to a third-party

nonattorney. Attorney had no involvement in employee hiring or firing, firm files, or accounts, and was not privy to his law firm’s corporate books. Attorney disciplined for failure to supervise.).

VIII. BIBLIOGRAPHY

Michael Bonsignore, CURRENT DEVELOPMENT 2007–2008: Rules Exist for a Reason: A Commentary on Lawyers Hiring Investigators to Partake in Deceptive Tactics, 21 GEO. J. LEGAL ETHICS 655 (Summer 2008).

Michael Bonsignore The Duty to Supervise and Vicarious Liability: Why Law Firms, Supervising Attorneys and Associates Might Want to Take a Closer Look at Model Rules 5.1, 5.2 and 5.3, 14 GEO. J. LEGAL ETHICS 1151 (Summer 2001).

Mary C. Daly & Carole Silver, Flattening the World of Legal Services? The Ethical and Liability Minefields of Offshoring Legal and Law-Related Services, 38 GEO. J. INT’L L. 401 (Spring 2007).

Brian Miller, The Ethical Implications of Legal Outsourcing, 32 J. LEGAL PROF. 259 (2008).

Oliver Gierke, Litigation Case Manager, White & Case LLP (Interviewed by Moderator, Christy Burke) 1. Describe some ethical conflicts that can easily arise in a firm when lawyers and paralegals or legal assistants work together. - unlicensed practice of law - billing issues - violation of ethical screens

2. What are some of the best practices for effectively dealing with these ethics issues? - knowledge of the rules - training - availability to answer questions

3. What are some consequences that can arise from not adhering to good ethical practices? - reprimand or loss of employment - loss of billable time - embarrassment and negative publicity - loss of a client - malpractice complaints - possible firm closure 4. How can lawyers and paralegals ensure ethical billing best practices? How can technology help in this regard? - paralegals keep time - billing partners decide what gets billed - billing policies - contemporaneous time keeping - accurate descriptions - no double-billing Technology can assist with - diary software with timers - e-mail reminders - inability to bill time for screened-off matters

2

5. What are ethical screens? Who are they meant to protect and who needs to be “in the loop” on how the screens are set up and maintained? - individuals barred from access to files and information pertaining to matters that are adverse to matters they are working on - allows firms to work for various clients in various capacities - ethical screens are to ensure that no conflicts arise - trust of clients is bread and butter - ethical screens are to protect everyone - need procedure for implementation, distribution and acknowledgement of screens - screen electronic files and billing 6. How can lawyers be sensitive to ethics concerns when asking paralegals to complete tasks where there could be a potential conflict involved? - follow official staffing protocol - paralegals need to check with supervisor before taking on new matters 7. How can lawyers help legal staff and paralegals under their supervision to abide by firm and government policies on ethics? - set the example of proper conduct - ethical screens are different for everyone - knowledge of implementation - ask paralegals to check re: ethical screens - communicate: it’s not about trusting the staff, it’s about serving the client

The Empowered ParalegalProfessionalism Anthology

Edited by

Robert E. Mongue

Carolina Academic PressDurham, North Carolina

00 mongue EPPA final 7/22/11 9:46 AM Page iii

Copyright © 2011Robert E. MongueAll Rights Reserved

Library of Congress Cataloging-in-Publication Data

Library of Congress Cataloging-in-Publication Data

The empowered paralegal professionalism anthology / edited by Robert E.Mongue.

p. cm.Includes bibliographical references and index.ISBN 978-1-59460-821-6 (alk. paper)1. Legal assistants--United States--Handbooks, manuals, etc. I. Mongue,Robert E. II. Title.

