Amicus Curiae Brief — Blanchard v. Bergeron

No. 87-1485 JOSEPH F. SPANIOL, JR.

In The

Supreme Court of the United States

October Term, 1988

|

ARTHUR J. BLANCHARD,

Petitioner,

V.

JAMES BERGERON, SHERIFF CHARLES

FUSELIER, ABC INSURANCE COMPANY,

DEF INSURANCE COMPANY, BARRY BREAUX,

OUDREY GROS, JR. DARRELL REVERE,

OUDREYS ODYSSEY LOUNGE,

GHL INSURANCE COMPANY,

Respondents.

fy

Vv

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

4)

Vv

BRIEF OF NATIONAL ASSOCIATION OF

LEGAL ASSISTANTS, INC., AS AMICUS CURIAE,

IN SUPPORT OF PETITIONER

— —_— y--— — ——$———

Joun A. DeVarut, IT

Counsel of Record

Pa .: 2s ey

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Bi Mittmar, De\ I

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Phe Be Building

LOL Ka \dams Street

lacksonville, FL, 32202

(904) BAB iv ]]

COCKLE LAW BRIEF PRINTING CO ‘S ) 225-6964

TABLE OF CONTENTS

Page

NS id iaainniineiitlin aa adananeamatanoains 1

INTEREST OF THE AMICUS CURIAE |. 1

SUMMARY OF ARGUMENT —.......................... 4

ARGUMENT .... i)

The Work of Legal Assistants is Compensable as Part

of A Reasonable Attorney’s Fee Award Pursuant to

42 U.S.C. § 1988 ...

A.

Compensating prevailing parties for the work

performed by legal assistants comports with ac-

cepted practice in the private marketplace and

is thus consistent with the purpose of 42 U.S.C.

a isakenionss

Compensating for the work of legal assistant time

promotes the cost-effective delivery of legal ser-

vices and enhances the quality of legal services...

The inclusion of compensation for legal assistants

in an attorney’s fee award does not offend ethical

and legal tenets prohibiting the unauthorized prac-

EAE SEER at att eRe ee Stn ae

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.

Permitting recovery for work of legal assistants

promotes the availability of legal representation

to victims of civil rights violations 2000000000000.

CONCLUSION

APPENDIX

13

17

19

20

la

il

TABLE OF AUTHORITIES

Pages

CasEs

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

628 (Sth Cir.1966) —£$_$__ 12

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

(Sth Cir.Unit B 1962) ___._. 9,17

Alter Financial Corp. v. Citizens & Southern In-

ternational Bank of New Orleans, 817 F.2d 349

(Gt, Ch GGT) nna ee 8

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

(D.N.J.1982) ........ _~sssennnatanimen —

Beamon v. City of Ridgeland, Mississippt, 666 F.

Supp.937 (S.D.Miss.19S7) nnnnncccccnmesssmneneennentnenenmnintnn 10, 16

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

Brewer v. Southern Union Co., 607 | 1511

3 | sla a

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

(ea ncnieansetiitistiamaa aia séilialeaaae . 8,9

Campaign for a Progressive Bronx v. Black, 631

F.Supp.975 (S.D.N.Y.1986) oes ee 12

Chandler v. Secretary of Dept. of Health & Hu-

man Services, 792 F.2d 70 (6th Cir.1986) 00... 8

Chapman v. Pacific Telephone & Telegraph Co..

456 F.Supp.77 (N.D.Cal.1978) —___.. 10, 12

Citizen’s Council of Delaware County v. Brinegar,

741 F.2d 584 (3d Cir.1984) ......... snsentmessiiiiaaae

City of Detroit v. Grinnell Cote: 495 F.2d 448

(2d Cir.1974) . wtesusa POW A 9, 11

oe Riverside v. Rivera, 477 U.S.561 (1986)... 67 7, 11,14

il

TABLE OF AUTHORITIES—Continued

Pages

Cases (Cont’d)

Concorde Limousines, Inc. v. Moloney Coachbuild-

ers, Inc., 835 F.2d 541 (5th Cir.1987) .. . 8

Daggett v. Kimmelman, 811 F.2d 793 ca ¢ Cir.

1987) 8,18

Drez v. E. R. —" & Sons Inc., 674 F _—

1432 (D.Kan.1987) ... 18

Easter House v. State ” Illinois, Dept. of Chil-

dren and Family Services, 663 F <i 456 — D.

