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Ethics and Malpractice Chapter 3 Practical Law Office Management, 3 rd Edition, Thomson Delmar Learning ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED.

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Presentation on theme: "Ethics and Malpractice Chapter 3 Practical Law Office Management, 3 rd Edition, Thomson Delmar Learning ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED."— Presentation transcript:

1 Ethics and Malpractice Chapter 3 Practical Law Office Management, 3 rd Edition, Thomson Delmar Learning ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED.

2 2 Why Is Ethics Important to Legal Assistants? Clients and attorneys must have total confidence that a legal assistant understands ethical problems and that a legal assistant’s ethical judgment is clear. An error by a legal assistant can be very costly in terms of: – 1) Hurting the client and subjecting the attorney to a malpractice claim – 2) Subjecting the attorney to a disciplinary complaint – 3) A legal assistant being terminated from his or her job

3 3 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. 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. 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 ethical models.

4 4 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Attorney Ethical Rules Do Not Apply Directly to Legal Assistants Neither a state’s canons of ethics nor the ABA’s ethical rules apply directly to legal assistants. 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. 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.

5 5 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Voluntary Legal Assistant Ethical Codes - NALA NALA Code of Ethics and Professional Responsibility A legal assistant must adhere strictly to the accepted standards of legal ethics and to the general principles of proper conduct. The performance of the duties of the legal assistant shall be governed by specific canons as defined herein so that justice will be served and goals of the profession attained. (See Model Standards and Guidelines for Utilization of Legal Assistants, Section II.) The canons of ethics set forth hereafter are adopted by the National Association of Legal Assistants, Inc., as a general guide intended to aid legal assistants and attorneys. The enumeration of these rules does not mean there are not others of equal importance, although not specifically mentioned. Court rules, agency rules, and statutes must be taken into consideration when interpreting the canons. Definition: Legal assistants, also known as paralegals, are a distinguishable group of persons who assist attorneys in the delivery of legal services. Through formal education, training, and experience, legal assistants have knowledge and expertise regarding the legal system and substantive and procedural law which qualify them to do work of a legal nature under the supervision of an attorney.

6 6 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Voluntary Legal Assistant Ethical Codes - NALA Canon 1. A legal assistant must not perform any of the duties that attorneys only may perform nor take any actions that attorneys may not take. Canon 2. A legal assistant 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. Canon 3. A legal assistant must not: (a) engage in, encourage, or contribute to any act which could constitute the unauthorized practice of law; and (b) establish attorney-client relationships, set fees, give legal opinions or advice, or represent a client before a court or agency unless so authorized by that court or agency; and, (c) 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.

7 7 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Voluntary Legal Assistant Ethical Codes - NALA Canon 4. A legal assistant must use discretion and professional judgment commensurate with knowledge and experience but must not render independent legal judgment in place of an attorney. The services of an attorney are essential in the public interest whenever such legal judgment is required. Canon 5. A legal assistant must disclose his or her 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. A legal assistant must act prudently in determining the extent to which a client may be assisted without the presence of an attorney. Canon 6. A legal assistant must strive to maintain integrity and a high degree of competency through education and training with respect to professional responsibility, local rules and practice, and through continuing education in substantive areas of law to better assist the legal profession in fulfilling its duty to provide legal service.

8 8 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Voluntary Legal Assistant Ethical Codes - NALA Canon 7. A legal assistant must protect the confidences of a client and must not violate any rule or statute now in effect or hereafter enacted controlling the doctrine of privileged communications between a client and an attorney. Canon 8. A legal assistant must do all other things incidental, necessary, or expedient for the attainment of the ethics and responsibilities as defined by statute or rule of court. Canon 9. A legal assistant’s conduct is guided by bar associations’ codes of professional responsibility and rules of professional conduct.

9 9 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Voluntary Legal Assistant Ethical Codes - NFPA The National Federation of Paralegal Associations, Inc. (NFPA) is a professional organization comprised of paralegal associations and individual paralegals throughout the United States and Canada. Members of NFPA have varying backgrounds, experiences, education, and job responsibilities that reflect the diversity of the paralegal profession. NFPA promotes the growth, development, and recognition of the paralegal profession as an integral partner in the delivery of legal services. In May 1993 NFPA adopted its Model Code of Ethics and Professional Responsibility (Model Code) to delineate the principles for ethics and conduct to which every paralegal should aspire. Many paralegal associations throughout the United States have endorsed the concept and content of NFPA’s Model Code through the adoption of their own ethical codes. In doing so, paralegals have confirmed the profession’s commitment to increase the quality and efficiency of legal services, as well as recognized its responsibilities to the public, the legal community, and colleagues.

10 10 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Voluntary Legal Assistant Ethical Codes - NFPA Paralegals have recognized, and will continue to recognize, that the profession must continue to evolve to enhance their roles in the delivery of legal services. With increased levels of responsibility comes the need to define and enforce mandatory rules of professional conduct. Enforcement of codes of paralegal conduct is a logical and necessary step to enhance and ensure the confidence of the legal community and the public in the integrity and professional responsibility of paralegals. In April 1997 NFPA adopted the Model Disciplinary Rules (Model Rules) to make possible the enforcement of the Canons and Ethical Considerations contained in the NFPA Model Code. A concurrent determination was made that the Model Code of Ethics and Professional Responsibility, formerly aspirational in nature, should be recognized as setting forth the enforceable obligations of all paralegals. The Model Code and Model Rules offer a framework for professional discipline, either voluntarily or through formal regulatory programs.

