Oregon State Bar Bulletin JULY 2015
Managing Your Practice
Staff Supervision Needed — Maybe More Than You Think
By Hong Dao
Whether you are a sole practitioner, an associate in a law firm or a staff attorney in legal services, you may be overwhelmed with your caseload or have overextended yourself on other activities. So you rely on your legal assistant or paralegal to call clients for you, to review a settlement agreement with a client or even to draft one using an older template. Sometimes, your well-intended actions have unintended consequences. Consider the following scenarios:
Scenario 1: An experienced paralegal at a firm is assigned to help with high-volume landlord-tenant cases. He successfully resolves most of the cases for the tenant clients by negotiating, on his own, with the landlords and sometimes opposing counsel. He drafts and has the parties sign the settlement agreements, then closes the case, again, on his own. The paralegal knows what he is doing. His supervisor trusts him and does not feel she has to review his excellent work.
Scenario 2: A client shows up at a meeting with the lawyer to drop off some documents that his attorney has requested. He asks the receptionist to speak with the attorney to explain the documents. The lawyer meets him in the conference room. The client looks confused and asks if he is meeting the right person. The attorney identifies herself. The client says, “I want the other attorney that I have been speaking to on the phone.” The client had been speaking with the attorney’s paralegal all along.
Scenario 3: In a meeting to discuss the defendant’s settlement offer, the lawyer explains to his client why the offer is better than going to trial. The lawyer says he would work on increasing the amount but advises the client to settle. The client then calls her uncle, who is a lawyer in their native country, to ask what she should do. She even calls a paralegal friend to ask whether the offer is a good deal. Both state their dismay at the offer amount. She calls the attorney back and says she will accept no less than two times the amount that was pled in the complaint.
Scenario 4: A new associate meets with his first monolingual Spanish-speaking client for an extended intake interview on various employment law issues. The firm’s legal assistant interprets for them. The associate asks the client some questions related to joint employment, but does not cover all relevant factors. In trying to be helpful, the assistant goes ahead and asks questions about other factors that the lawyer missed. The legal assistant also provides a date for the statute of limitations deadline when the lawyer states he has to check on that. While the lawyer rummages through the client’s time cards and other paperwork, the client speaks with the legal assistant. The lawyer concludes the interview without knowing what that conversation was about.
To Supervise or Not to Supervise?
Under Oregon Rule of Professional Conduct 5.3(a), lawyers are responsible for supervising the nonlawyer staff they hire and for ensuring that their conduct is compatible with the lawyer’s professional obligations. Lawyers could be ultimately responsible for ethics violations and legal malpractice claims for conduct by nonlawyer employees. RPC 5.3(b).
Lawyers generally like to do what they are good at: practicing law. Not many lawyers like or are comfortable with the business aspect of running a law practice. Very few enjoy dealing with human resources — hiring, firing, training and disciplining subordinates. When lawyers are caught up in their cases and other professional commitments, the thought of having to oversee someone else’s work can be daunting. As a result, attorneys sometimes neglect their professional duty to supervise their staff. Let us look further at some reasons why attorneys might not provide adequate staff supervision.
Attorney is too busy and overworked. Attorneys with a high-volume or deadline-driven caseload or an otherwise busy professional life may not have time to sit down and properly delegate tasks to staff. The delegation, if any, may look like this: “Please call client X and explain to him why he shouldn’t accept defendant’s offer.” “Please get all her immigration paperwork done and send off ASAP.” Staff members are then left on their own to do the work. When staff have questions, the attorney may not be available to answer those questions. There is no follow-up. Once that task is done, they move on to the next task.
Attorney doesn’t understand ethical responsibilities to supervise. Attorneys may be familiar with their ethical responsibility to supervise staff. But many do not understand what that supervision entails or know how to supervise. They may be unaware of what tasks can and cannot be delegated. Supervising attorneys with little managerial experience find it difficult to follow up, confront and critically review another person’s work product. So when a staff person does something that crosses the line, attorneys do not know how to address the problem. Therefore, they either ignore the problem or deny that it even exists.
Attorney has complete faith in staff’s legal skills and knowledge. It is very tempting for lawyers to transfer their overflow cases to an experienced and knowledgeable paralegal to handle independently. The thinking is that the paralegal would not make any mistake because he or she knows the area of law and has done the same thing many times in the past. The paralegal may even be more experienced and knowledgeable than the lawyer herself. The lawyer’s faith in the paralegal’s skills overrides her professional judgment to supervise him.
