# Amicus Curiae Brief — Missouri v. Jenkins

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 491 U.S. 274

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0229%3A10. Public record. Not legal advice.