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Supreme Court Rules Table of Contents

RULES OF THE SUPREME COURT OF THE STATE OF NEW HAMPSHIRE

ADMINISTRATIVE RULES 35 to 59

Rule 35. Guidelines for the Utilization by Lawyers of the Services of Legal Assistants under the New Hampshire Rules of Professional Conduct.

                                    INTRODUCTION

A. Rules of Professional Conduct. At the outset it should be noted that Rule 5.3 of the New Hampshire Rules of Professional Conduct and the Comments pertaining thereto set forth in general terms the professional responsibilities of the lawyer under the Rules with respect to nonlawyer assistants. For ease of reference this Rule and the related Comments are hereinafter reproduced in their entirety:

   
5.3. Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

    (a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

    (b) 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; and

    (c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

        (1) The lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

        (2) The lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

ABA Model Code Comments

Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer should give such assistants 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.

B. Comments to Guidelines. The Comments to these Guidelines were prepared by the New Hampshire Bar Association to illustrate the meaning and purpose of each Rule. They have not been adopted, do not constitute part of the Guidelines, and are not intended to affect the application or interpretation of the Guidelines.

C. Definition of "Legal Assistant". As used in these Guidelines, the term "legal assistant" shall mean a person not admitted to the practice of law in New Hampshire who is an employee of or an assistant to an active member of the New Hampshire Bar, a partnership comprised of active members of the New Hampshire Bar or a Professional Association within the meaning of RSA chapter 294-A, and who, under the control and supervision of an active member of the New Hampshire Bar, renders services related to but not constituting the practice of law.

Comment

This definition is intended to cover those lay persons often designated as paralegals, legal assistants, law specialists, law clerks, law students, etc. It is intended to cover all lay persons who are employed by or associated with a member of the Bar but who are not admitted to practice law in the State of New Hampshire. For purposes of these Guidelines, the term "legal assistant" is intended to be synonymous with the terms "nonlawyer assistant" and "nonlawyer" for purposes of the New Hampshire Rules of Professional Conduct and, in particular, Rule 5.3 of the Rules and the Comments pertaining thereto.

 

Rule 1. It is the responsibility of the lawyer to take all steps reasonably necessary to ensure that a legal assistant for whose work the lawyer is responsible does not provide legal advice or otherwise engage in the unauthorized practice of law; provided, however, that with adequate lawyer supervision the legal assistant may provide information concerning legal matters and otherwise act as permitted under these rules.

Comment

The Bar Association of the State of New Hampshire is integrated (Article II, Sec. 1, Constitution of N.H.B.A.). (See also In re Unification of New Hampshire Bar, 109 N.H. 260.) "Except for the right reserved to litigants by statute no person other than an active member of this association shall practice law in this state or in any manner hold himself out as authorized or qualified to practice law in this state." (Art. II, Sec. 4, Constitution of N.H.B.A.)

N.H. statutes provide for injunctive relief from activities constituting the unauthorized practice of law. (RSA 311:7-a through 7-f.)

That the New Hampshire Supreme Court retains inherent power to supervise the conduct of attorneys for the protection of the public is well settled in this state (Donovan's Case, 108 N.H. 34; In re Mussman's Case, 111 N.H. 402; In re Harrington's Case, 100 N.H. 243; Supreme Court Rule 42). From the foregoing, two factors are at once apparent:

    1. Protection of the public from inexperience and ignorance and maintenance of the highest ethical standards are the paramount concerns of the Legislature, the Courts, and the Bar Association.

    2. That protection can best be assured by the members of the bar of this state who are subject to all of the disciplines inherent in that admission and in the attorney's oath as an officer of the Court.

It follows that, while a layperson may have sufficient knowledge or expertise in a given area of the law to give some advice thereon, learning alone does not justify a representation to the public that such a layperson is qualified as a consultant on the law of the layperson's particular specialty.

Accordingly, this Rule provides that lawyers shall not allow their Legal Assistants to give legal advice or otherwise to engage in the practice of law. A lawyer may, however, allow a Legal Assistant to perform services for the lawyer in connection with the lawyer's representation of a client (including, without limitation, the provision directly to clients of information concerning legal matters); provided that adequate lawyer supervision of the assistant's activities is provided for and the requirements of these rules are otherwise complied with.

