Can a lawyer use a paralegal for criminal investigative work, including interviewing prisoners outside normal business hours?

Plain-English summary

The inquiry concerned the use of paralegal personnel for criminal investigative work. The Committee noted that the Code of Professional Responsibility, as adopted by the Supreme Court of Appeals, does not specifically define or limit the permitted activities of nonlegal personnel, and quoted EC 3-6, which makes delegation to clerks, secretaries, and other lay persons proper if the lawyer maintains a direct relationship with the client, supervises the delegated work, and has complete professional responsibility for the work product.

Although the Code does not limit nonlegal personnel's activities, the Committee set out guidelines for delegation extending beyond merely ministerial duties. Delegation is proper (1) for investigation of a factual situation or consultation with a client to obtain factual information, legal research, or the preparation or selection of legal instruments, provided the work assists the employer-lawyer in carrying the matter to a completed service through the lawyer's examination and approval or other participation, so that the work loses its separate identity and merges into the lawyer's service; (2) where the lawyer maintains an initial, continuing, and direct relationship with the client, directly supervises the work, and assumes complete professional responsibility for it, not merely in form; (3) so long as the lawyer does not permit lay employees to counsel clients on legal matters, appear in court or administrative proceedings, or otherwise engage in the unauthorized practice of law, recognizing that the lawyer should be present when a client executes a will, contract, deed, or other legal document; (4) provided the paralegal discloses his status when communicating with persons outside the office, including other lawyers (at the outset of oral communications, and clearly when signing letters on firm stationery); and (5) with the supervising lawyer exercising care to ensure lay employees comply with the Code, including the obligation under DR 4-101(D) and EC 4-2 to preserve and not use client confidences and secrets.

On the specific question, the Committee concluded that a paralegal may interview prisoners at any time the lawyer himself could. It noted the county sheriff or jailer may impose restrictions on interviewing prisoners, but that the Committee knew of no reason otherwise to limit the time when nonlegal personnel may conduct investigative work.

Currency note

This opinion was issued in 1976, before West Virginia replaced its Code of Professional Responsibility with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. The supervision of nonlawyer assistants is now governed by the Rules of Professional Conduct (the successor to EC 3-6). Treat this page as historical context, not current guidance. Verify against current rules before relying on any rule or requirement mentioned here.

Common questions

Q: Can a lawyer have a paralegal do criminal investigative work?

A: Yes, under supervision. The opinion concluded that investigation of a factual situation may be delegated to nonlawyer staff, provided the lawyer maintains a direct relationship with the client, supervises the work, and keeps complete professional responsibility for the work product.

Q: Is a paralegal limited to interviewing prisoners during normal working hours?

A: No. The opinion stated that a paralegal may interview prisoners at any time the lawyer himself could, though the county sheriff or jailer may impose restrictions on interviewing prisoners.

Q: What can a paralegal not do?

A: The opinion stated that the lawyer must not permit lay employees to counsel clients about legal matters, appear in any court or administrative proceeding, or otherwise engage in the unauthorized practice of law.

Q: Does the paralegal have to identify himself as a non-lawyer?

A: Yes. The opinion required that, when communicating with persons outside the office (including other lawyers), the paralegal disclose his status in a way that avoids confusion, at the outset of oral communications, and clearly indicate non-lawyer status when signing letters on firm stationery.

Background and rules framework

The opinion applied EC 3-6 of the West Virginia Code of Professional Responsibility (delegation of tasks to nonlawyer staff is proper with a direct client relationship, supervision, and complete professional responsibility for the work product), together with DR 4-101(D) and EC 4-2 (the lawyer's duty to ensure lay employees preserve and do not use client confidences and secrets). The analysis turns on supervision and on keeping nonlawyer staff out of activities that constitute the practice of law.

Citations and references

Rules of Professional Conduct (as cited):

• EC 3-6 (proper delegation of tasks to clerks, secretaries, and other lay persons)
• DR 4-101(D) (the lawyer's duty regarding preservation of client confidences by employees)
• EC 4-2 (lay employees must preserve and refrain from using client confidences and secrets)

See also

• ABA Formal Op. 506: Responsibilities regarding nonlawyer assistants
• ABA Formal Op. 95-393: Client files to nonlawyer supervisors

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e2f3bf32e8514cbb3.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

LEGAL ETHICS INQUIRY 76-7

WEST VIRGINIA STATE BAR JOURNAL
Spring, 1977
Volume 3, Number 1

Reference is made to your letter in which you inquire as to the use of paralegal personnel for criminal investigative work. The Code of Professional Responsibility as adopted by the Supreme Court of Appeals does not specifically define or limit the permitted activities of nonlegal personnel. EC 3-6 of the Code of Professional Responsibility provides as follows:

A lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal services more economically and efficiently.

While the Code of Professional Responsibility does not specifically define or limit the permitted activities of nonlegal personnel, this Committee feels that the following guidelines should be followed. The delegation of tasks required in performance of legal services to his clients may be delegated by an attorney to clerks, secretaries, and other non-lawyer personnel whom he employs. Such delegation which extends beyond duties merely ministerial in nature would be proper under the following circumstances:

(1) If it is for the purposes of (a) investigation of a factual situation or consultation with a lawyer's client for the purpose, only, of obtaining factual information; or (b) legal research; or (c) preparation or selection of legal instruments and documents, provided, however, that in each such situation the delegated work will assist the employer-lawyer in carrying the matter to a completed service either through the lawyer's personal examination and approval thereof or by other additional participation by the lawyer. However, the delegated work must be such as it loses its separate identity and becomes the service or is merged in the service of the lawyer.

(2) The lawyer must maintain an initial continuing and direct relationship with his client, directly supervise the delegated work, and assume complete professional responsibility for the work product. This requirement must not be ignored by a lawyer or given superficial recognition.

(3) The lawyer shall not permit employed lay persons to counsel the lawyer's clients about legal matters, appear in any court or administrative proceeding, or otherwise engage in the unauthorized practice of law. A lawyer must recognize that he should be present when a client executes a will, contract, deed or other legal document to assure that it is executed in compliance with the law and to answer the client's questions. A lawyer has a continuing affirmative duty to preserve and enhance the public's confidence in the legal profession. This is best accomplished when the client has direct access to the lawyer for the purpose of asking for and receiving legal advice prior to or at the time the client takes any contemplated legal action.

(4) When communicating with persons outside the law office, including other lawyers, the paralegal must disclose his status as such. The disclosure must be made in a way that avoids confusion. With respect to oral communications, disclosure should be made at the outset of the conversation. It is permissible for lay office personnel to sign letters on the firm's stationery as long as the non-lawyer's status is clearly indicated.

(5) The supervising lawyer must exercise care to insure that his lay person employees comply with all applicable provisions of the Code of Professional Responsibility. This includes the obligation referred to in DR 4-101(D) and EC 4-2 to see that such employees preserve and refrain from using the confidences and secrets of the lawyer's clients.

You have asked specifically whether your paralegal employee is limited to seeing prisoners during reasonable working hours. Prisoners may be interviewed by a paralegal at any time that they might be interviewed by the lawyer himself. The county sheriff or jailer may impose some restrictions or limitations upon the interviewing of prisoners. However, the Committee knows of no reason to otherwise limit the time when nonlegal personnel may conduct investigative work.