What a Paralegal Can Prepare
Although the specific duties of paralegals vary from state to state, paralegals’ responsibilities generally entail working with attorneys in the law office and performing a wide range of substantive legal tasks. In the context of litigation, for example, paralegals can be authorized to answer interrogatories, file pleadings and discovery requests with the courts, review and summarize depositions, draft motions, and participate in trial preparation.
For non-litigation tasks, paralegals can draft contracts, prepare residential mortgages, participate in real estate closings and prepare patent applications. The American Bar Association has compiled a list of several examples showing the diversity of tasks that fall within the scope of a paralegal’s responsibilities . This list includes, but is not limited to:
Also, paralegals are authorized to perform many work product functions, including research, drafting and interviewing witnesses, which virtually unlimited in scope, as long as the paralegal acts under the supervision of, and at the direction of, the attorney.
To be clear, paralegals are not allowed to provide legal services directly to the public, except as permitted by law. Courts in most jurisdictions today largely take the position that, although paralegals may perform most tasks generally given to lawyers, they must operate under the supervision of an attorney and cannot work independently. Therefore, paralegals cannot give clients or potential clients legal advice, accept cases or set fees.
Drafting Legal Documents: What You Can and Can’t Do
In certain practice areas, the paralegal may draft pleadings and correspondence, prepare discovery documents and fact or witness chronologies, and initiate and update cases in document management systems. Among practice areas where paralegals may draft pleadings and correspondence are family law, real estate, wills and estates, and bankruptcy. Within these areas of law, most drafting tasks may be delegated to a paralegal when the attorney supervises the process and reviews and approves the final product. For example, pleadings may begin with a template that has been prepared by the attorney and then edited by the paralegal. A cover letter or notice may simply change the addressee and perhaps the addendum as each case is assigned to a different attorney. Preparation and maintenance of case chronologies, whether for fact witnesses, discovery, or trials, is often done by the paralegal who maintains the information in a form that has been approved by the supervising attorney. Accordingly, once the paralegal has determined what information is available, a chronology that is consistent with the attorney’s system can be prepared.
Written discovery requests and responses are often prepared by the paralegal who is delegated the responsibility by the attorney. The text of the discovery requests may vary little from case to case. Objections and responses, whether in written or electronic form, may have a small number of variables. The paralegal has the ability to proofread and revise these documents to insure that they have the correct format, that errors such as typographical and grammatical errors have been eliminated, and that the documents as prepared comply with the parameters established by the attorney.
Some drafting activities by paralegals are limited or restricted by law or licensing boards. For example, some states expressly prohibit paralegals from preparing wills, trusts, or powers of attorney, and the statute enacted by the Nevada Legislature expressly prohibits an employee from preparing a trust instrument. Others prohibit the preparation of the following; the limitation may be on the specific type of document, such as a will, or may be more broadly applicable: The limitations listed above are not universal. Some state laws contain exceptions that permit paralegals to prepare wills and other documents. The Arizona paralegal definition statute refers to "supervised and authorized by a licensed attorney," suggesting that paralegals may draft wills. In addition to the express prohibitions set forth by legislation, "in-house" licensing boards, such as those for patent and trademark attorneys and paralegals, may impose their own restrictions.
State Laws Regarding Paralegals’ Ability To Draft Legal Documents
The question of whether paralegals may be permitted to draft legal documents is not only subject to ethical consideration, but is also governed by specific statutory provisions that may vary from state to state. While most states have similar rules for attorneys, when it comes to paralegals and other non-attorney legal professionals, there are different statutes and rules in place. In California, the question of whether paralegals may draft documents is addressed by both the California Business and Professions Code and the California Rules of Court. Rule 14-301(a) states that attorneys must maintain direct supervisory authority over a paralegal. More specifically, this section states that an attorney must give a paralegal "direct supervision and control, including the retention of ultimate responsibility and authority over the legal services provided by the paralegal and any documents prepared by the paralegal for filing with a court or filing with an administrative agency."
