1

Assignments Due  Final Writing Assignment Due  Discussion – Three discussion threads 2

Why Is Ethics Important to Legal Assistants?  An error by a legal assistant can be very costly:  May hurts the client and subject the attorney to a malpractice claim  May subject the attorney to a disciplinary complaint  May result in the legal assistant being terminated from his or her job

Why Is Ethics Important to Legal Assistants?  Clients and attorneys must have total confidence that a legal assistant understands ethical issues and that a legal assistant’s ethical judgment is clear.

Ethical Standards for Attorneys  Attorneys that violate ethical standards may be subject to discipline including permanent disbarment, temporary suspension, public censure, or an informal reprimand.

Ethical Standards for Attorneys  The ABA’s Model Rules of Professional Conduct is an ethical standard that is used in one form or another in nearly all states.  States are free to create their own rules of conduct for attorneys, but many simply modify one of the ABA’s models.

Ethical Rules  Attorney ethical rules do not apply directly to a legal assistant.  Attorneys can be disciplined for the acts of their legal assistants since attorneys have the duty to adequately supervise their staff.  Attorneys cannot avoid ethical rules and accomplish an unethical act by delegating or allowing a staff member to do the act.

Ethical Rules  Although a legal assistant cannot be disciplined by a state regulatory body, he or she can be terminated by the attorney and/or criminally charged with the unauthorized practice of law, and some courts have even upheld civil damages against legal assistants for negligence.

Voluntary Legal Assistant Ethical Codes  National Association of Legal Assistants

Voluntary Legal Assistant Ethical Codes - NALA  Canon 1.  Do not perform any of the duties that attorneys only may perform nor take any actions that attorneys may not take.  Canon 2.  You may perform any task which is properly delegated and supervised by an attorney, as long as the attorney is ultimately responsible to the client, maintains a direct relationship with the client, and assumes professional responsibility for the work product.

Voluntary Legal Assistant Ethical Codes - NALA  Canon 3. Do not:  engage in, encourage, or contribute to the unauthorized practice of law; and  establish attorney-client relationships, set fees, give legal opinions or advice, or represent a client before a court or agency unless authorized by that court or agency; and,  engage in conduct or take any action which would assist or involve the attorney in a violation of professional ethics or give the appearance of professional impropriety.

Voluntary Legal Assistant Ethical Codes - NALA  Canon 4.  use discretion and professional judgment commensurate with knowledge and experience  Do not render independent legal judgment in place of an attorney.

Voluntary Legal Assistant Ethical Codes - NALA  Canon 5.  disclose your status as a legal assistant at the outset of any professional relationship with a client, attorney, a court or administrative agency or personnel thereof, or a member of the general public.  act prudently in determining the extent to which a client may be assisted without the presence of an attorney.

Voluntary Legal Assistant Ethical Codes - NALA  Canon 6.  strive to maintain integrity and a high degree of competency through education and training

Voluntary Legal Assistant Ethical Codes - NALA  Canon 7.  must protect the confidences of a client  must not violate any rule or statute controlling the doctrine of privileged communications between a client and an attorney.

Voluntary Legal Assistant Ethical Codes - NALA  Canon 8.  must do all other things incidental, necessary, or expedient for the attainment of the ethics and responsibilities  Canon 9.  Your conduct should be guided by bar associations’ codes of professional responsibility and rules of professional conduct.

Voluntary Legal Assistant Ethical Codes - NFPA  The National Federation of Paralegal Associations

Voluntary Legal Assistant Ethical Codes - NFPA  1.1- achieve and maintain a high level of competence.  maintain a high level of personal and professional integrity.  maintain a high standard of professional conduct.

Voluntary Legal Assistant Ethical Codes - NFPA  serve the public interest by contributing to the improvement of the legal system and delivery of quality legal services, including pro bono publico services.

Voluntary Legal Assistant Ethical Codes - NFPA  preserve all confidential information provided by the client or acquired from other sources before, during, and after the course of the professional relationship.  avoid conflicts of interest  disclose any possible conflict to the employer or client, as well as to the prospective employers or clients.

