Advisory Opinion:
1816
Year Issued:
1998
RPC(s):
RPC 1.6; 1.7; 1.9; 1.10; 5.3; 5.4; 5.5; 7.1; 7.2(c); Formal Opinion 76; Formal Opinion 80
Subject:
Paralegal running separate law office for lawyer; division of fees with nonlawyer; advertising with paralegal's photograph
[The lawyer proposed hiring a paralegal firm to operate a law office on his behalf, and under his supervision, in a nearby town. The paralegal would place advertisements with his photograph in publications aimed at persons of his ethnicity.] The Committee researched and reviewed your inquiry concerning fee splitting with, and supervision of, a nonlawyer assistant and determined the following:
1. The first proposed alternative form of compensation [on a case by case basis depending on the size of recovery] is an improper division of fees under RPC 5.4(a), and the second proposed form [on an hourly basis with bonuses for significant or successful recoveries] may be problematic as well, depending on the details of the relevant provisions of the contract between you and the paralegal and in how the contract is implemented in practice.
2. Depending on the extent of your instruction and supervision of the paralegal, the proposed arrangement could constitute the unauthorized practice of law under RPC 5.5(b). See e.g., Formal Opinion Nos. 76 and 80. If the advertisement created the impression that the paralegal is entitled to practice law, then, in addition to being misleading under RPC 7.1 (See paragraph 4 below), it would also raise problems under PRC 5.5(b).
3. A lawyer’s responsibility under RPC 5.3 -- to make reasonable efforts to ensure that a paralegal’s conduct is compatible with the professional obligations of the lawyer -- includes instruction and supervision of the paralegal. See, e.g., Comment to Rule 5.3 of ABA Model Rules of Professional Conduct (1998 ed.). Under some circumstances, an attorney will be held responsible for a paralegal’s ethical breaches (See RPC 5.3)).
4. If, in practice, the paralegal’s work consisted primarily of recommending your legal services, rather than performing substantive legal work, then the use of the paralegal’s photograph in advertisements in the yellow pages and newspapers might violate RPC 7.1, by misleading prospective clients to believe the paralegal was involved more substantially in the representation, or even that the paralegal was himself an attorney, and RPC 7.2(c), by giving value to the paralegal for recommending your services.
5. If the paralegal will continue to be "actively working as a paralegal for several attorneys in the Tacoma area," and that means he will be working for different law firms, then the proposed arrangement presents potential confidentiality and conflict of interest problems (See RPC 1.6, 1.7, 1.9, and 1.10).
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