Ezel / Ethics Opinions / NYSBA
NYSBA December 16, 2015

Can a lawyer bill clients for 'paralegal' time when the paralegal is not certified or program-trained?

Short answer: Yes. The opinion concludes that because New York does not require paralegals to be certified, the title 'paralegal' does not imply certification, so it is not deceptive to use it for an uncertified legal assistant, and the lawyer may bill for that person's time per the engagement letter.

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This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer disclosed in the retainer agreement that clients would be billed for work performed by a "paralegal." The person doing that work was a legal assistant who had not graduated from a paralegal program and was not certified by any certifying body. The inquiry asked whether the lawyer may bill clients for that work (¶¶ 1-2).

The committee framed the question as whether using the title "paralegal" for such a person is deceptive under Rule 8.4(c) (¶ 3). It noted that the Rules do not define "paralegal" and use the term only once (in a Rule 1.10 comment). Drawing on N.Y. State 255 (1972), it described a paralegal as a layperson employed to perform office functions for which legal training and bar admission are not necessary, and observed that the Rules impose no particular training or experience requirement, citing the ABA's Model Guidelines and definition of "legal assistant"/"paralegal" (¶¶ 4-5). The committee said its answer applies equally to "legal assistants" and similar titles, because the Rules emphasize the role the person plays over the label (¶ 5).

On the lawyer's obligations, the committee pointed to Rule 5.3(a), which requires that nonlawyer work be adequately supervised, with the degree of supervision reasonable under the circumstances (¶ 6). On billing, it cited Rule 1.5(a)'s bar on excessive fees and noted that nothing in the Rules prohibits charging for paralegal time, referencing the ABA Guidelines and Missouri v. Jenkins (¶¶ 7-8). On certification, it observed that New York, like most states, does not require paralegal certification, so the title does not imply certification; using it for an uncertified assistant is not deceptive, consistent with N.Y. State 640 (1992) that "paralegal" gives adequate notice of nonlawyer status (¶ 9). It concluded the use of the title is not deceptive and billing is proper per the engagement letter (¶ 10).

In practice

Under the New York rules as they stood at the time of the opinion, the committee held that the deceptiveness analysis under Rule 8.4(c) turns on what the public understands the title to convey; because New York does not require certification, "paralegal" does not represent certification, and so its use for an uncertified assistant is not misleading. The committee tied billing to Rule 1.5(a)'s excessive-fee limit and to the disclosure made in the engagement letter, and reaffirmed the Rule 5.3(a) supervision duty for nonlawyer work.

Common questions

Q: Can a lawyer call an uncertified assistant a "paralegal" when billing?

A: Yes. The opinion concludes that because New York does not require certification, the title does not imply certification, so its use for an uncertified assistant is not deceptive under Rule 8.4(c) (¶ 9).

Q: Can clients be charged for paralegal time?

A: Yes. The committee concluded nothing in the Rules prohibits charging for paralegal time, subject to Rule 1.5(a)'s bar on excessive fees and the disclosure in the engagement letter (¶¶ 7-8, 10).

Q: Does the lawyer have to supervise the paralegal?

A: Yes. Rule 5.3(a) requires adequate supervision of nonlawyer work, to a degree that is reasonable given the person's experience and the matter (¶ 6).

Background and rules framework

The opinion interprets New York Rules 8.4(c) (deceit and misrepresentation), 1.5(a) and (b) (fees; excessive-fee limit and disclosure), 5.3(a) (supervision of nonlawyers), and 5.4 (professional independence), corresponding to ABA Model Rules 8.4, 1.5, 5.3, and 5.4. The deceptiveness analysis keys on the absence of any New York certification requirement for paralegals.

Citations and references

Rules of Professional Conduct:

  • MR 8.4 / NY RPC 8.4(c) (dishonesty, deceit, misrepresentation)
  • MR 1.5 / NY RPC 1.5(a), (b) (excessive fees; disclosure)
  • MR 5.3 / NY RPC 5.3(a) (supervision of nonlawyer assistants)

Cases:

  • Missouri v. Jenkins, 491 U.S. 274 (1989), fee awards may account for paralegal work

Other opinions cited:

  • N.Y. State 255 (1972): definition of "paralegal"
  • N.Y. State 640 (1992): the term "paralegal" gives adequate notice of nonlawyer status
  • ABA Model Guidelines for the Utilization of Paralegal Services (2004)

See also

Source

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