Liberty University- Intro to Paralegal Studies
Professor J. Barber
“Paralegal Today: The Legal Team At Work” (7 ed) (2017) by Roger LeRoy
th
Miller and Mary Menzinger
Chapter Four: Ethics and Professional Responsibility Notes
Paralegals share in the ethical and legal responsibilities arising as a result of the attorney-client
relationship.
The ethical duties imposed on attorneys affect paralegals as well.
Attorneys are regulated by the state, because the rules of behavior established by the legal
profession are adopted and enforced by state authorities.
- By establishing educational and licensing requirements, state authorities ensure that
anyone practicing law should be competent
- By defining specific ethical requirements for attorneys, the states protect the public
against unethical attorney behavior that may affect clients’ welfare
Key participants that determine what rules govern attorneys and the practice of law, as well as
how these rules should be enforced, are bar associations, state supreme courts, state legislatures,
and in some cases, the United States Supreme Court.
Bar Associations:
Lawyers determine the requirements for entering the legal profession and the rules of
conduct practicing attorneys will follow
Local, state, and national levels
A prospective attorney must pass the state bar exam
Although membership in local national bar associations is voluntary, membership in the
state bar association is mandatory
State Supreme Courts
The ultimate regulator authority in a state
Decides what conditions must be met before an attorney can practice law within the state
and when that privilege will be suspended or revoked.
Works with the state bar association in most cases
State Legislatures
Regulate the legal profession by passing laws affecting attorneys
The United States Supreme Court
Determined restrictions on advertising to be an unconstitutional limitation on attorney’s
rights to free speech.
Each state has different licensing requirements that are accomplished at the state level
Basic Licensing Requirements:
Generally, there are three basic requirements
1. Prospective attorneys must have a bachelor’s degree from a university or college and
must have graduated from an accredited law school. In many states, the school must
be accredited by the ABA, which requires an additional three years of study.
2. A prospective attorney must pass a state bar examination. Most states require
prospective lawyers to pass the Multistate Professional Responsibility Exam on ethics
rules.
3. Must pass an extensive personal background investigation to verify that he or she is a
responsible individual and qualifies to engage in an ethical profession. Each federal
court requires admission to practice before an attorney can appear in a case filed
there. This generally requires a sponsor and an application, but no test.
Licensing and UPL
Beginning in the 1850s, restrictions on who could or could not practice law were put in
place by state statutes prohibiting the unauthorized practice of law (UPL)
By the 1930s, almost all states had legislation prohibiting anyone but licensed attorneys
from practicing law.
Ethical Codes and Rules
In 1908, the ABA approved the “Canons of Ethics”, which consisted of ethical principles.
The states adopted these canons as laws
Today’s state ethical codes are mostly based on later revisions of the ABA canons: The
“Model Code of Professional Responsibility” (1969) and the “Model Rules of
Professional Conduct” (1983, and revised many times) to replace the “Model Code”
New York still uses the “Model Code”
California and Maine have developed their own rules.
The Model Code of Professional Responsibility
Often referred to simply as the “Model Code”
Consists of nine canons
Each canon is followed by sections entitled “Ethical Considerations” (ECs) and
“Disciplinary Rules” (DRs)
Ethical considerations are aspirational – suggesting ideal conduct, not necessarily law
Disciplinary rules are mandatory in character
The Model Rules of Professional Conduct
1983 revision of the ABA “Model Code”
Set of rules organized under eight general headings
Each rule is followed by comments shedding light on the rule’s application and how the
rule compares with the “Model Codes” treatment of the same issue.
The ABA’s ethics commission periodically updates and revises as necessary
Sanctions for Violations
Disciplinary proceedings are brought by the state bar association, state supreme court, or
state legislature – depending on the state’s regulatory scheme.
The state bar association is obligated to investigate each complaint
Formal Sanctions
Range from a reprimand to suspension to disbarment
Civil Liability
Attorneys may be subject to civil liability for negligence (malpractice)
A client may bring a lawsuit against an attorney if the client has suffered harm because of
the attorney’s failure to perform a legal duty according to tort law.
A client may sue not only the attorney, but also the paralegal
Law firm’s liability insurance policies typically cover paralegals as well as attorneys
unless the paralegal is working on a contract (freelance) basis.
