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This long-running column examines ethics in the paralegal profession. Do you have an ethical dilemma or question? E-mail us today.
Paralegals Signing for Attorneys
Is it ethical for a paralegal to sign pleadings or any other documents for the attorney in emergency situations when the attorney is not available? I have always considered that to be the unauthorized practice of law; however, a paralegal friend recently told me that she thought some state bars allow this procedure. Is this correct, and if so, under what circumstances would this be allowed? What kind of safeguards are in place to make sure paralegals are not committing UPL in this type of situation? Also, does the American Bar Association have any rules or guidelines regarding such a procedure?
Hunt: It has long been an accepted rule that paralegals are not allowed to sign pleadings on behalf of an attorney. The act of filing a pleading constitutes an appearance in court, and signing one would constitute UPL on the part of the paralegal signing it. This is not expressed in so many words in the ABA Model Guidelines for the Utilization of Paralegal Services, but would fall under Guideline 1, which states, “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.” One can deduce that encouraging a paralegal to commit UPL by signing pleadings on his or her behalf would not be consistent with a lawyer’s professional obligations under any jurisdiction. This is echoed by the ABA Model Rule of Professional Conduct, Rule 5.3, which states “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”
That being said, 2006 Formal Ethics Opinion 13 of the North Carolina State Bar, passed on Oct. 20, 2006, diverges from this line of thought by allowing an attorney, if warranted by exigent circumstances, to delegate to a paralegal the signing of his or her name to court documents and pleadings “only if 1) the signing of a lawyer’s signature by an agent of the lawyer does not violate any law, court order, local rule, or rule of civil procedure 2) the responsible lawyer has provided the appropriate level of supervision under the circumstances and 3) the signature clearly discloses that another has signed on the lawyer’s behalf.” The opinion goes on to say that the paralegal must never sign the document in his or her own name and states that “to do so violates the statutes prohibiting the unauthorized practice of law.” I find it interesting that the opinion specifically identifies paralegals as appropriate signers in these circumstances and not other non-attorney staff.
I am unaware whether other states have followed
Cannon: Stacey is absolutely correct in her analysis. The longstanding, mostly unwritten, rule is that paralegals can’t sign pleadings for lawyers, whether they use their own name or the lawyer’s, because this act would be tantamount to making an appearance in court. The related underlying rationale for this rule is that lawyers are expected to review pleadings before they are filed with the court; the paralegal can draft pleadings for the lawyer but the lawyer is the one who is responsible for ensuring that they are properly prepared and accurate. So having the lawyer sign is a way of verifying that the lawyer takes responsibility for the work product. In practical terms, having the lawyer sign also forces the lawyer to see the document and gives him or her a final chance to review it.
I believe that
Keep in mind, however, that other states might take a different stand on nonlawyers signing pleadings, regardless of the circumstances. For example, an earlier Florida State Bar Ethics Opinion, 87-11, passed on April 15, 1988, and updated on July 1, 2005, states “under no circumstances should an attorney permit a nonlawyer employee to sign the attorney’s name, together with the nonlawyer’s initials, to notices of hearing and other pleadings.”
Heller: Stacey and
Teri have cited long-standing rules and guidelines, in addition to
the more recent ethics opinion of the North Carolina State Bar in
2006, with regard to allowing the signing of pleadings by nonlawyers.
I think it’s important to also note that
All of this electronic filing begs the question: If personnel in a law firm, other than the supervising lawyer, can submit an electronic signature on an electronically filed pleading, is the lawyer truly “signing”? Would anyone really know whether the lawyer actually reviewed or virtually “signed” the pleading? Rule 11(a) of the Federal Rules of Civil Procedure neither discusses the concepts of supervision for final review, nor has it yet been amended to incorporate the electronic filing system in place in many courts. The Rule requires that “… every pleading, written motion, and other paper must be signed by at least one attorney of record ….” I believe that it leaves the notion of “signed” open for interpretation with the advanced technology we have today and will have in the future.
As Stacey pointed out, while there are no ABA rules covering the specific issue of paralegals signing court documents for lawyers, Guideline 1 of the ABA Model Guidelines for the Utilization of Paralegal Services does require a lawyer to be responsible for all professional actions of his or her paralegal, and this is reinforced in Rule 5.3 of the ABA Model Rule of Professional Conduct. I believe these must continue to serve as the governing model guidelines for this task, as well as other tasks we might be asked to perform in this age of advanced technology.
[Editors Note: For more information about the North Carolina State Bar’s 2006 Formal Ethics Opinion 13, see “N.C. Bar Passes New Ethics Opinion,” July/August 2007 LAT.]
Therese A. Cannon is
the associate director of the Western Association of Schools and
Colleges, Senior Commission in
Nancy B. Heller, RP,
has been a litigation paralegal since 1978, and has been employed
with the Columbus, Ohio-based law firm of Vorys, Sater,
Stacey Hunt, CLA, CAS,
is a graduate of
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