11 11 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Voluntary Legal Assistant Ethical Codes - NFPA §1. NFPA model disciplinary rules and ethical considerations 1.1 A paralegal shall achieve and maintain a high level of competence. 1.2 A paralegal shall maintain a high level of personal and professional integrity. 1.3 A paralegal shall maintain a high standard of professional conduct. 1.4 A paralegal shall serve the public interest by contributing to the improvement of the legal system and delivery of quality legal services, including pro bono publico services.

12 12 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Voluntary Legal Assistant Ethical Codes - NFPA 1.5 A paralegal shall preserve all confidential information provided by the client or acquired from other sources before, during, and after the course of the professional relationship. 1.6 A paralegal shall avoid conflicts of interest and shall disclose any possible conflict to the employer or client, as well as to the prospective employers or clients. 1.7 A paralegal’s title shall be fully disclosed. 1.8 A paralegal shall not engage in the unauthorized practice of law.

13 13 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Unauthorized Practice of Law The “PRACTICE OF LAW” Giving legal advice Representing clients in court proceedings Performing legal analysis (with no supervision) Preparing legal documents (with no supervision) Evaluating a case and selecting an appropriate course of action Accepting or rejecting a case Setting a fee

14 14 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Unauthorized Practice of Law OTHER WORK IN A LAW OFFICE Obtaining facts from client 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 Preparing drafts of responses to requests for production of documents Preparing drafts of responses to interrogatories Preparing drafts of pleadings

15 15 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Unauthorized Practice of Law OTHER WORK IN A LAW OFFICE Organizing documents 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 Working with preparing e-discovery requests/software Preparing trial presentations and demonstrative evidence

16 16 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Tips to Avoid the Unauthorized Practice of Law Always have your work approved by a supervising attorney. Never let clients talk you into giving the client 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. 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).

17 17 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Competence and Diligence 1.Legal assistants and attorneys must perform legal services in a competent manner. – ABA Model Rule 1.1 states: “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.” 2.Legal assistants and attorneys must perform legal services in a diligent manner. – ABA Model Rule 1.3 states: “Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.”

18 18 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. 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.

19 19 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Client Confidentiality Ethical rules prohibit lawyers from revealing confidential information about clients. – ABA Model Rule 1.6(a) states: “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent....” – ABA Model Code DR 4-101(D) states: “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....”

20 20 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. 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. The statement “I promise I won’t tell anyone” does not work. Always clear your desk of other case files when meeting with a client.

21 21 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Client Confidentiality Tips 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. Be careful using fax machines, , mobile telephones, and so forth, so as not to disclose confidential information.

22 22 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. 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 problems occur when: – An attorney or legal assistant has a personal, financial, or other interest in a case. – The attorney or legal assistant sometime in the past represented a client who is now an adverse party in a current case. – An attorney and a client enter into business together.

23 23 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Conflict of Interest Rule 1.7 of the ABA Model Rules states: – a)... A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client;... – b) Notwithstanding the existence of a concurrent conflict... a lawyer may represent a client if: (1) the lawyer reasonable believes that the lawyer will be able to provide competent and diligent representation to each affected client;... (4) each affected client gives informed consent, confirmed in writing.

24 24 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Conflict of Interest Rule 1.8 of the ABA Model Rules states: – (a)A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless... – (b)A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent.

25 25 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Conflict of Interest The Ethical Wall a.The general rule is that courts tend to disqualify a whole firm when a conflict of interest problem arises. However, some courts have carved out an alternative to disqualification. The alternative is called the Ethical or Chinese Wall theory. b.The ethical alternative occurs when a firm effectively isolates the legal assistant or attorney with a conflict of interest from having anything whatsoever to do with the case, creating an “Ethical Wall” around him or her. c.An Ethical Wall is put in place by instructing staff members not to talk to the person with the conflict about the case and by limiting the person’s access to the files (including computer files) of the case.

26 26 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Conflict of Interest Conflict of interest problems for legal assistants usually occur when a legal assistant changes employment. Legal assistants 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 his or her past. – If a potential conflict is discovered, the legal assistant should immediately inform the supervisor of the potential conflict.

27 27 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. 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 association that covers ethical issues. Be familiar with the ethical rules of your state.

28 28 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Resolving Ethical Problems Subscribe to legal assistant periodicals that deal with ethical issues. Report ethical violations to the state bar association if necessary. When considering ethical questions, think conservatively and do not take chances. Do not ignore or procrastinate regarding the ethical problem.

29 29 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. 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.

30 30 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. 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

31 31 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. Malpractice Avoidance Tips Return client phone calls immediately. Send clients status reports about their cases. Contact clients regularly and ask them for their opinions about how to proceed with the case. Always reduce fee agreements to writing. Always send regular billings to clients so they do not get “sticker shock.”

32 32 ©2007 Thomson Delmar Learning. ALL RIGHTS RESERVED. 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.


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