Shadow Lawyering: Nonlawyer Practice Within Law Firms

Lawyers commonly associate with nonlawyers to assist in their performance of lawyering tasks. A lawyer cannot know with confidence, though, whether the delegation of some tasks to a nonlawyer colleague might result in her assisting in the unauthorized practice of law, because the state of the law and the commentary about nonlawyer practice is so confused and incoherent. Some respected authority within the profession tells the lawyer that she may only delegate preparatory matters and must prohibit the nonlawyer from discussing legal matters with clients, or negotiating on behalf of clients. Other authority suggests that the lawyer may delegate a wide array of tasks as long as the lawyer supervises the work of the nonlawyer and accepts responsibility for it. A good-faith lawyer reviewing the available commentary would find it difficult to achieve appropriate comfort with her delegation decisions. This uncertainty affects not only lawyers working with paralegals and law clerks, but firms hiring out of state lateral associates and partners, and law school clinical programs engaged in transactional work. This Article articulates aframeworkfor assessing delegation choices, aframework which seeks to be both coherent and sensible. The framework relies on insights about lawyeringjudgment and risk assessment, client informed consent, and unauthorizedpractice- of-law prophylaxis. Any delegation of work by a lawyer to a nonlawyer involves an exercise of the lawyer\u27s judgment about an appropriate balance of risk and efficiency, along with an eye toward the client\u27s informed choice about how to achieve the goals of the representation most efficiently. The prevailing unauthorizedpractice- of-law dogma prevents a client from seeking the most economical representation by only retaining a nonlawyer, but that dogma trusts lawyers to protect a client\u27s interests. With those considerations in place, this Article shows that the profession cannot, and in fact does not, deny the lawyer any categorical options in making delegation choices, except for those involving court appearances. Aside from sending a nonlawyer to court or to court-connected proceedings, a lawyer may responsibly delegate any of her lawyering activities to a nonlawyer associate, subject to the prevailing conceptions of competent representation and to the lawyer\u27s retainingu ltimate responsibilityf or the resulting work product andp erformance. Some commentary and some court opinions suggest a different answer to the questions addressed here, but those authorities do not withstand careful analysis. This Article shows that a more careful reading of the commentary and the court dicta supports the framework and the thesis offered here. Nonlawyers may not independently engage in activity that equates to the practice of law, if by independently we mean without supervision and oversight from a lawyer. That important and uncontroversial limitation, however, is the only categorical restriction on a lawyer\u27s discretion. A supervised nonlawyer may play a much more active and important role in a lawyer\u27s overall representation of her client than many have claimed. For the client, that is a very good result