legal

The Ethics of Paralegal Work and Supervision in Litigation 

By: Jeanne M. Huey

The intake coordinator at the firm walks a prospect through which the retainer option makes sense for their situation. A legal assistant talks an upset client down from a fee dispute. A paralegal passes on a message from the lawyer in response to a client’s call about settlement strategy.

Each of these events occurs in busy litigation practices and poses a disciplinary problem. When a paralegal crosses into work reserved to lawyers, the responsible lawyer has violated Model Rule 5.3 and may also have assisted in the unauthorized practice of law under Model Rule 5.5.

What Cannot Be Delegated?

Guideline 3 of the ABA Model Guidelines for the Utilization of Paralegal Services identifies three responsibilities a lawyer may not delegate to a paralegal: establishing an attorney-client relationship, establishing the amount of a fee to be charged for a legal service, and responsibility for a legal opinion rendered to a client. Put another way: Deciding to take on a client, deciding what to charge, and advising a client on what the law requires are core lawyer functions. They are not administrative tasks, even if they are embedded in administrative conversations.

Client Intake

ABA Formal Opinion 506 (2023) addresses paralegal involvement in client intake. Trained staff may check for conflicts, collect information, and explain, in general, how fees and costs are structured. The critical limitation is that the prospective client must always have the opportunity to discuss the fee agreement and scope of representation with a lawyer before signing. That opportunity cannot be designed out of a high-volume practice. The comment to Guideline 3 makes the fee point explicit, citing Model Rule 1.5: The lawyer must set the fee and discuss the basis for it directly with the client—a brief, documented lawyer conversation when the fee agreement is entered into addresses most of the risk.

The Relay Problem

Many lawyers use paralegals or other staff members to pass messages to clients. In a busy practice, that can feel necessary: “Lawyer Joe told me to tell you to reject the offer.” The Model Guidelines contemplate this. The comment to Guideline 3 says paralegals may be authorized to communicate a lawyer’s legal advice to a client so long as they do not interpret or expand on that advice. Pure relay is not categorically prohibited. But there is risk involved.

If the question is important enough for the client to call about, it usually warrants a direct conversation with the lawyer. More practically, clients ask follow-up questions. They want to know why. They want to know what happens if they reject the offer. They want to know what the judge might do or the mediator might think. The moment the paralegal explains, elaborates, or answers a new question, the conversation shifts from relaying advice to giving it. That is where unauthorized-practice concerns arise, and where clients lose track of who is responsible for the advice.

There is also a billing issue. When the lawyer has already analyzed the issue, but the paralegal spends time delivering the answer, it is difficult to characterize the paralegal’s client communication as substantive legal work that can be billed. Often, the cleaner solution is for the lawyer to make the call.

Substantive Legal Work: What Paralegals Can Bill For

Provided that the lawyer maintains responsibility for the work product, a lawyer may delegate any task normally performed by the lawyer except those prohibited by statute, court rule, or the rules of professional conduct.

Experienced paralegals draft discovery, summarize depositions, prepare trial exhibits, cite-check briefs, interview witnesses, manage deadlines, and coordinate experts. That is substantive work.

Under Guideline 8 and the Missouri v. Jenkins line of cases, 491 U.S. 274 (1989), paralegal time is separately compensable only for substantive legal work. It reduces cost to the client and allows the lawyer to focus on strategy and advocacy. Engagement letters should make clear that paralegals work under a lawyer’s supervision, bill at reduced rates, and are not authorized to provide legal advice or discuss fees.

Two recurring problems with paralegal billing should be easy to fix. ABA Formal Opinion 93-379 (1993) addresses what constitutes a reasonable fee under Rule 1.5 and is explicit that over-staffing a matter to generate hours does not earn a fee. First, billing for a paralegal who attends a meeting or deposition the lawyer is already billing for, when the paralegal’s presence was not independently necessary, is generally not reasonable. Second, billing separately for internal conferences where tasks are assigned is usually not substantive legal work. Supervising staff is part of practicing law. Courts reject this double billing in fee petitions. Sophisticated clients do the same in hourly matters.

Put Policies in Place

Have written scope-of-authority policies. Provide everyone in the firm with training on when legal information becomes legal advice. Give the staff clear escalation language to use consistently. For example, “That’s a question for Lawyer Joe. I’ll make sure they get back to you today.” A well-trained and properly supervised paralegal handling substantive legal work under your direction makes your practice more efficient, reduces client costs, and lets you focus on the work only lawyers can do.

