Class Four Ethics

Communications For Your Writing Capitalization Courts Both the formal name The Florida Supreme Court The Supreme Court of Florida And the paraphrased name State Supreme Court (when referring to a particular state) Should be capitalized But NOT when generally referring to a court The court in the Doe case… EXCEPT The Court in the Roe case (meaning the U.S. Supreme Court) BUT Do capitalize when addressing a court: WHEREFORE, Defendant requests this Court enter an order granting…

Communications Tip Capitalization “State” Capitalize when a proper noun The State Department… Capitalize when a party to litigation The State presented its case against the defendant. But not otherwise: The state employees were required to… Under Florida state law… The representatives of the state were elected… “City” Yes, proper name New York City No, reversed city of New York

Communications (continued) Ellipsis Three, spaced dots Shows omission At the beginning The original quote is: “Many have stated that the question is one of grave importance to us all.” “. . . [T]he question is one of grave importance to us all.” (Brackets must be used when changing a lower case to an upper case letter.) At the end of a sentence “The legislature when it considered this issue determined that this is an area of paramount importance such that it must dedicate the utmost care to drafting the statute carefully.” “The legislature when it considered this issue determined that it is an area of paramount importance . . . .” Four dots; last one is a period (inside the “)

Communications (continued) Commas used in a series Which of the following is correct? The contract included provisions for default, property and taxes. The contract included provisions for default, property, and taxes. The second – there needs to be a comma after EACH item, even the one next to the “and” or “or.” In legal writing it is important to be precise. If someone fails to properly divide items in a series, there could be confusion. If lump together “property and taxes,” it could be interpreted that the contract only refers to property taxes when the actual meaning is property and all taxes.

Ethics In-class discussion on tips for taking Ethics The BIG picture My notes on mistakes I made while taking practice quiz Failure to read the question carefully Not picking the “reasonable,” “least emotional” answer. The BIG picture Ethics are both rules regulating paralegals AND rules regulating attorneys Why do paralegals need to know both? Because attorneys are responsible for ensuring ALL staff follow ethical rules or attorney is in trouble License at risk

Ethics Memorization Some common sense Your ethics Competence Training Education Same for attorneys

What to expect… For 2018: NALA’s booklet on the 2018 exam indicates that these are the areas to study for the exam: American Bar Association (ABA) Model Rules of Professional Conduct Unauthorized Practice of Law So, focus on the rules for paralegals that relate to UPL

Unauthorized practice of law HUGE issue Criminal implications Civil implications Lose your job CANNOT practice law without a license CANNOT: Accept cases (only attorneys can do that) Set fees (only attorneys -you should only discuss fees if first supervised by an attorney on what you may tell prospective or current clients.) Give direct legal advice to clients WHAT IS LEGAL ADVICE?????? This is key to understanding this concept This is where many paralegals get into trouble REVIEW P. 181 Clients often try to get legal advice from paralegals Good article on this: http://www.dcbabrief.org/vol140502art4.html

Rules governing attorneys (the highlights) Rule 1.1 - Competency Rule 1.3 - Diligence Rule 1.6 - CONFIDENTIALITY Big one Know this You and all employees are responsible for this What if on phone with client Other people in room Breach of confidentiality? MAYBE – Be careful – Could that person be identified? What if you leave important documents about a client on your desk where clients or third parties walk by? Breach? MAYBE – If someone reads it, and it is clear who the client is, yes. Rule 1.7 - CONFLICT OF INTEREST If worked on case at Firm A, quit go to Firm B, Firm B cannot allow you to have access to any cases where Firm A represented an opposing client Chinese Wall Isolating person with conflict

Rule 1.15 - Trust account problems HUGE issue for lawyers Be sure to review this well Rule 4.2 – Communication with opposing parties Applies to you, too Rule 5.3 – Attorneys must be sure paralegals follow all ethical rules, too. These are just highlights Read through all of the rules Mostly common sense If something seems odd to you, make sure you memorize that

NALA Code of Ethics (Just in case it IS on the exam) Review “Guidelines” Mirrors attorney guidelines With more direction Legal assistants MAY do certain attorney-specific work WITH SUPERVISION May draft documents – WITH SUPERVISION May NOT sign legal pleadings, even though prepared by legal assistant (So, a T/F statement that says, “Paralegals may never perform tasks typically performed by attorneys” is FALSE unless it also states “without the supervision of an attorney.”) Review “Application of Ethics Rules” Good way to understand how the rules work

Memorize! BUT, it is unlikely the exam will ask you to know the actual rule (for example: What does Rule 1.1 say? Is not likely) Will test your knowledge of how the rule is applied The next slides contain questions and answers. The full Power Point with the answers will be posted after class.

