Attorney vs. Paralegal

DISCLAIMER: Altiorem Legal Services (hereinafter, “Altiorem”) cannot and does not provide legal advice. Altiorem is not a law firm; Altiorem’s staff are not attorneys, cannot act as attorneys, and do not act as attorneys; and any information provided by Altiorem in this article or otherwise is not a substitute for legal advice from an attorney. The information contained in this article should not be construed as legal advice, as it is not intended to be legal advice; the information in this article is provided for educational purposes only. Again, none of the information provided in this article should be construed as legal advice, and nobody should rely on or use the information contained in this article in their legal matters.

WHAT IS A PARALEGAL?

A paralegal is professionally trained to assist attorneys in various legal capacities. While a paralegal can sometimes perform clerical work such as filing or calendaring, that is not a paralegal’s main duty. The duties mentioned above typically belong to a legal assistant. A paralegal is essentially a legal assistant that is trained to perform, without limitation, the following responsibilities:

• draft legal documents;
• conduct legal research;
• work with clients;
• manage cases; and
• manage other tasks more specifically related to law and legal procedures, except clerical work.

Paralegals will often work with a wide variety of people. Some of their associates include attorneys, clients, witnesses, court personnel, administrative assistants, and other firm staff. Paralegals have strong relationships with the legal professionals they work with. Paralegals are often required to work with other legal professionals. A paralegal is, ideally, a professional, reliable, and hard-working individual.

RELATIONSHIP BETWEEN PARALEGALS AND ATTORNEYS

Attorneys trust paralegals to perform the bulk of the work on a case. Paralegals may assist in organizing the facts of a case, deciding legal matters, and applying the law to a case’s elements. With this background established, attorneys review, plan, and apply information to the case. As long as paralegals perform their duties and apply the law to cases under an attorney’s supervision, and while not directly providing legal advice to a client, the paralegal can perform duties typically associated with the practice of law. A paralegal can provide legal advice to their attorney with respect to a case. This counsel helps the attorney become better informed about the case and make a better legal decision.

Paralegals may provide legal advice to an attorney concerning a case, but the attorney is ultimately responsible for deciding how that legal advice applies to the case at hand. Therefore, paralegals are sometimes required to give legal advice to their attorney concerning a case, perform legal duties, etc., but as long as the paralegal performs said duties under the supervision of an attorney, the paralegal would not be in danger, and their performance would be considered compliant with the law and other codes of legal procedures.

LEGAL ADVICE

As aforementioned, paralegals cannot provide legal advice to individuals. Paralegals are not attorneys and are not regulated by the state bar association. The unauthorized giving of legal advice occurs when a person acting as a legal advisor gives an advisee a professional or formal opinion regarding the substance or procedure of the law concerning the advisee’s particular factual situation of their case.

One can be accused of giving legal advice when, while contemplating the particular facts of an advisee’s situation, one applies the law and legal principles to said particular facts, and then one renders a legal opinion to the advisee based on one’s application of the law and legal principles to that advisee’s particular facts and situation. In other words, legal advice constitutes giving a client any information that would lead them to make a legal decision on their case. A paralegal can be sued for unauthorizedly providing legal advice and face large fines and other penalties.

WHAT IS THE DEFINITION OF THE “PRACTICE OF LAW”?

As referenced above, another thing that paralegals cannot do is practice law. In its publication, “Definition of the Practice of Law,” the American Bar Association (ABA)defines the “practice of law” as “the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in law.” ¹American Bar Association, TASK FORCE ON THE MODEL DEFINITION OF THE PRACTICE OF LAW (September 18, 2002), https://www.americanbar.org/groups/professional_responsibility/task_force_model_definition_practice_law/model_definition_definition/, at (b)(1). To abstain from potentially practicing law, a paralegal should not apply “legal principles and judgment” ²Id. to a client’s case without an attorney’s supervision; a paralegal can, however, provide self-help services to pro se³ “Pro Se” is Latin for “for oneself, on one’s own behalf”. It refers to when a litigant proceeds in a case without legal counsel (Legal Information Institute, Pro Se) https://www.law.cornell.edu/wex/pro_se#:~:text=Latin%20for%20%22for%20oneself%2C%20on,right%20to%20representation%20by%20counsel. (last visited August 10, 2022)) litigants seeking to represent themselves in their legal matters, but at no point should a paralegal apply “legal principles and judgment” ⁴American Bar Association, supra at (b)(1). to a pro se client’s case; it is the pro se client themselves who applies “legal principles and judgment” ⁵Id. to their own case. That is how a paralegal can provide legal services to pro se litigants without it constituting the practice of law.

While paralegals cannot provide legal advice or practice law like an attorney, they nevertheless are well-versed in the legal field and know the ins and outs of the court, cases, and legal procedures. For example, a paralegal has knowledge of what documents need to be filed, what the documents should contain, when the documents need to be filed, and how the documents need to be filed.

PARALEGALS SAVE ATTORNEYS’ TIME AND CLIENTS’ MONEY

Paralegals are also very knowledgeable about going through case files and creating a timeline of the case facts or organizing evidence, among other duties. Some paralegals even create “paralegal firms”—such as Altiorem! These organizations are run by a paralegal and typically do not have an attorney on staff.

