1. WSPA Spring CLE - May 7, 2010 © 2010 Clark D. Silliman, WSBA #3784 Instructor, Paralegal Program, Edmonds Community College. All Rights Reserved.

2.  The “N2N” Rule

3.  The Unauthorized Practice of Law (“UPL”)  Confidentiality  Conflicts of Interest

4.  What IS the practice of law? It is:  The application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which require the knowledge and skill of a person trained in the law. This includes but is not limited to: (1) Giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of others for fees or other consideration. (2) Selection, drafting, or completion of legal documents or agreements which affect the legal rights of an entity or person(s). (3) Representation of another entity or person(s) in a court, or in a formal administrative adjudicative proceeding or other formal dispute resolution process or in an administrative adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for judicial review. (4) Negotiation of legal rights or responsibilities on behalf of another entity or person(s). GR 24.

5. A person engages in UPL if what s/he does is an activity that:  is traditionally practiced by lawyers  is one commonly understood to involve the practice of law  requires legal skill or knowledge beyond that of a layperson  is characterized by the personal relationship between lawyer and client

6.  a non-lawyer assistant [i.e. a paralegal] performs any of the foregoing activities under the supervision of a lawyer in compliance with Rule 5.3 of the Rules of Professional Conduct [RPC 5.3]. GR 26(c).

7.  Making Court Appearances  Includes taking depositions and signing pleadings and other papers  Establishing the Attorney-Client Relationship  Giving Legal Advice

8.  Preparing pleadings and legal instruments, such as wills, contracts, deeds, leases, and trusts  Preparing any document by which legal rights are secured  Preparing documents for or making statements to a client that contain legal opinions, arguments, or interpretations of the law  Appearing in court on behalf of clients or acting as an advocate in a representative capacity  Giving legal advice—that is, applying knowledge and judgment to a client’s particular situation and advising of rights and responsibilities and possible courses of action

9.  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/her legal rights and responsibilities  Evaluating the probable outcome of a matter, including litigation  Interpreting statutes, decisions, or legal documents for a client

10.  Consider  Whether the services require 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

11.  Self-representation (pro se)  Representation of others before administrative agencies  “Incidental to” activities

12.  Creation of legal documents by real estate people  Tax advice from accountants and banks  Estate planning by banks and insurance agencies  Debt collection by commercial agencies As always check your own state law!

13.  The conduit theory = where the paralegal has been instructed to transmit legal advice from lawyer to client  But can the paralegal convey that same advice to a different client at a different time? What do you think?

14.  There is no UPL in generic legal advice such as is found on or in:  Websites  Books  Software

15.  Inmates who help other inmates prepare documents to seek post-conviction relief are not engaging in UPL. The U.S. Supreme Court has held that such activities generally do NOT constitute UPL, See Johnson v. Avery, 393 U.S. 483 (1969).

16.  Improper supervision  Improper business relationships  Misrepresentation of paralegal status

17.  A lawyer must review and sign legal documents prepared by paralegals  This is called “adopting the document as his/her own work”  This is especially a problem when lawyers hire disbarred or suspended lawyers to work as paralegals

18.  Lawyers must take care to only delegate work that is properly done by a paralegal.  e.g., a lawyer cannot delegate taking a deposition to a paralegal

19.  Lawyers and nonlawyers cannot be business partners if they will be practicing law  RPC 5.4(b)

20.  Lawyers cannot share legal fees with non- lawyers  Bonus payments are allowed  Contribution to a retirement account is allowed  RPC 5.4(a)

21.  Paralegals are obligated to identify themselves as non-lawyers  Business cards  Letters  Telephone directories  Office door sign  Lawyers have no obligation to identify themselves as lawyers

22.  One of the main functions of many paralegals is acting as liaison to persons outside the law firm—clients, witnesses, opposing law firms, courts, and so forth.  This contact may take the form of telephone conversations, correspondence, or meetings in person.  A key ethical aspect of the liaison role is ensuring that the person with whom the paralegal is dealing is fully aware that the paralegal is not a lawyer. 

23.  An independent contractor paralegal (also known as a freelance paralegal) is a paralegal who handles projects for attorneys on an as-needed basis.  Not UPL if attorney reviews and supervises per RPC 5.3  Distinguish from nonlawyer providing legal services without any attorney involved = UPL

24.  Civil Remedies (e.g., injunction)  Criminal prosecution  Citation for contempt of court  Who Enforces?  The court  The integrated bar  The prosecutor

25.  YES! “Nonlawyers and lawyers are bound by the same ethical duties,” Richards v. Jain, 168 F.Supp.2d 1195 (W.D. Wash. 2001).

26.  YES! Daines v. Alcatel, S.A., 194 F.R.D. 678 (E.D. Wash. 2000) “This section [RPC 5.3] charges attorneys with the responsibility of ensuring that non-attorney staff members follow the same ethics rules that apply to attorneys.”

27.  YES!. A lawyer will be responsible for a paralegal’s unethical conduct where the lawyer would have known of the conduct but for the lawyer’s negligence or recklessness. Richards v. Jain, supra.

28.  A lawyer who authorized his paralegal to manage his IOLTA account (and to write checks on that account) may be liable when that paralegal uses the IOLTA account to engage in check-kiting. Bank of America v. Hubert, 153 Wn.2d 102 (2004).