KF320.L4E455 2011340.023'73--dc22

2011013633

Carolina Academic Press700 Kent Street

Durham, North Carolina 27701Telephone (919) 489-7486

Fax (919) 493-5668www.cap-press.com

Printed in the United States of America

00 mongue EPPA final 7/22/11 9:46 AM Page iv

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

Vicki Voisin, ACP

New York County Lawyers’ Association

September 6, 2012

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

Contents

Vicki Voisin ACP - The Paralegal Mentor............................................................................... 3 

1. Overview of Attorney/Paralegal Ethics Obligations..............................................................4 

2. The Duty of Competence and Diligence ..............................................................................6 

3. Utilizing Technology in Fees and Billing............................................................................. 7 

4. Confidentiality and Privilege...............................................................................................8 

5. Tips for Successful Adoption of New Technology.............................................................. 10 

©2012 Vicki Voisin ACP All Rights Reserved 2

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

  

Vicki Voisin ACP - The Paralegal Mentor

• A California State Bar approved MCLE provider;

• Delivers simple strategies for paralegals and other

professionals to create success and satisfaction by setting

goals and determining the direction they will take their

careers;

• Spotlights resources, ethics issues, organizational tips, and

other areas of continuing education to help paralegals and

others reach their full potential;

• Nationally recognized author and speaker regarding issues of

interest to legal professionals;

• Co-author of The Professional Paralegal: A Guide to Finding a Job and Career Success;

• Publishes a weekly ezine titled Paralegal Strategies;

• Co-host of The Paralegal Voice, a monthly podcast produced by Legal Talk Network;

• Earned a B.A. degree in Business Management from Central Michigan University;

• Received the Advanced Paralegal Certification (ACP) from the National Association of

Legal Assistants (NALA);

• Received 2012 Founder’s Award from NALA

• Past president of NALA; current member of NALA and of NALS…the association for

legal professionals (serving on NALS Grassroots Committee);

• Current member and Past Chair of the Paralegal/Legal Assistant Section of the State Bar

of Michigan

• Has worked in the paralegal field for more than 20 years;

• More information is available at http://paralegalmentor.com.

©2012 Vicki Voisin ACP All Rights Reserved 3

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

1. Overview of Attorney Ethics Obligations Ethics rules apply to all legal staff.

To guarantee ethics obligations are met, the best available tools must be used.

The world is competitive – just keeping pace is not good enough.

Today’s discussion references → American Bar Association Model Rules of Professional Conduct

Guidelines for the Utilization of Paralegal Services → New York State Bar Association

Attorney Rules of Professional Conduct (effective April 1, 2009) → Professional Associations for Paralegals

NFPA NALS NALA Attorneys must supervise all staff (See ABA and NYSBA Rule 5.3). Amount of supervision depends on:

→ Responsibilities → Length of employment → Education → Expertise → Must include (at a minimum) routine spot checks and careful review of final work product.

There are good reasons why attorneys may not push for new technology.

How can paralegals assist with the adoption of technology? → Research software → Vet software provider

Time tested? Financially secure? Length of time in business? Will software work with other programs in use by firm? Terms of service? Support?

©2012 Vicki Voisin ACP All Rights Reserved 4

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

Once software is in place, paralegals can → Train staff → Draft training manuals → Conduct firm-wide technology seminars

“The more paralegals use technology well and can teach staff how to use it well, the more staff will buy into the technology and the more it will be used.”

©2012 Vicki Voisin ACP All Rights Reserved 5

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

2. The Duty of Competence and Diligence Both the ABA and NYSBA (at Rule 1.1-1.3) state that a lawyer must provide competent representation that requires

Legal knowledge and skill Thoroughness Preparation necessary for representation MUST use methods and procedures meeting standards of competent practitioners Reasonable diligence Commitment and dedication to client’s interest

Paralegals should be used to control the attorney’s workload.

→ Can assume many of the attorney’s duties → Can work to adopt necessary technology

When considering technology, always compare the time and effort expended both with and without technology.

Remember: There is no room for error when representing clients competently and diligently.

Once technology is adopted, you must remain committed to the time and finances necessary for training.

**See Redact-IT www.redact.com Trial Director www.indatacorp.com/TrialDirector.html Sanction www.sanction.com Exhibit Viewwww.exhibitview.net Evernote www.evernote.com

The Internet is the most important single development in the history of human

communication since the invention of call waiting. ~ Dave Barry

©2012 Vicki Voisin ACP All Rights Reserved 6

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

3. Utilizing Technology in Fees and Billing ABA and NYSBA Model Rules 1.5 refer to fees

→ Fees must be reasonable. → Paralegals do not determine fees to be charged → Unethical actions:

Billing for more than 24 hours in a day Multiplying all billers’ time to increase overall hours Billing clients for personal expenses Billing at twice the standard amount of time Billing paralegal time for clerical work Double billing

US Supreme Court cases re: paralegal fees Missouri v Jenkins, 491 U.S. 274 (1989) Richlin Security Service v Chertoff www.nala.org/08-Richlin-Decision.pdf Fee petitions for paralegal time should include

Credentials Experience Detailed description of work Exact amount of time spent on task Information on paralegal billing rates (basis and market rates)

Apply the Della Street rule to billable tasks: Would Perry Mason have had to do the work? If not, Della would

have done it. The result: the work would be clerical and not billable.