There is no satisfactory, all-inclusive definition of what constitutes the practice of law. Ethical Consideration 3-5 (E.C. 3-5) of the former Code of Professional Responsibility provided:

"It is neither necessary nor desirable to attempt the formulation of a single, specific definition of what constitutes the practice of law. Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. The essence of the professional judgment of a lawyer is his educated ability to relate the general body and philosophy of law to a specific legal problem of a client; and thus, the public interest will be better served if only lawyers are permitted to act in matters involving professional judgment. Where this professional judgment is not involved, non-lawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required."

Other than citing the Code of Professional Responsibility in various cases, the New Hampshire Supreme Court does not appear to have had occasion to define precisely what constitutes the unauthorized practice of law. Other jurisdictions have been faced with the problem, however, and the general rule seems to be that to constitute unauthorized practice or the giving of legal advice, there must be:

1. Some direct employment relationship, express or implied, resulting either from contract, designation, or assignment, between the person giving the advice and the person receiving the advice, and

2. The representation and the advising of a particular person in a particular fact situation ( Matter of N.Y. County Lawyers' Association v. Norman F. Dacey, 28 App. Div. 2d, 161, 174, 176).

    Ethical Consideration 3-6 of the former Code also provided:


"that a lawyer may delegate tasks to a lay person provided the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product."

Within this framework, the legal assistant can do or assist in doing any law work, such as examination of law, process preparation, affidavits, deeds, pleadings and the like, but always under the direction or supervision of an attorney, who must retain full responsibility for the work.

Similarly, Rule 5.5(b) of the New Hampshire Rules of Professional Conduct provides that a lawyer shall not "assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." The Comments pertaining to that Rule make clear that this paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer retains responsibility for the work, in accordance with Rule 5.3 of the Rules, cited in the Introduction to these Guidelines.



         Rule 2. A lawyer may not permit a legal assistant to represent a client in judicial or administrative proceedings or to perform other functions ordinarily limited to lawyers, unless authorized by statute, court rule or decision, administrative rule or regulation or customary practice.


Comment

Except as permitted by Supreme Court Rule 36, Superior Court Rule 19, Rule 5 of the Rules of the United States District Court for the District of New Hampshire, or other applicable statutes, rules or decisions, a lawyer may not permit a legal assistant to appear, plead, try cases, or argue in court or in other adversary proceedings, on behalf of anyone other than himself or herself, or do anything in a representative capacity for a client. Rules of Court in the various courts of New Hampshire generally prohibit a layperson from representing a client (other than himself or herself) before such courts. Likewise, a layperson should not be allowed to represent a client in proceedings before an administrative tribunal other than one whose regulations or practice specifically authorize lay representation. A lawyer may, of course, permit a legal assistant to represent a client in an adversary proceeding before an administrative tribunal if the legal assistant is specifically permitted by statute, rule or customary practice to participate in such proceeding. See also Rule 5.3 of the New Hampshire Rules of Professional Conduct, cited in the Introduction to these Guidelines, and Rule 5.5(b) of the Rules, cited in the Comment to Rule 1 above, which prohibits a lawyer from assisting a nonlawyer in the performance of activity constituting the unauthorized practice of law.



        Rule 3. Except as otherwise provided by statute, court rule, or decision, administrative rule or regulation, or by the Rules of Professional Conduct, a lawyer may permit a legal assistant to perform services for the lawyer in the lawyer's representation of a client, provided:

A. The services performed by the legal assistant do not require the exercise of professional legal judgment;

B. The lawyer maintains a direct relationship with the client;

C. The lawyer supervises the legal assistant's performance of his or her duties; and

D. The lawyer remains fully responsible for such representation, including all actions taken or not taken by the legal assistant in connection therewith.


Comment

Ethical Consideration 3-5 of the former Code of Professional Responsibility provided that only lawyers should be permitted to act in matters involving the exercise of professional legal judgment:


". . . Functionally, the practice of law relates to the rendition of services for others that call for the professional judgment of a lawyer. . . . Where this professional judgment is not involved, non-lawyers, such as court clerks, police officers, abstracters, and many governmental employees, may engage in occupations that require a special knowledge of law in certain areas. But the services of a lawyer are essential in the public interest whenever the exercise of professional legal judgment is required."

