Amicus Curiae Brief — Missouri v. Jenkins

VSP SINS VOUT, UL.

FILED

1) JAN 11 1989

No. 88-64 ~ JOSEPH aaah

In The

Supreme Court of the United States

October Term, 1988

+

STATE OF MISSOURI, et al.,

Petitioners,

vs.

KALIMA JENKINS, et al.,

Respondents.

+

On Writ Of Certiorari To

The United States Court Of Appeals

For The Eighth Circuit

+

BRIEF OF NATIONAL ASSOCIATION OF

LEGAL ASSISTANTS, INC., AS AMICUS CURIAE,

IN SUPPORT OF RESPONDENTS

+

Joun A. DeVautt, III

Counsel of Record

JANE A. LEsTER

Counsel

Bepe.t, Dittmar, DeVAULT

& Pitvans, P.A.

The Bedell Building

101 East Adams Street

Jacksonville, FL 32202

(904) 353-0211

For Amicus Curiae

TABLE OF CONTENTS

Page

PENT T TT TT TTT TTT TT TTT TT TTT TTT Te 1

INTEREST OF THE AMICUS CURIAE............. 1

SUMMARY OF ARGUMENT .................-005. 4

PEE eG Sccbecrevecusececessccccnssccoccese 5

The Work of Legal Assistants is Compensable at the

Market Rate as Part of A Reasonable Attorney’s

Fee Award Pursuant to 42 U.S.C. § 1988......... 5

A. Compensating prevailing parties for the work

performed by legal assistants on an hourly basis

at the market rate comports with accepted prac-

tice in the private marketplace and is thus con-

sistent with the purpose of 42 U.S.C. § 1988... 5

B. Compensating for the work of legal assistant

time on an hourly basis at the market rate pro-

motes the cost-effective delivery of legal services

and enhances the quality of legal services...... 10

C. The inclusion of compensation for legal assist-

ants in an attorney’s fee award does not offend

ethical and legal tenets prohibiting the

unauthorized practice of law................... 14

D. Courts scrutinize attorney’s fee applications to

assure the hourly rates of legal assistants and the

time spent and nature of the work performed by

legal assistants are all reasonable. ............. 18

E. Permitting recovery for work of legal assistants

promotes the availability of legal representation

to victims of civil rights violations............. 20

SEE DSc evcencscoceccesentvcccesceccecess 22

PPE Sw Snceseccnccceccnccccsccesscosecceceses 1A

ii

TABLE OF AUTHORITIES

Cases

Abrams v. Baylor College of Medicine, 805 F.2d 528

(Say Cin BGBED. . occ ccccccdbscoccsseseteasee 13

Allen v. United States Steel Corp., 665 F.2d 689 (Sth

Cin tints B BGGED .. co cccccccecccesesesnnne 9, 18

Alter Financial Corp. v. Citizens & Southern Interna-

tional Bank of New Orleans, 817 F.2d 349 (Sth

ey er y

Bagel Inn, Inc. v. All Star Dairies, 539 F.Supp.107

TPES. BOGE 2... cc ccccccccccesessensenenneneneee 17

Beamon v. City of Ridgeland, Mississippi, 666

FSupp.937 (S.D.Miss.1987) .............-.-. 11, 17, 19

Blanchard v. Bergeron, 831 F.2d 563 (Sth Cir.1987),

cert. granted, 108 S.Ct.2869 (June 27, 1988) (No.

BPD . cc cccccccccccocescesssuneeeneenne 1

Blum v. Stenson, 465 U.S.886 (1984)................... 6

Brewer v. Southern Union Co., 607 FSupp.1511

MrCole. BGBE...ccccccescecccseessennnnene 11

Brinker v. Guiffrida, 798 F.2d 661 (3d Cir.1986) ........ 8

Cameo Convalescent Center, Inc. v. Senn, 738 F.2d

836 (7th Cir.1984), cert. denied, 469 U.S.1106

COREE oc ccccccescecececescessssnnn 8, 10

a for a Progressive Bronx v. Black, 631

upp.S75 G.D.N.Y.19B6) .....cccccscccccccccccces 13

Chandler v. Secretary of Dept. of Health & Human

Services, 792 Fd. FO Ge Gane cccctécaneunsenee “

Chapman v. Pacific Telephone & Telegraph Co., 456

FSupp.77 (N.D.Cal.1978)...........60eeeees 10, 11, 12

Citizen's Council of Delaware County v. Brinegar, 741

F.2d 584 (3d Cir.1984) ........ 0... c cece eee eees

— <r TT aT

iii

TABLE OF AUTHORITIES-Continued

Pages

— of Detroit v. Grinnell Corp., 495 F.2d 448 (2d

SP ECECCECEGasesceccecsccccvccccccess 8, 13

City of Riverside v. Rivera, 477 U.S.561 (1986)...6, 7, 12, 14

Concorde Limousines, Inc. v. Moloney Coachbuilders,

Se ee wees wen Comm Cir 1967)...... 2... ccc cee eeee 9

Daggett v. Kimmelman, 811 F.2d 793 (3d Cir.1987) . 8, 19

Drez v. E. R. Squibb & Sons, Inc., 674 F.Supp.1432

sive eccdnccncccccscccccss 19

Easter House v. State of Illinois, Dept. of Children and

Family Services, 663 F.Supp.456 (N.D.II1.1987)....... 17

Edmonds v. United States, 658 F.Supp.1126

EU ee abbas eeseccenccecescecces 17

Evans v. Jeff D., 475 U.S.717 (1986) ................ 5, 6

Furtado v. Bishop, 635 F.2d 915 (1st Cir.1980).......... 8

Garmong v. Montgomery County, 668 F.Supp.1000

EEC E ce keawspecsceucccsccce 11, 17

Hawkins v. Anheuser-Busch, Inc., 697 F.2d 810 (8th

UCT ER ERG eaedsacccoceseccsccccscccccess 9

Heath v. Brown, 807 F.2d 1229 (5th Cir.1987)...... 8, 12

Hensley v. Eckerhart, 461 U.S.424 (1983).............. 18

Illinois Migrant Council v. Pilliod, 672 FSupp.1072

INGER D GS ndbaccecsecccevecccccscccccce 13

In re “Agent Orange” Product Liability Litigation,

818 F.2d 226 (2d Cir.), cert. denied, 108 S.Ct.289

DEIEEMEUEGEDGR Sea cccesesccccsccccccese 8, 12, 13

iv

TABLE OF AUTHORITIES-Continued

Pages

In re Burlington Northern, Inc. Employment Practices

Litig., 810 F.2d 601 (7th Cir.1986), cert. denied,

BED DARED CHOGEP cc vccccccccsecccccessvcees 9, 11, 12

In re Chicken Antitrust Litigation, 560 F.Supp.963

DETRAIRTEEED cede cccsccscccccvsvccscseceueness 7, 17

In re Gas Meters Antitrust Litigation, 500 F.

Supp.956 (E.D.Pa. 1980). .....cccccccccccccccccccees 17

Jacobs v. Mancuso, 825 F.2d 559 (1st Cir.1987) ..8, 10, 12

Jenkins v. Missouri, 838 F.2d 260 (8th Cir.), cert.

granted in part, 109 S.Ct.218 (Oct. 11, 1988) (No.

88-64), and cert. denied, 109 S.Ct.221 (1988)....

Johnson v. Avery, 393 U.S.483 (1969) .............

Johnson v. Georgia Highway Express, Inc., 488 F.2d

FOO Geet Gs 6 60.666 ccc ceidscovescccncaees

Keith v. Volpe, 833 F.2d 850 (9th Cir.1987)........