Rule 14-301(b) states that attorneys may not divide a fee with a paralegal. However, absent a fee-splitting arrangement, it is permissible for a paralegal to draft legal documents and charge the attorney with the related fees. In some jurisdictions, state law expressly prohibits these fee-splitting arrangements; however, legality of paralegal charging attorney fees, while permissible under the California Rules does not remain uncommon. Other states do authorize the fee-splitting arrangements. For example, Rule 7-104(A)(2)(b) of the Nevada Rules of Professional Conduct states that "a lawyer may permit non-lawyer assistants to perform work in a legal matter that does not constitute the practice of law…(2) if the services of the non-lawyer are performed either: (b) Under a lawyer’s direct supervision." Further, according to Rule 7-104(A) of the Nevada Rules of Professional Conduct, lawyers and non-lawyers may work together as long as the "lawyer retains responsibility for the competent representation of the client…." In other words, lawyers may use paralegals to help prepare documents in Nevada.
In Texas, however, revisions to Rule 7.02 of the Texas Disciplinary Rules of Professional Conduct when they were amended in 1994 removed the language that specifically allowed assistants, such as paralegals and secretaries, to draft pleadings, motions, etc., so now, paralegals in Texas can no longer draft pleadings, motions, etc. for attorneys. As another example, Florida Bar Opinion 71-16 states if a paralegal drafts a document for a client "the lawyer has the duty to supervise the process." In this opinion, the Florida BAR noted that "although [the ABA Standing Committee on Ethics and Professional Responsibility] believed that the activity of preparing pleadings does not constitute the unauthorized practice of law, it nevertheless recommended that the lawyer be available at all times to sign the pleadings, supply missing information, determine the questions involved, and render legal advice to the nonlawyer client." Similarly, the South Dakota State Bar Ethics Opinions issued on October 14, 2008 stated that "a non-lawyer employed by the lawyer to assemble information necessary for preparation of a brief may do so under the supervision of the lawyer."
Remember, just because the ABA may allow a paralegal to draft a legal document, does not mean that your state will. Since the rules may change, stay up to date on the laws and rules in your state regarding the topic.
Ethics Considerations for Paralegals Drafting Legal Documents
While clients continue to expect more outputs and lower costs from their law firms, every piece of legal writing in any formal document must be consistent with the legal ethical rules for conduct. For paralegals who draft legal documents, understanding the ethical issues is critical.
An important role of all paralegals is in providing legal research, analysis, and writing. All documents that paralegals draft will now, or in the future, require lawyers to read and approve before they are used in any official manner as attorney work product. The American Bar Association Model Code of Professional Responsibility is a guide for legal ethics and is used by most states. Although some states have specific rules for paralegals, the general Code can serve for both lawyers and paralegals to use in formulating appropriate legal work by paralegals.
While the Code does not have specific rules for paralegals, lawyers are responsible for drafting and signing off on documents, being responsible for a paralegal’s work, and protecting the interests of clients whose matters are being handled. This means that lawyers need to maintain the ethical guidelines provided in the Code when overseeing a paralegal’s writing and reviewing paralegal’s work.
Paralegals must also protect confidentiality and conflicts of interests that affect a client’s matter. A paralegal should not represent a client in the same area of the law where the same area of the law has created an attorney-client relationship.
