LIT’s Commentary on Surety Bonds and Texas Debt Collectin’ Lawyers
MAY 20, 2023
Do you think legislators meant to exclude sole tradin’ lawyers or solo attorneys in Texas from being regulated and required to have an active surety bond on file at the Secretary of State if they are wearing the hats of both an attorney and non attorney to perform debt collection? LIT suggests that would be absurd, as they say in legal circles.
Wesner v. Southall, Civil Action 3:22-CV-0927-B, at *16 (N.D. Tex. Apr. 18, 2023)
“The TDCA’s definition of “third-party debt collector” borrows the definition of “debt collector” from the FDCPA.
Tex. Fin. Code § 392.001(7).
It generally does not include an attorney collecting a debt as an attorney. Id.
However, an attorney does qualify as a third-party debt collector if “the attorney has nonattorney employees who:
(A) are regularly engaged to solicit debts for collection;
or
(B) regularly make contact with debtors for the purpose of collection or adjustment of debts.” ”
LIT’s Conversation with ChatGPT
LIT: Can you describe the duties of a paralegal?
ChatGPT: Certainly! A paralegal, also known as a legal assistant, is a professional who works closely with lawyers and supports them in various legal tasks. While the specific duties of a paralegal may vary depending on the law firm or organization they work for, here are some common responsibilities:
Legal Research: Paralegals often conduct legal research to gather relevant information and supporting documentation for cases. This involves reviewing statutes, regulations, case law, and other legal resources to assist attorneys in building their arguments or understanding the legal landscape.
Document Preparation: Paralegals are responsible for drafting and preparing legal documents such as pleadings, contracts, motions, and subpoenas. They ensure that these documents are properly formatted, organized, and accurately reflect the attorney’s instructions.
Case Management: Paralegals play a vital role in managing cases. They help organize and maintain case files, track deadlines, schedule hearings, and maintain communication with clients, witnesses, and other parties involved in the case.
Client Support: Paralegals often have direct contact with clients. They may interview clients to gather relevant information, provide updates on case progress, and assist in obtaining necessary documents or signatures. They also help maintain client confidentiality and ensure that client information is handled securely.
Trial Preparation: In preparation for trials, paralegals assist attorneys by organizing trial exhibits, coordinating with witnesses, and preparing trial notebooks. They may also help with courtroom logistics, such as reserving courtrooms and arranging for necessary equipment.
Administrative Tasks: Paralegals handle various administrative tasks to support the efficient functioning of the law office. This includes managing correspondence, scheduling meetings, maintaining calendars, and billing clients for services rendered.
It’s important to note that paralegals cannot provide legal advice or represent clients in court. They work under the supervision of attorneys, helping them with legal tasks and providing essential support throughout the legal process.
LIT: When you say they cannot provide legal advice, would that be equated to non attorney duties?
ChatGPT: Yes, when I say that paralegals cannot provide legal advice, it means that they cannot offer legal opinions or guidance to clients in the same way that an attorney can.
Providing legal advice is a function reserved for licensed attorneys who have completed the necessary education, passed the bar exam, and obtained the appropriate professional credentials.
While paralegals play a crucial role in the legal profession and perform many tasks related to legal matters, their responsibilities are limited to tasks that do not require the expertise and knowledge of an attorney.
This is to ensure compliance with the regulations and ethical guidelines governing the legal profession.
Paralegals often work under the supervision of attorneys and assist them in research, document preparation, case management, and other administrative tasks.
They provide valuable support to attorneys, but their role is distinct from that of an attorney.
Clients should rely on attorneys for legal advice and rely on paralegals for assistance with the practical aspects of legal matters.
LIT: Can a lawyer do both roles?
ChatGPT: Yes, it is possible for a lawyer to perform both the roles of an attorney and a paralegal/legal assistant.
In some situations, particularly in smaller law firms or solo practitioner practices, attorneys may handle a wide range of tasks, including those typically performed by paralegals.
Attorneys are trained in the law and have the ability to provide legal advice, represent clients in court, and handle complex legal matters.
However, they may also engage in tasks that are typically assigned to paralegals, such as legal research, document preparation, and case management.