Kopunec v. Nelson, 801 F.2d 1226 (10th Cir.1986) ..

“= v. Harris-Teeter Supermarket, 720 F.2d 326 (4th

i

r.1983), cert. denied, 466 U.S.951 (1984) ......

Louisville Black Police Officers Organization, Inc. v.

City of Louisville, 700 F.2d 268 (6th Cir.1983). ..

Lucero v. City of Trinidad, 815 F.2d 1384 (10th

GRADED socécnsveccasivanneseuadéddestecéete’s

Metro Data Systems, Inc. v. Durango Systems, Inc.,

597 F.Supp.244 (D.Ariz.1984).............6005:

Morgan v. Nevada Board of State Prison Commis-

sioners, 615 FSupp.882 (D.Nev.1985)...........

Vv

TABLE OF AUTHORITIES-Continued

Pages

Northcross v. Ecurd of Education of Memphis City

Schools, 611 F.2d 624 (6th Cir.1979), cert. denied,

OF TR Se GP hh ov dave ccdvccnecceveccees 8, 13, 19

PPG Industries, Inc. v. Celanese Polymer Specialities

Co., 658 FSupp.555 (W.D.Ky.1987), rev'd on other

grounds, 840 F.2d 1565 (Fed.Cir.1988).............. 13

Pacific Coast Agricultural Export Association v.

Sunkist Growers, Inc., 526 F.2d 1196 (9th

Cir.1975), cert. denied, 425 U.S.959 (1976) ........... 9

Parise v. Riccelli Haulers, Inc., 672 F.Supp.72

DURAN cbs Gesecccscenccceusecescncess: 7, 17

Pennsylvania v. Delaware Valley Citizen’s Council for

Clean Air, 478 U.S.546 (1986) (“Pennsylvania I”)

o66UR5656640909500RREREERORNORSEdaNesEnERESSS 5, 18, 19

Pennsylvania v. Delaware Valley Citizen’s Council for

Clean Air, 107 S.Ct.3078 (1987) (“Pennsylvania

OF ieee cb enssndscendnanedseWhessensbenseceosecs 5, 6

Procunier v. Martinez, 416 U.S.396 (1974)............. 14

Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983)....7, 8, 18

Richardson v. Byrd, 709 F.2d 1016 (Sth Cir.), cert.

denied, 464 U.S.1009 (1983).............. 9, 13, 17, 18

Roe v. City of Chicago, 586 FSupp.513 (N.D.II1.1984) ....13

Royal Crown Cola Co. v. Coca-Cola Co., 678

POUR STS DETER. IGG) 20 cece ccsccccccccccccens 10

Save Our Cumberland Mountains, Inc. v. Hodel, 826

F.2d 43 (D.C.Cir.1987)........ Le ine 9, 12

Schwartz v. Novo Industri A/S, 119 F.R.D.359

ee ee ie Soe eee el ee he 11

vi

TABLE OF AUTHORITIES-Continued

Pages

Shorter v. Valley Bank & Trust Co., 678 F.Supp.714

RE s 06s See ewes ceesslevesteessusesesosce 10

Skelton v. General Motors Corp., 661 F.Supp.1368

PD cob cbbccccctigeveccecctecestuwesecces 20

Spray-Rite Service Corp. v. Monsanto Co., 684 F.2d

1226 (7th Cir.1982), aff'd, 465 U.S.752 (1984).... 9, 17

Stewart v. Rhodes, 656 F.2d 1216 (6th Cir.1981), cert.

denied, 455 U.S.991 (1982)............ cc cece eee 8, 13

Strama v. Peterson, 689 F.2d 661 (7th Cir.1982) ....... 13

The Florida Bar v. Brumbaugh, 355 So.2d 1186

ee nksnccnccunccsuecvecncdsaeeostsesesece 16

Thornberry v. Delta Air Lines, Inc., 676 F.2d 1240

Se Se oc cccckecccacecsdeccencetesvctens 9, 13

Todd Shipyards Corp. v. Director, Office of Workers’

Compensation, 545 F.2d 1176 (9th Cir.1976) ..9, 10, 11, 13

Toussaint v. McCarthy, 826 F.2d 901 (9th Cir.1987) . 8, 12

United Nuclear Corp. v. Cannon, 564 F.Supp.581

GOED: oc ecdecdoccccceesssevsuscsceeseccccecss 7

Ursic v. Bethlehem Mines, 719 F.2d 670 (3rd

ee ie eae Fe Be ie ies 19

Ustrak v. Fairman, 851 F.2d 983 (7th Cir.1988)..... 8, 12

Vaughns v. Board of Education of Prince George's

County, 770 F.2d 1244 (4th Cir.1985)................ 8

Walters v. City of Atlanta, 803 F.2d 1135 (11th

I a Ne is wi 8

Wilkett v. Interstate Commerce Commission, 844 F.2d

i et ee ed eme ewes )

vii

TABLE OF AUTHORITIES-—Continued

Williams v. Bowen, 684 F.Supp.1305 (E.D.Pa.1988)..... 11

Yohay v. City of Alexandria Employees Credit Union,

ee Re 8 | OPPTTTT ITI TTT 8

Yaris v. Special School Dist. of St. Louis County, 661

FSupp.996 (E.D.Mo.1987) ..........ccccccccceceees 13

STATUTE

Civil Ri om Attorney’s Fee Awards Act of 1976,

Ge Pe OP I Sir cdr ebvisecccecsccsedssees passim

OTHER AUTHORITIES

ABA Model Code of Professional Responsibility

(1976)

i SEERIECT COTE TTT CTT Ee Tee TTT CTT TET Te Teer 15

SED capiedbdheedsnueseadecscvandssavascessesest 16

PEE sbicueededgbeccocedecésuseuececeedeetnntons 15

ea cntdiandediesadedesanenacntncceednenst 15

EE cncccnsadasesnenanusesanoees cacneoes 15

LL FETT TTT TTT TTT TTC TTT TTT TTT 15

ABA Model Rules of Professional Conduct (1984)

SE Eb esesanddedduencsedsduscudedicncanents 15

EE TTT TTT TTT TTT TT TORTIE TTT TT OTe 15

ABA Standing Committee on Legal Assistants,

Position Paper on the Question of Licensure or

SD GUND vidios seveccescossecostccecseses 15

viii

TABLE OF AUTHORITIES-—Continued

———— Pages

National Association of Legal Assistants, Inc.,

Code of Ethics and Professional Responsibility

(1975, as amended through 1988) ................. 16

National Association of Legal Assistants, Inc.,

Model Standards and Guidelines for Utilization

of Legal Assistants (1984)..............-.-0005- 1, 16

Netional Association of Legal Assistants, Inc.,

1988 National Utilization and Compensation

Survey Report (1989) ............... cece cece eees 11

United States Dept. of Labor, Bureau of Labor

Statistics, Occupational Outlook Quarterly

(Spring 1986)..... rovteheeeneverhe wieebdadbeesenwne 2

STATEMENT

The National Association of Legal Assistants, Inc.

submits this brief amicus curiae, pursuant to Rule 36 of the

Rules of the Supreme Court of the United States, in

support of respondents’. This brief is submitted upon the

written consent of petitioners and responuicnts.?

+

INTEREST OF THE AMICUS CURIAE

Legal assistants? are a distinguishable group of

persons who assist attorneys in the delivery of legal

services. Through formal education, training and

experience, legal assistants have knowledge and

expertise regarding the legal system and substantive

and procedural law which qualify them to do work

of a legal nature under the supervision of an

attorney.

National Association of Legal Assistants, Inc., Model

Standards and Guidelines for Utilization of Legal Assis-

tants (1984).

