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Department of Public Advocacy : Department of Public Advocacy Confidentiality? A Good Thing Unauthorized Practice of Law? A Bad Thing If you are watching the recorded version of this session, please advance slides until you hear the session start

Slide 2 : Unauthorized Practice of Law

We will look at: : We will look at: Ky Rules of Professional Conduct Ky Supreme Court Rules Kentucky Penal Code KBA Opinions Caselaw DPA Policy

DPA Policy : DPA Policy

DPA Policy 14.02 : DPA Policy 14.02 A nonlawyer assistant shall not engage in the unauthorized practice of law. Failure to adhere to this policy by any DPA employee could result in discipline by DPA pursuant to KRS Chapter 18A and its regulations.

True or False? : True or False? If a lawyer allows a non-lawyer assistant to handle a case without adequate supervision, the lawyer is subject to discipline by the Kentucky Bar Association.

TRUE : TRUE as decided in KBA v. Richards, 786 S.W.2d 877 (Ky. 1990) where the lawyer was suspended for 1 year.

True or False? : True or False? I can go to jail if I practice law without a license.

TRUE : TRUE as set out in KRS 524.130. It is a class B misdemeanor to engage in the practice of law without a license.

Kentucky Supreme Court Rule 3.020 : Kentucky Supreme Court Rule 3.020 The “practice of the law” is any ______ rendered involving legal _____ or legal ________ whether it is done through ____________, ______ or ______ in or out of court. Service advice knowledge Representation counsel advice

True or False? : True or False? A non-lawyer cannot advise a client about a legal matter.

FALSE : FALSE A non-lawyer assistant can do this IF the client understands that the non-lawyer assistant is not an attorney and a) the lawyer supervises the non-lawyer assistant in the performance of his/her duties, and b) the lawyer remains fully responsible for the representation of the client.

True or False? : True or False? A non-lawyer assistant can represent a person in a proceeding (e.g., administrative hearing, bail hearing) if an attorney is present and supervises the non-lawyer assistant

FALSE : FALSE Kentucky Supreme Court Rule 3.700, Provisions relating to paralegals, Sub-rule 2D The non-lawyer assistant shall not question witnesses, parties or other persons appearing in any legal or administrative action including depositions, trials and hearings unless a court rule or decision specifically allows that. See also DPA Policy 14.02

True or False? : True or False? A non-lawyer assistant can help a client fill out legal forms if the non-lawyer assistant has an attorney review the form before it is signed by the client.

TRUE : TRUE as authorized by: Kentucky SCR 3.700, Provisions relating to paralegals, Sub-rule 2 Turner v. KBA, 980 S.W.2d 560 (Ky. 1998).

True or False? : True or False? A non-lawyer assistant who is called by a client at 5:15 p.m. on a Friday when all lawyers in the office have gone home can call a judge and ask the judge to let the client out on bail.

FALSE : FALSE Kentucky SCR 3.700, Provisions relating to paralegals, Sub-rule 2 D: a non-lawyer assistant cannot appear in any legal action.

True or False? : True or False? A non-lawyer assistant does not have to keep confidential information a client tells the non-lawyer assistant on the phone.

FALSE : FALSE A non-lawyer assistant has the same duty of confidentiality as the supervising attorney

True or False? : True or False? A lawyer having direct supervisory authority over the non-lawyer assistant is responsible for ensuring the non-lawyer assistant’s conduct is compatible with the professional obligations of the lawyer.

TRUE : TRUE Kentucky Rule of Professional Conduct 5.3.

True or False? : True or False? The lawyer has the responsibility to instruct a non-lawyer assistant to preserve confidences and secrets of a client.

TRUE : TRUE The supervising lawyer has an affirmative duty to instruct the non-lawyer to keep confidences and to exercise care that the non-lawyer does so Kentucky SCR 3.700, Provisions relating to paralegals, Sub-rule 4.

True or False? : True or False? If a client tells a secret to a non-lawyer assistant and on the condition that it not be repeated to the lawyer, the non-lawyer assistant cannot repeat it to the lawyer.

FALSE : FALSE The client is being represented by the lawyer, not the non-lawyer assistant. A practical way to deal with this difficult situation is to stop the client and say, “I am assisting the lawyer so everything you tell me I must tell the lawyer”

DPA Policy 14.02(V)(B) : DPA Policy 14.02(V)(B) A nonlawyer assistant must keep confidential information a client tells the nonlawyer assistant except the nonlawyer assistant must insure that the lawyer representing the client is informed of the information.

True or False? : True or False? If a lawyer does not know that a non-lawyer assistant working for her is engaging in the unauthorized practice of the law but neglects to find that out, the lawyer is not subject to KBA discipline.

FALSE : FALSE In KBA v. Tiller, 641 S.W.2d 421, 422 (Ky. 1982) the Court imposed a 6 month suspension on an attorney, holding that violation of the Rule did not require “knowledge on the part of the participating lawyer but only a course of neglectful conduct. . . .”

True or False? : True or False? Non-lawyers can teach legal seminars and answer questions about the law.

TRUE : TRUE However, non-lawyers must refrain from giving individualized advice that would call for legal conclusions.

True or False? : True or False? A non-lawyer can interpret and analyze the law when a client asks

FALSE : FALSE Unless a non-lawyer is acting as a conduit for the attorney, the non-lawyer cannot apply the facts of a specific case to the law and draw legal conclusions for the client. Turner v. KBA, 980 S.W.2d 560, 564 (Ky. 1998).

Fundamental Qualification : Fundamental Qualification Non-lawyer must work under supervision and direction of licensed lawyer

Limits of Non-lawyer Practice : Limits of Non-lawyer Practice Not a lawyer Cannot do everything a lawyer can do Cannot give legal advice unless acting as conduit for lawyer Can work under direction of lawyer Lawyer delegates functions Lawyer must supervise Lawyer retains responsibility

Suggested Language for Non-lawyers : Suggested Language for Non-lawyers I am not a lawyer But it is my understanding that. . . Generally, the law is. . ., but factors can change how the law works in a particular case. . . You need to talk to your lawyer about that… I cannot answer that, but I will tell your attorney you asked the question Your lawyer discussed the facts of your specific case with me and asked me to tell you. . .

Recap : Recap A non-lawyer assistant can give legal advice when: a) b) and c) the client understands that the non-lawyer assistant is not an attorney, the lawyer supervises the non-lawyer assistant in the performance of her duties, the lawyer remains fully responsible for the representation of the client.

Slide 39 : Any Questions?

Slide 40 : Thanks for your attention! Feel free to call or email Damon Preston with questions or concerns.