Attorney relies on staff to bridge cultural gaps with clients. Having a staff person in the office who understands the client’s culture or speaks the client’s language benefits both the attorney and the client in many ways. The staff person, however, often becomes the only link between the attorney and the client. The attorney may think that the appropriate person to deal with the client is the staff person. He lets staff develop the attorney-client relationship for him. The client may actually prefer to deal directly with the staff person without the attorney. So the lawyer delegates responsibility to the staff member to meet with clients, to explain the law or procedure and leaves that person alone to interact with and guide the client.
Lack of Supervision Has Consequences
It is hard to recognize the lack of staff supervision as a problem until there is a problem — an unintended consequence. A law practice that relies on the independent legal work of a paralegal or other staff member is not sustainable. Problems will eventually surface. Attorneys are the ones who will suffer the consequences, whether it is disciplinary, damage to reputation or financial loss.
Unauthorized Practice of Law
Regardless of staff’s experience and ability to produce terrific outcomes for clients, they should not be allowed to handle, let alone resolve, any legal matter without supervision by an attorney. The lack of staff supervision often leads to the unlawful practice of law. Nonattorney staff members who meet alone with clients without supervision or handle their own caseloads are likely to give clients legal advice and engage in other activities that can only be performed by an attorney. A lawyer who does not take time to supervise staff will not know what they are doing and whether their actions have crossed the line. The lawyer may be aiding in the unlawful practice of law by not overseeing staff’s work and properly training staff as to what they can and cannot do.
As scenario 1 above illustrates, lawyers can unintentionally embolden staff to act like lawyers by not checking in with them and reviewing their work product. The paralegal in this scenario was actively involved in case meetings where attorneys decide on what cases to take or reject. Cases were assigned to this staff person to handle in his capacity as a “paralegal.” But the actual work that he performed exceeded his duties as a nonlawyer staff person. Unless the lawyer starts intervening and supervising, the unauthorized practice of law would continue.
Because some staff tasks may overlap with tasks performed by lawyers, it can be difficult to know what tasks can and cannot be delegated to staff. Generally, most administrative, clerical and receptionist tasks can be delegated to nonlawyer staff with minimal supervision. These tasks are usually handled by a legal secretary or legal assistant. Lawyers may delegate certain legal tasks but must supervise staff performing those tasks. The nonexhaustive lists below can be a guide.
Tasks that must be supervised by an attorney:
- Investigating the facts of the case, including interviewing clients and witnesses.
- Drafting legal documents, correspondence and memoranda and preparing forms.
- Maintaining general contact with the client.
- Conducting legal research.
- Preparing exhibit lists and assisting the lawyer at trial.
- Providing case management.
- Performing other background work on cases as directed by attorney.
Tasks that only a lawyer may perform and may not be delegated to nonattorney staff include:
- Appearing on behalf of clients in court or before administrative agencies.
- Giving written or oral legal advice or a legal opinion.
- Providing information that could lead clients to make a legal decision, such as informing them of their rights and statutes of limitations.
- Rendering independent legal judgment.
- Planning legal strategies or charting the direction of a case.
- Interpreting legal documents for a client.
- Setting legal fees.
- Establishing an attorney-client relationship.
- Accepting or rejecting a case.
Diminished or Lack of Credibility with Clients
A busy law practice, personality conflict or other barrier may lead an attorney to limit her interaction with the client. It is understandable, as a matter of convenience, to just let staff meet alone with the clients to explain and interpret legal documents or to have clients directly call the paralegal with questions about their cases. But the result of this lack of supervision is that the paralegal is the one building the attorney-client relationship. This makes it hard for the lawyer to establish rapport, trust or credibility with the client. It becomes a problem when an attorney advises a client on a certain course of action, and the client has no confidence in the attorney to heed the legal advice but relies on a nonlawyer’s opinion instead.
Scenarios 2 and 3 are two ways that the lack of credibility manifests itself. The mistaken identity in scenario 2 is the outcome of a culmination of issues: not maintaining direct communication with the client; over-delegation; and minimal or no supervision. The paralegal did more than simply build an attorney-client relationship. She gave legal advice and provided information that led the client to believe the paralegal had the legal skills and experience of a lawyer. It is up to the lawyer to set boundaries for staff and ensure that the boundaries are not overstepped.
It can be difficult to help a client who, like the one in scenario 3, remains untrusting of the lawyer in the middle of a case. The problem may just be the client’s personality. But lawyers play a big role in cultivating trust and confidence in their clients. Lawyers who outsource this task often find themselves wondering why clients won’t listen to them or even respect their professional judgment. The lawyer in this scenario had to re-establish confidence by reviewing everything that she had done on the case, explaining why the client should rely on the lawyer’s opinion, and not others, and actually communicating with the client.
