No matter how hard we try, we just can’t be in two places at the same time. When you have two client matters pending on the same date and time, can you send your paralegal to cover one of those matters?
Consider the following scenario. Scroll all the way down for the answer.
Attorney Alan has a busy practice. His paralegal, Peter, is competent and efficient. Peter is the consummate professional who takes pride in what he does, and he is committed to helping Alan with whatever he needs. Attorney Alan had a pre-trial conference scheduled in civil court for Client X; and on the same date, he had a matter scheduled in criminal court for Client Y.
Knowing that paralegal Peter is competent and committed, Attorney Alan asked him to cover the matter in civil court. Peter covers the matter. Shortly thereafter, one of the lawyers in the civil matter discovers that Peter is not an attorney and considers whether to alert the judge. It is reported that Peter was well versed about the facts of the case and that he zealously represented Attorney Alan’s clients and achieved a good result.
Are there any potential ethical violations in this scenario?
- No, paralegal Peter performed competently and allowed Attorney Alan to be in two places at once.
- Yes, Attorney Alan should not have sent paralegal Peter to cover a pre-trial conference.
Take some time to consider your answer:
The correct answer is B.
The scenario is loosely based on the case of In re Lionel Lon Burns, No. 2017-B-2153 (Louisiana May 1, 2018). In Burns, the attorney had a pre-trial conference and a criminal matter scheduled for the same date and time. He sent his paralegal to cover the pre-trial conference, while he covered the criminal matter.
Although Burns claimed he told the paralegal to tell the parties he was ill and to seek a continuance, the paralegal did not advise any of the parties that Burns was ill or that he was a paralegal. All the parties and the judge believed he was an attorney especially since he was so prepared and well versed in the case.
Disciplinary charges were brought against Burns when it was discovered that the paralegal was not an attorney. Burns was charged with facilitating and assisting his paralegal in the unauthorized practice of law in violation of Rule 5.5(a); and with misrepresentations he made during the course of the disciplinary proceedings in violation of Rule 8.4(a).
He misrepresented to the disciplinary agency that he did not attend the pre-trial conference because he was sick when there was evidence that he participated in a criminal matter on the same date and time. Since he had prior discipline involving dishonesty, Burns was suspended for one year.
While it may have been obvious to most that you can’t send a non-lawyer to cover for you, this problem illustrates that the stress and pressure of trying to handle multiple client matters can lead to bad decisions. Be proactive and ask for continuances as soon as you are aware of the conflict well before the date the event is scheduled.
While this case is instructive and worth reading, always check the ethics rules and opinions in your jurisdiction.