16-18-34.3. Ethical considerations. The proper use of assistants who are not licensed attorneys significantly increases the ability of attorneys to provide quality professional services to the public at reasonable cost. An attorney cannot, however, delegate his or her ethical proscriptions by claiming that the violation was that of an employee. Thus, in order to secure compliance with the Rules of Professional Conduct more specifically as stated in chapter 16-18, the following ethical guidelines are applicable to the attorney's use of nonlicensed assistants:
(1) An attorney shall ascertain the assistant's abilities, limitations, and training, and must limit the assistant's duties and responsibilities to those that can be competently performed in view of those abilities, limitations, and training.
(2) An attorney shall educate and train assistants with respect to the ethical standards which apply to the attorney.
(3) An attorney is responsible for monitoring and supervising the work of assistants in order to assure that the services rendered by the assistant are performed competently and in a professional manner.
(4) An attorney is responsible for assuring that the assistant does not engage in the unauthorized practice of law.
(5) An attorney is responsible for the improper behavior or activities of assistants and must take appropriate action to prevent recurrence of improper behavior or activities.
(6) Assistants who deal directly with an attorney's clients must be identified to those clients as nonlawyers, and the attorney is responsible for obtaining the understanding of the clients with respect to the rule of and the limitations which apply to those assistants.
(7) A legal assistant should understand the Rules of Professional Conduct and these rules in order to avoid any action which would involve the attorney in a violation of chapter 16-18, or give the appearance of professional impropriety.
(8) An attorney takes reasonable measures to insure that all client confidences are preserved by a legal assistant.
(9) An attorney takes reasonable measures to prevent conflicts of interest resulting from a legal assistant's other employment or interest insofar as such other employment or interest would present a conflict of interest if it were that of the attorney.
(10) An attorney may include a charge for the work performed by a legal assistant in setting a charge for legal services.
(11) An attorney may not split legal fees with a legal assistant nor pay a legal assistant for the referral of legal business. An attorney may compensate a legal assistant based on the quantity and quality of the legal assistant's work and the value of that work to a law practice, but the legal assistant's compensation may not be, by advance agreement, contingent upon the profitability of the attorney's practice.
The violation of the ethical guidelines of this section by a paralegal or the supervising attorney shall be grounds for discipline of the supervising attorney under chapter 16-19.
Source: Supreme Court Rule 97-25.
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