concise guide to paralegal ethics second edition therese a. cannon
TRANSCRIPT
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?