Concise Guide to Paralegal Ethics Second Edition Therese A. Cannon

Chapter One Regulation of Lawyers and Paralegals In this chapter, you will learn about: The inherent power of the courts over the practice of law The organized bar’s participation in lawyer regulation The role of the legislature and state statutes in governing the conduct of lawyers The American Bar Association and its influence on legal ethics Page 1 of 2

Chapter One Regulation of Lawyers and Paralegals The evolution of the paralegal profession Professional associations for paralegals The status of paralegal regulation The distinction between certification, licensing, and limited licensing The liability of paralegals and the lawyers who supervise them Guidelines for the utilization of paralegal services Ethics guidelines promulgated by paralegal associations Page 2 of 2

ABA’s Model Codes of Ethics Canons of Professional Ethics Model Code of Professional Responsibility Model Rules of Professional Conduct

Sanctions Disbarment Suspension Probation Reprimand (or reproval)

Professional Paralegal Associations NFPA (National Federation of Paralegal Associations) NALA (National Association of Legal Assistants) AAfPE (American Association for Paralegal Education IPMA (International Paralegal Management Association) NALS (Association for Legal Professionals)

Certification Certification is the voluntary recognition of an occupation based on a person’s having met specified qualifications.

Licensing Licensing is a mandatory form of regulation in which a government agency grants permission to engage in an occupation and/or use a title.

Arguments Favoring Licensing Provides appropriate public recognition for paralegals as important members of the legal services delivery team Ensures high standards and quality of work by paralegals Expands the use of paralegals, thereby expanding access to legal services and lowering costs Page 1 of 2

Arguments Favoring Licensing Provides assurance to clients and employers of paralegals of the qualifications Encourages needed standardization in paralegal education Page 2 of 2

Arguments Against Licensing Not a benefit to the public because attorney-employers are already fully accountable to clients Would increase the cost of legal services Would stifle the development of the profession Inappropriately limits entry into the profession Unnecessarily standardizes paralegal education Limits paralegals from moving into new areas of practice or duties

Chapter Two Unauthorized Practice of Law In this chapter, you will learn about: The history of the unauthorized practice of law Definitions of practice of law The attorney’s ethical responsibility to prevent the unauthorized practice of law and to supervise paralegals Key areas of concern to paralegals in the unauthorized practice of law

Factors Creating Need for Nonlawyer Legal Services Providers The decrease in funding for the Legal Services Corporation that formerly supplied legal services to people of low and moderate income The increase in the need for legal services, due to the proliferation and complexity of laws The rising cost of legal services provided by lawyers

Determining If Specific Conduct is the Practice of Law Consider Whether the services required the skills and knowledge of an attorney Whether the activity is one that is traditionally performed by a lawyer Whether the services are essentially legal or are “incidental” to some other transaction

What Constitutes the Unauthorized Practice of Law? Making Court Appearances Establishing the Attorney-Client Relationship Giving Legal Advice

What Constitutes Giving Legal Advice? Directing or recommending a course of action to a client about how to proceed in a matter that may have legal consequences Explaining to a client his or her legal rights and responsibilities Evaluating the probable outcome of a matter, including litigation Interpreting statutes, decisions, or legal documents to a client

Independent Contractor Paralegals An independent contractor paralegal (also known as a freelance paralegal) is a paralegal who handles projects for attorneys on an as-needed basis.

Chapter Three Confidentiality In this chapter, you will learn about: The foundations and basic principles of confidentiality The attorney-client privilege and the difference between the privilege and the ethics rules on confidentiality Information that is privileged or protected by the rule of confidentiality How and when the privilege and the duty of confidentiality may be broken or waived Page 1 of 2

Chapter Three Confidentiality (continued) The work product rule How the principles and rules of confidentiality come into play for paralegals in practice How to protect confidentiality of information and records Special problems in maintaining confidentiality with technology Page 2 of 2

Confidentiality The principle of confidentiality is based on the notion that: an attorney must know all the facts if he or she is to best serve the client, and that a client will not provide full disclosure without assurance that information that may be incriminating or embarrassing will not be revealed outside the lawyer-client relationship.

Attorney-Client Privilege The general rule regarding attorney-client privilege is that a client who seeks a lawyer’s advice or assistance may invoke an unqualified privilege not to testify and to prevent the lawyer from testifying as to communications made by the client in confidence.

If a Paralegal Receives Privileged Documents . . . Refrain from reviewing such materials as soon as it is evident that they are privileged Notify the sender about the materials Either follow instructions of the sender, or seek a resolution of the disposition of the materials from a court

Work Product Doctrine Federal and state rules of evidence and discovery provide for the protection of materials prepared by lawyers in anticipation of litigation.