The decision to take on paralegal responsibilities alongside their attorney duties depends on various factors, including the size of the law firm, the nature of the cases, and the attorney’s personal preferences and workload.
Some attorneys may choose to handle paralegal tasks to maintain a more hands-on approach and ensure efficiency in their practice.
However, it’s important to note that attorneys must prioritize their obligations as legal professionals.
If an attorney is performing paralegal tasks, they must still ensure they are dedicating sufficient time and attention to their primary responsibilities, which include providing legal advice, representing clients, and upholding their ethical obligations.
Nat’l Comm’n for the Certification of Crane Operators v. Nationwide Equip. Training, Civil Action 1:20-cv-483-TFM-N, at *7-8 (S.D. Ala. Oct. 14, 2022)
(“The Court has also found one instance of non-lawyer work that was performed by NCCCO’s paralegal, Ms. Brashier.
“A court may award fees for the work of non-lawyer paralegals and non-lawyer law clerks, but only to the extent they perform work ‘traditionally done by an attorney.’”
Kent v. Gulf Coast Sec. Enters. LLC, Civ. Act. No. 18-00106-CG-C, 2018 U.S. Dist. LEXIS 208769, at *7, 2018 WL 6933393, at *3 (S.D. Ala. Dec. 10, 2018) (citations omitted).
“Work that may appropriately be performed by paralegals and billed to a client or a losing party includes ‘factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence.’”
Allen v. McClain EZ Pack of Ala., Inc., Civ. Act. No. 03-0490-WS-M, 2005 U.S. Dist. LEXIS 43487, at *9, 2005 WL 1926636, at *3 (S.D. Ala. Aug. 8, 2005) (quoting Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 288 n.10, 109 S.Ct. 2463, 2471 n.10, 105 L.Ed.2d 229 (1989)).
Ms. Brashier billed time for filing, which was also block billed with other tasks, and the Court is not able to parse out the amount of time billed for that non-lawyer work, so the Court finds an across-the-board-reduction of ten percent (20%) is necessary in this instance.”)
Delta Fin. Corp. v. Morrison, 15 Misc. 3d 308, 319 (N.Y. Sup. Ct. 2007)
(“A lawyer can perform work of a legal nature as well as a non-legal nature.”)
Attorney Grievance Comm’n of Md. v. Storch, 445 Md. 82, 90 n.8 (Md. 2015)
(“The duties required for some non-lawyer roles have commonalities with the practice of law, such as acting as a non-attorney fiduciary, and these roles are often performed by attorneys because they have the appropriate legal ability.
Susan J. Michmerhuizen & Peter Geraghty, When is a Lawyer not a Lawyer?, YourABA (March 2015), http://www.americanbar.org/publications/youraba/2015/march–2015/when–is–a-lawyer–not-a-lawyer-.html [http://perma.cc/Q2G2–WRMW]”)
Office of Disciplinary Counsel v. Passyn, 537 Pa. 371, 383-84 (Pa. 1994)
(“The justification that respondent was wearing two hats is no justification at all.
It is an attorney’s responsibility to differentiate between actions performed as an attorney and actions performed in another capacity;
services undertaken as an attorney are subject to the code of professional responsibility regardless of other roles the attorney may assume.
Misconduct cannot be excused merely because an attorney is confused by pursuits in addition to those of a lawyer. ”)
In re FirstEnergy Corp. Sec. Litig., 2:20-cv-3785, at *4 (S.D. Ohio Jan. 10, 2023)
(“When a lawyer provides non-legal services, such as providing business advice, the attorney-client privilege fails to attach.”)
Behavior Analyst Certification Bd. v. Rodriguez, 1:21-cv-22834-SCOLA/GOODMAN, at *32 (S.D. Fla. Sep. 26, 2022)
(““Work performed which can often be accomplished by non-lawyers but which a lawyer may do . . .
is not compensable at a lawyer’s rate solely because a lawyer does it.””)
Lee v. Nash, 65 Or. App. 538, 545 (Or. Ct. App. 1984)
(“The court found that the attorney was negligent in the performance of escrow duties of a non-legal nature which could have been performed by a non-lawyer”)
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