Paralegal firms typically render certain legal services at a much lower cost to litigants than an actual law firm, but their services are usually limited to filling out preexisting forms with information provided by the client.

Paralegal firms can neither legally give clients advice on law or legal procedures nor legally represent the client in any way—except under special circumstances in small claims cases, in which a paralegal (or any non-attorney individual) can represent a pro se litigant and intrinsically, give them legal advice and perform the practice of law, but only with the express permission of the court.

Hiring a paralegal is ideal for individuals who intend to represent themselves in court. Paralegals can help ensure understanding on the client’s part, as well as fill out the legal documentation needed in a case before it is submitted to the court. If one needs legal assistance, legal advice, and/or legal representation, an actual attorney or a law firm is the better option.⁶HG.org, What Is the Difference Between an Attorney a Paralegal and a Lawyer?, https://www.hg.org/legal-articles/what-is-the-difference-between-an-attorney-a-paralegal-and-a-lawyer-31786 (last visited August 10, 2022)

WHAT IS AN ATTORNEY?

An attorney or a lawyer⁷The terms “attorney” and “lawyer” are used interchangeably in this post; it is not unusual for both terms to appear in the same sentence, but they generally refer to the same thing. is an individual who typically went to law school,⁸Some states do not require an individual to have gone to law school to become an attorney. States like California, Vermont, Virginia, and Washington only require that the individual pass the bar exam. passed their state’s bar exam and can, therefore, legally represent clients, practice law in court, take part in other legal proceedings, and offer legal advice directly pertaining to their client’s situation, among other duties. An attorney advises clients regarding their ongoing litigation, and they can explain the legal system to their clients. Being an attorney can be a very stressful job, and it is a big responsibility.

WHAT IS A RETAINER?

Attorneys are usually paid by retainer. A retainer is a type of compensation agreement between the attorney and a client, and it is used either for reserving the attorney’s employment or as compensation for future services.⁹Legal Information Institute, Retainer, https://www.law.cornell.edu/wex/retainer (last visited August 10, 2022) To engage in a retainer agreement, a relatively large amount of money is paid to the attorney upfront, but it does not go to the attorney until they earn the compensation. The retainer funds go into a trust account, not the attorney’s bank account. The attorney receives compensation from the trust either periodically for services or after finishing the services contemplated in the attorney-client agreement they executed with their client. Sometimes a client might even get money back after completing their case. Other times a client might have to pay a second retainer.

Some attorneys only work on a flat fee basis. This means a client only pays one flat fee for the attorney’s legal services. The client does not get money back as they potentially could with a retainer, but they do not have to pay more than the flat fee. A flat-fee agreement is usually used when an attorney is drafting things like a contract or a will. However, it is typical to have to pay a retainer for matters such as criminal cases or divorce cases.

ADDITIONAL BENEFITS OF AN ATTORNEY

Attorneys can research details, evidence, and relevant caselaw for certain cases. Attorneys can practice law before a judge and are trained in the judicial system. One major distinction between attorneys and paralegals is that attorneys are duly appointed court officers. This means they have rights and duties in the courtroom, while paralegals do not. Attorneys address witnesses, juries, and judges to advance their cases. Attorneys can be general practitioners or have a focus on certain areas of the law; however, “[a] lawyer [usually] shall not state or imply that a lawyer is certified as a specialist in a particular field of law . . . .”¹⁰Casetext, Utah Rules of Professional Conduct 7.4, 7.4(d), https://casetext.com/rule/utah-court-rules/utah-rules-of-professional-conduct/information-about-legal-services/rule-74-communication-of-fields-of-practice (last updated July 19, 2022) Therefore, although attorneys typically cannot advertise that they specialize in a certain field of law, they can focus in areas of law such as criminal law, real estate, corporate issues, estate planning, intellectual property, and even family law, among the many other areas of law in the legal system.

Attorneys focusing on particular fields of law are knowledgeable about the field in which they focus. Thanks to their educational background, attorneys can also help in other areas of law. Again, attorneys usually cannot state or imply that they specialize in a specific area of law unless: “(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association[] and (2) the name of the certifying organization is clearly identified in the communication.” ¹¹Id. at 7.4(d)(1) and (2) Therefore, excepting the circumstances established in the preceding Rule 7.4(d)(1) and (2), an attorney cannot advertise that they “specialize” in an area or areas of law, but they can state that they focus in certain areas of law.

SHOULD YOU HIRE AN ATTORNEY OR A PARALEGAL?

While it might seem that paralegals and attorneys have similar jobs, there are a few crucial differences. As established above, paralegals cannot provide legal advice or practice law. An attorney is a good fit if you are unsure what to file or what your options are regarding your case. A paralegal will be a good fit if you need help:

• understanding the legal documents you want to be drafted;
• drafting legal documents professionally and appropriately; and/or
• researching legal facts for your case.

If you are not sure who would be the best fit for your situation, just ask Altiorem! Altiorem is happy to help you determine whether an attorney or a paralegal fits you best. We are here for you and want to help you obtain the best outcome for your case. If it turns out that an attorney is a more appropriate choice for you, we are happy to refer you to an attorney in our network. Alternatively, we will let you know if we think we can get the best outcome for your case without an attorney. Ultimately, however, the decision is up to you. If you know what you want to be drafted for your case, Altiorem can help you. If you choose us, we will zealously fight for you and your case every step of the way.