Voluntary Legal Assistant Ethical Codes - NFPA  1.7 – Disclose your title and role as an assistant.  1.8 – Do not engage in the unauthorized practice of law.

Unauthorized Practice of Law  The “PRACTICE OF LAW” – Not okay  Giving legal advice  Representing clients in court proceedings  Performing legal analysis (w/o supervision)  Preparing legal documents (w/o supervision)  Evaluating a case and selecting an appropriate course of action  Accepting or rejecting a case  Setting a fee

 OTHER WORK IN A LAW OFFICE - Okay  Communicating information to the client  Interviewing witnesses  Performing limited legal research to assist an attorney with legal analysis  Obtaining documents  Preparing drafts of requests for production of document  Preparing drafts of interrogatories

 OTHER WORK IN A LAW OFFICE – Okay  Preparing drafts of responses to requests for production of docs  Preparing drafts of responses to interrogatories  Preparing drafts of pleadings

 OTHER WORK IN A LAW OFFICE - Okay  Organizing docs and evidence  Preparing case chronologies  Preparing deposition summaries  Preparing exhibit lists  Organizing and tracking deadlines  Conducting factual research on the Internet  Designing/entering/searching data in a litigation support database

 OTHER WORK IN A LAW OFFICE – Okay  Working with preparing e-discovery requests/software  Preparing trial presentations and demonstrative evidence

Tips to Avoid the Unauthorized Practice of Law  Always have your work approved by a supervising attorney.  Never let clients talk you into giving legal advice.  Do not start sentences with “you should” or “I think.”  Always clearly identify yourself as a legal assistant.  Do not set the fees in a case by yourself.

Tips to Avoid the Unauthorized Practice of Law  Do not accept a case by yourself.  Do not appear in court or represent a client before a court alone (unless specifically allowed to by the rules of the jurisdiction).

Competence and Diligence  Legal assistants and attorneys must perform legal services in a competent manner.  “Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” ABA model rule 1.1

Competence and Diligence  Legal assistants and attorneys must perform legal services in a diligent manner.  “Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.” ABA model rule 1.3

Client Confidentiality  The attorney-client privilege is a rule of evidence that precludes the disclosure of confidential communication between a lawyer and a client by the lawyer.  For the privilege to be invoked, the communication must have been made in confidence between the client and the attorney for the purpose of obtaining legal advice.

Client Confidentiality  Ethical rules prohibit lawyers from revealing confidential information about clients.  “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent....” ABA Model Rule 1.6(a)  “A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client....” ABA Model Code DR 4-101(D)

Client Confidentiality Tips  Resist the temptation to talk about what goes on in the law office, whether or not it is client related.  Only talk about client matters to other law office personnel on a need-to-know basis.  Never discuss the specific facts or circumstances of a client’s case to anyone, not even friends or relatives.

Client Confidentiality Tips  Always clear your desk of other case files when meeting with a client.  Do not take phone calls from other clients when meeting with a client.  Do not talk about cases in public places such as elevators or public hallways.  Be careful when responding to discovery requests so as not to produce confidential client information.

Client Confidentiality Tips  Be careful using fax machines, , mobile telephones, and so forth, so as not to disclose confidential info.

Conflict of Interest  A conflict of interest occurs when an attorney or legal assistant has competing personal or professional interests with a client’s case that would preclude him or her from acting impartially toward the client.

Conflict of Interest  Conflict of interest problems occur when:  You have a personal, financial, or other interest in a case.  You represented a client who is now an adverse party in a current case.  An attorney and a client enter into business together.

Conflict of Interest  A lawyer shall not represent a client if the representation involves a concurrent conflict of interest.  A concurrent conflict of interest exists if:  the representation of one client will be directly adverse to another client;...

Conflict of Interest  Notwithstanding the existence of a concurrent conflict... a lawyer may represent a client if:  the lawyer reasonable believes that the lawyer will be able to provide competent and diligent representation to each affected client;...  each affected client gives informed consent, confirmed in writing.  Rule 1.7 of the ABA Model Rules

Conflict of Interest  A lawyer shall not enter into a business transaction w/ a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless...