1 The National Association of Legal Assistants, Inc., sub-

mitted this brief, in substantially the same form, as amicus

curiae in support of petitioner, in the case Blanchard v. Bergeron,

831 F.2d 563 (Sth Cir.1987), cert. granted, 108 S.Ct.2869 (June 27,

1988)(No. 87-1485), currently pending before the Court.

2 The original of petitioners’ written consent by Bruce

Farmer, Esquire, counsel for petitioners, and the original of

respondents’ written consent by Jay Topkis, Esquire, counsel

for respondents, are being filed with the Clerk of the Court

under separate cover.

3 The term “legal assistant” is preferred, as it represents

those persons doing work of a legal nature under the direct

supervision of an attorney, as opposed to a broader category of

persons termed “paralegal,” who perform work of a similar

nature but not necessarily under the supervision of an attorney.

The National Association of Legal Assistants, Inc.

(“NALA”) was incorporated in 1975 as a non-profit orga-

nization, in recognition of and response to the burgeon-

ing use of legal assistants in the delivery of legal services

throughout the United States. Representing some 8,000

legal assistants through individual membership or affili-

ated associations, NALA seeks to promote professional

development and continuing education for legal assist-

ants, and to provide a strong national voice to represent

this growing and significant profession.

Consistent with these goals, NALA, in 1975, adopted

a Code of Ethics and Professional Responsibility for legal

assistants to serve as a guideline for the proper conduct

by legal assistants in the performance of their duties

(reprinted in full in the Appendix to this brief). In 1976,

NALA administered the first national legal assistant cer-

tification examination, testing skills basic to the profes-

sion as well as substantive knowledge of law and

procedure. Currently, the voluntary two-day examination

program is administered three times yearly. As of July,

1988, 2,327 participants have earned the title CLA (Certi-

fied Legal Assistant).

In 1984, NALA adopted its Model Standards and

Guidelines for Utilization of Legal Assistants to serve as

* Projections by the United States Department of Labor

indicate an increase in the number of legal assistants from an

estimated 53,000 in 1984 to 104,000 in 1995. United States Dept.

of Labor, Bureau of Labor Statistics, Occupational Outlook

Quarterly (Spring 1986).

a guide for legal assistants and supervising attorneys, by

describing the role of a legal assistant in the delivery of

legal services. Finally, NALA works hand in hand with

local, state and national bar associations to set standards

for legal assistants, and provides continuing education

for legal assistants through seminars, workshops, pub-

lications and video tapes

The legal assistant is a recognized and desirable

addition to the modern law office. The delegation of

work, which would otherwise be performed by an attor-

ney, to a skilled legal assistant reduces the cost of legal

services to the client and increases attorney efficiency

and productivity. The benefits of this cost-reducing, cost-

effective delivery of legal services to the public through

the attorney-supervised use of legal assistants will be

promoted and encouraged if the work of legal assistants

is recognized and compensated at the market rate as part

of court-awarded attorney’s fees.

Were the Court to reverse the ruling below by hold-

ing that the time spent by legal assistants in the success-

ful prosecution of a civil rights case should not be

compensated at the market rate, under 42 U.S.C. § 1988,

the detrimental effect upon those seeking legal represen-

tation to redress civil rights violations, as well as in other

types of cases in which Congress has provided for the

recovery of attorney’s fees, would be substantial. Such a

result would either discourage attorneys from represent-

ing victims of civil rights violations, because they could

not receive full compensation for their effort, or force

attorneys to perform all tasks of a legal nature, thereby

decreasing the utilization of legal assistants and increas-

ing the cost of litigation.

SUMMARY OF ARGUMENT

The widespread use of legal assistants by attorneys

to perform work of a legal nature which would otherwise

have to be performed by an attorney at a much higher

rate has significantly reduced the cost of legal services to

the public and enhanced the quality of legal representa-

tion by promoting efficient utilization of attorney time.

Compensation for the attorney-supervised work of legal

assistants at an hourly rate less than that charged by

attorneys, but high enough to cover the cost of overhead

associated with the work of a legal assistant, is custom-

arily included in attorney’s fees charged private fee-pay-

ing clients.

A reasonable attorney’s fee awarded pursuant to the

Civil Rights Attorney’s Fee Awards Act of 1976, 42 U.S.C.

§ 1988, should include market rate compensation for

productive work of a legal nature performed by a skilled

legal assistant, under the supervision of an attorney, in

order to effectuate the purpose of section 1988. Section

1988 was adopted by Congress to make available legal

representation to victims of civil rights violations by fully

compensating counsel for prevailing parties at a rate

competitive with that charged in the private marketplace.

An attorney’s fee award which includes market rate com-

pensation for the work of legal assistants is competitive

with fees charged to traditional fee-paying clients, makes

civil rights representation financially feasible for compe-

tent attorneys, promotes the cost-effective practice of uti-

lizing legal assistants in the delivery of legal services and

is in accord with the goal of making available efficient

and reasonably priced legal services, not only to victims

of civil rights violations but also to the public at large.

+

ARGUMENT

THE WORK OF LEGAL ASSISTANTS IS COM-

PENSABLE AT THE MARKET RATE AS PART OF

A REASONABLE ATTORNEY’S FEE AWARD PUR-

SUANT TO 42 U.S.C. § 1988.

A. Compensating prevailing parties for the work

performed by legal assistants on an hourly

basis at the market rate comports with accepted

practice in the private marketplace and is thus

consistent with the purpose of 42 U.S.C. § 1988.

The Civil Rights Attorney’s Fee Awards Act of 1976,

42 U.S.C. § 1988, provides that in federal civil rights

actions, “the court, in its discretion, may allow the pre-

vailing party, other than the United States, a reasonable

attorney’s fee as part of the costs.” On several occasions,

the Court has visited the legislative history of section

1988, finding that the purpose of the Fees Act was to

provide a remedy necessary to obtain compliance with

civil rights laws, and to promote respect for civil rights

through effective citizen enforcement thereof. Pennsylva-

nia v. Delaware Valley Citizen’s Counsel for Clean Air, 478

U.S.546, __, 106 S.Ct.3088, 3096 (1986) (“Pennsylvania |”);

Evans v. Jeff D., 475 U.S.717, __, 106 S.Ct.1531, 1539

(1986). Unless the attorney’s fee reimbursement pursuant

to section 1988 is “ ‘full and complete’, the statutory rights

[created by civil rights legislation] would be meaningless

because they would remain largely unenforced.” Pennsyl-

vania v. Delaware Valley Citizens’ Counsel for Clean Air,

107 S.Ct.3078, 3093 (1987) (Blackmun J., dissenting)

(emphasis added) (“Pennsylvania II”).

Because most victims of civil rights violations are

unable to afford legal representation, Congress found

that the market itself would not provide adequate and

effective access to the judicial process for vindication of

rights violated. Pennsylvania II, 107 S.Ct. at 3092 (Black-

mun J., dissenting); City of Riverside v. Rivera, 477 U.S.561,

__, 106 S.Ct.2686, 2695 (1986). Thus, to ensure that expe-

rienced competent attorneys would be willing to repre-

sent persons with legitimate civil rights grievances,

Congress determined that it would be necessary to com-

pensate lawyers for all time reasonably expended on a

case, at a rate mirroring the prevailing market rate in the

relevant community. Pennsylvania II, 107 S.Ct. at 3095-96;

City of Riverside, 477 U.S. at __, 106 S.Ct. at 2696; Evans,

475 U.S. at __, 106 S.Ct. at 1539; Blum v. Stenson, 465

U.S.886, 895 (1984). Reasonable section 1988 attorney’s

fees must be competitive with the private market for

lawyers’ services, Pennsylvania II, 107 S.Ct. at 3092, 3093,

3095 (Blackmun J., dissenting), and “similar to what ‘is

traditional with attorneys compensated by a fee-paying

client.’” Id. at 3093 (citation omitted). See also City of

Riverside, 477 U.S. at __, 106 S.Ct. at 2695.