T11.1987) _ ........ m a a 16

Edmonds v. United States, 658 s F.Supp i126

(D.S8.C.1987) . ies Stents ‘ae

Evans v. Jeff D., 475 U.S.717 7 (1986) oor te . B,6

Furtado v. Bishop, 635 F.2d 915 (1st Cir.1980) 0... = 8

Garmong v. Montgomery ( _—— 668 F. —— 1000

(S.D.Tex.1987) .................... —_——

Hawkins v. en tiiesh, Inc., 697 F.2d 810

(8th Cir.1983) . ES

Heath v. Brown, 807 *'.2d 1229 (5th Cir.1987) oo. 8, il

Hensley v. Eckerhart, 461 U.S.424 (1983) oo 17

Illinois Migrant Council v. Pilliod, 672 aiid

Nee staeeeeee 12

In re “Agent Orange” Product Liability Levea-

gation, 818 F.2d 226 (2d Cir.), cert. denied, —

U.S. —, 108 S.Ct.289 (1987) 000. a

In re Burlington Northern, Inc. Employment

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

cert. denied, — U.S. —, 108 S.Ct.82 (1987) 000... 9, 11,12

Tn re Chicken Antitrust Litigation, 560 F. — 963

eT RS 7,16

iv

TABLE OF AUTHORITIES—Continued

Pages

Cases (Cont’d)

In re Gas Meters Antitrust Litigation, 500 F.

Supp.956 (E.D.Pa.1980) ...... ont ap test eA RE 16

Jacobs v. Mancuso, 825 F.2d 559 (1st Cir.1987) ....8, 10, 11

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

tion for cert. filed, July 9, W988 nn ccccecemecenenscenenn 8, 10, 12

Johnson v. Avery, 393 U.S.483 (1969) nccccccncnnnnnnnnn 19

Johnson v. Georgia ee waite Inc., 488

F.2d 714 (5th Cir.1974) . BE ae Ee

Keith v. Volpe, 833 F.2d 850 (9th | See 8

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

TD csecnienrcsnsersnsisentemnsepetiiscitneintatsinansianatdiiaatacanin 9,11

Lilly v. Harris-Teeter Supermarket, 720 F.2d 326 |

(4th Cir.1983), cert. denied, 466 U.S.951 (1984) 2. 8

Louisville Black Police Officers Organization, Ine.

v. gal bid Louisville, 700 F.2d 268 (6th Cir.

Lucero v. City of 2 Trinidad, 815 F.2d i384 (10th

II \cninssntcinccantensunnnnbaaatatas | 8,11

Metro Data Systems, Inc. v. Durango Systems,

Inc., 597 F.Supp.244 (D.Ariz.1984) _. 18

Morgan v. Nevada Board of State Prison Comis- .

sioners, 615 F.Supp.882 (D.Nev.1985) 16

Northcross v. Board of Education of Memphis City

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

447 U.S.911 (1980) ................. Rue OT ead =e 5

PPG Industries, Inc. v. Celanese Polymer Specialt-

ties Co., 658 F.Supp.555 (W.D.Ky.1987), rev'd

on other grounds, 840 F.2d 1565 (Ped.Cir. 1988) |... 11

Pacific Coast Agricultural Export Association +.

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

1975), cert. denied, 425 U.S.959 (1976) on. y

v

TABLE OF AUTHORITIES—Continued

Pages

Cases (Cont’d)

Parise v. Riccelli Haulers, Inc., 692 F.Supp.72

NEE IIT DY -connsncsitinenannnetisiptnateanizanpuniscaited 7, 16

Pennsylvania v. Delaware Valley Citizen’s Coun-

eu for Clean Air, 478 U.S.546 vo (‘‘ Penn-

Lh SRN a Se Ln. Se a ee 5, 17, 18

Pennsylvania v. Delaware Valley Citizen’s Council

for Clean Air, — U.S. —, 107 S.Ct.3078 (1987)

(‘‘Pennsylvania II’’) ........ iaiiaseneaiadinsadieanaidaseatiaan dada 5, 6

Procunier v. Martinez, 416 U.S.396 (1974) 00. 13

Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983) ........6, 8, 17

Richardson v. Byrd, 709 F.2d 1016 (5th Cir.), cert.

denied, 464 U.S.1009 (1983) ......... Pichia ae EROS 8, 11, 16, 17

Roe v. City of Chicago, 586 VF _—— 513 (N.D.

SE RSS IE ia ar er ca TRC eek eae OA Le 12

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

a 5 eee 10

Save Our Cumberland Mountains, Inc. v. Hodel,

GIG Dd GS (DC .Civ. 1GG7) nn aaecececenenceencoereeneeorerrsen 9, 10

Schwartz v. Novo Industri — 119 F.R.D.359

S.D.N.Y.1988) . iaeias ain sat

Shorter v. V alley B Bank & Trust Co., 678 F. F Supp.

