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Directions: Be sure to save an electronic copy of your answer before submitting it to Ashworth College for grading. Unless otherwise stated, answer in complete sentences, and be sure to use correct English, spelling and grammar. Sources must be cited in APA format. Your response should be at least four (4) double-spaced pages; refer to the “Assignment Format” page located on the Course Home page for specific format requirements.To increase your knowledge of law office management, please read Doe v. Condon, 532 S.E.2d 879, 341 S.C. 22 (S.C. 2000) found on pages 451-455 of your textbook, and then answer the following questions:According to the South Carolina court, what role should a paralegal play? Provide the case reference cited within Doe v. Condon to support your answer.Which ethical rules did (or might) the attorney have violated?You know that attorneys are prohibited from fee-sharing with non-attorneys, but what are the reasons for implementing such ethical rules?Discuss the reasoning behind the South Carolina court’s decision that the paralegal had engaged in the unauthorized practice of law (UPL).
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Petitioner sought to have the Court accept this matter in its original jurisdiction to determine whether
certain tasks performed by a non-attorney employee in a law firm constitute the unauthorized practice
of law. Specifically, petitioner asks (1) whether it is the unauthorized practice of law for a paralegal
employed by an attorney to conduct informational seminars for the general public on wills and trusts
without the attorney being present; (2) whether it is the unauthorized practice of law for a paralegal
employed by an attorney to meet with clients privately at the attorney’s office, answer general questions
about wills and trusts, and gather basic information from clients; and (3) whether a paralegal can receive
compensation from the paralegal’s law firm/employer through a profit-sharing arrangement based upon
the volume and type of cases the paralegal handles. The Office of the Attorney General filed a return
opposing the petition for original jurisdiction.
The Court invoked its original jurisdiction to determine whether the paralegal’s activities constituted the
unauthor- ized practice of law, and, pursuant to S.C.Code Ann. § 14-3- 340 (1976), John W. Kittredge was
appointed as referee to make findings of fact and conclusions of law concerning this matter. A hearing
was held and the referee issued proposed findings and recommendations.
[1] [2] We adopt the referee’s findings and recommenda- tions attached to this opinion and hold that a
non-lawyer employee conducting unsupervised legal presentations for the public and answering legal
questions for the public or for clients of the attorney/employer engages in the unau- thorized practice of
law. See State v. Despain, 319 S.C. 317, 460 S.E.2d 576 (1995). We further hold that a proposed fee
arrangement which compensates non-lawyer employees based upon the number and volume of cases
the non-law- yer employee handles for an attorney violates the ethical rules against fee splitting with
non-lawyer employees. Rule 5.4 of the Rules of Professional Conduct, Rule 407, SCACR.
PROPOSED FINDINGS AND RECOMMENDATIONS OF THE REFEREE
This is a declaratory judgment action in the Supreme Court’s original jurisdiction. The Court referred this
matter
to me as Referee. Petitioner, a paralegal, has submitted a gen- eralized list of tasks he wishes to perform
and has inquired whether performing them constitutes the unauthorized practice of law. Petitioner also
seeks a determination of the propriety of his proposed fee-splitting arrangement with his attorneyemployer. Despite my repeated offers for an evi- dentiary hearing, neither party requested a hearing.
The record before me is sufficient to address and resolve whether the activities in question constitute
the unauthorized prac- tice of law.
I find that a paralegal conducting unsupervised legal pre- sentations for the public and answering legal
questions from the audience engages in the unauthorized practice of law. Further, I find that a paralegal
meeting individually with clients to answer estate-planning questions engages in the unauthorized
practice of law. Finally, I find the proposed fee arrangement is improper and violates the ethical
prohibition against fee splitting.
BACKGROUND
*2 Petitioner submitted the following questions to the Court:
(1) Is it the unauthorized practice of law for a para- legal employed by an attorney to conduct
educational seminars for the general public, to disseminate general information about wills and trusts,
including spe- cifically a fair and balanced emphasis on living trusts, including answering general
questions, without the attorney being present at the seminar as long as the seminar is sponsored by the
attorney’s law firm and the attorney has reviewed and approved the format, mate- rials, and
presentation to be made for content, truth- fulness, and fairness?
(2) Is it the unauthorized practice of law for a paralegal employed by an attorney to meet with clients
privately in the law office for the purpose of answering general questions about wills, trusts, including
specifically liv- ing trusts, and estate planning in general, and to gather basic information from said
clients for such purposes as long as it is done under the attorney’s direction, and the clients have a
follow-up interview and meeting with the attorney who would have primary responsibil- ity for legal
decisions?
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