Need More Information?

The Model Guidelines are a floor, not a ceiling. Many states impose more specific requirements. Know the rules in the jurisdictions where you practice. Guidelines and ethics rules for paralegals can be found on the websites of national paralegal associations, such as the National Association of Paralegals (NALA), the National Federation of Paralegal Associations, the National Association for Legal Support Professionals (NALS), and the International Paralegal Management Association.

© 2026 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

What Happens When A Lawyer Makes A Mistake?

The Model Rules of Professional Conduct are clear about what must happen when a lawyer makes a “material mistake”, and the steps are grounded in the duty of competence, diligence, and communication owed to a current client.

The Ethical Framework

ABA Model Rule 1.1 requires legal knowledge and thoroughness. Rule 1.3 requires promptness, and Rule 1.4 mandates keeping clients informed about their matter and promptly responding to requests for information.

When a mistake has been made during a legal representation, these rules all come into play. If the error is “material,” it must be disclosed promptly. Hoping the client never finds out or quietly fixing it before disclosing is never a good idea as it can risk turning a simple lapse into a Rule 8.4(c) problem involving deceit or misrepresentation.

What Counts as a“Material Mistake”?

The ABA addressed this question in Formal Opinion 481, which describes a “material mistake” as (1) an error reasonably likely to harm or prejudice the client’s interests, or (2) that a reasonable client would want to know about to make informed decisions.

Examples include missing a filing deadline, failing to raise a claim, giving incorrect legal advice, or any oversight that limits the client’s legal position. Modern practice errors such as signing a filing with hallucinated cases, citations, or quotations probably fall into this “material” category. By contrast, small mistakes—an actual typo, a short delay, or a minor procedural misstep—may not be material enough to require disclosure if they can be quickly corrected.

Tell the Client

When a material mistake has been made, client disclosure should be prompt, factual, and transparent. Rule 1.4 Comment 7 makes it clear that withholding information from the client because it may cause you harm is forbidden. The client should be told what happened, what it means for their rights, what can be done to fix it, and what choices they have, including whether they should seek independent advice.

The duty to disclose exists only during the representation. Once the representation ends, there is no ongoing duty to contact former clients to confess past mistakes unless silence would perpetuate a fraud or violate another rule.

Fix the Mistake and Watch for Conflicts

Once the error has been disclosed, diligence requires quick action to repair the damage. That might mean filing a motion for relief, disclosing information to the court under the duty of candor (Rule 3.3), or negotiating with the opposing party to limit prejudice to the client’s case. Because lawyers are fiduciaries to their clients, work done to undo a mistake—whether material or not—is not billable.

Also be aware that if your personal interest in avoiding liability could limit the ability to give independent advice about the mistake, that conflict may require withdrawal under Rules 1.7(b) and 1.16(a)(1).

Lead with Ethics, not Fear

Every lawyer makes mistakes, so don’t practice afraid. Practice prepared. Know your duties, act quickly if you do make a mistake, and remember that owning a mistake the right way is one of the strongest demonstrations of professionalism.

© 2025 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The Larger Cost of Reckless GAI Use in Litigation

Jeanne M Huey 

March 3, 2025

Courts, opposing parties, and clients all suffer when lawyers fail to properly vet work generated by artificial intelligence (“AI”), leading to wasted judicial resources, procedural delays, and broken client and public trust. 

Gauthier: GAI Hallucinations in Court Filings 

A recent case serves as a stark reminder that competence and diligence in using generative AI (“GAI”) tools is not optional but is an ethical imperative. 

In Gauthier v. Goodyear Tire & Rubber Co., a lawyer was sanctioned for submitting unverified GAI-generated content in a response to a motion for summary judgment. No. 1:23-CV-281 (E.D. Tex. Nov. 25, 2024). This included two citations to entirely fabricated cases and nonexistent quotations from seven actual cases—that is, “hallucinations.” 

In sanctioning the lawyer, the court determined that the lawyer submitted a false statement of law to the court and failed to rectify the mistake after opposing counsel pointed it out in their reply. Instead, the lawyer did not address the error until the court issued a show-cause order. The court also remarked that “it is unclear what legal research, if any,” the lawyer conducted before filing the response. Id. at *5. 

The lawyer was ordered to pay $2,000 into the court registry, to take one hour of CLE on the topic of GAI in the legal field, and to provide his client with a copy of the sanctions order. The sanctions imposed were relatively mild considering the potential harm to the client, the opposing party, and the integrity of the court system. 

