By Vicki Voisin, ACP
Consider this scenario: You have been employed as a paralegal for the same attorney for several years. He happens to be out of town taking depositions.
A deadline looms…a document absolutely has to be filed with the Court by 5:00 o’clock. No problem, you think. Your boss is expected back in the office by 3:00 so that will allow plenty of time for him to review the final draft, sign it and for you to file it with the Clerk before closing time.
Then you get the dreaded call. The attorney has been held up and won’t be back in the office until the next morning. But what about the filing deadline? “No problem,” he says. “Go ahead and sign my name.”
What should you do?
A. Sign the document, make copies and rush to the Court House?
B. Remind your employer it’s unethical for you to sign his name to a pleading?
Do tell me you chose ‘B’! This is the correct answer…the ethical answer. Signing your employer’s name to the document constitutes the unauthorized practice of law. Only the attorney of record has the authority to sign a pleading. You cannot sign your employer’s name (or your own name) even at his direction. Here’s the reasoning behind this statement.
This issue is generally addressed in each state’s Court Rules. For instance, the Michigan Rules of Court at 2.114 state that every document of a party represented by an attorney shall be signed by at least one attorney of record. Similar language is found in the Nevada Rules of Court at Rule 11(a).
Let’s take this one step further by reviewing the Model Rules of Professional Conduct. ABA MRPC 5.5 deals with the unauthorized practice of law and states that an attorney shall not assist a person who is not a member of the bar in the performance of any activity that constitutes the unauthorized practice of law. Further MRPC 5.3 refers to an attorney’s responsibilities regarding nonlawyer assistants and states that an attorney shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by an attorney if the attorney orders or ratifies the conduct.
The ABA and many states have adopted Model Guidelines for the Utilization of Paralegals. These guidelines generally state that an attorney may ethically assign responsibility to a paralegal for the performance of tasks related to the representation of a client and the law firm’s delivery of legal services, commensurate with the experience and training of the paralegal and where the attorney directly supervises the paralegal and reviews the paralegal’s work product before it is communicated outside the law firm.
The following is a direct quote from the Comments attached to Guideline 2 of the Guidelines for the Utilization of Legal Assistants adopted by the Connecticut Bar Association: A legal assistant may not appear in court to plead, to try cases, to argue on behalf of another person, or to sign pleadings, except as expressly permitted by statute, court or administrative agency regulation. This does not, however, prohibit a legal assistant from signing documents as a witness or notary public, or in some other nonrepresentative capacity.
How can you ethically handle this situation? If there is more than one attorney in the firm, another attorney may sign on behalf of the absent attorney. If you work for a sole practitioner, it’s possible that the Clerk will allow you to file an original document with a faxed signature page. The document could then be sent by fax or e-mail to the attorney for his review. If it met with his approval, he could sign and fax back the signature page. You would file the page with the original signature as soon as it is available. Still, you may be out of luck if you’re filing a motion because often Clerks will only accept a motion bearing original signatures. In more and more instances, electronic filing is allowed. Still, the attorney must review the work product before it is filed.
Should your firm adopt the attitude that “no one will ever know” if you sign the attorney’s name to the document? The answer is NO! Please remember that there are sanctions for violations of the Court Rules. In addition, attorneys have a duty to supervise their employees and to be certain that their actions are ethical. Again, the duty to supervise includes the review of all documents before they leave the office.
Of course there is an exception! In 2006 the North Carolina Bar Association issued Ethics Opinion 13 stating that an attorney may allow a paralegal to sign his name to court documents so long as it does not violate any law and the attorney provides the appropriate level of supervision. This is to be done only under exigent circumstances when the attorney is not available and no other attorney in the firm is able to do so. Again, this is for emergency purposes only and applies only to paralegals working in North Carolina.
There are other instances where you should refuse to sign your name (or someone else’s) to a document. Be especially careful when you’re witnessing or notarizing someone’s signature. It’s unethical and illegal to sign as a witness to a signature unless you actually see the person sign. Further, you must be certain of the identity of the person signing the document. Is it really Jane Doe? Imagine your embarrassment (not to mention the legal ramifications) of having to tell a Judge, “Yes” that’s your signature as a witness to a wife’s signing a mortgage but “No” you did not actually see her sign it!
Another area where you should use caution is the signing of correspondence on behalf of your firm. You must be sure that any correspondence signed by you clearly identifies your status as a nonlawyer and covers only information or procedure. Providing legal advice is the responsibility of the attorney. If you sign a letter that contains legal advice, you will be committing the unauthorized practice of law.
Your challenge: Remember that signing a document is an important step in the legal process. Only an attorney may sign his or her name on a pleading. Only an attorney may sign correspondence that offers legal advice. Whenever you put your name on the dotted line as a witness or a notary, be sure you actually see the person sign the document and always be certain of his or her identity. Last, review your jurisdiction’s Court Rules, Model Rules of Professional Conduct, and (if available) the Guidelines for the Utilization of Paralegals/Legal Assistants to be sure that your actions always comply.
©2010 Vicki Voisin, Inc.
Do you want to use this article in your newsletter, ezine or Web site? You can so long as you include this entire blurb with it: Vicki Voisin, “The Paralegal Mentor”, delivers simple strategies for paralegals and other professionals to create success and satisfaction by achieving goals and determining the direction they will take their careers. Vicki spotlights resources, organizational tips, ethics issues, and other areas of continuing education to help paralegals and others reach their full potential. She publishes a weekly ezine titled Paralegal Strategies and co-hosts The Paralegal Voice, a monthly podcast produced by Legal Talk Network. More information is available at www.paralegalmentor.com