Attorneys in the private marketplace traditionally

charge fee-paying clients for supervised work of a legal

nature performed by legal assistants at a lesser hourly

rate than that charged by attorneys. Separate billing for

the services of such non-legal personnel as legal assis-

tants and law students is an “increasingly widespread

custom.” Ramos v. Lamm, 713 F.2d 546, 558 (10th Cir. 1983).

In the not so distant past the court would have

frowned upon the practice of billing paraprofessional

time separate from attorney time just as it might if a

firm separately recorded and billed the hours spent

by a secretary on a specific client . . . , but the

standing of paraprofessionals has improved signifi-

cantly as special training has enabled them to under-

take a wide variety of more sophisticated tasks

previously assigned exclusively to higher priced law-

yers. The advent and widespread use of the para-

professional has meant that the cost of effective legal

counsel has been reduced and its availability

enhanced without impairing the quality or delivery

of legal services.

In re Chicken Antitrust Litigation, 560 FSupp.963, 977-78

(N.D.Ga.1980) (citation omitted). See also Parise v. Riccelli

Haulers, Inc., 672 FSupp.72 (N.D.N.Y.1987). That attor-

ney’s fees include compensation for time spent by legal

assistants reflects “the realities of the marketplace and of

modern, progressive law office management.” United

Nuclear Corp. v. Cannon, 564 F.Supp.581, 589 (D.R.1.1983).

This court implicitly recognized and encouraged the

traditional marketplace use of non-lawyer personnel in

the delivery of legal services by approving an award of

attorney’s fees, pursuant to section 1988, which included

compensation for time spent by a law clerk. City of River-

side, 477 U.S. at __, 106 S.Ct. at 2690. Every federal

circuit has likewise acknowledged the validity of delegat-

ing work of a legal nature to non-lawyer personnel under

the supervision of an attorney by compensating for the

work of legal assistants or law clerks pursuant to section

1988,5 or to an analogous fee-shifting statute or rule.®

5 First Circuit: Jacobs v. Mancuso, 825 F.2d 559, 563 (ist

Cir.1987); Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir.1980);

Third Circuit: Daggett v. Kimmelman, 811 F.2d 793, 799 (3d

Cir.1987) (fee reductions would be approved for work which

should have been performed by paralegals); Fourth Circuit:

Vaughns v. Board of Educ. of Prince George's County, 770 F.2d

1244, 1245-46 (4th Cir.1985); Fifth Circuit: Heath v. Brown, 807

F.2d 1229, 1232 (Sth Cir.1987); Sixth Circuit: Stewart v. Rhodes,

656 F.2d 1216, 1217 (6th Cir.1981), cert. denied, 455 U.S.991

(1982); Northcross v. Board of Educ. of Memphis City Schools, 611

F.2d 624, 639 (6th Cir.1979), cert. denied, 447 U.S.911 (1980);

Seventh Circuit: Ustrak v. Fairman, 851 F.2d 983 (7th Cir.1988);

Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836, 846 (7th

Cir.1984), cert. denied, 469 U.S.1106 (1985); Eighth Circuit:

Jenkins v. Missouri, 838 F.2d 260, 266 (8th Cir.), cert. granted in

part, 109 S.Ct.218 (Oct. 11, 1988)(No. 88-64), and cert. denied,

109 S.Ct.218 (1988); Ninth Circuit: Keith v. Volpe, 833 F.2d 850,

859 (9th Cir.1987); Toussaint v. McCarthy, 826 F.2d 901, 904 (9th

Cir.1987); Tenth Circuit: Lucero v. City of Trinidad, 815 F.2d 1384,

1385 (10th Cir.1987); Ramos v. Lamm, 713 F.2d 546, 558 (10th

Cir.1983); Eleventh Circuit: Walters v. City of Atlanta, 803 F.2d

1135, 1151 (11th Cir.1986)

6 Second Circuit: In re “Agent Orange” Prod. Liab. Litig., 818

F.2d 226, 238 (2d Cir.), cert. denied, 108 S.Ct.289 (1987) (cless

action); City of Detroit v. Grinnell Corp., 495 F.2d 448, 473 (2d

Cir.1974) (anti-trust class action); Third Circuit: Brinker v.

Guiffrida, 798 F.2d 661, 668 (3d Cir.1986) (recovery for law clerk

under Equal Access to Justice Act); Citizen’s Council of Del.

County v. Brinegar, 741 F.2d 584, 596 (3d Cir.1984) (Equal Access

to Justice Act); Fourth Circuit: Yohay v. City of Alexandria

Employees Credit Union, 827 F.2d 967, 974 (4th Cir.1987) (law

clerk under Fair Credit Reporting Act, 15 U.S.C. § 1681); Lilly v.

Harris-Teeter Supermarket, 720 F.2d 326, 339-40 n.28 (4th

(Continued on following page)

(Continued from previous page)

Cir.1983), cert. denied, 466 U.S.951 (1984) (employment discrim-

ination); Fifth Circuit: Concorde Limousines, Inc. v. Moloney

Coachbuilders, Inc., 835 F.2d 541, 546 (5th Cir.1987); Alter Fin.

Corp. v. Citizens & Southern Int'l Bank of New Orleans, 817 F.2d

349, 350 (5th Cir.1987) (sanctions, 28 U.S.C. § 1927); Richardson

v. Byrd, 709 F.2d 1016, 1023 (5th Cir.), cert. denied, 464 U.S.1009

(1983) (Title VII sex discrimination class action); Sixth Circuit:

Chandler v. Secretary of Dept. of Health & Human Services, 792

F.2d 70, 73 (6th Cir.1986) (Social Security Act, 42 U.S.C. § 406);

Seventh Circuit: In re Burlington Northern, Inc. Employment

Practices Litig., 810 F.2d 601, 609 (7th Cir.1986), cert. denied, 108

S.Ct.82 (1987) (employment discrimination action, 42 U.S.C.

§ 2000e); Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226,

1249-50 (7th Cir.1982), aff'd, 465 U.S.752 (1984) (anti-trust, 15

U.S.C. § 1 et seq.); Eighth Circuit: Hawkins v. Anheuser-Busch,

Inc., 697 F.2d 810, 817 (8th Cir.1983) (employment discrimina-

tion, 42 U.S.C. § 2000e); Ninth Circuit: Thornberry v. Delta Air

Lines, Inc., 676 F.2d 1240, 1244 (9th Cir.1982) (employment

discrim: sation, 42 U.S.C. § 2000e); Todd Shipyards Corp. v. Direc-

tor, Office of Workers’ Compensation, 545 F.2d 1176, 1182 (9th

Cir.1976) (Longshoremen’s and Harbor Workers’ Compensa-

tion Act, 33 U.S.C. § 928); Pacific Coast Agricultural Export Ass'n

v. Sunkist Growers, Inc., 526 F.2d 1196, 1210 n.19 (9th Cir.1975),

cert. denied, 425 U.S.959 (1976) (anti-trust, 15 U.S.C. § 1 et seq.);

Tenth Circuit: Kopunec v. Nelson, 801 F.2d 1226, 1229 (10th

Cir.1986) (Equal Access to Justice Act); Eleventh Circuit: Allen

v. United States Steel Corp., 665 F.2d 689, 697 (5th Cir. Unit B

1982) (employment discrimination, 42 U.S.C. § 2000e); D.C.