714 (N.D.II.U988) oo CEH aes se SON Dae RPO 10

Skelton v. General Motors Soetinsed 661 | FSupp

1368 (N.D.DIL1987) cc ccccssceseseeee an ae

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

1226 (7th Cir.1982), aff'd, 465 U.S.752 (1984) 9,16

Stewart v. Rhodes, 656 F.2d 1216 (6th ———

cert, demied, 455 U.S.991 (1982) oon eens n 8 11

Strama v. Peterson, 689 F.2d 661 (7th Cir.1982).. 11

vi

TABLE OF AUTHORITIES—Continued

Pages

Cases (Cont’d)

The Florida Bar v. er 355 So.2d 1186

ee ee te ee

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

s 5. Ee s ; Aes eee:

Todd Shipyards Corp. v. Director, “Office a

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

SUTIIITIED <a-sctasdtaciadintemcsieeensechanndnatinnisinaetanneimmmmbigeneemeaiitbell 9,10, 11

Toussaint v. McCarthy, 826 F.2d 901 (9th Cir.

IIIT cschaneiameneneccoebseseeiealantiiaaaaneetnaenspenaliaveiaiaaiaion iii 8, 10

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

(D.R.1.1983) ... agama ; Rn

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

Ustrak v. Fairman, No.87-2057 (7th Cir. July 13,

ie v. Board of Education of Prince George’s

County, 770 F.2d 1244 (4th Cir.1985) 0 8

Walters v. City of Atlanta, 803 F.2d 1185 (11th

SED Geticpsintveencntonevneinaninnnts Tne ac aeieaaien Les 8

Wilkett v. Interstate Commerce Commission, 844

F.2d 867 (D.C.Cir.1988) . ee

Williams v. Bowen, 684 I ‘Supp. 1305 (E.D.Pa.

1988) . AoE ec a IR

Yohay v. City 7” Alexandria Siete Credit

Union, 827 F.2d 967 (4th Cir.1987) 00 = «8

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

661 i’. Supp. 996 (E.D.M.1987) . caeiabateananreke: Coe

STATUTE

Civil Rights Attorney’s Fee Awards Act of 1976,

Oe ee ee ED shits eecarersarsitanneenieeshatiinn poe passim

vii

TABLE OF AUTHORITIES—Continued

Pages

OTHER AUTHORITIES

ABA Model Code of Professional Responsibility

(1976)

NS Lectern htihdeableblietnhladadaniliseddalddatisactakiiala ae 15

8 TES RAR Na aN ae Ren ae Nr ets 15

DR 2-106(A)(B) . icine eieeinepimtiieariansiiadiaaaiaaniiciiag ae

DR 3-102 . idhusdlipsiuansapaaiaie ata n> ae

ABA Model Rules of Professional Conduct (1984)

I etches eee a ee

ABA Standing Comm. on Legal Assistants Posi-

tion Paper on the Question of Licensure or

a

National Association of Legal Assistants Code

of Ethics and Professional Responsibility

National Association of Legal Assistants, Ince.,

Model Standards and Guidelines for Utiliza-

tion of Legal Assistants (1984) 00 mnmelly 15

National Association of Legal Assistants, Ine.,

1986 National Utilization and Compensation

Survey Report (1967) cee 12

United States Dept. of Labor, Bureau of Labor

Statisties, Occupational Outlook crated

Gann SE ee cai. oa

STATEMENT

The National Association of Legal Assistants, Ince.

submits this brief amicus curiae, pursuant to Rule 36 of

the Rules of the Supreme Court of the United States, in

support of petitioner. This brief is submitted upon the

written consent of petitioner and respondents.!

4.

a

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 ex-

perience, legal assistants have knowledge and exper-

tise 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

Assistants (1984).

The National Association of Legal Assistants, Ine.

(**NALA"’) was incorporated in 1975 as a non-profit or-

! The original of petitioner's written consent by William W.

Rosen, Esquire, counsel for petitioner, and the original of re-

spondent’s written consent by Edmond L. Guidry, III, Esquire,

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

Court herewith.

2 The term “legal assistant’ is preferred, as it represents those

persons doing work of a legal nature under the direct super-

vision of an attorney, as opposed to a broader category of per-

sons termed “paralegal,” who perform work of a similar nature

but not necessarily under the supervision of an attorney.

2

ganization, 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 de-

velopment and continuing education for legal assistants,

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 Ethies and Professional Responsibility for legal

assistants to serve as a guideline for the proper conduct

by legal assistants in the performance of their duties (re-

printed 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 profession

as well as substantive knowledge of law and procedure.

Currently, the voluntary two-day examination program is

administered three times yearly. As of March 1988, 2,267

participants have earned the title CLA (Certified Legal

Assistant).

