Chapter Three Ethics and Professional Responsibility

Ethical Rules for Attorneys ABA Model Rules of Professional Conduct ABA Model Guidelines for the Utilization of Legal Assistant Services ABA sets examples ethic rules for states to adopt in full, in part or not at all, to regulate the professional conduct of an attorney Within this set of rules, there are several rules governing the use of LA/PL in the workplace

Ethical Rules for Paralegals NALA’s Code of Ethics and Professional Responsibility NFPA’s Model Code of Ethics and Professional Responsibility NALA AND NFPA provide a model/example set of rules for PL ‘s follow. VA does not regulate PL standards.

Key Elements of NALA’s Code of Ethics and Professional Responsibility A paralegal must not perform any duties that attorneys only may perform. A paralegal may not engage in the unauthorized practice of law. A paralegal must strive to maintain integrity and high degree of competency. A paralegal must protect client confidences. A paralegal must use discretion and professional judgment commensurate with his or her experience and knowledge.

Key Elements of NFPA’s Model Code A paralegal must achieve and maintain a high level of competence. A paralegal must maintain a high level of personal and professional integrity. A paralegal must serve the public interest by contributing to the improvement of the legal system. A paralegal must avoid conflicts of interest. A paralegal must not engage in the unauthorized practice of law.

Ethical Responsibilities Duty of competence Duty of integrity Duty of confidentiality Duty to avoid conflicts of interest Communication with adverse parties Duties with regard to financial matters

Conflict of Interest Situation that would involve competing duties to clients and breach the duty of undivided loyalty owed to clients Can be overcome with a wall or informed consent Rep Client A in a PI case. A year later, Client A’s wife comes in for a divorce PL B’s sister comes to be represented in any situation

Ethical Wall A means used by lawyers to isolate attorneys or paralegals who have a conflict of interest and thereby protect a client’s confidential information Also called an Ethical Screen

Informed Consent Consent provided by a party only after full disclosure of all information and risks Situations: conflict of interest, going to trial v. settlement

Conflict Check Method used by law firms and attorneys to determine if a conflict of interest exists; often performed by paralegals using specialized software

Attorney-Client Privilege Rule of evidence that prevents an attorney or a paralegal from being forced to testify about confidential client information Rule of evidence v. attorney client confidentiality which is an ethical rule

Financial Areas that Can Cause Ethical Trouble Setting fees Practices regarding segregating client funds Fee splitting Billing practices

Permissible Activities Communicating with clients, orally & in writing… Relaying an attorney’s legal advice to a client Identifying oneself as a paralegal on a business card (or letterhead in most states) Teaching …so long as legal advice is not being given and the paralegal’s status as a nonlawyer is clear …so long as the client is informed that the opinion is that of the attorney, not of the paralegal …so long as one’s nonlawyer status is clear 1 of 2

Permissible Activities Preparing legal documents, including wills, business agreements, and other forms… Conducting research and preparing pleadings and briefs to be submitted to court and other litigation documents… Meeting with clients and acting as a liaison with clients… …so long as the paralegal either works under the supervision of an attorney or, if the paralegal is an independent paralegal, merely fills in forms as instructed by a consumer and does not modify any answers …so long as the paralegal’s work is supervised and the documents are signed by a licensed attorney …(so long as the client is aware of the paralegal’s status)

Permissible Activities Locating witnesses and helping witnesses prepare for depositions and trials Assisting at trial and sitting at counsel’s table (in many courts) Attending real estate closings and executions of wills with an attorney Identifying oneself as a ‘‘Certified Legal Assistant,’’ ‘‘Certified Paralegal,’’ or ‘‘PACE-Registered Paralegal’’ if those designations are true. 2 of 2

Unauthorized Practice of Law: Prohibited Activities for Paralegals Giving legal advice Agreeing to represent a client Establishing legal fees Signing legal documents Conducting depositions Signing documents to be filed in court Negotiating settlements

Avoiding UPL Precautions You Can Take Disclose your status Indicate your position on firm materials Identify the source of advice Request supervision Avoid excessive client contact Do not sign court documents

General Principles Regarding Freelance Paralegals Providing general published factual information written or approved by an attorney & pertains to legal procedures or rights to a person who is representing himself - not UPL. Providing forms to an individual & directing how the forms should be completed - not UPL. If an independent paralegal advises individuals which forms to use & provides assistance & advice in completing the documents - likely UPL.