Introduced Version
House Bill 3302 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 3302
(By Delegate Hunt)
[Introduced March 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend of the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §30-2A-1, §30-2A-2,
§30-2A-3, §30-2A-4 and §30-2A-5, all relating to establishing
the "Certified Legal Assistant Act"; defining terms;
establishing minimum qualifications; setting forth
responsibilities of the lawyer and the certified legal
assistant; and providing rule-making authority to the Supreme
Court of Appeals in conjunction with the West Virginia State
Bar.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §30-2A-1, §30-2A-2,
§30-2A-3, §30-2A-4 and §30-2A-5, all to read as follows:
ARTICLE 2A. CERTIFIED LEGAL ASSISTANT ACT.
§30-2A-1. Short title.
This article is known and cited as "Certified Legal Assistant
Act."
§30-2A-2. Definitions.
For the purposes of this article:
"Certified legal assistant" means a person qualified by
education, training or work experience who is employed or retained
by a lawyer, law office, corporation, governmental agency or other
entity who performs specifically delegated substantive legal work
for which a lawyer is responsible; and
"Law firm" means a lawyer, law office, corporation,
governmental agency or other entity that performs substantive legal
work.
§30-2A-3. Qualifications for certified legal assistants.
A certified legal assistant shall meet certain minimum
qualifications. A certified legal assistant shall either:
(1) Successfully complete of the Certified Legal Assistant
(CLA)/Certified Paralegal (CP) certifying examination of the
National Association of Legal Assistants, Inc.;
(2) Graduate from an ABA approved program of study for legal
assistants;
(3) Graduate from a course of study for legal assistants which
is institutionally accredited but not ABA approved, and which
requires not less than the equivalent of sixty semester hours of
classroom study;
(4) Graduate 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; or
(5) Demonstrate through life experience and previous
employment in the specialty which they are certified, that they
should be grandfathered with all rights and privileges thereof.
Grandfather request must be made within twenty-four months of the
date of enactment of this article; or
§30-2A-4.
Responsibilities of lawyer and certified legal
assistants.
(a) A lawyer may ethically assign responsibility to a legal
assistant for the performance of tasks relating to the
representation of a client and the law firm's delivery of legal
services, commensurate with the experience and training of the
legal assistant, and where the lawyer directly supervises the legal
assistant and reviews the legal assistants work product before it
is communicated outside the law firm: Provided, That:
(1) The legal assistants participation as a nonlawyer is
clear;
(2) The legal assistant preserves the confidences and secrets
of all clients;
(3) The legal assistant does not convey to persons outside the
law firm the legal assistant's opinion regarding the applicability
of laws to the particular legal situation of another, the legal effect of acts or omissions of another, or the legal rights,
responsibilities, or obligations of another person regarding their
particular legal matter, except for their certified area of
practice; or
(4) The legal assistant does not appear on behalf of any
person or entity in proceedings before state or federal courts,
except for their certified area of practice; administrative
agencies, and tribunals, and including participation on behalf of
another in depositions, discovery, and settlement negotiation,
except to the extent that a nonlawyer is authorized by law to
represent the interests of another person or entity and the lawyer
has obtained the other person's or entity
'
s consent to the legal
assistants participation as representative in those proceedings
except for their certified area of practice.
(b) A lawyer may not delegate to a legal assistant:
(1) Responsibility for establishing a lawyer-client
relationship; and
(2) Responsibility for establishing intakes, fee arrangements
with clients and concluding normal agreements.
(c) A lawyer may identify legal assistants by name and title
on the lawyers letterhead and on business cards identifying the
lawyer's firm.
(d) In employing a legal assistant, or assigning a legal
assistant to any particular client matter, a lawyer should take reasonable measures to ensure that no conflict of interest is
presented arising out of the legal assistants current or prior
employment or from the legal assistants other business or personal
interests.
(e) In establishing a fee arrangement with a client, a lawyer
may include a reasonable charge for work performed by a legal
assistant, provided that the client consents after consultation.
(f) A lawyer may not split legal fees with a legal assistant
nor pay a legal assistant for the referral of legal business. A
lawyer may compensate a legal assistant based on the quantity and
quality of the legal assistant's work and the value of that work to
the law practice. A lawyer may include nonlawyer employees in a
compensation or retirement plan, even though the plan is based, in
whole or in part, on a profit-sharing arrangement.
(g) A lawyer who employs a legal assistant should facilitate
the legal assistant's participation in appropriate continuing
education and public service activities.
§30-2A-5. Rulemaking.
The Supreme Court of Appeals in conjunction with the West
Virginia State Bar shall promulgate rules for legislative approval
in accordance with the provisions of chapter twenty-nine-a of this
code in order to carry out and implement the provisions of this
article.
NOTE: The purpose of this bill is to establish the "Certified
Legal Assistant Act"; to define terms; to establish minimum
qualifications; to set forth responsibilities of the lawyer and the
certified legal assistant; and to provide rule-making authority to
the Supreme Court of Appeals in conjunction with the West Virginia
State Bar.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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