In 1984, NALA adopted its Model Standards and

Guidelines for Utilization of Legal Assistants to serve as

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

loeal, state and national bar associations to set standards

for lega! assistants, and provides continuing education for

3 Projections by the United States Department of Labor indi-

cate an increase in the number of legal assistants from an esti-

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

of Labor, ‘ureau of Labor Statistics, Occupational Outlook

Quarterly (S, “ing 1986).

3

legal assistants through seminars, workshops, publications

and video tapes.

The legal assistant is a recognized and desirable addi-

tion to the modern law office. The delegation of work

which would otherwise be performed by an attorney to a

skilled legal assistant reduces the cost of legal services

to the client and inereases attorney efficiency and pro-

ductivity. The benefits of this cost-reducing, cost-effee-

tive delivery of legal services to the public through the

attorney-supervised use of legal assistants will be pro-

moted and encouraged if the work of legal assistants is

recognized and compensated by e.'orney’s fee awards.

Were the Court to affirm the ruling below by holding

that the time spent by legal assistants in the successful

prosecution of a civil rights case should not be considered

as compensable under 42 U.S.C. § 1988, the detrimental

effect upon those seeking legal representation to redress

civil rights violations, as well as in other types of cases

in which Congress has provided for the recovery of attor-

ney’s fees, would be substantial. Such a result would

either discourage attorneys from representing victims of

civil rights violations, because they could not receive full

compensation for their effort, or force attorneys to per-

form all tasks of a legal nature, thereby decreasing the

utilization of legal assistants and increasing the cost of

litigation.

°

4

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 hicher

rate has significantly reduced the cost of legal services

to the public and enhanced the quality of legal represen-

tation 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 is regularly ineluded in attorney’s fees charged

private fee-paying 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 inelude compensation for productive work

of a legal nature performed by a skilled legal assistant,

under the supervision of an attorney, in order to effectu-

ate the purpose of section 1988. Section 1988 was adopted

hy Congress to make available legal representation to vie-

tims of civil rights violations by fully compensating coun-

sel for prevailing parties at a rate competitive with that

charged in the private marketplace. An attorney’s fee

award which includes compensation for the work of legal

assistants is competitive with fees charged to traditional

fee-paying clients, makes civil rights representation finan-

cially feasible for competent attorneys, promotes the cost-

effective practice of utilizing legal assistants in the de-

livery of legal services and is in aecord with the goal of

making available efficient and reasonably priced legal

services, not only to victims of civil rights violations but

also to the publie at large.

—)

ARGUMENT

THE WORK OF LEGAL ASSISTANTS IS COM-

PENSABLE AS PART OF A REASONABLE

ATTORNEY’S FEE AWARD PURSUANT TO

42 U.S.C. § 1988.

A. Compensating prevailing parties for the work per-

formed by legal assistants comports with accepted

practice in the private marketplace and is thus

consistent with the purpose of 42 U.S.C. 4 1988.

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

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

tions, ‘‘the court, in its discretion, may allow the prevail-

ing party, other than the United States, a reasonable attor-

ney’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 ef-

fective citizen enforcement thereof. Pennsylvania v. Del-

aware Valley Citizen’s Council for Clean Air, 478 US.

546, — 106 S.Ct. 3088, 3096 (1986) (‘‘ Pennsylvania 1’’):

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 mean-

ingless because they would remain largely unenforced.”’

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, — U.S. —, —, 107 S.Ct. 3078, 3093 (1987)

(Blackmun, J., dissenting) (emphasis added) (‘‘ Pennsyl-

vania IT’’).

Because most victims of civil rights violations are

unable to afford legal representation, Congress found that

the market itself would not provide adequate and effec-

tive access to the judicial process for vindication of rights

violated. Pennsylvania II, — U.S. at —, 107 S.Ct. at 3092

(Blackmun, J., dissenting); City of Riverside v. Rivera,

477 U.S. 561, —, 106 S.Ct. 2686, 2695 (1986). Thus, to

ensure that experienced competent attorneys would be

willing to represent persons with legitimate civil rights

grievances, Congress determined that it would be neces-

sary to compensate lawyers for all time reasonably ex-

pended on a ease, at a rate mirroring the prevailing mar-

ket rate in the relevant community. Pennsylvania Il, —

US. at —, 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 competi-

tive with the private market for lawyers’ services, Penn-

sylvania II, — U.S. at —, 107 S.Ct. at 3092, 3093, 3095

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

ditional with attorneys compensated by a _ fee-paying

client.’’’ Jd. 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 assistants

and law students is an ‘‘inecreasingly 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 stand-

ing of paraprofessionals has improved significantly

as special training has enabled them to undertake a

wide variety of more sophisticated tasks previously

assigned exclusively to higher priced lawyers. The

advent and widespread use of the paraprofessional

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 F.Supp. 963,

977-78 (N.D.Ga.1980). (citation omitted).

