Ethics And Professional Responsibility CHAPTER 4 Ethics And Professional Responsibility

Introduction You should have a firm grasp of your state’s ethical rules governing the legal profession If a paralegal violates a rule governing attorneys, it may result in serious consequences for the client, for the attorney, and for the paralegal Paralegals are subject to less regulation, although states may impose more rules if believed desirable Paralegals are regulated indirectly both by attorney ethical codes and by state laws

The Regulation of Attorneys Attorneys engage in self-regulation because they play critical roles in establishing majority of rules governing their profession Who Are the Regulators? Bar associations American Bar Association (ABA) State supreme courts State legislatures The United States Supreme Court Learning Objective: Why and how legal professionals are regulated.

The Regulation of Attorneys Licensing Requirements Basic requirements Bachelor’s degree Pass a state bar examination Extensive personal background investigation Licensing and UPL State statutes prohibiting the unauthorized practice of law

The Regulation of Attorneys Ethical Codes and Rules The Model Code of Professional Responsibility Nine canons of the ABA Ethical considerations are “aspirational” Disciplinary rules are mandatory The Model Rules of Professional Conduct Revision of ABA Model Code (1983) Set of rules organized under eight headings Learning Objective: Some important ethical rules governing the conduct of attorneys.

The Regulation of Attorneys Sanctions for Violations Formal sanctions Reprimand Suspension Disbarment Civil liability Malpractice Damages

Attorney Ethics and Paralegal Practice The Duty of Competence How the duty of competence can be breached Inadequate research Missed deadlines Errors in documents Attorney’s duty to supervise Inadequate supervision Improve communications with attorney Ask attorney for feedback on your work Attach a note to document asking for careful review Learning Objective: How the rules governing attorneys affect paralegal practice.

Attorney Ethics and Paralegal Practice Confidentiality of Information Exceptions to the confidentiality rule Client gives informed consent to the disclosure Impliedly authorized disclosures Disclosures to prevent harm Disclosures to ensure compliance with model rules Defending against a client’s legal action Disclosures to comply with court order or other law

Attorney Ethics and Paralegal Practice Confidentiality of information Violations of the confidentiality rule Conversations overheard by others Electronic communications and confidentiality Other ways of violating the confidentiality rule

Attorney Ethics and Paralegal Practice Confidentiality and the Attorney-Client Privilege Vitally important during the litigation process What kind of information is privileged? Any communications concerning client’s legal rights Work product

Attorney Ethics and Paralegal Practice Confidentiality and the Attorney-Client Privilege (continued) When the attorney-client privilege arises Exists the moment a client communicates with an attorney Duration of the privilege Only the client can waive the privilege Privilege lasts indefinitely

Attorney Ethics and Paralegal Practice Conflict of Interest Simultaneous representation Former clients Job changes and former clients Walling off procedures Other conflict-of-interest situations Gifts “Issue conflict” cases Family relationships Conflicts checks

The Indirect Regulation of Paralegals Paralegal conduct is evaluated on the basis of standards and guidelines created by paralegal professional groups Paralegal Ethical Codes NFPA’s Model Code of Ethics “Model Disciplinary Rules and Ethical Considerations” NALA’s Code of Ethics Ten canons Compliance with paralegal codes of ethics

The Indirect Regulation of Paralegals

The Indirect Regulation of Paralegals Guidelines for the Utilization of Paralegals NALA’s Model Standards and Guidelines Minimum qualifications paralegals should have What paralegals may and may not do The ABA’s Model Guidelines Types of tasks a lawyer may not delegate to a paralegal Responsibilities of attorneys with respect to paralegal performance and compensation State guidelines Become familiar with your state’s guidelines

The Indirect Regulation of Paralegals The Increasing Scope of Paralegal Responsibilities Today paralegals can perform almost any legal task Work must be supervised by an attorney Work cannot constitute the UPL Wide range of responsibilities Follow ABA guidelines Paralegals may not perform tasks that only attorneys can legally perform Liability risk of UPL

The Unauthorized Practice of Law State UPL Statutes About half of the states have a formal definition Enforcement of UPL statutes also varies widely Paralegal must know details of UPL state statutes

The Unauthorized Practice of Law The Prohibition against Fee Splitting Model Rules of Professional Conduct, Rule 5.4 Eliminates conflict with firm policy Protects attorney’s independent judgment Protects nonlawyers against indirectly engaging in unauthorized practice of law

The Unauthorized Practice of Law Giving Legal Opinions and Advice The need for caution Do not give even simple, common-sense advice Do not advise someone of legal options Be on the safe side Never advise anyone regarding any matter if the advice may alter that person’s legal position or legal rights Find an attorney who can answer the client’s questions Learning Objective: The kinds of activities that paralegals are and are not legally permitted to perform.