Technology and Confidentiality Consider how the following can cause breaches in confidentiality: Electronic records Facsimile machines Cellular and cordless telephones Computers Electronic mail

Procedures to Protect Confidentiality when Using Computers Inform clients about the risks of electronic communications and obtain their written consent to use electronic mail Refrain from using e-mail for very sensitive communications Mark all confidential e-mails as privileged and include a statement telling the reader what to do if the communication is inadvertently sent to the wrong person Page 1 of 2

Procedures to Protect Confidentiality when Using Computers Limit the recipients of a privileged e-mail to those who are absolutely essential to the privileged communication and warn recipients not to send such communications on to other persons. Consider the use of encryption software Consider closed networks using land-based lines with regular clients Page 2 of 2

Chapter Four Conflicts of Interest In this chapter, you will learn about: Rules governing conflicts involving clients, including simultaneous and successive representation Rules governing personal and business conflicts Disqualifications caused by individual conflicts of interest that are imputed to an individual’s firm Page 1 of 2

Chapter Four Conflicts of Interest (continued) Client consent to conflicts Screens to protect against disqualification The use of conflicts checks and paralegals’ responsibility to maintain records Page 2 of 2

What Ethics Rules Governing Conflicts of Interest Cover Simultaneous representation of adverse interests Representation that is adverse to a former client Representation of clients whose interests are aligned Lawyer’s financial, personal, or business interests that are or may be adverse to a client

Concurrent Representation Concurrent (or Simultaneous) representation occurs when an attorney represents two clients whose interests are adverse to one another.

Consents (or Waivers) Whether a court honors a client’s consent depends on a number of circumstances, including: The extent of the disclosure and discussions with the client about the implications of dual representation Whether the consent was truly voluntary and not given under pressure from the attorney or others When the attorney raised the issue with his or her client Page 1 of 2

Consents (or Waivers) Whether a court honors a client’s consent depends on a number of circumstances, including: The capacity of the client to understand fully the implications of the dual representation and consent Whether or not the client consulted with and relied upon independent counsel Whether the consent is written and signed Page 2 of 2

Successive Representation Successive representation is a conflict of interest situation involving a current matter and a former client whose interests conflict.

Other Conflicts Rules Cover: Business transactions with clients Publication, literary, and media rights Financial assistance to clients A lawyer’s interest in litigation Gifts from clients Agreements with clients limiting the attorney’s malpractice liability Payment of attorney’s fees by a third party Relatives of lawyers Sexual relations with clients

Imputed Conflicts Imputed (or vicarious) conflicts: the imputation of a conflict to others in a firm so that the entire firm is disqualified from undertaking the representation

Screens A screen isolates a disqualified person by setting up law office procedures to prevent the affected person from any involvement with or communication about the matter.

Procedures for Using Screens A memorandum to all individuals in the firm informing them of a conflict and screen, and admonishing them not to discuss the matter with the disqualified person Markings on files and documents to indicate the limitations on access Programmed computer warnings or blocks to prevent screened employee’s access to documents on the firm’s computer network

Chapter Five Advertising and Solicitation In this chapter, you will learn about: The key cases affecting the ways that lawyer advertising is regulated The current status of legal advertising and marketing The ethics rules governing advertising How advertising rules apply to paralegals Ethics rules prohibiting direct solicitation of clients How the limits on solicitation apply to paralegals Advertising and solicitation on the Internet

False/Misleading Communication False or misleading communications contain material misrepresentations of fact or law, or omit necessary material facts.

Legal Marketing Firm Brochures Newsletters Rainmakers Client surveys Advertising Web sites Chat groups/threaded discussions

Solicitation Ethical rules restrict the conduct of lawyers in soliciting clients directly, either in person or by telephone.

Runners and Cappers There is a longstanding prohibition against runners and cappers--agents of lawyers who prey on accident victims by soliciting them directly, usually at the accident scene or hospital.

Chapter Six Fees and Client Funds In this chapter, you will learn about: How fee arrangements are made with clients, including fixed fees, contingency fees, and hourly fees Alternative fee arrangements Factors in determining if a fee is unethically excessive Unethical billing practices Communication of fee agreements with clients Terms included in fee arrangements Page 1 of 2

Chapter Six Fees and Client Funds (continued) Award of attorney’s fees under fee-shifting statutes Inclusion of paralegal fees in fee awards Fee-splitting and referral fees Partnerships between lawyers and non-lawyers and trends in this area Client funds and client trust accounts Page 2 of 2

Types of Fees Fixed fees Contingency fees Sliding scale Hourly fees Statutory/court awarded fees

Ethics Rules about Fees Factors to determine whether a fee is unethically high: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer The fee customarily charged in the locality for similar legal services Page 1 of 2