Circuit: Wilkett v. Interstate Commerce Comm'n, 844 F.2d 867, 877

(D.C.Cir.1988) (law clerk; Equal Access to Justice Act); Save

Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 54 n.7

(D.C.Cir.1987) (en banc) (Surface Mining Control and Reclama-

tion Act of 1977, 30 U.S.C. § 1201).

10

B. Compensating for the work of legal assistant

time on an hourly basis at the market rate pro-

motes the cost-effective delivery of legal ser-

vices and enhances the quality of legal services.

Compensating for the work of legal assistant time as

attorney’s fees under Section 1988 “encourages cost-effec-

tive delivery of legal services and, by reducing the spiral-

ing cost of civil rights litigation, furthers the policies

underlying civil rights statutes.” Cameo Convalescent Cen-

ter, Inc. v. Senn, 738 F.2d 836, 846 (7th Cir.1984), cert.

denied, 469 U.S.1106 (1985). Skilled legal assistants are

capable of performing some work of a legal nature which

would otherwise have to be done by an attorney. To the

extent that such work is done by supervised legal assist-

ants at substantially less cost per hour than would have

been the case had the work been done by attorneys, the

overall cost of legal services to the public is reduced. A

rule prohibiting recovery for legal assistant time at the

market rate would discourage the cost-effective delivery

of legal services.”

In addition to reducing the cost of litigation, the use

of legal assistants enhances the quality of legal represen-

tation. Legal assistants enable the attorney to spend his

or her more costly time for greater productivity in more

important areas where judgment and decision-making

7 See, e.g., Jacobs, 825 F.2d at 563 Spray-Rite Serv. Corp.,

684 F.2d at 1250; Todd Shipyards Corp., 545 F.2d at 1182; Shorter

v. Valley Bank & Trust Co., 678 F.Supp.714, 724 (N.D.II1.1988);

Royal Crown Cola Co. v. Coca-Cola Co., 678 F.Supp.875, 880

(M.D.Ga.1987); Chapman v. Pacific Tel. & Tel. Co., 456 F.Supp.77,

83 (N.D.Cal.1978).

T1

are required. The availability of legal assistants also pro-

motes more thorough trial preparation by permitting a

more efficient and economical utilization of staff time.

Chapman v. Pacific Tel. & Tel. Co., 456 F.Supp.77, 83 (N.D.

Cal.1978). See also Todd Shipyards Corp. v. Director, Office of

Workers’ Compensation Programs, 545 F.2d 1176, 1182 (9th

Cir.1976); Beamon v. City of Ridgeland, Miss., 666 F.Supp.

937, 946 (S.D.Miss.1987).

Law firms in the private marketplace routinely

include an hourly rate charge for legal assistants as part

of the attorney’s fee charged fee-paying clients. Indeed,

seventy-seven percent of 1,800 legal assistants respond-

ing to a recent survey indicated that their law firm

received compensation for their work from clients on an

hourly billing rate basis. National Association of Legal

Assistants, Inc., 1988 National Utilization and Compensa-

tion Survey Report (1989). “Law firms, like other busi-

nesses that sell time, must set their hourly rates at an

amount greater than that needed to pay their attorneys’

or paralegals’ salaries; they must figure into those rates

all their costs of doing business.” In re Burlington North-

ern Inc. Employment Practices Litig., 810 F.2d 601, 609 (7th

Cir.1986), cert. denied, 108 S.Ct.82 (1987). The hourly rate

of legal assistants must reflect not only base salary, but

also fringe benefits and a proportionate share of firm

overhead.® Additionally, the routine practice of law

8 See Schwartz v. Novo Industri A/S, 119 F.R.D.359, 365

(S.D.N.Y.1988) (citation omitted). See also Williams v. Bowen, 684

F.Supp.1305, 1308 (E.D.Pa.1988); Garmong v. Montgomery

County, 668 F.Supp.1000, 1011 (S.D.Tex.1987); Brewer v. Southern

Union Co., 607 F.Supp.1511, 1528 (D.Colo.1984).

12

firms seeking reimbursement for the work of legal assis-

tants at a rate sufficient to cover both the “actual cost”

and overhead costs associated with that legally related

work is a fairer billing procedure.

Unlike the work of secretaries and other support-

ing personnel, . . . the work of paralegals and law

clerks is ordinarily charged directly to particular liti-

gation and is therefore a clearly identifiable cost.

Were it to be treated as an overhead expense, payable

out of the general receipts of the attorney, the across-

the-board cost of services to the attorney’s clients

generally would be burdened by paralegal costs

incurred in connection with particular matters of no

interest or benefit to other clients.

Chapman, 456 F.Supp. at 82.

Consistent with the private billing procedure, a

majority of federal trial and appellate courts approve

compensation of legal assistant work hours, as well as the

legally related work of other non-attorneys such as law

clerks, based upon a reasonable hourly rate set lower

than the hourly rate of attorneys but higher than the

“actual cost” and sufficient to defray the cost of over-

head. See Jacobs v. Mancuso, 825 F.2d 559, 563 n.6 (1st

Cir.1987) (legal assistant expenses are most frequently

reimbursed based on an hourly fee).? This Court, in City

9 See also, e.g., Ustrak, 851 F.2d 983; Wilkett, 844 F.2d at 877;

Save Our Cumberland Mountains, Inc., 826 F.2d at 54 n.7; Tous-

saint, 826 F.2d at 904; Jacobs, 825 F.2d at 563 & n.6; In re “Agent

Orange” Prod. Liab. Litig., 818 F.2d at 230, 238; Lucero, 815 F.2d

at 1386; In re Burlington Northern, Inc. Employment Practices

Litig., 810 F.2d at 609; Heath, 807 F.2d at 1232; Kopunec, 801 F.2d

at 1229; Citizen’s Council of Del. County, 741 F.2d at 596;

(Continued on following page)

13

of Riverside, supra, approved an attorney’s fee award

which included compensation for time spent by a student

law clerk, at the rate of twenty-five dollars an hour,

clearly more than the actual wages paid to the individual,

and obviously high enough to cover the overhead costs

associated with the non-lawyer employee. See 477 U.S. at

__, 106 S.Ct. at 2690 & n.2.10

(Continued from previous page)

Richardson, 709 F.2d at 1023; Louisville Black Police Officers Org.,

Inc. v. City of Louisville, 700 F.2d 268, 273 (6th Cir.1983); Strama

v. Peterson, 689 F.2d 661, 663 (7th Cir.1982); Stewart v. Rhodes,

656 F.2d at 1216-17; Todd Shipyards Corp., 545 F.2d at 1182.

10 To highlight the need for this Court’s guidance, several

courts have allowed the recovery of compensation for the work

of legal assistants or law clerks based on an hourly-rate while

at the same time calling it compensation for “expenses,” rather

than attorney’s fees. See In re “Agent Orange” Product Liab.

Litig., 818 F.2d at 238; Yaris v. Special School Dist. of St. Louis

County, 661 F.Supp.996, 1002, 1003 n.9 (E.D.Mo.1987); PPG

Industries, Inc. v. Celanese Polymer Specialties Co., 658

F.Supp.555, 560, 565 (W.D.Ky.1987), rev'd on other grounds, 840

F.2d 1565 (Fed.Cir.1988). Some courts have held that law firms

may only recover their paralegal “out of pocket” expenses, see

Thornberry, 676 F.2d at 1244 (citing Northcross, 611 F.2d at 639),

while others have permitted reimbursement for salary actually

paid to a legal assistant, with no additional compensation for

fringe benefits or overhead. See, e.g., City of Detroit, 495 F.2d at

473; Illinois Migrant Council v. Pilliod, 672 F.Supp.1072, 1084

(N.D.I11.1987); Campaign for a Progressive Bronx v. Black, 631

F.Supp.975, 983 (S.D.N.Y.1986). Still others refuse to provide

separate compensation for the work of legal assistants, taking

the position that legal assistants represent overhead, such as

clerical and office expenses, all covered by the attorney’s

hourly rate. See Abrams v. Baylor College of Medicine, 805 F.2d

528, 535 (Sth Cir.1986); Roe v. City of Chicago, 586 F.Supp.513,

516 & n.6 (N.D.II11.1984)

14

C. The inclusion of compensation for legal assist-

ants in an attorney’s fee award does not offend

ethical and legal tenets prohibiting the

unauthorized practice of law.