The Unauthorized Practice of Law Representing Clients in Court Only attorneys can represent others in legal matters Two limited exceptions People can represent themselves Paralegals can represent clients in some federal and state agencies

The Unauthorized Practice of Law Disclosure of Paralegal Status Make sure that clients know you are a paralegal and are not permitted to give legal advice Add “paralegal” or “legal assistant” after your name Business cards Firm’s letterhead All correspondence Must disclose status as legal assistant at the outset of any professional relationship

The Unauthorized Practice of Law Paralegals Freelancing for Attorneys New Jersey Supreme Court, 1992 Freelance paralegals who are adequately supervised by attorneys are not engaging in UPL Professional responsibility and virtual paralegals Contract services to others as independent contractors Increased flexibility in their schedules Ability to work from home Still must be directly supervised by a licensed attorney Draft an ethics policy

The Unauthorized Practice of Law Legal Technicians (Independent Paralegals) and UPL Provide “self-help” legal services directly to public Fine line between disseminating legal information (forms) and giving legal advice (selecting forms) An ongoing problem

The Unauthorized Practice of Law Legal Technicians (Independent Paralegals) and UPL (continued) The controversy over legal software Quicken Family Lawyer Do paralegals who operate as legal technicians engage in UPL? Debate continues Violating state UPL statutes can be serious Should rigorously abide by the letter of the law

Should Paralegals Be Licensed? General Licensing Considered by a number of states Would require all paralegals to meet certain educational requirements and other criteria The New Jersey Supreme Court Committee on Paralegal Education recommended that paralegals be licensed Court concluded that direct oversight is best accomplished through attorney supervision rather than through state licensing Learning Objective: Some of the pros and cons of regulation, including the debate over paralegal licensing.

Should Paralegals Be Licensed? Paralegal Registration Florida Registered Paralegal (FRP) Requires registration of paralegals Must provide proof of educational qualification All FRPs listed on the Florida Bar website Must meet continuing education (CE) requirement CE courses are specifically authorized Other states investigating a similar procedure

Should Paralegals Be Licensed? Education and Certification California Paralegals do not have to register Independent paralegal can register with state as a “legal document assistant” (“LDA”) Louisiana Certified Paralegal Program To be certified as LCP, must pass two exams NALA’s Certified Legal Assistant ("CLA") exam Louisiana Certified Paralegal ("LCP") exam

Should Paralegals Be Licensed? Direct Regulation — The Pros and Cons Who should do the regulating? Several organizations want to have a say, but express different views NFPA’s position Endorses regulation on a state-by-state basis Two-tiered system: general licensing and specialty licensing

Should Paralegals Be Licensed? Direct Regulation — The Pros and Cons (continued) NALA’s position Supports voluntary certification (self-regulation) Opposes licensing requirements for paralegals The AAfPE’s position Does not take a position

Should Paralegals Be Licensed? Other Considerations Business and profits of law firms would suffer Firms would not be able to hire and train persons of their choice Paralegals would become “generalists” Now, large numbers of paralegals specialize in particular areas and do not need to have broad knowledge of all areas

A Final Note Think and act in a professionally responsible manner Little room for learning ethics by “trial and error” Be especially attentive to the ethical rules Anticipate and guard against violations Preventive tactics Ask questions when you are in doubt Make sure your work is adequately supervised

Summary Attorneys are regulated by licensing requirements and by the ethical rules of their state The Model Code and Model Rules spell out the ethical and professional duties governing attorneys and the practice of law Paralegals should consult their state’s ethical code to learn the specific rules for which they will be accountable

Summary Paralegals are regulated indirectly by attorney ethical rules State laws prohibit nonlawyers from engaging in the unauthorized practice of law (UPL), and violations of these laws can have serious consequences An issue for legal professionals is whether paralegals should be directly regulated by the state through licensing requirements