concise guide to paralegal ethics second edition therese a. cannon

Concise Guide to Paralegal EthicsSecond Edition

Therese A. Cannon

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Chapter OneRegulation 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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Chapter OneRegulation 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

ABA’s Model Codes of Ethics Canons of Professional Ethics Model Code of Professional Responsibility Model Rules of Professional Conduct

Sanctions Disbarment Suspension Probation Reprimand (or reproval)

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)

Certification Certification is the voluntary recognition of

an occupation based on a person’s having met specified qualifications.

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.

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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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Arguments Favoring Licensing Provides assurance to clients and employers of

paralegals of the qualifications Encourages needed standardization in paralegal

education

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

Chapter TwoUnauthorized 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

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

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

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

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

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.

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Chapter ThreeConfidentiality

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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Chapter ThreeConfidentiality (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

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.

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.

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

Work Product Doctrine Federal and state rules of evidence and

discovery provide for the protection of materials prepared by lawyers in anticipation of litigation.

Technology and ConfidentialityConsider how the following can cause breaches

in confidentiality: Electronic records Facsimile machines Cellular and cordless telephones Computers Electronic mail

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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 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

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Procedures to Protect Confidentiality when Using Computers 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

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Chapter FourConflicts 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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Chapter FourConflicts of Interest (continued)

Client consent to conflicts Screens to protect against disqualification The use of conflicts checks and paralegals’

responsibility to maintain records

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

Concurrent Representation Concurrent (or Simultaneous) representation

occurs when an attorney represents two clients whose interests are adverse to one another.

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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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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

Successive Representation Successive representation is a conflict of

interest situation involving a current matter and a former client whose interests conflict.

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

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

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.

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

Chapter FiveAdvertising 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

False/Misleading Communication False or misleading communications contain

material misrepresentations of fact or law, or omit necessary material facts.

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

Solicitation Ethical rules restrict the conduct of lawyers in

soliciting clients directly, either in person or by telephone.

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.

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Chapter SixFees 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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Chapter SixFees 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

Types of Fees Fixed fees Contingency fees

Sliding scale Hourly fees Statutory/court awarded fees

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Ethics Rules about FeesFactors 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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Ethics Rules about FeesFactors 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

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

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

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

Commingling Commingling is the mixing of client funds

with lawyers’ funds.

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

Chapter SevenCompetence

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

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

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

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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 e-mails should be returned

promptly

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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

Attorney Review This is the responsibility of supervising

attorneys to review work of paralegals.

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Chapter EightSpecial 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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Chapter EightSpecial 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

Unmeritorious Claims, Delay, and Discovery AbuseTwo 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

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

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.

Ex Parte Ex parte means an action taken by or on

behalf of a party without the presence of the opposing party.

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.

Chapter NineProfessionalism 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

Qualities of Professional ParalegalsCommitment 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

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?

concise guide to paralegal ethics second edition therese a. cannon

Documents

paralegal associations

legal ethics slide

paralegal education

paralegal ethics

legal professionals

licensing licensing

reproval slide

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