Attorney Ethics and Paralegal Practice
Each state’s code of conduct is the governing authority on attorney conduct in that state
One of the foremost professional responsibilities of a paralegal is to carefully follow the
rules in your state’s ethical code
Even if you memorize every rule governing the legal profession, you can still violate a
rule unintentionally (few people breach professional duties unintentionally)
Not only know what the rules are, but how to apply them in the day-to-day realities of
your job
Avoiding financial dealings and social relationships with clients helps you avoid violating
ethical obligations
Rules relating to competence, confidentiality, and conflict of interest pose particularly
difficult ethical problems for paralegals
The Duty of Competence
Rule 1.1 of “Model Rules” – the duty of competence
Competency requires knowledge of the law, careful research to ensure being up-to-date,
and proper preparation for representation
How The Duty of Competence Can Be Breached:
Most breaches of the duty of competence are unintentional often have to do with
inadequate research, missed deadlines, and errors in legal documents filed with the court.
Inadequate Research
- Paralegals do both legal and factual research for attorneys If the paralegal fails to
discover a relevant fact and the attorney then relies on the paralegal’s research in
advising the client, the result could be a breach of the duty of competence
- A paralegal may fail to find or report a court decision that controls the outcome of
a client’s case
- Paralegals provide an important role in providing accurate information to their
attorneys
Missed Deadlines
- Keeping track of every deadline in every case can be challenging. Organization is
key
Errors in Documents
- Incorrect information might be included, or crucial information omitted, in a legal
document to be filed with the court
- Clear communication is critical
Attorney’s Duty to Supervise
- Rule 5.3 defines the responsibilities of attorneys to nonlawyer assistants
- Attorneys must supervise their assistants to ensure that they behave in accord with
the standards of the profession
- Lawyers who have supervising authority can also be held responsible for the
nonlawyer’s unethical conduct if they knew about it and failed to take action to
prevent it
- Applies to lawyers in private firms, corporate legal departments, government
agencies, and elsewhere
Inadequate Supervision
- Attorneys often do not take the time to read every document the paralegal’s draft
- If you believe your attorney is not adequately supervising your work:
Improve communications with the attorney
Ask the attorney for feedback on your work
Attach a note to a document you have prepared for the attorney, requesting
him or her to review the document carefully before signing it
Tips for Obtaining Adequate Supervision:
- Always ask your supervising attorney to review your work
- Use notes or ticklers as reminds to ask for a review
- Make the review as convenient as possible and mark anything that needs
particular attention
- Discuss any ethical concerns with the attorney
- Be persistent
- Complete your work in a timely fashion
Confidentiality of Information
Rule 1.6 concerns attorney-client confidentiality
One of the oldest and most important rules of the legal profession
One of the easiest rules to violate
Exceptions to the Confidentiality Rule:
- Client gives informed consent to the disclosure
Attorney must fully explain the risks and alternatives involved in the
disclosure
- Impliedly authorized disclosures
ABA allows attorneys to make disclosures of information that are
presumed necessary to represent clients
A paralegal working on the client’s case must have access to information
- Disclosures to prevent harm
1. An attorney is allowed to reveal a client’s information to prevent possible
death or substantial bodily harm. All states exempt threats of death or serious
injury, and such statements should be reported immediately
2. In certain situations, an attorney can disclose confidential information to
prevent a client from committing a crime or fraud. It must be reasonably
certain to result in significant injury to the financial interests or property of
another. Also, the client must have used or be using the attorney’s services to
perpetuate the crime or fraud. Both of these conditions must be present.
3. If a client used the attorney to help commit a crime or fraud that will likely
cause injury to the financial interests or properties of another, the attorney can
disclose confidential information to the extent necessary to prevent or reduce
that injury.