Any objection to including compensation for the

supervised legally-related work of legal assistants in a

reasonable attorney’s fee award because legal assistants

are not attorneys is but a “technical” one. The work

performed by legal assistants is work of the type neces-

sary to the prosecution of the litigation which would

otherwise be performed by attorneys. Indeed, this Court

has recognized the validity of non-lawyer personnel per-

forming services of a legal nature. In Procunier v. Mar-

tinez, 416 U.S.396 (1974), the Court affirmed the striking

of a prison administrative rule banning attorney-client

interviews conducted by law students or legal

paraprofessionals as constituting an unjustified restric-

tion on the right of access to the courts. The Court agreed

with the trial court’s finding that prohibiting the use of

law students or other paraprofessionals from conducting

attorney-client interviews with prisoners would inhibit

adequate professional representation of indigent inmates,

or alternately, increase the cost of legal representation for

prisoners. Id. at 419-20. Likewise, in Johnson v. Avery, 393

U.S.483 (1969), the Court struck down a prison regulation

prohibiting any inmate from advising or assisting another

in the preparation of legal documents. The Court noted

that “the type of activity involved here - preparation of

petitions for post-conviction relief — though historically

and traditionally one which may benefit from the services_.

of a trained and dedicated lawyer, is a function often,

perhaps generally, performed by a layman.” Id. at 490

n.11. See also City of Riverside, 477 U.S. at ___, 106 S.Ct. at

15

2690 (affirming attorney’s fee award which included com-

pensation for work performed by a law clerk).

Compensation for lawyer-supervised legally-related

work performed by legal assistants conforms with the

ethical canons and disciplinary codes governing lawyers

and legal assistants. Lawyers are obligated to keep fees in

check and take steps to provide efficient, cost-effective

legal services. See ABA Model Code of Professional

Responsibility EC 2-18 and DR 2-106(A)(B) (1976); ABA

Model Rules of Professional Conduct, Rule 1.5(a) (1984).

The delegation of tasks to lay persons is proper “if the

lawyer maintains a direct relationship with his client,

supervises the delegated work, and has complete profes-

sional responsibility for the work product. This delega-

tion enables a lawyer to render legal services more

economically and efficiently.” Model Code EC 3-6. See

also Model Rules, Rule 5.3.'' Because the lawyer, or law

firm, is the recipient of an attorney's fee for legal services

and not the salaried legal assistant, the inclusion of com-

pensation for the supervised work of a legal assistant as

part of a reasonable attorney’s fee does not offend ethical

rules prohibiting attorneys from sharing legal fees with

laymen. See Model Code EC 3-8 and DR 3-102.

1! The American Bar Association emphasizes that the

work of a legal assistant “involves the performance, under the

ultimate direction and supervision of an attorney, of specifi-

cally-delegated substantive legal work, which work, for the

most part, requires a sufficient knowledge of legal concepts

that, absent such assistance, the attorney would perform the

task.” ABA Standing Committee on Legal Assistants, Position

Paper on the Question of Licensure or Certification (1986)

16

Legal assistants recognize the ethical ramifications of

their performance of legally-related work, and empha-

size, in self-policing ethics codes and guidelines, that

legal assistants shall not undertake tasks which are

required to be performed by an attorney, such as setting

fees, giving legal advice, or appearing in any way to a

court, the client, or the public to be practicing law."

Additionally, the rules stress that all work of a legal

nature performed by a legal assistant must be delegated

and supervised by an attorney, who retains ultimate

responsibility to the client and assumes full professional

responsibility for the work product. National Association

of Legal Assistants, Inc., Code of Ethics and Professional

Responsibility (1975, as amended through 1988); National

Association of Legal Assistants Model Standards and

Guidelines for Utilization of Legal Assistants (1984) (both

reprinted in full in the Appendix to this brief). It is the

close supervision by an attorney which keeps the legally-

related work of a legal assistant from treading upon the

12 Though the American Bar Association has shied away

from defining what constitutes the practice of law, ABA Code

of Professional Responsibility, it notes that “[fjunctionally, the

practice of law relates to the rendition of services for others

that call for the professional judgment of a lawyer.” ABA

Model Code of Professional Responsibility EC 3-5 (1976).

Courts faced with the question have attempted to craft a

definition. For example, the Florida Supreme Court has stated

that the giving of advice and the performance of services

which affect important rights of a person under the law, and

require legal skill and knowledge of the law greater than that

possessed by the average citizen, constitutes the practice of

law. The Florida Bar v. Brumbaugh, 355 So.2d 1186, 1191 (Fla.

1978).

17

prohibited and unacceptable unauthorized practice of

law, and makes the work of a legal assistant no more than

an extension of the work of an attorney at a less costly

rate.'3

3 Courts awarding attorney’s fees for the supervised

work of legal assistants have delineated examples of legal

services which would otherwise be performed by an attorney,

and thus which are compensable if performed by a legal assist.

ant. They include: investigation of the facts relating to the

action, In re Gas Meters Antitrust Litig., 500 F.Supp.956, 969

(E.D.Pa.1980); assisting with discovery, including such tasks as

statistical and financial analysis, inspection and production of

documents, review of answers to interrogatories, and the com-

pilation of statistical and financial data, Bagel Inn, Inc. v. All

Star Dairies, 539 F.Supp.107, 111 (D.N.J.1982); In re Gas Meters

Antitrust Litig., 500 F.Supp. at 967; see also, e.g., Richardson, 709

F.2d at 1023; Spray-Rite Service Corp., 684 F.2d at 1250; doing

legal research, Morgan v. Nevada Board of State Prison Comm'rs,

615 F.Supp.882, 885 (D.Nev.1985); locating and interviewing

witnesses, Richardson, 709 F.2d at 1023; Garmong, 668 F.Supp. at

1011; organizing and communicating with class members, Rich-

ardson, supra; Edmonds v. United States, 658 F.Supp.1126, 1136

(D.S.C.1987); In re Gas Meters Antitrust Litig., 500 F.Supp. at

970; assisting with preparation for deposition and trial, and

organizing exhibits, Easter House v. State of Illinois, Dept. of

Children and Family Services, 663 F.Supp.456, 460 (N.D.II1.1987);

In re Gas Meters Antitrust Litig., 500 F.Supp. at 972; assisting

with preparation of settlement and settlement administration,

In re Chicken Antitrust Litig., 560 F.Supp.963, 978 (N.D.Ga.1980);

In re Gas Meters Antitrust Litig., 500 F.Supp. at 967, 972; compil-

ing statistical and financial data, Bagel Inn, Inc., 539 F.Supp. at

111; drafting pleadings, Parise v. Riccelli Haulers, Inc., 672

F.Supp.72, 75 (N.D.N.Y.1987); In re Gas Meters Antitrust Litig.,

500 F.Supp. at 969; and checking legal citations, Beamon v. City

of Ridgeland, Miss., 666 F.Supp.937, 943 (S.D.Miss.1987).