Subsections B through D of the Rule were originally derived from Ethical Consideration 3-6 of the former Code of Professional Responsibility, which stated:

"A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal services more economically and efficiently."

The supervising attorney shall remain directly responsible for all advice given and all actions taken or omitted to be taken by the legal assistant in the performance of his or her duties, and shall be fully accountable to the appropriate professional disciplinary bodies for the legal assistant's work. It follows that where duties are delegated to a legal assistant, the legal assistant's supervising attorney must be certain that the legal assistant is given adequate guidance and assistance for the carrying out of the duties delegated.

This Rule thus in large part simply restates and summarizes the principles set forth in Rule 5.3 of the New Hampshire Rules of Professional Conduct, cited in the Introduction to these Guidelines. Reference should also be made to Rule 5.5(b) of the Rules, which prohibits a lawyer from assisting a nonlawyer in the performance of activity constituting the unauthorized practice of law.

Rule 4. A lawyer should exercise care that a legal assistant for whose work the lawyer is responsible does not:

(A) Reveal information relating to representation of a client, unless the client expressly or implicitly consents, after consultation with the supervising lawyer and with knowledge of the consequences, or except as otherwise required or permitted, in the judgment of the supervising lawyer, by statute, court order or decision, or by the Rules of Professional Conduct; or

(B) Use such information to the disadvantage of the client unless the client consents after consultation with the supervising lawyer and with knowledge of the consequences.

Comment

    Ethical Consideration 4-1 of the former Code of Professional Responsibility provided:


"Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client. A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance."

Ethical Consideration 4-2 of the former Code of Professional Responsibility recognized that the ethical obligation of preserving the confidences and secrets of a client is complicated by the necessary exposure of non-lawyers to confidential information:

"It is a matter of common knowledge that the normal operation of a law office exposes confidential professional information to non-lawyer employees of the office, particularly secretaries and those having access to the files; and this obligates a lawyer to exercise care in selecting and training his employees so that the sanctity of all confidences and secrets of his clients may be preserved."

Subsection A of the current Rule is based upon Rule 1.6 of the New Hampshire Rules of Professional Conduct, and Subsection B is based upon Rule 1.8(b) of the Rules, in each case applying the principles set forth in these Rules in the context of the lawyer's use of the services of a legal assistant.



         Rule 5. A lawyer shall not form a partnership with a legal assistant if any of the activities of the partnership consist of the practice of law, nor practice with or in the form of a professional corporation or association authorized to practice law for a profit if a legal assistant owns an interest therein, is a corporate director or officer thereof or has the right to direct or control the professional judgment of a lawyer.


Comment

    Ethical Consideration 3-8 of the former Code of Professional Responsibility provided:

"Since a lawyer should not aid or encourage a layman to practice law, he should not practice law in association with a layman or otherwise share legal fees with a layman. This does not mean, however, that the pecuniary value of the interest of a deceased lawyer in his firm or practice may not be paid to his estate or specified persons such as his widow or heirs. In like manner, profit-sharing retirement plans of a lawyer or law firm which include non-lawyer office employees are not improper. These limited exceptions to the rule against sharing legal fees with laymen are permissible since they do not aid or encourage laymen to practice law."

Rule 5.4(b) of the Rules of Professional Conduct provides:

"A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law."

 Also, Rule 5.4(d) of the Rules provides:

"A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit if:

(1) A non-lawyer owns any interest therein; except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) A non-lawyer is a corporate director or officer thereof; or

(3) A non-lawyer has the right to direct or control the professional judgment of a lawyer."

The current Rule thus simply applies the principles set forth in Rules 5.4(b) and (d) of the New Hampshire Rules of Professional Conduct in the context of the lawyer's relationship with the legal assistant.



         Rule 6. A lawyer shall not share fees with a legal assistant in any manner, except that a lawyer or law firm may include the legal assistant in a retirement plan even if the plan is based in whole or in part on a profit-sharing arrangement.


Comment

The compensation of a legal assistant may not include a percentage of profits, fees received generally, or fees received specifically from a client brought to the lawyer or the law firm by the legal assistant. (See, e.g., ABA Opin. 316 (1967): Disciplinary Rule 3-102 under the former Code of Professional Responsibility.) Ethical Consideration 3-8 of the former Code provided in pertinent part: "Since a lawyer should not aid or encourage a layman to practice law, he should not . . . share legal fees with a layman." See also Rule 5.4(a) of the New Hampshire Rules of Professional Conduct.