Always do the math when considering the savings in time (and cost to the client) resulting from using technology

tools as opposed to doing a task manually.

** For Time and Billing software, see Bill4Time www.bill4time.com Chrometa www.app.chrometa.com (automatically captures and categorizes time) Time Matters www.lexisnexis.com Amicus Attorney www.amicusattorney.com Tabs 3 www.tabs3.com Timeslips www.timeslips.com Turbo Lawwww.turbolaw.com

Michelangelo should not charge Sistine Chapel rates

for painting a farmer’s barn. Urisic v Bethlehem Mines, 719 F.2d 670, 677 (3rd Cir. 1983)

©2012 Vicki Voisin ACP All Rights Reserved 7

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

4. Confidentiality and Privilege

Confidentiality: An ethics rule.

Privilege: A rule of evidence

Rules of confidentiality and privilege that apply to attorneys apply to paralegals and everyone else the attorney

works with.

Important points about attorney-client privilege (all staff should be familiar with this) Must relate to the legal advice client seeks Held by the client Client is the only one who can waive the privilege Lasts indefinitely Identity and location usually not privileged Evidence in criminal case is not protected Fee agreement and pre-existing documents usually are not protected

Mental impressions = theories and strategies

Informational materials – factual investigations

Note: Electronic Communications Privacy Act of 1986

Email does not have to be encrypted.

What should staff do when a privileged document is received in error?

Men have become the tools of their tools.

~ Henry David Thoreau

©2012 Vicki Voisin ACP All Rights Reserved 8

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

Redaction is performed to protect privileged information for production to other parties. Best practices include:

Leave identifying information and redact appropriate text Insert a “redacted” label over redacted text Be careful that you do not reveal the number of characters in the text Be sure you can access the original of the document Review redacted documents before they go out

***************

For case and client management software, see: Advologix PM www.advologix.com Clio www.goclio.com Rocket Matter www.rocketmatter.com For document Management software, see: DropBox (www.dropbox.com) Box.net (www.box.net Worldox (www/worldox.com For project management software, see: Basecamp www.basecamphq.com Onit www.onit.com PBWorks www.pbworks.com For online document storage and backup Carbonite www.carbonite.com Mozy www.mozy.com For remote access see: GoToMyPC www.gotomypc.com LogMeIn www.logmein.com Legal Workspace www.legal-workspace.com

©2012 Vicki Voisin ACP All Rights Reserved 9

Legal Technology Trends: Leveraging New and Useful Tools to Meet Ethics Obligations

©2012 Vicki Voisin ACP All Rights Reserved 10

5. Tips for Successful Adoption of New Technology

• Understand why lawyers are slow to adopt new technology and how staff can assist to make this easier.

• Be sure staff understands how you want requests for new technology submitted. What do you need to know?

• Identify firm’s technology needs. When you have identified a specific tool, determine what you want the tool to do. Here’s an example of questions to ask if researching technology tools for redaction needs. Use similar process for other technology tools.

o Does the redaction tool create an extensive log?

o Do you need to mask the length of the redacted word?

o Does the redaction application integrate with firm’s case management system?

o Do you need a tool with intelligent search capabilities, pattern matching or ability to record reusable redaction scripts?

o Do you need to create a template that can be reused?

• Understand the importance of using the best technology that fits within your budget.

• Guidelines for using new technology: o Select one person to be the “expert” for the technology tool; example: this person would be responsible

for the redaction process. o Write a formal policy for using the technology, Be sure everyone, including new employees, in the

firm is aware of the policy. o Always include human verification in the process. o Always spot-check the final work product.

Bill Gates is a very rich man today... and do you want to know why?

The answer is one word: versions. ~ Dave Barry