I am a sole practitioner with a busy litigation practice who spends a lot of time out of the office at depositions and in court. I have always had my legal assistant sign pleadings and letters in my absence, but someone recently complained that this practice may constitute the unauthorized practice of law. What should I do?
Rule 5.5(a), W.R.P.C., prohibits a lawyer from assisting a non-licensed person in engaging in the unauthorized practice of law. Rule 5.3 imposes specific obligations on lawyers regarding supervision of non-lawyer assistants. Rule 5.3(c) provides, “[A] lawyer shall be responsible for conduct of [a non-lawyer assistant] that would be a violation of the Rules of Professional Conduct if engaged in by the lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”
There is nothing improper about a supervising lawyer directing a non-lawyer assistant to sign the supervising lawyer’s name to a letter or pleading. However, the practice in some offices is to have a non-lawyer assistant sign a pleading, “[Non-lawyer assistant] for [Lawyer].” This practice should be avoided because it risks creating the appearance that the non-lawyer assistant is engaged in the unauthorized practice of law. It may be a distinction without much of a difference, but it is a difference that should be observed by careful practitioners nonetheless.
Mark W. Gifford