Conflict of Interest  A lawyer shall not use info relating to representation of a client to the disadvantage of the client unless the client gives informed consent. Rule 1.8 of the ABA Model Rules

Conflict of Interest  The Ethical Wall  courts tend to disqualify a whole firm when a conflict of interest problem arises.  some courts have carved out an alternative to disqualification - the Ethical or Chinese Wall.

Conflict of Interest  The Ethical Wall  a firm effectively isolates the legal assistant or attorney with a conflict of interest from having anything to do with the case, creating an “Ethical Wall” around him or her.  put in place by instructing staff members not to talk to the person w/ the conflict about the case and by limiting the person’s access to the files (including computer files) of the case.

Conflict of Interest  Conflict of interest probs for legal assistants usually occur when he/she changes employment  You can avoid conflict of interest problems when changing employment by:  Bringing up the issue of potential conflicts in the job interview.  Being absolutely honest about your past.  If a potential conflict is discovered, immediately inform your supervisor of the potential conflict.

Resolving Ethical Problems  Talk to your legal assistant manager or supervising attorney regarding the ethical problem.  Talk to another attorney or legal assistant in the firm regarding the ethical problem.  Join a professional legal assistant assoc that covers ethical issues.  Be familiar with the ethical rules of your state.

Resolving Ethical Problems  Subscribe to legal assistant periodicals that deal with ethical issues.  Report ethical violations to the state bar assoc if necessary.  When considering ethical questions, think conservatively and do not take chances.  Do not ignore or procrastinate re the ethical problem.

Malpractice  Legal malpractice occurs when an attorney’s or law office’s conduct in representing a client falls below the standard skill, prudence, and diligence that an ordinary lawyer would possess or that is commonly available in the legal community.

Malpractice  The most common causes of legal malpractice include:  Failure to know/properly apply law  Failure to know/ascertain deadline  Failure to obtain consent/inform client  Failure to calendar properly

Malpractice Avoidance Tips  Return client phone calls immediately.  Send clients status reports about their cases.  Contact clients regularly and ask them for input regarding how to proceed w/ the case.  Always reduce fee agreements to writing.  Always send regular billings to clients so they do not get “sticker shock.”

Malpractice Avoidance Tips  Resolve fee disputes, if possible.  Do not work on cases that you are not qualified to handle.  When a case is accepted, always send an engagement letter.  When a case is rejected or a case is closed, always send a disengagement letter.

 You have learned that your client has a deadly communicable disease but has not revealed this fact to the other parties seeking the marriage. What, if anything, do you do? 51

 Immediately after the accident, the other driver gave Carlos, who was severely wounded, bleeding, and unconscious, mouth-to-mouth resuscitation, but Carlos died. You have learned that your client Terry knows that Carlos had a deadly communicable disease. What, if anything, do you do? 52

 While representing a client in civil litigation, you are conducting depositions in a conference room at your office. Opposing counsel asks to use an empty office during a break to return phone calls, and you oblige. After the depositions are finished for the day, you realize that opposing counsel left a doc in the empty office, and after glancing at it, you realize it is a status memo to the insurance adjuster on the case.

 A lawyer at a firm has decided to leave the firm and start his own practice. He wants to take his existing clients with him. May the lawyer have you call his clients, tell them he is leaving and ask the clients to hire his new firm?

 During the course of your work on a case, you have a telephone conversation w/ an important witness:  May you tape record the phone call?  Does it matter where the witness is located?

 What if you did not record the call, but instead took detailed notes of the conversation:  Must you produce your notes to the witness?  Must you produce your notes to opposing counsel?

 You represent a criminal defendant accused of murder. During the debriefing of your client, he tells you of separate incidents where he murdered 3 other individuals. The client tells you where he dumped the bodies of his other victims.  After confirming your client’s story where the remains of these other victims were left, can you advise the authorities, or family members of the victims, of this information?