See also Parise v. Riccelli Haulers, Inc., 692 F.Supp. 72

(N.D.N.Y. 1987). That attorney’s fees include compen-

sation for time spent by legal assistants reflects ‘‘the re-

alities of the marketplace and of modern, progressive law

office management.’’ United Nuclear Corp. v. Cannon,

564 F.Supp. 581, 589 (D.R.I. 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 cir-

cuit has likewise acknowledged the validity of delegating

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 1988,4

or to an analogous fee-shifting statute or rule.

4 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 which should have been

performed by paralegals); Fourth Circuit: Vaughns v. Board of

Fduc. of Prince George’s County, 770 F.2d 1244, 1245-46 (4th

Cir.1985); Fifth Circuit: Heath v. Brown, 807 F.2d 1229, 1232

(5th 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, No. 87-2057 (7th Cir. July 13, 1988); Cameo

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

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

kins v. Missouri, 838 F.2d 260, 266 (8th Cir.), petition for cert.

filed, July 9, 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).

5

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

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

(1987) (class 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 Coun-

cil 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 Cir.1983), cert. denied, 466 U.S. 951 (1984) (employ-

ment discrimination); 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 Or-

leans, 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

(Continued on following page)

B. Compensating for the work of legal assistant time

promotes 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 cosi-effec-

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

ing cost of civil rights litigation, furthers the policies un-

derlying 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-

(Continued from previous page)

Health & Human Services, 792 F.2d 70, 73 (6th Cir.1986) (Social

Security Act, 42 U.S.C. § 406); Seventh Circuit: In re Burling-

ton Northern, Inc. Employment Practices Litig., 810 F.2d 601,

609 (7th Cir.1986), cert. denied, — U.S. —, 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 discrimination, 42

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

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

tion, 42 U.S.C. § 2000e); Todd Shipyards Corp. v. Director, Of-

fice of Workers’ Compensation, 545 F.2d 1176, 1182 (9th Cir.

1976) (Longshoremen’s and Harbor Workers’ Compensation

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 ef

seq.); Tenth Circuit: Kopunec v. Nelson, 801 F.2d 1226, 1229

(10th Cir.1986) (Equal Access to Justice Act); Eleventh Circuit:

Allen v. '!nited 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

Reclamation Act of 1977, 30 U.S.C. § 1201).

10

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 would

discourage the cost-effective delivery of legal services.®

In addition to reducing the cost of litigation, the use

of Jegal 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

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. Dt-

rector, Office of Workers’ Compensation Programs, 545

F’.2d 1176, 1182 (9th Cir. 1976); Beamon v. City of Ridge-

land, Miss., 666 F.Supp. 937, 946 (S.D.Miss. 1987).

Consistent with the private market billing procedure,

a majority of federal trial and appellate courts approve

compensation of legal assistant work hours based upon a

reasonable hourly rate set lower than the hourly rate of

attornevs but sufficient to defray the cost of ovevhead.’

6 See, e.g., Jacobs, $25 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. & Te’ Co., 456 F.

Supp. 77, 83 (N.D.Cal. 1978).

7 £.g., Ustrak, No. 87-2057 (7th Cir. July 13, 1988); Wilkett, 844

F.2d at 877; Jenkins, 838 F.2d at 266; Save Our Cumberland

Mountains, Inc., 826 F.2d at 54 n.7; Toussaint, 826 F.2d at 904;

(Continued on following page)

11

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

1987) (legal assistant expenses are most frequently reim-

bursed based on an hourly fee). This Court, in City 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 ob-

viously 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.

While some courts have viewed legal assistant work as

a ‘‘eost’’ to be reimbursed*, most award compensation at

(Continued from previous page)

Jacobs, 825 F.2d at 563 & n.6; In re “Agent Orange” Prod. Liab.,

818 F.2d at 230, 238; Lucero, 815 F.2d 1384, 1386; In re Bur-

lington Northern, inc. Employment Practices Litie.. 810 F.2d at

609; Heath, 807 F.2d at 1232; Kopunec, 801 F.2d at 1229; Citi-

zen’s Council of Del. County, 741 F.2d at 596; 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. Peter-

son, 689 F.2d 661, 663 (7th Cir.1982); Stewart v. Rhodes, 656

F.2d at 1215-17; Todd Shipyards Corp., 545 F.2d at 1182.

