
The state statutes prohibiting non-lawyers from practicing law do not clearly define "practice of law." The Model Code (see below) defines it as any activity that calls for the exercise of professional judgment, which is defined as "the educated ability to relate the general body and philosophy of law to a specific legal problem of a client." (EC 3-5) The courts have struggled with the ambiguity of these definitions and have concluded that certain tasks are prohibited. Paralegals cannot, for example, appear in court to present cases or argue motions. They can, however, represent clients at certain administrative hearings, such as those at the Immigration and Naturalization Service, the Social Security Administration, the Interstate Commerce Commission, and the Patent Office.
They also cannot give legal advice, although what constitutes legal advice is not always clear. Generally speaking, any advice about how to achieve a particular legal result or how to resolve a specific legal problem is giving legal advice. In other words, paralegals can provide information of a factual nature but cannot offer information involving subjective judgments. They can respond to questions such as "What happens now that we have filed a complaint?" by talking about the timelines that must be adhered to, the court papers the defendant must file, the options available to the defendant, and so on. They are not permitted to respond to a question such as "What do you think our chances of prevailing in this lawsuit are?" other than suggesting that the individual contact the attorney assigned to the case. In small offices, in particular, paralegals are often tempted to walk the edge of law practice by clients who want them to give information, make projections, and discuss strategies. Clients turn to paralegals because they cannot get what they want from attorneys who are either unavailable or unwilling to speculate. But paralegals must resist the temptation to inappropriately advice clients, even when they are desperate for information.
Paralegals are not allowed to set fees or accept cases. The two are inextricably interrelated. Because only a lawyer can establish a lawyer-client relationship, only a lawyer can enter into a fee agreement with a client.
Other tasks paralegals can perform include contacting clients and individuals outside the office (as long as they identify their status as paralegals), relaying instructions, informing clients about the status of their case, and interacting with third parties on behalf of clients. They cannot, however, offer their opinions. In some states, paralegals can supervise the signing of wills, appear in court to answer calendar calls, and make routine motions in court.
Paralegals must always take great care in disclosing their non-attorney status so as to never mislead anyone to believe they are authorized to practice law. They must never misrepresent their status to other attorneys, government officials, the courts, or the general public. Paralegals must clearly reveal their non-attorney status on business cards and on correspondence.
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