CHAPTER 4 Ethics And Professional Responsibility 4 1

CHAPTER 4 Ethics And Professional Responsibility 4 -1

Introduction • You should have a firm grasp of your state’s ethical rules governing the legal profession • If a paralegal violates a rule governing attorneys, it may result in serious consequences for the client, for the attorney, and for the paralegal • Paralegals are subject to less regulation, although states may impose more rules if believed desirable • Paralegals are regulated indirectly both by attorney ethical codes and by state laws 4 -2

The Regulation of Attorneys • Attorneys engage in self-regulation because they play critical roles in establishing majority of rules governing their profession • Who Are the Regulators? – Bar associations • American Bar Association (ABA) – State supreme courts – State legislatures – The United States Supreme Court 4 -3

The Regulation of Attorneys • Licensing Requirements – Basic requirements • Bachelor’s degree • Pass a state bar examination • Extensive personal background investigation – Licensing and UPL • State statutes prohibiting the unauthorized practice of law 4 -4

The Regulation of Attorneys • Ethical Codes and Rules – The Model Code of Professional Responsibility • Nine canons of the ABA • Ethical considerations are “aspirational” • Disciplinary rules are mandatory – The Model Rules of Professional Conduct • Revision of ABA Model Code (1983) • Set of rules organized under eight headings 4 -5

The Regulation of Attorneys • Sanctions for Violations – Formal sanctions • Reprimand • Suspension • Disbarment – Civil liability • Malpractice • Damages 4 -6

Attorney Ethics and Paralegal Practice • The Duty of Competence – How the duty of competence can be breached • Inadequate research • Missed deadlines • Errors in documents – Attorney’s duty to supervise – Inadequate supervision • Improve communications with attorney • Ask attorney for feedback on your work • Attach a note to document asking for careful review 4 -7

Attorney Ethics and Paralegal Practice • Confidentiality of Information – Exceptions to the confidentiality rule • • Client gives informed consent to the disclosure Impliedly authorized disclosures Disclosures to prevent harm Disclosures to ensure compliance with model rules • Defending against a client’s legal action • Disclosures to comply with court order or other law 4 -8

Attorney Ethics and Paralegal Practice • Confidentiality of information – Violations of the confidentiality rule • Conversations overheard by others • Electronic communications and confidentiality • Other ways of violating the confidentiality rule 4 -9

Attorney Ethics and Paralegal Practice • Confidentiality and the Attorney-Client Privilege – Vitally important during the litigation process – What kind of information is privileged? • Any communications concerning client’s legal rights • Work product 4 -10

Attorney Ethics and Paralegal Practice • Confidentiality and the Attorney-Client Privilege (continued) – When the attorney-client privilege arises • Exists the moment a client communicates with an attorney – Duration of the privilege • Only the client can waive the privilege • Privilege lasts indefinitely 4 -11

Attorney Ethics and Paralegal Practice • Conflict of Interest – Simultaneous representation – Former clients • Job changes and former clients • Walling off procedures – Other conflict-of-interest situations • Gifts • “Issue conflict” cases • Family relationships – Conflicts checks 4 -12

The Indirect Regulation of Paralegals • Paralegal conduct is evaluated on the basis of standards and guidelines created by paralegal professional groups • Paralegal Ethical Codes – NFPA’s Model Code of Ethics • “Model Disciplinary Rules and Ethical Considerations” – NALA’s Code of Ethics • Ten canons – Compliance with paralegal codes of ethics 4 -13

The Indirect Regulation of Paralegals 4 -14

The Indirect Regulation of Paralegals • Guidelines for the Utilization of Paralegals – NALA’s Model Standards and Guidelines • Minimum qualifications paralegals should have • What paralegals may and may not do – The ABA’s Model Guidelines • Types of tasks a lawyer may not delegate to a paralegal • Responsibilities of attorneys with respect to paralegal performance and compensation – State guidelines • Become familiar with your state’s guidelines 4 -15

The Indirect Regulation of Paralegals • The Increasing Scope of Paralegal Responsibilities – Today paralegals can perform almost any legal task • Work must be supervised by an attorney • Work cannot constitute the UPL – Wide range of responsibilities – Follow ABA guidelines • Paralegals may not perform tasks that only attorneys can legally perform • Liability risk of UPL 4 -16

The Unauthorized Practice of Law • State UPL Statutes – About half of the states have a formal definition – Enforcement of UPL statutes also varies widely – Paralegal must know details of UPL state statutes 4 -17