Ethics Rules about Fees Factors to determine whether a fee is unethically high: The amount involved and the results obtained The time limitations imposed by the client or by the circumstances The nature and length of the professional relationship with the client The experience, reputation, and ability of the lawyer or lawyers performing the services Whether the fee is fixed or contingent or the degree of risk assumed by the lawyer Page 2 of 2

What a Fee Agreement Covers The scope of the firm’s services Responsibilities of the client and the firm The method of determining the fee Rates for different professionals if services are billed hourly Costs the client is obligated to pay and when Termination rights for both parties Disposition of client files at the end of the matter The method and time of fee payment The procedure for and frequency of billings

Retainer A retainer is a fee paid at the commencement of agreed-upon work, to assure the availability of the lawyer to handle specified matters

Documentation for Court to Award Paralegal Fees Credentials and experience of paralegals Detailed descriptions of the work performed, including the number of hours spent on each discrete task Information on paralegal compensation, overhead allocated to paralegals, and hourly rates Market data on practices and rates in the legal community

Commingling Commingling is the mixing of client funds with lawyers’ funds.

Client Trust Account A client trust account is a bank account set up by a lawyer in which funds are kept that belong to one or more clients

Chapter Seven Competence In this chapter, you will learn about: Definitions of lawyer and paralegal competence Key components of competence for paralegals Sanctions for incompetence Trends in malpractice Common dilemmas confronting paralegals in the area of competence Factors in the work environment that affect competence

Definition of Competence Legal knowledge, skill, thoroughness, and preparation Reasonable diligence and promptness Communication with clients to keep them informed about the status of their matters, to comply with reasonable requests for information, and to explain matters so that clients can make informed decisions

Most Common Bases for Malpractice Claims Substantive incompetence Management incompetence Poor communication skills and practices Fee misunderstandings Substance abuse and stress

Advice for Avoiding Malpractice Suits Use carefully drafted letters of engagement as well as letters terminating or declining representation Clients should be selected carefully Lawyers and clients should enter into complete and well-drafted fee agreements for each representation Clients should be charged reasonable fees that are in accord with fee agreements Clients’ phone calls and e-mails should be returned promptly Page 1 of 2

Advice for Avoiding Malpractice Suits (continued) Lawyers and paralegals should listen to clients carefully and try to understand their goals and expectations Lawyers should exercise independent judgment on clients’ behalf and should respect clients’ decisions Law firms should have good management systems and well-trained personnel Lawyers and paralegals should be scrupulous in handing clients’ funds Lawyers and paralegals should know the limits of their competence Page 2 of 2

Attorney Review This is the responsibility of supervising attorneys to review work of paralegals.

Chapter Eight Special Issues in Advocacy In this chapter, you will learn about: The duty to represent clients zealously Unmeritorious claims, delay, and abuse of discovery Disruptive courtroom tactics and sanctions for those actions Sanctions for disobeying court orders Contempt power and its use Candor and honesty in areas involving paralegals Page 1 of 2

Chapter Eight Special Issues in Advocacy Relationships and communications with judges Contact with jurors Contact with represented parties Contact with unrepresented parties Contact with witnesses Trial Publicity Special rules for prosecutors Page 2 of 2

Unmeritorious Claims, Delay, and Discovery Abuse Two specific kinds of acts fall into this category: Actions that only serve to harass or to injure another maliciously Claims or defenses that are unwarranted under existing law unless the lawyer has a good faith argument to change the law

Examples of Disruptive Conduct in the Courtroom Raising an unfounded objection to break opposing counsel’s train of thought Making faces or gestures to the judge or the jury Asking a question that alludes to evidence known to be inadmissible Insulting the judge or opposing counsel Referring to the proceedings in an insulting or rude manner Making unsupportable, inflammatory, or prejudicial side remarks to the jury

Contempt Contempt is an act that obstructs the administration of justice, impairs the dignity of the court, or shows disrespect for the authority of the court.

Ex Parte Ex parte means an action taken by or on behalf of a party without the presence of the opposing party.

Contact with Parties and Represented Persons Attorneys are prohibited from communicating with parties who are represented by counsel and must communicate directly with the person’s counsel.

Chapter Nine Professionalism and Special Issues for Paralegals In this chapter, you will learn about: The role of paralegals in the legal profession Definition of professionalism Special issues for paralegals Paralegal participation in pro bono activities

Qualities of Professional Paralegals Commitment to: Public service Education The highest standards of ethical conduct Excellence The paralegal profession A strong work ethic Acting with integrity and honor Development of the whole person Exercising good judgment, common sense, and communication skills

Regulation Is there a need for regulation? Who should be regulated? Who should do the regulating? Should regulation be mandatory or voluntary? What level of regulation is appropriate? What educational requirements, if any, should be required? What kind of examination, if any, should be required? What, if any, tasks should paralegals be authorized to perform only if they are regulated?