4. To establish a defense to a criminal charge in a controversy between the
attorney and the client based on conduct involving the client. Similarly, the
attorney may respond to allegations in proceedings regarding the attorney’s
representation of the client
Disclosures to Ensure Compliance with Model Rules
- If a lawyer is unsure what is required to comply with the “Model Rules” in a
particular situation, they can seek legal advice from another lawyer without
violating confidentiality
Defending Against a Client’s Legal Action
- An attorney may disclose confidential information if the information is necessary
to establish a defense in an action brought by a client against the attorney only to
the extent that it is essential to defend the lawsuit
Disclosures to Comply with Court Order or other Law
- May reveal information if ordered to do so by a court or other governmental entity
Violations of the Confidentiality Rule
Developing a reputation for being discreet will enhance your career by encouraging
attorneys and clients to confide in you
Conversations overheard by others
- Never discuss confidential information when you are in common areas
Electronic Communications and Confidentiality
- Make sure your conversation is not overheard by a third party
- Even employees of the firm should not hear information about cases they are not
working on
- Paralegals should take special care when using cellphones
- “…the use of…electronic devices…presents serious ethical issues.” – Anita
Whitby.
- The act of sending unsecured email communication is the main source of client
data breaches
- Be sure to use encryption software for client communication
- Securing breaches can result from sending an email to the wrong recipient. Email
recall only works on unopened emails
- Never use public Wi-Fi to communicate confidential information
- Wireless phone communication is not always secure
Confidentiality and the Attorney-Client Privilege
- All information relating to a client’s representation is considered confidential
information
- Generally, any communications concerning a client’s legal rights or problems fall
under the attorney-client privilege
Work Product
- An attorney’s legal strategy. Includes legal theories
Caution advised
The duty of confidentiality arises even if the lawyer decides not to represent the client
and even when the client is not charged any fee
Only the client can waive the privilege. Unless waived by the client, the privilege lasts
indefinitely.
Privileged information is confidential
Conflict of Interest
Rules 1.7; 1.8; 1.9; 1.10; and 1.11
An attorney should not represent a client if doing so would be adverse to another client
If an attorney reasonably believes that representing two parties in a legal proceeding will
not adversely affect either party’s interest, then the attorney is permitted to do so, but only
if both parties give informed consent
Gifts from clients may create conflicts of interest because they tend to bias the judgment
of the attorney or paralegal. Certain gifts are specifically prohibited
An attorney should not represent a client if an opposing party is being represented by a
member of the attorney’s family
Before you can run a conflict’s check:
- Know the name of the prospective client, the other parties involved, and the legal
issue involved
Paralegal Ethical Codes
NFPA’s first code of ethics: “Affirmation of Responsibility”
- Renamed in 1993 “Model Code of Ethics and Professional Responsibility”
- Revised in 1997, particularly its format “Model Code of Ethics and Professional
Responsibility and Guidelines for Enforcement”
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 the delivery of quality legal services, including pro bono public services
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.
In 1975, NALA issued its “Code of Ethics and Professional Responsibility”:
Canon 1: A paralegal must not perform any of the duties that attorneys only may perform
nor take any actions that attorneys may not take
Canon 2: A paralegal 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 paralegal 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
Canon 4: A paralegal 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 judgement is required
Canon 5: A paralegal must disclose his or her status as a legal assistant at the outset of
any professional relationship with a client, attorney, a court administrative agency or
personnel thereof, or a member of the general public. A paralegal must act prudently in
determining the extent to which a client may be assisted without the presence of an
attorney.
Canon 6: A paralegal 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 services
Canon 7: A paralegal 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 paralegal must disclose to his or her employer or prospective employer any
pre-existing clients or personal relationships that may conflict with the interests of the
employer or prospective employer and/or their clients
Canon 9: A paralegal 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 10: A paralegals conduct is guided by bar association’s codes of professional
responsibility and rules of professional conduct
Paralegal codes of ethics express the ethical responsibilities of paralegals generally.
Guidelines for the Utilization of Paralegals
The use of paralegals benefits the client because the hourly rate is lower than for
attorneys
NALA’s “Model Standards and Guidelines for the Utilization of Paralegals” lists the
minimum qualifications a legal assistant should have, and what they may and may not do.
In 1991, the ABA adopted its “Model Guidelines for the Utilization of Legal Assistant
Services.” Devised in 2003 and 2012 by basing them on the ABA’s “Model Rules of
Professional Conduct”. Consists of 10 guidelines.