Sample Ethics Questions Do not take an “all or none” approach to ethics From the Review Manual #2 True or False: In an effort to resolve the situation without a hearing and at the instruction of the supervising attorney, it is permissible for a paralegal to review with opposing counsel preliminary objections to answers to interrogatories submitted b y that attorney’s client. True What are the key words to focus on here for the answer? “at the instruction of the supervising attorney” Otherwise, it is UPL

Sample Ethics Questions #5 of Review Manual True or False A paralegal cannot give a presentation of social security law at a senior citizens’ center if any portion of the presentation will be devoted to answering specific questions from the audience. False WHY? Social Security Administration is an exception Allows non-lawyer practice

Sample Ethics Questions Along those lines… #8, Review Manual True or False If the rules of an administrative agency permit nonlawyer practice, an attorney ethically may not restrict the right of a paralegal employed by her to appear before that agency on behalf of the lawyer’s clients. FALSE WHY? Most important words: “a paralegal EMPLOYED BY HER” and “ON BEHALF OF THE LAWYER’S CLIENTS” An attorney may restrict another attorney who works for him/her, too. Just because can, doesn’t mean should if employer attorney says no.

Sample Ethics Questions #14, Review Manual Marty is a paralegal for Michelle Michaels. While Ms. Michaels is in Europe, Marty receives a notice that a probate hearing is scheduled at the end of next week. Ms. Michaels is not scheduled to return to the office until after that time. Marty knows that a motion for continuance is needed to postpone the hearing. Which of the following is the worst course of action for Marty to take in this situation? A. Mail the unsigned motion to the court for filing. B. Arrange to have the client sign the motion and file it with the court. C. Sign his name to the motion and show his paralegal title. D. Sign Ms. Michael’s name to the motion and place his initials under the signature. D. WHY? Forgery, which is a crime too Never presume can sign for attorney, even if show initials

Sample Ethics Questions #30, Review Manual Three months after the entry of the decree, a client in a divorce case returns to the attorney and confesses that he concealed assets while the divorce case was pending. Now his business partner is trying to blackmail him. What should the attorney do? A. Disclose the facts to the court. B. Disclose the facts to the authorities. C. Urge the client to disclose the facts. D. Do nothing. C. Definitely not A or B – rule of confidentiality prevents this unless danger to self or others (physically) Should not do nothing. Should encourage disclosure.

Sample Ethics Questions Study Guide True or False The rule of client confidentiality applies only to lawyers; but as a professional, the paralegal voluntarily agrees to be bound by the rule. False. The key word here is “voluntarily.” There is nothing voluntary about following the ethics rules. They must be followed. And, if certified, they must be followed to maintain certification.

Sample Ethics Question A long-time client calls you and asks what the normal fee would be for a simple will. How should you reply? A. “The usual office charge is $85.” B. “The fee varies from will to will, but Attorney Jones can determine that for you.” C. “Paralegals cannot quote fees, but let me direct you to Attorney Jones.” D. “The range for simple wills is $60 to $100.” C. WHY? It shows knowledge of the rule along with the proper response (putting it in the attorney’s hands).

Sample Ethics Questions Allen graduated law school six months ago and opened his own general practice law firm. His cousin, Sam, is a CPA with his own accounting practice. Since Allen is having some trouble finding clients, Sam offers to send clients who need estate plans to Allen in exchange for five percent of the fees Allen charges the clients. Sam feels that since he located the clients, he should get a cut. Which of the following statements is most accurate? A. Sharing fees is allowed between relatives who are professionals. B. Lawyers cannot split fees with non-lawyers. C. If Sam were to join his practice with Allen’s, they could split the fee. D. There is no prohibition for lawyers on fee sharing. B. Lawyers cannot split fees with non-lawyers.