The Unauthorized Practice of Law • The Prohibition against Fee Splitting – Model Rules of Professional Conduct, Rule 5. 4 – Eliminates conflict with firm policy – Protects attorney’s independent judgment – Protects nonlawyers against indirectly engaging in unauthorized practice of law 4 -18

The Unauthorized Practice of Law • Giving Legal Opinions and Advice – The need for caution • Do not give even simple, common-sense advice • Do not advise someone of legal options – Be on the safe side • Never advise anyone regarding any matter if the advice may alter that person’s legal position or legal rights • Find an attorney who can answer the client’s questions 4 -19

The Unauthorized Practice of Law • Representing Clients in Court – Only attorneys can represent others in legal matters – Two limited exceptions • People can represent themselves • Paralegals can represent clients in some federal and state agencies 4 -20

The Unauthorized Practice of Law • Disclosure of Paralegal Status – Make sure that clients know you are a paralegal and are not permitted to give legal advice – Add “paralegal” or “legal assistant” after your name • Business cards • Firm’s letterhead • All correspondence – Must disclose status as legal assistant at the outset of any professional relationship 4 -21

The Unauthorized Practice of Law • Paralegals Freelancing for Attorneys – New Jersey Supreme Court, 1992 • Freelance paralegals who are adequately supervised by attorneys are not engaging in UPL – Professional responsibility and virtual paralegals • Contract services to others as independent contractors • Increased flexibility in their schedules • Ability to work from home • Still must be directly supervised by a licensed attorney • Draft an ethics policy 4 -22

The Unauthorized Practice of Law • Legal Technicians (Independent Paralegals) and UPL – Provide “self-help” legal services directly to public – Fine line between disseminating legal information (forms) and giving legal advice (selecting forms) – An ongoing problem 4 -23

The Unauthorized Practice of Law • Legal Technicians (Independent Paralegals) and UPL (continued) – The controversy over legal software • Quicken Family Lawyer – Do paralegals who operate as legal technicians engage in UPL? • Debate continues • Violating state UPL statutes can be serious • Should rigorously abide by the letter of the law

Should Paralegals Be Licensed? • General Licensing – Considered by a number of states – Would require all paralegals to meet certain educational requirements and other criteria – The New Jersey Supreme Court • Committee on Paralegal Education recommended that paralegals be licensed • Court concluded that direct oversight is best accomplished through attorney supervision rather than through state licensing 4 -25

Should Paralegals Be Licensed? • Paralegal Registration – Florida Registered Paralegal (FRP) • • Requires registration of paralegals Must provide proof of educational qualification All FRPs listed on the Florida Bar website Must meet continuing education (CE) requirement • CE courses are specifically authorized • Other states investigating a similar procedure 4 -26

Should Paralegals Be Licensed? • Education and Certification – California • Paralegals do not have to register • Independent paralegal can register with state as a “legal document assistant” (“LDA”) – Louisiana Certified Paralegal Program • To be certified as LCP, must pass two exams – NALA’s Certified Legal Assistant ("CLA") exam – Louisiana Certified Paralegal ("LCP") exam 4 -27

Should Paralegals Be Licensed? • Direct Regulation — The Pros and Cons – Who should do the regulating? – Several organizations want to have a say, but express different views – NFPA’s position • Endorses regulation on a state-by-state basis • Two-tiered system: general licensing and specialty licensing 4 -28

Should Paralegals Be Licensed? • Direct Regulation — The Pros and Cons (continued) – NALA’s position • Supports voluntary certification (self-regulation) • Opposes licensing requirements for paralegals – The AAf. PE’s position • Does not take a position 4 -29

Should Paralegals Be Licensed? • Other Considerations – Business and profits of law firms would suffer – Firms would not be able to hire and train persons of their choice – Paralegals would become “generalists” • Now, large numbers of paralegals specialize in particular areas and do not need to have broad knowledge of all areas 4 -30

A Final Note • Think and act in a professionally responsible manner • Little room for learning ethics by “trial and error” • Be especially attentive to the ethical rules • Anticipate and guard against violations • Preventive tactics – Ask questions when you are in doubt – Make sure your work is adequately supervised 4 -31

Summary • Attorneys are regulated by licensing requirements and by the ethical rules of their state • The Model Code and Model Rules spell out the ethical and professional duties governing attorneys and the practice of law • Paralegals should consult their state’s ethical code to learn the specific rules for which they will be accountable 4 -32

Summary • Paralegals are regulated indirectly by attorney ethical rules • State laws prohibit nonlawyers from engaging in the unauthorized practice of law (UPL), and violations of these laws can have serious consequences • An issue for legal professionals is whether paralegals should be directly regulated by the state through licensing requirements 4 -33