8 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 ~~ assistant, with no additional compensa-

tion for fringe benefits or overhead. See, e.g., City of Detroit,

(Continued on following page)

12

an hourly rate for legal assistant work as a part of the

attorney’s fee. Jenkins v. State of Missouri, 838 F.2d

260, 266 (8th Cir.), petition for cert. filed, July 9, 1988.

Law firms in the private marketplace routinely include

an hourly rate charge ior legal assistants as part of the

attorney’s fee charged fee-paying clients. Indeed, seventy-

six percent of 1,700 legal assistants responding to a recent

survey indicated that their law firm received compensa-

tion for their work from clients on an hourly billing

rate basis. National Association of Legal Assistants, Inc.,

1986 National Utilization and Compensation Survey Re-

port (1987). ‘Law firms, like other businesses 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.’’ Jn re Burlington Northern Inc. Em-

ployment Practices Litig., 810 F.2d 601, 609 (7th Cir.

1986), cert. denied, — U.S. —, 108 S. Ct. 82 (1987). The

hourly rate of legal assistants must reflect not only base

(Continued from previous page)

495 F.2d at 473; Illinois Migrant Council v. Pilliod, 672 F.Supp.

1072, 1084 (N.D.1I1.1987); Campaign for a Progressive Bronx

v. Black, 631 F.Supp. 975, 983 (S.D.N.Y.1986). Still others re-

fuse to provide separate compensation for the work of legal

assistants, taking the position that legal assistants represent over-

head, such as clerical and office expenses, all covered by the

attorney’s hourly rate. See Abrams v. Baylor College of Medi-

cine, 805 F.2d 528, 535 (5th Cir.1986); Roe v. City of Chicago,

586 F.Supp. 513, 516 & n.6 (N.D.111.1984). But see Chapman,

456 F.Supp. at 82 (because the work of paralegals and law

clerks is ordinarily charged directly to a particular litigation, if

treated as an overhead expense payable out of the general re-

ceipts of the attorney, the across-the-board cost of services to

attorney’s clients would be burdened by paralegal costs in-

curred in connection with matters of no interest or benefit to

other clients).

13

salary, but also fringe benefits and a proportionate share

of firm overhead.’

C. The inclusion of compensation for legal assist-

ants in an attorney’s fee award does not offend

ethical and legal tenets prohibiting the unauthor-

ized practice of law.

Any objection to including compensation for the

supervised legally-related work of legal assistants with a

reasonably attorney’s fee award because they are not

attorneys is but a ‘‘technical’’ one. The work performed

by legal assistants is work of the type necessary to the

prosecution of the litigation which would otherwise be

performed by attorneys. Indeed, this Court has recog-

nized the validity of non-lawyer personnel performing ser-

vices of a legal nature. In Procunier v. Martinez, 416 U.S.

396 (1974), the Court affirmed the striking of a prison

administrative rule banning attorney-client interviews con-

ducted by law students or legal paraprofessionals as con-

stituting an unjustified restriction 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 inter-

views with prisoners would inhibit adequate professional

representation of indigent inmates, or alternatively, in-

crease the cost of legal representation for prisoners. /d.

at 419-20. Likewise, in Johnson v. Avery, 393 U.S. 485

(1969), the Court struck down a prison regulation pro-

9 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. South-

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

14 .

hibiting 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.’’ Zd. at 490

nll. See also City of Riverside, 477 U.S. at —, 106

S.Ct. at 2690 (affirming attorney fee award which included

compensation for work performed by a law clerk).

Compensation for lawyer-supervised legally-related

work performed by legal assistants conforms with the

ethieal 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 eco-

nomically and efficiently.”’ Model Code EC 3-6. See

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

0 The American Bar Association emphasizes that the work

of a legal assistant “involves the performance, under the ulti-

mate direction and supervision of an attorney, of specifically-

delegated substantive legal work, which work, for the most

part, requires a sufficient knowledge of legal concepts that, ab-

sent such assistance, the attorney would perform the task.”’

ABA Standing Committee on Legal Assistants, Position Paper on

the Question of Licensure or Certification (1986).

15

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.

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 re-

quired 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 re

sponsibility to the client and assumes full professional

responsibility for the work product. National Association

of Legal Assistants Code of Ethics and Professional Re-

sponsibility (1975); National Association of Legal Assist-

ants Model Standards and Guidelines for Utilization of

Legal Assistants (1984) (both reprinted in full in the

11 Though the American Bar Association has shied away from

defining what constitutes the practice of law, ABA Code of

Professional Responsibility, it notes that “[flunctionally, 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 ex-

ample, 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 aver-

age citizen, constitutes the practice of law. The Florida Bar Vv.

