Just as the American Bar Association provided a comprehensive outline of what paralegals can do, the organization also provided clear guidelines of what paralegals cannot do.
If a paralegal crosses the line into any tasks or capacities that they are not qualified for, the ABA has a term for that: the unauthorized practice of law. Because licensed attorneys are responsible for a paralegal’s work, they can be sanctioned by their state bar association for the paralegal’s actions, so it is to their benefit to closely monitor what type of work a paralegal is performing, and the manner in which she is performing it.
Paralegals cannot establish the attorney/client relationship, i.e. take a case. Paralegals may interview potential clients, gather information regarding a potential case, and can even prepare a retainer agreement for the client’s signature, but they cannot decide whether or not to take a particular case – that is the attorney’s responsibility. That is not to say that attorneys don’t sometimes ask their paralegal’s opinion regarding the viability of a case; they do, but the decision about whether or not to represent an individual is theirs alone.
Paralegals are also not allowed to set the amount of a fee to be charged for legal services; represent clients in court; provide legal advice and opinions (although they can relay information given to them by their supervising attorneys); hold themselves out as attorneys; or make unsupervised legal judgments.
One of the responsibilities of a lawyer that is universally considered to be exclusive to licensed attorneys is the representation of a client in court proceedings, since appearing in court on a client’s behalf requires the highest use of an attorney’s professional judgment and skills. But as with most matters of law, an exception does exist – the right of self-representation in federal courts is guaranteed by statute.
However, this right to self-representation does not include the right to be represented by a non-lawyer such as a paralegal.
It is also a well-accepted principle that paralegals may not conduct depositions, or even ask questions during a deposition even when an attorney approved the questions or while supervised by an attorney. However, paralegals have the right to attend depositions with their supervising attorneys and also assist them at trial. Because the majority of paralegals work in the litigation area of law, they find themselves involved in all phases of the litigation process, including legal research, drafting of pleadings and motions through the discovery process, trial preparation, settlement, and post-judgment matters.
Paralegals are prohibited from giving legal advice to clients. Giving legal advice may be defined as directing a client how to proceed in a matter that has legal consequences, and/or explaining to a client his or her legal rights and responsibilities. During the course of their employment, paralegals have frequent contact with clients, a situation which sometimes opens the door to potential conflicts. It is not unusual for a client to develop a strong relationship with the paralegal that is assisting an attorney on their case, and also for the client to at times ask questions of the paralegal which in order to answer, would require the paralegal to give legal advice. To make matters worse, the paralegal often knows the answer! In order to avoid the authorized practice of law, a paralegal should always run these questions by their supervising attorney first before relaying any information to the client.
The prohibition against paralegals giving legal advice has also been the basis of challenges to “do-it-yourself” legal kits (like divorce kits or “boiler-plate” legal forms), typing services, and independent paralegals. The general consensus regarding legal kits is that they do not constitute the unauthorized practice of law unless they are accompanied by personalized assistance from a non-lawyer such as a paralegal. Likewise, the same holds true for typing services, unless the typist tells the client which forms to fill out, or helps them decide how or what to fill out.