18

D. Courts scrutinize attorney's fee applications to

assure the hourly rates of legal assistants and

the time spent and nature of the work per-

formed by legal assistants are all reasonable.

Courts compensating for the work performed by a

legal assistant in connection with the award of a reason-

able attorney’s fee scrutinize the reported hours, the sug-

gested rate, and the nature of the work performed in the

same manner they scrutinize lawyer time and rates. See

Pennsylvania I, 478 U.S. at ___, 106 S.Ct. at 3098; Hensley v.

Eckerhart, 461 U.S.424, 434 (1983); Ramos, 713 F.2d at 559.

Trial courts determine what portion of the work is of a

clerical nature and is thus absorbed as part of the office

overhead reflected in the attorney’s billing rate and what

portion of the work performed by the legal assistant

constitutes legal services traditionally done by an attor-

ney and which would otherwise be performed by an

attorney at a costlier rate. Ramos, 713 F.2d at 558; Rich-

ardson v. Byrd, 709 F.2d 1016, 1023 (Sth Cir.), cert. denied,

464 U.S.1009 (1983). “Such expenses are separately recov-

erable only as part of a prevailing party’s award for

attorney's fees and expenses, and even then only to the

extent that the paralegal performs work traditionally

done by an attorney. Otherwise, paralegal expenses are

separately unrecoverable overhead expenses.” Allen v.

United States Steel Corp., 665 F.2d 689, 697 (Sth Cir.Unit B

1982).

Indeed, when considering a reasonable attorney's fee

award, courts have chastised attorneys for doing work

which more properly could have been delegated to a

legal assistant under the attorney’s supervision, and have

penalized the attorney by lowering the hourly rate

charged.

19

It is appropriate to distinguish between legal work,

in the strict sense, and investigation, clerical work,

compilation of facts and statistics and other work

which can often be accomplished by non-lawyers but

which a lawyer may do because he has no other help

available. Such non-legal work may command a

lesser rate. Its dollar value is not enhanced just

because a lawyer does it.

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717

(Sth Cir.1974). Wasteful utilization of expensive legal tal-

ent for work that may be delegated to non-lawyers is not

condoned. “Routine tasks, if performed by senior part-

ners in large firms, should not be billed at their usual

rates. A Michelangelo should not charge Sistine Chapel

rates for painting a farmer’s barn.” Ursic v. Bethlehem

Mines, 719 F.2d 670, 677 (3d Cir.1983). Accordingly, courts

regularly reduce an attorney’s hourly rate to that tradi-

tionally charged for a legal assistant, to reflect the nature

of the legal work performed."

4 See, e.g., Pennsylvania v. Delaware Valley Citizen's Council

for Clean Air, 478 U.S.546, __, ___, 106 S.Ct.3088, 3092, 3099

(1986) (“Pennsylvania I”) (approving a lodestar which set dif-

ferent hourly rates for legal work requiring varying degrees of

legal ability); Daggett v. Kimmelman, 811 F.2d at 799 (attorney

hours devoted to tasks which should have been performed by

associates or paralegals would warrant an hourly fee reduc-

tion); Northcross, 611 F.2d at 637, (necessary services performed

by attorneys which could have reasonably been performed by

less expensive personnel may be compensated at a lower rate

than attorney’s normal billing rate); Drez v. F R. Squibb & Sons,

Inc., 674 F.Supp.1432 (D.Kan.1987) (dropping attorney billing

rate to law clerk rate where three attorneys sat through trial);

Beamon, 666 F.Supp. at 941-42 (attorney fees for purely clerical

(Continued on following page)

20

E. Permitting recovery for work of legal assistants

promotes the availability of legal representa-

tion to victims of civil rights violations.

If the lawyer attempts to absorb the cost of the legal

assistant into his or her regular hourly rate as an over-

head expense, as is done for clerical work and office

supplies, or to absorb the overhead costs associated with

the work of a legal assistant, then all persons employing

that attorney, including victims of civil rights violations,

would suffer a higher hourly rate, regardless of whether

their case necessitated the assistance of a legal assistant.

More likely, the work currently performed by legal assis-

tants would be done by attorney associates and billed at

the higher attorney associate rate, clearly decreasing the

utilization of legal assistants and increasing the cost of

litigation. The attorney performing legal tasks which

could be delegated to a legal assistayt, however, faces the

risk that his or her fee will be reduced by a court as being

unreasonably high for the quality of work performed.

The only remaining alternative would be for the attorney

(Continued from previous page)

work which is easily delegable granted at reduced hourly

rate); Skelton v. General Motors Corp., 661 F.Supp.1368, 1385

(N.D.111.1987) (court reduces time of attorney spent on admin-

istrative tasks); Metro Data Systems, Inc. v. Durango Systems,

Inc., 597 F.Supp.244, 246 (D.Ariz.1984) (gathering information

and drafting answers to interrogatories not recoverable by

attorney as work which could have been performed by

paralegal).

21

to perform the work at a reduced rate, below and not

competitive with the market rate. Such a result would

make the representation of victims of civil rights viola-

tions cost prohibitive and unattractive, and discourage

competent, experienced attorneys from undertaking such

representation because they could not receive full com-

pensation for their efforts.

The widespread practice of assigning less technical

yet legal work to legal assistants to be performed under

the supervision of an attorney promotes economy and

efficiency in the administration of justice. Permitting rea-

sonable compensation for such services at the market rate

as part of a reasonable attorney’s fee encourages this

desirable practice, and makes legal representation more

readily available to victims of civil rights violations, in

accord with Congress’ intent when adopting the Civil

Rights Attorney’s Fee Awards Act of 1976, 42 U.S.C.

§ 1988.

22

CONCLUSION

For the reasons set forth above, the National Associa-

tion of Legal Assistants, Inc., as amicus curiae, respectfully

urges the Court to affirm the decision of the Court of

Appeals for the Eighth Circuit and permit recovery for

the work of legal assistants at the market rate as part of a

reasonable attorney’s fee award made pursuant to 42

U.S.C. § 1988.

Respectfully submitted,

Joun A. DeVautrt, III

Counsel of Record

Jane A. Lester

Counsel

Bevett, Drrrmar, DeVautt

& Piutans, P.A.

The Bedell Building

101 East Adams Street

Jacksonville, FL 32202

(904) 353-0211

For Amicus Curiae

National Association of

Legal Assistants, Inc.

APPENDIX

TABLE OF CONTENTS

National Association of Legal Assistants, Inc.,

Code of Ethics and Professional Responsibility

(1975, as amended through 1988) ................

National Association of Legal Assistants, Inc.,

Model Standards and Guidelines for Utilization

of Legal Assistants (1984)........... 0.60. eeeeeeee

1A

CODE OF ETHICS AND

PROFESSIONAL RESPONSIBILITY

It is the responsibility of every legal assistant to adhere

strictly to the accepted standards of legal ethics and to

live by general principles of proper conduct. The

performance of the duties of the legal assistant shall be

governed by specific canons as defined herein in order

that justice will be served and the goals of the profession

attained. The canons of ethics set forth hereafter are

adopted by the National Association of Legal Assistants,

Inc., as a general guide and the enumeration of these

rules does not mean there are not others of equal impor-

tance although not specifically mentioned.

Canon 1. A legal assistant shall not perform any of the

duties that lawyers only may perform nor do things that

lawyers themselves may not do.

Canon 2. A legal assistant may perform any task dele-

gated and supervised by a lawyer so long as the lawyer is

responsible to the client, maintains a direct relationship

with the client, and assumes full professional respons-

ibility for the work product.

Canon 3. A legal assistant shall not engage in the prac-

tice of law by accepting cases, setting fees, giving legal

advice or appearing in court (unless otherwise author-

ized by court or agency rules).