29.  RPC 1.11 SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT  (a) [A] lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation....  (b) [A] lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person....  (c) [A] lawyer serving as a public officer or employee shall not: (1) Participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or (2) Negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially....

30.  There is a duty to report the unethical conduct. But to whom?  First, attempt to discuss perceived ethical violations with one’s supervising lawyer; but if that lawyer IS the person perceived to have engaged in ethical misconduct, it is probably better to report that misconduct directly to the WSBA.

31.  The principle of confidentiality is based on the notion that:  a lawyer must know all the facts if he/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.

32.  Includes all information relating to the representation of the client regardless of the source

33.  Not just personal secrets  Not just “bad” information  Not just items said “in confidence”  It is all information related to the representation

34.  Although some information may not at first appear to be related to the representation, one can never tell what may concern the next representation of this client  Just the very fact that this person IS one’s client is “related to the representation” and is, therefore, confidential

35.  All information received from the client  All information received from client’s friends, family, etc.  All information discovered in public sources  All public information

36.  When information is “confidential” it means that one cannot discuss it or tell anyone of it  Except for the “need to know” circle of people in one’s law firm  Except for disclosures one must make in the regular course of your job  e.g., answers to interrogatories do release confidential information

37.  FOREVER!

38.  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. RCW 5.60.060(2).

39.  Is a rule of evidence  Applies only to information received from the client  Applies only to secrets  Applies only where one (a person asked to divulge this secret) is under oath  grand jury, on the witness stand at trial, answers to discovery requests, etc.

40.  You have secret information (such as a confession) that you received from the client  You are asked to reveal that information under oath  Your response is: I refuse to answer on the grounds of the attorney/client privilege.

41.  Attorney/client privilege does not apply to information that is public  Attorney/client privilege belongs to the client but must be protected by the lawyer (and paralegal)  Attorney/client privilege is an evidentiary privilege; confidentiality is a personal duty

42.  Attorney-Client Privilege  Only information received from client  Must be secret  Applies only in a legal proceeding  Applies forever  Can release information with client’s express consent  Duty of Confidentiality  All information  Regardless of the source  Doesn’t have to be “secret”  Applies everywhere  Applies forever  Can release information that client impliedly or expressly authorizes

43.  Others in the need-to-know circle  Whatever is necessary to do the job  Where services are used to commit fraud  Defend against action brought by client  Where client is committing perjury  To prevent death or bodily harm, fraud, etc.  See RPC 1.6

44.  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 your supervising attorney (a court may become involved)  See CR 26(b)(6)

45.  Federal and state rules of civil procedure provide for the protection of materials prepared by lawyers in anticipation of litigation (called “work product”).  See CR 26(b)(4) and F. R. Civ. P. 26(b)(3).

46.  Applies to work created in anticipation of litigation  Applies to work created by the lawyer or paralegal, e.g., memoranda, witness interviews, notes of investigation, etc.  Protects this work from discovery by the opponent(s) in litigation

47. Consider how the following can cause breaches of confidentiality:  Electronic records (or “ESI” – electronically stored information)  Facsimile machines  Cellular and cordless telephones  Computers  Electronic mail

48.  More vigilance is required  All of the rules are still the same  Email does NOT have to be encrypted  Using a cell phone is proper if the communication is private  Computers should be password-protected and screens shielded from view  Computers should be protected from viruses, etc.  Documents should be purged of metadata

49.  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

50.  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

51.  Require return of client files in the retainer agreement  Store files in a safe place  Have a written procedure for handling and storage of files  Follow the rules before destroying files  If files are destroyed, destroy them completely

52.  Each and every person in the legal profession owes the duty of absolute loyalty to each and every client.

53.  We have a duty to preserve the confidences of our client FOREVER.  The Duty of Loyalty + The Duty of Confidentiality = The Possibility of a Conflict of Interest

54.  Concurrent representation of adverse interests  Representation that is adverse to a former client  Representation of clients whose interests are aligned  Lawyers’ financial, personal, or business interests that are or may be adverse to a client

55.  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

56.  Purchases and sales of items to and from clients raises a question of conflict  transaction in good faith exception?  Membership in an organization may raise a question of conflict

57.  If you are a witness in the case  your interests may be adverse to the interests of the client  your credibility may put your client’s case at risk

58.  A gift of anything other than a small token of appreciation creates a conflict of interest

59.  An emotional relationship with a client can impair the lawyer’s professional judgment  See RPC 1.8(j)

60.  The lawyer and paralegal are in a fiduciary relationship with the client  Fiduciary relationship is one of trust and confidence.

61.  The duty of loyalty is to the corporation’s form Board of Directors, NOT to any of its individuals or officers

62.  The conflict of interest of one person in a law firm is imputed to everyone in the firm, causing the whole firm to be disqualified

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

64.  A screen (sometimes referred to as a “Chinese Wall” [after the Great Wall of China])isolates a disqualified person by setting up law office procedures to prevent the affected person from any involvement with or communication about the matter.

65. 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 Indications on files and documents to indicate the limitations on access Programmed computer warnings or blocks to prevent screened person’s access to documents on the firm’s computer network

66.  Establish a really good personal conflict check system  Add an honest and up-to-date resume  Pay attention to new cases as they come in to the firm  Be up front about potential conflicts

67.  Gather the facts  Speak directly to a responsible lawyer  Do not try to hide a conflict

68.  THE END!