Civil Court Rules and Jury Charges

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Friday, April 1, 2011

JOINT OPINION OPINION 720 ADVISORY COMMITTEE ON PROFESSIONAL ETHICS OPINION 46 COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW Paralegals and Non- Attor

-- N.J.L.J. -- (March --, 2011) Issued by ACPE and UPLC March 23, 2011

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW Appointed by the Supreme Court of New Jersey

JOINT OPINION OPINION 720

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

OPINION 46 COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW

Paralegals and Non- Attorney Legal Assistants Signing Correspondence; Modifying Opinion 611

The New Jersey State Bar Association submitted an inquiry to the Advisory Committee on Professional Ethics (ACPE) by forwarding a request of its Paralegal Committee seeking reconsideration of ACPE Opinion 611, 121 N.J.L.J. 301 (February 18, 1988). Opinion 611 found that paralegals may not sign correspondence to clients, adverse attorneys, and courts, even when such correspondence is routine and non-substantive. As the inquiry concerns potential unauthorized practice of law, the ACPE requested the assistance of the Committee on the Unauthorized Practice of Law. In this Joint Opinion, the Committees modify Opinion 611 and find that the rules governing attorney ethics are not violated when paralegals sign routine, non- substantive correspondence to clients, adverse attorneys, or courts, provided an attorney is

supervising the paralegal and is aware of the exact nature of the correspondence, the paralegal’s identity and non-attorney status is noted, and the name of the responsible attorney is set forth in the correspondence.

Opinion 611 is grounded on concerns about potential unauthorized practice of law and appropriate professional conduct for attorneys. The Opinion found that a paralegal may sign documents on the letterhead of the firm that employs him or her when the document is confined to “the gathering [or dissemination] of factual information and documents including from governmental agencies (other than tribunals)” and the identity and non-lawyer status of the paralegal is set forth. The Committee reasoned that if a paralegal is permitted to sign correspondence to clients, attorneys, or courts, the paralegal may drift into the unauthorized practice of law. Limiting such correspondence to the responsible attorney “avoids the opportunity or temptation for the non-lawyer assistant to step over the line by rendering legal advice, for example in the interpretation of the meaning or effect of legal documents.” Id.

Moreover, the limitation forces the responsible attorney to “keep abreast of the matter by controlling important correspondence and so performing his essential function as the responsible attorney including his obligation of close supervision of the activities of the legal assistant.” Id. It “further emphasizes the notion that it is the attorney and not the legal assistant who is the responsible advisor or actor in the matter” and “tends to maintain direct contact between the attorney and his client, the attorney and his adversary, and the attorney and the tribunal so that there can be no question or excuse regarding the origin of or the responsibility for the subject matter of the correspondence.” Id.

This flat ban on paralegals signing certain broad categories of correspondence is a prophylactic measure that minimizes potential unauthorized practice of law by the paralegal. It also is a rule that probably is violated on a daily basis. Paralegals may regularly send, for

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example, a letter or email to a client asking about availability for an independent medical examination. This ministerial scheduling communication would not ordinarily be viewed as the practice of law and would not ordinarily trigger ethics concerns. It is, however, a violation of the current prohibition on all correspondence by a paralegal with a client, is banned by Opinion 611, and is therefore considered “unethical.”

Moreover, the current rule myopically focuses on the conduct of the paralegal instead of on the conduct of the attorney charged with supervising the paralegal. When the Supreme Court reviewed whether paralegals may operate independently, outside of a law firm, the Court maintained its gaze on the conduct of the supervising attorney. In re Opinion No. 24 of the Committee on the Unauthorized Practice of Law, 128 N.J. 114 (1992).

[T]he important inquiry is whether the paralegal, whether employed or retained, is working directly for the attorney, under that attorney’s supervision. Safeguards against the unauthorized practice of law exist through that supervision. . . . [A]n attorney who does not properly supervise a paralegal is in violation of the ethical Rules. Although fulfilling the ethical requirements of RPC 5.3 is primarily the attorney’s obligation and responsibility, a paralegal is not relieved from an independent obligation to refrain from illegal conduct and to work directly under the supervision of the attorney. A paralegal who recognizes that the attorney is not directly supervising his or her work or that such supervision is illusory . . . must understand that he or she is engaged in the unauthorized practice of law. . . . The key is supervision, and that supervision must occur regardless of whether the paralegal is employed by the attorney or retained by the attorney.

[Id. at 127.] In this Joint Opinion, the Committees likewise focus on the responsibility of attorneys to

supervise paralegals rather than on the temptations paralegals may face when signing correspondence. If the supervising attorney permits his or her paralegal to sign correspondence to clients, attorneys, or courts, the attorney must be aware of the exact nature of the correspondence and be satisfied that it is non-substantive and does not cross the line into the

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unauthorized practice of law. Paralegals also have the responsibility to ensure that their work is directly supervised by the responsible attorney and they are not engaging in the unauthorized practice of law.

The New Jersey State Bar Association Paralegal Committee suggested, in the inquiry, that a paralegal should not be permitted to sign correspondence that provides legal advice, negotiates a settlement or fee agreement, threatens legal action, or can be construed as a legal agreement or pleading. A person signing correspondence of this character clearly is engaging in the practice of law and such correspondence must be signed only by an attorney.

The Committee on Unauthorized Practice of Law has investigated grievances involving paralegals (and out-of-state attorneys) who signed correspondence seeking to negotiate a settlement, threatening legal action to collect a debt, taking positions on landlord-tenant issues such as eviction, drafting a contract of sale or other legal document, and soliciting legal business. The Committee has also investigated grievances where the paralegal has signed and even filed pleadings in immigration, divorce, and expungement actions. Each of these matters comprised the unauthorized practice of law. Signing correspondence that interprets the meaning or effect of legal documents also is the practice of law. Under no circumstances may a paralegal sign such documents or correspondence, even if the paralegal is directly supervised by an attorney.