A lawyer may, however, include his legal assistants in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. This exception is derived from Rule 5.4(a)(3) which provides: "A lawyer or law firm may include non-lawyer employees in a retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement." This Rule simply restates the requirements of Rule 5.4(a)(3) of the New Hampshire Rules of Professional Conduct in the context of the lawyer's relationship with the legal assistant.



         Rule 7. A legal assistant's name may not be included on the letterhead of a lawyer or law firm. A legal assistant's business card may indicate the name of the lawyer or the law firm employing the assistant, provided that the assistant's capacity is clearly indicated and that the services of the assistant are not utilized by the lawyer or firm for the purpose of solicitation of professional employment for the lawyer or firm from a prospective client in violation of the relevant statutes or the Rules of Professional Conduct.


Comment

    A legal assistant may have a business card with the firm name appearing on it provided the non-lawyer status of the legal assistant is clearly disclosed. The business card is designed to identify the legal assistant and to state by whom the legal assistant is employed. (A.B.A. Inf. Opin. 909 (1966); A.B.A. Inf. Opins. 909 (1966), 1185 (1971), and 1000 (1967).)



         Rule 8. A lawyer shall require that a legal assistant, when dealing with clients, attorneys or the public, disclose at the outset that he or she is not a lawyer.


Comment

Communication with clients, the public and attorneys outside of the law office employing the legal assistant may be in writing, face-to-face or by telephone.

Routine early disclosure when a legal assistant is dealing with a lawyer representing another party would permit the lawyer, if necessary, to call for the lawyer supervising the legal assistant's work. Furthermore, if the legal assistant should over-step the bounds of his or her authority and make legal judgments while dealing with persons outside of the law firm, at least those persons will not have been misled into thinking that those judgments have the authority of a member of the bar.

A legal assistant may sign letters on the lawyer's letterhead provided the signature is followed by an appropriate designation so that there can be no connotation that the person so signing is a lawyer. Therefore, a legal assistant may sign his or her name on the letterhead of the firm, provided that the legal assistant clearly identifies his status by an appropriate term, such as "legal assistant," "legal clerk," "law assistant," "litigation assistant," or "secretary" to the lawyer or to the firm employing him or her. Whenever a non-lawyer employee signs the employee's own name, or names the non-lawyer as the individual in the firm who should be contacted, disclosure of the non-lawyer status must be made in some appropriate manner. Whether the letter is signed by the legal assistant in his or her individual name, or in the firm name by the individual (AB & C by __________), or in the firm name with a reference to the individual in the body of the letter (signature: "A B & C"; body of the letter: "Please address your reply to Mr./Ms. __________"), appropriate designation of the legal assistant's non-lawyer status must be made.

With respect to oral communications relating to legal matters, whether face-to-face or by telephone, a legal assistant should make it clear that he or she is not a member of the Bar. Disclosure of status may be made in any way that avoids confusion or misinterpretation. Common sense suggests a routine disclosure at the outset of the conversation.


         Rule 9. A lawyer should exercise care to prevent a legal assistant from engaging in conduct which would involve the assistant's employer in a violation of the Rules of Professional Conduct.


Comment

The Bar Association presently has no authority to enforce directly rules of conduct for non-lawyers. Therefore, it is the responsibility of the lawyer-employer to properly instruct and supervise the conduct of his or her legal assistants, so that they will not involve the lawyer in a violation of the Rules of Professional Conduct. It is strongly recommended that no New Hampshire attorney employ or otherwise associate himself or herself with a legal assistant in any way unless and until the legal assistant has been made aware of the provisions of the Rules of Professional Conduct, of these Guidelines, and of RSA 311:7 and :9, and has been duly instructed to avoid conduct which would be unethical for a lawyer or would reflect adversely on the lawyer-employer.

This Rule simply summarizes and restates the requirements of Rule 5.3 of the New Hampshire Rules of Professional Conduct set forth in the Introduction to these Guidelines, to which the lawyer and legal assistant should refer for amplification.

 

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