Brumbaugh, 355 So.2d 1186, 1191 (Fla. 1978).

16

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 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”.

12 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 assistant. They in-

clude: 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, re-

view of answers to interrogatories, and the compilation of sta-

tistical 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. Ni ~da 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, Richardson,

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; as-

sisting with preparation for deposition and trial, and organizing

exhibits, Faster House v. State of Illinois, Dept. of Children and

Family Services, 663 F.Supp. 456, 460 (N.D.111.1987); In re

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

preparation of settlement and settlement administration, /n 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; com-

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

at 111; drafting pleadings, Parise v. Riccelli Haulers, Inc., 692

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).

17

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.

Courts compensating for the work performed by a le-

gal assistant in connection with the award of a reasonable

attorney’s fee scrutinize the reported hours, the suggested

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

manner they scrutinize lawyer time and rates. See Penn-

sylvania I, 478 U.S. at —, 106 S.Ct. at 3098; Hensley v.

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

009. 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

constitates legal services traditionally done by an attorney

and which would otherwise be performed by an attorney at

a costlier rate. Ramos, 713 F.2d at 558; Richardson v.

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

U.S. 1009 (1983). ‘‘Such expenses are separately recover-

able only as part of a prevailing party’s award for attor-

ney’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

unrecoverabie 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 pen-

alized the attorney by lowering the hourly rate charged.

18

‘‘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 be-

cause a lawyer does it.’? Johnson v. Georgia High-

way Express, Inc., 488 F.2d 714, 717 (Sth Cir.1974).

Wasteful utilization of expensive legal talent for work

that may be delegated to non-lawyers is not condoned.

‘‘Routine tasks, if performed by senior partners in large

firms, should not be billed at their usual rates. A Michel-

angelo should not be charged Sistine Chapel rates for

painting a farmer’s barn.’’ Ursic v. Bethlehem Mines, 719

F.2d 670, 677 (3d Cir.1983). Accordingly, courts regular-

ly reduce an attorney’s hourly rate to that traditionally

charged for a legal assistant, to reflect the nature of the

legal work performed.”

13. 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 |’), (approving a lodestar which set differ-

ent 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 ave been performed by asso-

ciates or paralegals would warrant an hourly fee reduction);

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. E. R. Squibb & Sons, Inc.,

674 F.Supp. 1432 (D.Kan1987) (dropping attorney billing rate

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

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

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 administra-

tive 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 attor-

ney as work which could have been performed by paralegal).

19

E. Permitting recovery for work of legal assistants

promotes the availability of legal representation

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

overhead expense, as is done for clerical work and office

supplies, then all persons employing that attorney, includ-

ing 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 assistants would be done by

attorney associates and billed at the higher attorney asso-

ciate rate, clearly decreasing the utilization of legal assist-

ants and increasing the cost of litigation. The attorney

performing legal tasks which could be delegated to a

legal assistant, 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 alter-

native would be for the attorney to perform the work at a

reduced rate, below and not competitive with the market

rate. Such a result would make the representation of vic-

tims of civil rights violations cost prohibitive and unat-

tractive, and discourage competent, experienced attorneys

from undertaking such representation because they could

not receive full compensation for their efforts.

The widespread practice of assigning less technical

yet legal work to legal assistants to be performed under

the supervision of an attorrey promotes economy and ef-

ficiency in the administration of justice. Permitting rea-

sonable compensation for such services as part of a rea-

sonable attorney’s fee encourages this desirable practice,

20

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.

ray

—

CONCLUSION

For the reasons set forth above, the National Asso-

ciation of Legal Assistants, Inc., as amicus curiae, respect-

fully urges the Court to reverse the decision of the Court

of Appeals for the Fifth Circuit and permit recovery for

the work of legal assistants as part of a reasonable attor-

ney’s fee award made pursuant to 42 U.S.C. § 1988.

Respectfully submitted, |

Joun A. DeVavtt, IIT

Counsel of Record

JANE A. LESTER

Counsel

Bepe i, Dirrmar, DeEVauLt

& Piuuans, 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) ..... 1A

National Association of Legal Assistants, Inc., Model

Standards and Guidelines for Utilization of Legal

Assistants (1984) 3A

1A

CODE OF ETHICS AND

PROFESSIONAL RESPONSIBILITY

It is the responsibility of every legal assistant to adh. re

strictly to the accepted standards of legal ethics and to

live by general principles of proper conduct. The per-

formance of the duties of the legal assistant shall be gov-

erned by specific canons as defined herein in order that

justice will be served and the goals of the profession at-

tained. 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 importance al-

through 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 responsibil-

ity for the work product.

