1. Ethics And Professional Responsibility
CHAPTER 4
Ethics And Professional Responsibility

2. 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

3. 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.

4. 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

5. 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.

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

7. 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.

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. The Indirect Regulation of Paralegals

15. 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

16. 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

17. 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

18. 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

19. 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.

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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.

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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