1. Concise Guide to Paralegal Ethics
Second Edition
Therese A. Cannon

2. 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
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3. 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
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4. ABA’s Model Codes of Ethics
Canons of Professional Ethics
Model Code of Professional Responsibility
Model Rules of Professional Conduct

5. Sanctions
Disbarment
Suspension
Probation
Reprimand (or reproval)

6. 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)

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

8. 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.

9. 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
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10. Arguments Favoring Licensing
Provides assurance to clients and employers of paralegals of the qualifications
Encourages needed standardization in paralegal education
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11. 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

12. 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

13. 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

14. 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

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

16. 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

17. 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.

18. 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
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19. 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
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20. 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.

21. 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.

22. 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

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

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

25. 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 for very sensitive communications
Mark all confidential s as privileged and include a statement telling the reader what to do if the communication is inadvertently sent to the wrong person
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26. Procedures to Protect Confidentiality when Using Computers
Limit the recipients of a privileged 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
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27. 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
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28. 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
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29. 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

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

31. 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
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32. 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
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33. Successive Representation
Successive representation is a conflict of interest situation involving a current matter and a former client whose interests conflict.

34. 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

35. 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

36. 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.

37. 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

38. 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

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

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

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

42. 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.

43. 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
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44. 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
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45. Types of Fees Fixed fees Contingency fees Sliding scale Hourly fees
Statutory/court awarded fees

46. 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
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47. 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
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48. 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

49. 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

50. 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

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

52. 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

53. 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

54. 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

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

56. 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 s should be returned promptly
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57. 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
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58. Attorney Review
This is the responsibility of supervising attorneys to review work of paralegals.

59. 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
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60. 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
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61. 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

62. 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

63. 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.

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

65. 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.

66. 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

67. 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

68. 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?