Cowie on Paralegals in Texas

Rob Cowie < cowie_rob@hotmail.com > is a recent graduate of Texas Tech University School of Law who works as a law clerk for Philip Wischkaemper at TCDLA. prepared this brief synopsis memo.  Millard Farmer accepts responsibility for its content and the light hearted designation that he assigned to the memo.

   The Texas Constitution has no requirements for paralegals or legal assistants. However, Texas statutes do contain some reference to these occupations. Additionally, paralegals and legal assistants are loosely governed by the code of ethics.1 The code of ethics, however, lacks clear statutory authority with regard to paralegals and legal assistants.2

Statutory requirements surrounding paralegals primarily fall into two categories:

1. work performed by paralegals3, and

2. reimbursement for paralegals.4

    Case law also addresses both of these statutory requirements for paralegals.5 No specific educational requirements exist for paralegals, and no organization currently certifies or licenses paralegals.6 Any work performed by paralegals or legal assistants must be performed under the supervision of an attorney.7 The American Bar Association does certify paralegal education programs.8

    While no requirements exist in Texas for reimbursement of paralegals or legal assistants, Missouri v. Jenkins provides some guidance. Here, a federal district court awarded plaintiffs attorneys’ fees that included paralegal fees in a 42 U.S.C. § 1988 action.9 Here, the district court awarded, and the U.S. Supreme Court eventually affirmed, the payment of both attorneys’ fees and paralegal fees that were based on current market rates for those services. These fees could be based on “ those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.”10 Further, the Jenkins court concluded that attorneys were not required to separately bill for work performed by paralegals and that the fee charged for paralegal work by the attorney could go beyond the attorney’s actual cost in providing those paralegal services.11   These fees and billing practices must, however, confirm with current, local practices. The Court, in fact, encouraged the use of paralegals in large actions when those paralegals were used to primarily perform services that would otherwise require an attorney. In doing so, paralegal use by the attorney helped to lower the total fee.12 While not stating that paralegals must be licensed, certified or regulated in any manner other than by a supervising attorney, the Jenkins court implies that current market rates govern paralegal compensation.

    The use of paralegals, carefully supervised and frequently trained by lawyers, has emerged as a viable and necessary way for lawyers to efficiently deal with the complexity of today’s legal problems. Paralegals, just as lawyers, need to frequently upgrade their skills. The key to the effective, efficient and productive use of paralegals, without question, is the careful and constant supervision of the paralegals by attorneys familiar with both the paralegal’s skills and the maters that the paralegal is assisting the lawyer.

The final words about paralegals is a warning that the any lawyer using a paralegal has the responsibility to carefully and consistently identify the paralegal as such and never permit a paralegal to act, or fail to act, in any manner that would lead anyone to believe that the paralegal is a lawyer. While many tasks may and should be delegated to a paralegal in an economically efficient law practice, at the end of the day, it is the lawyer who is responsible under all test of ethical and professional liability for the work product of the paralegal.