Canon 4. A legal assistant shall not act in matters involv-

ing professional legal judgment as the services of a law-

yer are essential in the public interest whenever the

exercise of such judgment is required.

2A

Canon 5. A legal assistant must act prudently in deter-

mining the extent to which a client may be assisted with-

out the presence of a lawyer.

Canon 6. A legal assistant shall not engage in the

unauthorized practice of law.

Canon 7. A legal assistant must protect the confidence of

a client, and it shall be unethical for a legal assistant to

violate any statute now in effect or hereafter to be

enacted controlling privileged communications.

Canon 8. It is the obligation of the legal assistant to

avoid conduct which would cause the lawyer to be

unethical or even appear to be unethical and loyalty to

the employer is incumbent upon the legal assistant.

Canon 9. A legal assistant shall work continually to

maintain integrity and a high degree of competency

throughout the legal profession.

Canon 10. A legal assistant shall strive for perfection

through education in order to better assist the legal pro-

fession in fulfilling its duty of making legal services

available to clients and the public.

Canon 11. A legal assistant shall do all things incidental,

necessary or expedient for the attainment of the ethics

and responsibilities imposed by statute or rule of court.

Canon 12. A legal assistant is governed by the American

Bar Association Model Code of Professional Respon-

sibility, and the American Bar Association Model Rules of

Professional Conduct.

ne

3A

NATIONAL ASSOCIATION OF

LEGAL ASSISTANTS, INC.

MODEL STANDARDS AND

GUIDELINES FOR

UTILIZATION OF LEGAL

ASSISTANTS

@Copyright National Association of Legal Assistants,

Inc., 1984

PREAMBLE

Proper utilization of the services of legal assistants affects

the efficient delivery of legal services. Legal assistants

and the legal profession should be assured that some

measures exist for identifying legal assistants and their

role in assisting attorneys in the delivery of legal ser-

vices. Therefore, the National Association of Legal

Assistants, Inc., hereby adopts these Model Standards

and Guidelines as an educational document for the bene-

fit of legal assistants and the legal profession.

DEFINITION

Legal assistants* are a distinguishable group of persons

who assist attorneys in the delivery of legal services.

Through formal education, training, and experience, legal

assistants have knowledge and expertise regarding the

legal system and substantive and procedural law which

qualify them to do work of a legal nature under the

supervision of an attorney.

* Within this occupational category some individuals are

known as paralegals.

4A

STANDARDS

A legal assistant should meet certain minimum quali-

fications. The following standards may be used to deter-

mine an individual’s qualifications as a legal assistant:

1.

Successful completion of the Certified Legal

Assistant (CLAD examination of the National

Association of Legal Assistants, Inc.; (see

attached Exhibit A)

Graduation from an ABA approved program of

study for legal assistants;

Graduation from a course of study for legal

assistants which is institutionally accredited but

not ABA approved, and which not less

than the equivalent of 60 semester of class-

room study;

Graduation from a course of study for legal

assistants, other than those set forth in (2) and (3)

above, plus not less than six months of in-house

training as a legal assistant;

A baccalaureate degree in any field, plus not less

than six months in-house training as a legal

assistant;

A minimum of three years of law-related experi-

ence under the su ion of an attorney, includ-

ing at least six months of in-house training as a

legal assistant; or

Two years of in-house training as a legal

assistant.

For purposes of these standards, “in-house training

as a legal assistant” means attorney education of the

employee concerning legal assistant duties and these

guidelines. In addition to review and analysis of assign-

ments, the legal assistant should receive a reasonable

5A

amount of instruction directly related to the duties and

obligations of the legal assistant.

GUIDELINES

These guidelines relating to standards of perform-

ance and professional responsibility are intended to aid

legal assistants and attorneys. The responsibility rests

with an attorney who employs legal assistants to educate

them with respect to the duties they are assigned and to

supervise the manner in which such duties are

accomplished.

Legal assistants should:

1.

Disclose their status as legal assistants at the

outset of any professional relationships with a

client, other attorneys, a court or administrative

agency or — thereof, or members of the

general public;

ae the confidences and secrets of all clients;

a

Understand the attorney’s Code of Professional

Res ty and these guidelines in order to

avoid any action which would involve the attor-

ney in a violation of that Code, or give the

appearance of professional impropriety.

Legal assistants should not:

1.

Establish attorney-client relationships; set legal

fees; give legal opinions or advice; or represent a

client before a court; nor

Engage in, encourage, or contribute to any act

= could constitute the unauthorized practice

w

6A

Legal assistants may perform services for an attorney

in the representation of a client, provided:

1.

The services performed by the legal assistant do

not require the exercise of independent

professional legal judgment;

The attorney maintains a direct relationship with

the client and maintains control of all client

matters;

The attorney supervises the legal assistant;

The attorney remains professionally responsible

for all work on behalf of the client, including any

actions taken or not taken by the legal assistant in

connection therewith; and

The services performed supplement, merge with

and become the attorney’s work product.

In the supervision of a legal assistant, consideration

should be given to:

1.

ting work assignments that correspond to

the legal assistant’s abilities, knowledge, training

and experience;

Educating and training the legal assistant with

to professional responsibility, local rules

and practices, and firm policies;

Monitoring the work and professional conduct of

the legal assistant to ensure that the work is

substantively correct and timely performed;

Providing continuing education for the legal

assistant in substantive matters —_y~ 7 courses,

institutes, workshops, seminars and in-house

training; and

Encouraging and supporting membership and

active participation in professional organizations.

7A

Except as otherwise provided by statute, court rule

or decision, administrative rule or regulation, or the

attorney's Code of Professional Responsibility, and

within the preceding parameters and proscriptions, a

legal assistant may perform any function delegated by an

attorney, including, but not limited to the following:

1.

Conduct client interviews and maintain general

contact with the client after the establishment of

the attorney-client relationship, so long as the

client is aware of the status and function of the

legal assistant, and the client contact is under the

supervision of the attorney.

Locate and interview witnesses, so long as the

witnesses are aware of the status and function of

the legal assistant.

Conduct inv tions and statistical and docu-

mentary research for review by the attorney.

Conduct legal research for review by the

attorney.

Draft legal documents for review by the attorney.

Draft correspondence and pleadings for review

by and signature of the attorney.

Summarize depositions, interrogatories, and tes-

timony for review by the attorney.

Attend executions of wills, real estate closings,

depositions, court or administrative hearings and

trials with the attorney.

Author and sign letters provided the 1 assist-

ant’s status is clearly indicated and corre-

spondence does not contain independent legal

opinions or legal advice.

8A

EXHIBIT A

To become eligible to sit for the Certified Legal

Assistant (CLA) examination, candidates must meet one

of the following requirements:

1. Graduation from an ABA i teay legal assist-

ant training course or graduation from a legal

assistant training course at a school which is

institutionally accredited;

2. Graduation from a 1 assistant course neither

approved by the ABA nor at an institutionally

accredited school plus two (2) years experience

as a legal assistant;

3. A bachelor’s degree in any field plus one (1) year

experience as a legal assistant;

4. Seven (7) years law related experience under the

supervision of a member of the bar (Note: This

optional requirement is open through December

31, 1991.).

Once admitted to the program, the applicant must

successfully complete an eleven hour examination cover-

ing general skills required of all legal assistants plus

knowledge of four substantive areas of the law.

The CLA designation is for a period of five years and

if the CLA submits proof of continuing education in

accordance with the stated requirements, the certificate is

renewed for another five years. Lifetime certification is

not permitted.

CLA is a service mark duly registered with the U.S.

Patent and Trademark Office (No. 1131999). Any

unauthorized use is strictly forbidden.