Lost in Translation
Many lawyers who work with bilingual office staff may know what it’s like when a staff interpreter summarizes, shortens or editorializes what the lawyer and client say to each other. It can be frustrating when the staff and client engage in side conversations during a meeting with the lawyer. An experienced paralegal interpreter may anticipate the lawyer’s questions and ask for additional information without a prompt from the lawyer. She may even ask follow-up questions she thinks the attorney has missed. A lawyer who does not properly supervise the staff interpreter is unlikely to confront the staff member to correct that type of behavior. The client is not served if the information to and from the lawyer is lost or is not accurately conveyed in the interpretation process.
In scenario 4, after the meeting concluded, the lawyer felt uncomfortable that she was not in control of the meeting because she allowed the legal assistant to set the direction and tone of the interview. Despite this uneasiness, the lawyer did nothing to follow up with the legal assistant. Thus, subsequent meetings with the client unfolded exactly like the first one, with the legal assistant unilaterally asking for more information and explaining concepts that he thought the client did not understand. Many lawyers at this point do not know how to address the problem and just accept it as it is.
Properly training and carefully supervising staff will minimize many of the problems above. Supervision may sound easy, but knowing how to supervise can be tricky. Staff supervision should encompass the following:
- Providing accurate and detailed instructions for tasks. Open-ended assignments not only confuse staff, but may lead them to believe they can do more than is permitted.
- Following up with staff and requiring that staff follow up with the lawyer. Monitoring the work of staff to ensure that they are working within the parameters set by the lawyer is crucial.
- Delegating appropriate work assignments to staff. The assignment should correspond with the staff’s skills, abilities and experience.
- Requiring the staff to document any interaction with the client. Every conversation with clients, no matter how brief, needs to be documented in the case file and reviewed by the attorney.
- Reviewing staff work product. Work produced by staff should be reviewed before it leaves the office (with some minor exceptions).
- Being willing to confront and address issues with staff. Discuss problems with staff even if it feels uncomfortable and puts the lawyer in an awkward position.
Educate and Train Staff on Delegable and Non-Delegable Tasks
Many nonlawyer staff do not receive any formal training or education on what they can and cannot do in a law office. They primarily rely on the attorney to guide and train them. The lawyer should meet with staff at the beginning of their employment to go over their role, duties and other office policies. The lawyer should discuss which tasks staff may perform with supervision and which ones they cannot perform at all. It will be helpful have these restrictions written down in an employee handbook or manual for reference. Let staff know it is okay to question a task assigned to them if they believe it’s a non-delegable task. The lawyer should meet daily with staff to go over delegated tasks. A longer weekly meeting with staff will help the lawyer identify areas that need more supervision.
In addition, the lawyer should encourage and support staff to join and participate in professional organizations and memberships. Training should occur on an ongoing basis.
Train Staff on Proper Interpretation
When a lawyer works with a bilingual staff person who interprets for the lawyer, it is important to properly train that person on proper interpretation protocols. While staff interpreters are not expected to perform like a professional or certified court interpreter in terms of accuracy and fluency, they must still have a basic understanding of what is acceptable and what is not. Some standard protocols include: never editorialize, omit or add information; speak in the first person; don’t engage in a side conversation with the client; don’t ask for clarifying or additional information without prompting from the attorney.
A free and effective way to educate staff interpreters is have them watch a video on the proper protocols. A good video produced by Clarity Interpreting Services of Central Kentucky is available free on YouTube at https://www.youtube.com/watch?v=3wg-qZjMhU4. The nine-minute video provides seven useful tips, including proper body positioning, how to handle side conversations and manage the session, among other things. See also, “Access to Justice: Proper Use of Interpreters and Translators,” by Michael Purcell (OSB Bulletin, June 2015).
While it may be very tempting for busy lawyers to simply turn over certain tasks to a competent assistant, remember that, in the end, it is your license and professional reputation that are at stake. The responsibility to supervise begins and ends with you.
ABOUT THE AUTHORS
Hong Dao is an attorney and a practice management adviser with the OSB Professional Liability Fund. She notes that embezzlement is another serious consequence of failure to supervise staff, a scenario covered at length in “Embezzlement Happens: Protecting Your Firm,” by Sheila Blackford (OSB Bulletin, May 2015). See also, “To Catch a Thief,” by Beverly Michaelis (OSB Bulletin, January 2010).