Supervision by a Lawyer is Necessary
To ensure compliance with legal and ethical standards, the legal profession mandates laws and rules of professional responsibility which state that paralegals must work under the supervision of an attorney when drafting legal documents. The extent of supervision is dependent upon the complexity of the legal issues involved and the experience of the paralegal. Rule 5.3 of the American Bar Association (ABA) Model Rules of Professional Conduct governs the responsibilities of lawyers with respect to non-lawyer assistants. The ABA’s comment to the rule states in relevant part that: "[a] lawyer may not . . . permit a non-lawyer assistant to displace the lawyer in rendering legal services. For example, a lawyer may not leave it to a non-lawyer assistant to evaluate the questions raised by a will that the lawyer knows to be a proper matter for attention by a lawyer, or to prepare a will, affidavit, trust, deed or other instrument where substantial legal judgment is involved . Lawyers are responsible for the conduct of non-lawyer assistants employed by the firm. . . . [T]he non-lawyer assistant’s work and the lawyer’s work must be role-related and complementary. For example, in preparing a legal brief, a non-lawyer may perform legal research and draft arguments; however, a non-lawyer may not independently render legal advice and the lawyer is ultimately responsible for its contents." Pursuant to the ABA’s comments to Rule 5.3, the need for attorney supervision is not limited to in-house paralegals. With respect to contract paralegals the comments state that "[a] lawyer may employ individuals, such as investigators and paralegals, to assist the lawyer in providing legal services." This means that using contract paralegals is permitted but the attorney must assume responsibility for legal work performed by the paralegal and the supervising attorney must ensure that the paralegal has the requisite education and skills to competently provide the services that are required.
Examples of Common Documents Paralegals Draft
Wills and codicils. Often a paralegal will be involved in drafting wills and codicils under the supervision of an attorney. Due to the sensitive nature of the information involved, a paralegal should always refer the client to an attorney if they ask any questions regarding the content of the document.
Contracts. Paralegals sometimes draft contracts and agreements that may cover a variety of matters. Such documents are typically reviewed by an attorney before being sent to a client for execution.
Legal documents. Lawyers often ask paralegals in large firms to prepare boilerplate legal documents such as affidavits, pleadings, discovery requests, disclosures, notices, orders and motions. Many of these documents are generated by a paralegal working with a lawyer in a specific practice group that utilizes the same types of documents on a regular basis. In some firms, paralegals have been authorized to develop templates for these documents that are stored electronically in the firm’s data system.
Correspondence. Paralegals often prepare legal correspondence to clients, defense counsel, witnesses, or the court. When attorneys prefer to send out formal correspondence, such as settlement demands, motions, or briefs, the paralegal may draft the text and then submit the letter for the attorney’s final review and signature.
How Technology Is Affecting Paralegal Drafting Tasks
Technology has had an undeniable impact on the paralegal profession throughout the years. From dictation equipment to e-filing software, technological advancements have streamlined paralegals’ tasks and improved overall productivity.
With respect to legal drafting, technology freed paralegals from their manual typewriters. Electronic word processing software enabled paralegals to produce drafts more quickly and accurately. Since then, word processing programs have continued to advance, making it possible for paralegals to produce better and more complex documents in a shorter amount of time.
Today’s attorneys expect their paralegals to produce and manage large amounts of documentation with speed and accuracy. This is often accomplished with the help of software programs. For example, Paragraf, a document generation application, creates accurate, tailored first drafts by allowing paralegals to use firm templates and legal language tailored to specific practice areas and jurisdictions.
Because of these advancements, paralegals increasingly rely on technology to generate first draft documents . This allows paralegals to maximize their productivity—which is very important when it comes to meeting specific billable hour targets—and focus their attention on more challenging duties, such as law research, trial preparation, and practice area-specific substantive tasks.
Legal drafting software also helps organizations increase consistency and compliance across documents. This is important for paralegals because they are tasked with ensuring that attorneys maintain standards and comply with substantive and procedural requirements while drafting.
Today, technology is advancing at a rapid pace. Artificial intelligence (AI) tools are now being used to assist with drafting, accused of "robbing the legal profession of its professional heart and soul". But if we look at the numbers, just last year, the use of AI increased by 713% and the number of agreements drafted by artificial intelligence alone passed the one million mark.
As the legal industry continues to embrace technological developments, paralegals must recognize the crucial role that technology will play in their day-to-day tasks as they move forward.