At the other end of the spectrum is routine, non-substantive correspondence, such as letters (or emails) to a client inquiring about availability for a meeting and letters to adverse attorneys merely transmitting an underlying document such as a deposition transcript. Such correspondence does not reflect the practice of law.

Much correspondence to clients and adverse attorneys will fall between these two poles. It can be difficult to determine whether a communication provides legal advice. The supervising

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attorney must be aware of the exact nature of the correspondence and make the determination whether it is routine and non-substantive and, therefore, may be signed by the paralegal.

The Committees note that correspondence sent by electronic means, such as by email, is governed by the same principles as correspondence sent in paper form. The person who is considered to have “signed” an email generally is viewed as the person who “sends” the email. Hence, an email interpreting the meaning or effect of a legal document, for example, must be sent from the email account of the attorney and not the paralegal.

The Committees agree with the suggestion of the New Jersey State Bar Association Paralegal Committee that all correspondence to clients and adverse attorneys signed by, or sent from the email account of, a paralegal must include the name of the responsible attorney as the person to whom questions or comments should be directed. The Committees add that such correspondence must also reflect the identity and non-attorney status of the paralegal.

The prohibition in Opinion 611 also was supported by concerns about appropriate professional conduct and the erosion of professionalism that may occur when busy attorneys overly rely on non-lawyer assistants. The Opinion noted that prohibiting paralegals from signing such correspondence requires the responsible attorney to control important correspondence, emphasizes that the attorney, not the paralegal, is the responsible advisor, and maintains direct contact between the attorney and his or her client, adversary, and courts. The Committees agree that these are substantial concerns.

Correspondence to courts generally should be signed by attorneys and not paralegals. Similarly, electronic communications to a court should be submitted by the attorney, not the paralegal. It is the better practice for attorneys to sign all correspondence, especially correspondence to clients, adversaries, and courts but, with regard to routine, non-substantive

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correspondence, the Committees recognize that it is more a matter of style and respect than of ethics.

The caliber, training, and professionalism of paralegals have risen significantly but attorneys still have the ethical responsibility to directly supervise their paralegals and the professional duty to maintain appropriate contact with clients, adverse attorneys, and courts. Opinion 611 is hereby modified. The Committees find that the Rules of Professional Conduct do not prohibit paralegals from signing routine, non-substantive correspondence to clients, adverse attorneys, and courts, provided supervising attorneys are aware of the exact nature of the correspondence. As noted above, the correspondence must reflect the identity and non-attorney status of the paralegal and include the name of the responsible attorney in the matter.

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attached corrective amendment to Rule 4:26-5 of the Rules Governing the Courts of the State of New Jersey is adopted to be effective immediately.

SUPREME COURT OF NEW JERSEY

It is ORDERED that the attached corrective amendment to Rule 4:26-5 of the Rules Governing the Courts of the State of New Jersey is adopted to be effective immediately.

Dated: March 8, 2011

For the Court, /s/ Stuart Rabner Chief Justice

4:26-5. Unknown Defendants: In Rem Actions (a) ... no change

(b) Description of Unknown Defendants. When it shall appear by the affidavit of inquiry required by R. [4:4-5(c)] 4:4-5(a)(3) that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is married, or, if married, the given name of the wife of such male defendant or the surname and either the given name or initial thereof of the husband of such female defendant, or that the affiant has been unable to ascertain whether or not any person who is a proper party defendant is still the owner of the specific property or res or any interest therein, and has been unable to ascertain the names and residences of any of the person's successors in right, title and interest in the same, or that the affiant has been unable to ascertain whether or not such person is still alive, or if such person is known or believed to be dead, that the affiant has been unable, in either case, to ascertain the names and residences of such person's heirs, devisees or personal representatives or his, hers, their, or any of their, successors in right, title or interest in the property or res or interest therein, or of such of them as may be proper parties defendant in the action, any such person or unknown person or persons may be made a party defendant by such of the following designations as may be appropriate:

(1) As to any such male person and such wife, if he has any, by designating such male person by his proper given name and surname, as it appears of record or otherwise, and by designating such wife by the given name and surname of such male person, as it so appears, with "Mrs." prefixed thereto; or

(2) As to any such female person and such husband, if she has any, by designating such female person by her proper given name and surname, as it appears, of record or otherwise, and by designating such husband either

(i) By the name of such female, as it so appears, as "Mr. ..., husband of ..." using such surname of such female person in the first blank and such given name and such surname of such female person in the second blank; or

(ii) By the name "John Doe, husband of ..., said name of John Doe being fictitious," using the given name and surname of such female person in the blank; or

(3) As to any such person, whether such person is still alive or whether it is not known whether such person is alive or dead, or if such person is known or is believed to be dead, and as to any such person's unknown heirs, devisees or personal representatives or his, hers, their, or any of their successors in right, title and interest in such specific property or interest therein or such res, thus: "..., his or her heirs, devisees and personal representatives and his, hers, their, or any of their, successors in right, title and interest," using the name of such person in the blank.

(c) ... no change (d) ... no change (e) ... no change

Note: Source-R.R. 4:30-4(a)(b) (first sentence) (c)(d)(e); introductory paragraph and paragraphs (b), (c) and (d) amended July 13, 1994 to be effective September 1, 1994; paragraph (c) amended July 23, 2010 to be effective September 1, 2010; paragraph (b) amended March 8, 2011 to be effective immediately.