Canon 3. A legal assistant shall not engage in the practice

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

or appearing in court (unless otherwise authorized by

court or agency rules).

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

volving professional legal judgment as the services of a

lawyer 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 unau-

thorized 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 main-

tain 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 avail-

able 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 Code of Professional Responsibility.

3A

NATIONAL ASSOCIATION OF

LEGAL ASSISTANTS, INC.

MODEL STANDARDS AND

GUIDELINES FOR

UTILIZATION OF LEGAL

ASSISTANTS

@ Copyright National Association of Legal Assistants,

Ine., 1984

PREAMBLE

Proper utiliziation of the services of legal assistants af-

fects the efficient delivery of legal services. Legal assist-

ants 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 services.

Therefore, the National Association of Legal Assistants,

Inc., hereby adopts these Model Standards and Guidelines

as an educational document for the benefit of legal assist-

ants 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 super-

vision 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 As-

sistant (CLA) examination of the National Asso-

ciation of Legal Assistants, Inc.; (see attached

Exhibit A)

2. Graduation from an ABA approved program of

study for legal assistants ;

3. Graduation from a course of study for legal as-

sistants which is institutionally accredited but not

ABA approved, and which requires not less than

the equivalent of 60 semester hours of classroom

study ;

4. Graduation from a course of study for legal as-

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

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

training as a legal assistant ;

5. <A baccalaureate degree in any field, plus not less

than six months in-house training as a legal as-

sistant;

6. A minimum of three years of law-related experi-

ence under the supervision of an attorney, includ-

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

legal assistant; or

7. Two years of in-house training as a legal assist-

ant.

For purposes of these standards, ‘‘in-house training

as a legal assistant’’ means attorney education of the em-

ployee concerning legal assistant duties and these guide-

lines. In addition to review and analysis of assignments,

the legal assistant should receive a reasonable amount of

dA

instruction directly related to the duties and obligations

of the legal assistant.

GUIDELINES

These guidelines relating to standards of performance

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 super-

vise the manner in which such duties are accomplished.

Legal assistants should:

1. Disclose their status as legal assistants at the out-

set of any professional relationships with a

client, other attorneys, a court or administrative

agency or personnel thereof, or members of the

general public;

2. Preserve the confidences and secrets of all

clients; and

3. Understand the attorney’s Code of Professional

Responsibility and these guidelines in order to

avoid any action which would involve the attorney

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; ur represent

a client before a court; nor

2. Engage in, encourage, or contribute to any act

which could constitute the unauthorized practice

of law.

Legal assistants may perform services for an attorney

in the representation of a client, provided:

5.

6A

The services performed by the legal assistant do

not require the exercise of independent profes-

sional legal judgment ;

The attorney maintains a direct relationship with

the client and maintains control of all client mat-

ters ;

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

connecction therewith; and

The services performed supplement, merge with

and become the attorney’s work produet.

In the supervision of a legal assistant, consideration

should be given to:

1,

3.

Designating work assignment that correspond to

the legal assistant’s abilities, knowledge, training

and experience.

Educating and training the legal assistant with

respect 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 sub-

stantively correct and timely performed;

Providing continuing education for the legal as-

sistant in substantive matters through courses,

institutes, workshops, seminars and_ in-house

training; and

Encouraging and supporting membership and ac-

tive participation in professional organizations.

Except as otferwise provided by statute, court rule or

decision, administrative rule or regulation, or the attor-

ney’s Code of Professional Responsibility; and within the

7A

preceding parameters and proscriptions, a legal assistant

may perform any function delegated by an attorney, in-

cluding, but not limited to the following:

1,

oO

~J

.

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.

Conduet investigations 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 legal as-

sistant’s status is clearly indicated and the cor-

respondence aoes not contain independent legal

opinions or legal advice.

8A vA

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

Patent and Trademark Office (No. 1131999). Any un-

To become eligible to sit for the Certified Legal As- authorined use le otrictly forbidden.

sistant (Ci A) examination, candidates must meet one of

the followin, requirements:

1. Graduation from an ABA approved legal as- |

sistant training course or graduation from a legal |

assistant training course at a school which is in-

stitutionally accredited ;

2. Graduation from a legal assistant course neither

approved by the ABA nor at an institutionally ac-

credited 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. Successful completion of the PLS (Professional

Legal Secretary) examination with five (5) years

law related experience under the supervision of a

member of the bar (Note: This optional require-

ment is open until 1986.) ;

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

supervision of a member of the bar (Note: This

optional requirement is open until 1986.).

Once admitted to the program, the applicant must suc-

cessfully complete an eleven hour examination covering

general skills required of all legal assistants plus knowl-

edge 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 vears. Lifetime certification is

not permitted.