Opinion 90-5
(April 1990)

You have asked this committee for an opinion concerning whether or not a paralegal assistant can be authorized to send a demand letter, after the text of the letter has been approved by the attorney, in a matter in which liability is contested and no offers of settlement have been made by the Defendant.

Your inquiry arises in the context of the recent transmittal by telecopy of a demand letter sent by your paralegal assistant to an attorney in a pending action in which liability has been contested and the defendants have not admitted liability.

Your inquiry implicates Rule 5.3 of the Rules of Professional Conduct relative to the responsibilities of an attorney supervising non-lawyer assistants. The rule provides in pertinent part:

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

(a) A partner in a law firm should make reasonable efforts to ensure that the firm has measures in effect 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 non-lawyer should 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:

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

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

This rule requires that the lawyer give legal assistants proper instruction and supervision concerning the ethical aspects of their employment. In that regard, a copy of a brochure prepared by the Professional Responsibility Committee of the Philadelphia Bar Association entitled Professional Responsibility for Nonlawyers is enclosed. The Rule also provides that the supervising lawyer is responsible for the paralegal's work product. It must be noted that paralegals do not have legal training and are not subject to professional discipline in the same way as lawyers. Moreover, the lawyer must be mindful that he cannot aid a non-lawyer in the unauthorized practice of law. See Rule 5.5 of the Rules of Professional Conduct.

It is the opinion of the Committee that there is no ethical prohibition in the Rules which prevents paralegals from engaging in a variety of functions, including the drafting of demand letters as long as the attorney supervising has reviewed the work product for accuracy and completeness and the paralegal has identified his/herself as a paralegal. However, the Committee felt that while it is appropriate and helpful for your paralegal assistant to prepare a draft of a demand letter including the compilation of the facts and damages calculations used, judgments concerning the application of the law to the facts, especially in a case involving disputed liability which will be sent to an attorney as opposed to an insurance adjuster may require that you consider whether, for reasons other than ethics, it is in the best interests of your client for you to sign the letter rather than the paralegal.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.