Wasted Resources and Judicial Frustration 

GAI-generated errors like those in Gauthier force courts to spend time unraveling the problem rather than addressing the substantive legal issues. That’s why courts increasingly impose strict requirements in their local rules regarding GAI use. 

In addition to finding that the lawyer violated Federal Rule of Civil Procedure 11, the Gauthier court found violations of its local rules requiring lawyers to exercise candor and diligence and mandating that lawyers review and verify any computer-generated content before submitting it. 

Moreover, the court likely could have found a violation of ABA Model Rule 3.3 pertaining to candor to the tribunal, and ABA Model Rule 8.4(c) and (d) for engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation” and that is “prejudicial to the administration of justice.” The lawyer also could have been referred to the local disciplinary authority by the court, opposing counsel, opposing party, or client. 

Rule 11 already provides a framework for addressing these concerns, but if lawyers continue to disregard it, courts may impose stricter measures. Lead counsel might be required to certify or swear to the accuracy of every filing—something their signature should already indicate. Courts could mandate CLE credits on AI use as a condition for good standing or pro hac vice admission. Additional burdens may include requiring attorneys to keep records of all GAI-generated prompts used in preparing the filing or to attach every cited case as an appendix with key holdings and quotations highlighted. Courts might also implement prefiling review requirements, mandating independent verification of AI-generated content before docketing. 

Unnecessary Burdens and Expenses for Opposing Parties 

In Gauthier, the opposing counsel said that they had spent significant time and resources—over $7,500 in fees—determining that the citations and quotes in the response were fictitious and bringing the issue to the court’s attention. However, lawyers who use GAI irresponsibly do not simply create wasted work for their adversaries. An offending lawyer almost certainly violates their ethical obligations under ABA Model Rule 3.1, which prohibits lawyers from bringing or defending claims that lack a legal or factual basis, ABA Model Rule 3.2, which requires lawyers to make reasonable efforts to expedite litigation, and ABA Model Rule 3.4, which mandates fairness to opposing parties by prohibiting conduct that delays or burdens litigation without substantial justification. 

Although courts may not always directly compensate opposing counsel for fees incurred by the other side’s careless use of GAI—the Gauthier court did not—judges are not blind to the larger impact of such conduct. If GAI-related errors continue to occur, lawyers can expect (and should ask) courts to shift the burden of these costs onto the offending lawyers through harsher sanctions and fee-shifting orders. 

Sanctions and Eroded Client Trust 

The most direct impact of GAI incompetence is on the lawyer-client relationship. In Gauthier, the court ordered that the sanctions order be provided to the lawyer’s client so that the client would know that his lawyer had been sanctioned for submitting false information to the court. 

Beyond the immediate embarrassment and potential financial consequences to the lawyer, basic competence is at play. ABA Model Rule 1.1 Comment 8 requires lawyers to maintain competence in the technology that they are using in their practice, including understanding the technology’s benefits and risks. A lawyer who does not understand how GAI functions or fails to verify GAI-generated work has not met this duty of competence. While clients expect lawyers to be efficient and cost-effective and may think that using GAI will help reduce legal fees, they do not pay lawyers to take risks with their case outcomes; they certainly don’t pay for them to misrepresent the law and be embarrassed in front of a judge. A single GAI-related error could permanently undermine clients’ faith in their attorney and end the representation. 

The Public’s Perception: Lawyers Need to Control the Narrative 

Currently, the public is receiving two conflicting messages about GAI: 

• “GAI will replace lawyers.” 

• “Lawyers are getting sanctioned because they do not know how to use GAI.” 

Neither narrative is good for the profession. Clients will resist paying for legal expertise if GAI is considered an inevitable replacement. Public confidence in the legal system will erode if lawyers can’t be trusted to understand and use GAI correctly. 

The only way to control this perception is through responsible behavior, professionalism, and a commitment to meeting and exceeding our ethical duties under the rules when we use GIA and related technology. It will also be necessary to effectively communicate with clients about GAI and how it might be used within the firm, such as in billing software, or in their case, which may require their informed consent. 

Ethics opinions and court rules concerning GAI differ across jurisdictions, and the applicable standards of care are evolving rapidly. Staying current and ethically integrating GAI tools into our law practices will take time and attention. Those who fail to do so risk not just sanctions but harm to both their professional reputation and the credibility of the legal system: lawyers who understand the risks and benefits of GAI and implement its use responsibly will not only protect their practice but also strengthen public trust in the profession and help shape its future. 

© 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.