The Increasing Scope of Paralegal Responsibilities
Today, paralegals can perform almost any legal task as long as the work is supervised by
an attorney and does not constitute the unauthorized practice of law
When state or federal law allows it, paralegals can represent clients before government
agencies
The Unauthorized Practice of Law
Courts decide whether a person has engaged in UPL on a case-by-case basis
Guideline 2 in NALA’s “Model Standards and Guidelines” prohibits a paralegal from
engaging in any of the following activities:
- Establishing attorney-client relationships
- Setting legal fees
- Giving legal opinions or advice
- Representing a client before a court, unless authorized to do so by the court
- Engaging in, encouraging, or contributing to any act that could constitute the
unauthorized practice of law
State UPL Statutes
ABA defines “practice of law” the rendition of services for others that call for the
professional judgment of a lawyer
Paralegals often have to relay legal advice from the attorney to the client. It is important
to make clear that the advice comes from the lawyer, not the paralegal.
Avoid Unauthorized Practice Problems By:
Being clear that everyone understands you are a paralegal in all communications and
meetings by:
1. Including your title when signing letters, emails, and other documents and on your
business cards
2. Introducing yourself with your title in meetings
3. Disclosing your status when communicating with a court
Ensuring that activities that might be construed to be the “practice of law” are supervised
by a licensed attorney
1. Making sure an attorney reviews and signs off on all legal documents you prepare
2. Explicitly stating that the attorney is the source of any legal advice
Informing yourself about your state’s unauthorized practice rules by:
1. Researching court decisions, regulations, and state bar opinions on the topic
2. Contacting our state paralegal associations and state bar for information and
publications on the topic
The Prohibition Against Fee Splitting
Rule 5.4 of “Model Rules of Professional Conduct” – For an attorney or law firm to split
legal fees with a nonlawyer is prohibited. For this reason, paralegals cannot be partners in
a law partnership, nor can they have a fee-sharing arrangement with attorneys.
Giving Legal Opinions and Advice
Although a paralegal can communicate an attorney’s legal advice to a client, a paralegal
cannot independently give legal advice.
Although other nonlawyers often give advice affecting other’s legal rights or obligations,
paralegals should not do so. Legal assistants are prohibited from giving even simple,
common-sense advice because of the greater weight the recipient might give to the advice
of someone who has legal training.
Advising someone of legal options is dangerously close to advising a person of his legal
rights and may therefore constitute the unauthorized practice of law.
Never advise anyone regarding any matter if the advice may alter that person’s legal
position or legal rights.
Representing Clients in Court
In 1975 the United States Supreme Court held that people have a constitutional right to
represent themselves in court
Paralegals are allowed to represent clients before some federal and state government
agencies, such as the federal Social Security Administration
Paralegals are not allowed to appear in court on behalf of their supervising attorney,
though exceptions have been made for limited purposes
Disclosure of Paralegal Status
Guideline 1 of NALA’s “Model Standards and Guidelines”
Disciplinary Rule 1.7
Guideline 4 ABA
Legal Technicians (Independent Paralegals) and UPL
Legal technicians proved “self-help” legal services directly to the public
Should Paralegals Be Licensed?
Unlike certification, licensing involves direct and mandatory regulation, by the state, of
an occupational or professional group
Paralegal Registration
Florida requires registration of paralegals
Paralegals must meet the continuing education requirements of 30 hours every three-year
reporting cycle. At least five of the hours must be in ethics or professionalism.
Other states are considering a similar procedure
Direct Regulation – The Pros and Cons
- NFPA, NALA, AAfPE have expressed differing views
NFPA’s Position
- Endorses the regulation of the paralegal profession on a state-by-state basis
- Favors establishing minimum education requirements to protect the public
- Proposes a two-tiered system of licensing
General licensing by a state board agency would require all paralegals
within the state to satisfy education, experience, and continuing education
requirements
Specialty licensing would require paralegals who wish to practice in a
specialized area to demonstrate, by an examination, their proficiency in
that area
NALA’s Position
- Supports voluntary certification but opposes licensing for paralegals
- There is no need to regulate paralegals
- Believes that regulation would increase the cost of paralegals to employers. This
increase would be passed on to consumers, resulting in higher-cost legal services
AAfPE’s Position
- Does not take a position on paralegal licensing
- Recommends states adopt AAfPE’s minimum educational standards in any
regulatory plan they enact.
