Paralegal Power Break

Legal Ethics

History of Ethical Rules• Formulating ethical principles has been

ongoing task of ABA– Established Canons of Ethics as early as 1908

• General statements of principle urging proper conduct• ABA has no disciplinary authority

History of Ethical Rules• In 1970, principles crystallized in ABA’s Model

Code of Professional Responsibility– Quickly adopted by nearly all states

• Multistate Bar Examination devised separate ethics test– Most states then made part of state bar

examination

History of Ethical Rules• In 1983, after several years of intense study

and dialogue, ABA reformulated legal ethics in Model Rules of Professional Conduct

The Model Code and the Model Rules• Although same issues addressed, comparison

reveals distinct difference• Canons somewhat resemble Ten

Commandments– Moral code to live by

• Model Rules reflect more sophisticated, legislative approach

Codes for Legal Assistants• Legal assistant organizations also formulated

ethical codes designed specifically for paralegals– Although infractions of rules do not invoke any

legal sanctions

Codes for Legal Assistants• National Association of Legal Assistants (NALA)

drafted Code of Ethics and Professional Responsibility in 1975– Most recent revision published in 1995– Composed of nine canons in ABA tradition

• But concentrates on unauthorized practice of law

Disclosure• Many ethical problems can be resolved or

mitigated by full disclosure to clients• Some conflict-of-interest situations may be

eliminated by disclosure of conflict to client and opposing party and consent by both to continued representation

• Written documentation of disclosure best

Defining the Practice of Law• Defined in two ways as it relates to professional

ethics:1. Addresses question of whether attorney is

rendering legal services2. Defines practice of law in context of unauthorized

practice of law

Unauthorized Practice of Law• Although states vary considerably on specific

activities restricted to lawyers, three activities universally identified:1. Legal representation before court2. Preparation of legal documents3. Giving of legal advice

Confidentiality• Legal services based on assurance that private

facts of client will not be disclosed to third parties

• Privilege extends to law firm employees• Paralegal must be scrupulous in protecting

clients’ confidences

Confidentiality• Rationale for privilege based on need for client

to make disclosures to attorney so attorney may effectively represent client’s interests

Exceptions to Confidentiality • Client may create exception to attorney-client

confidentiality privilege by one of two ways:1. Client voluntarily disclosing otherwise confidential

information2. Client consenting to attorney disclosing otherwise

confidential information• Client’s intention to commit crime in future not

protected by confidentiality privilege

Conflicts of Interest• Common conflict-of-interest problem arises

when attorney leaves one firm for another and second firm represents party suing or being sued by client of former firm

Conflicts of Interest• Risk can be minimized by erecting “Chinese

wall” between attorney and those dealing with case

• Because paralegals regularly deal with confidential material, same problem may arise

Solicitation• Ethical concerns aim at distinguishing

advertising from solicitation• Ethics rules prohibit attorney from directly

contacting individual unless attorney previously had some type of past relationship with prospective client

Solicitation• Attorney also prohibited from soliciting through

another person

Fees• Based on contracts between attorney and

client– Should be specifically discussed by attorney with

client• Potential conflict emerges whenever fees not

adequately explained to client• Recurring issue regarding fees concerns

contingency fees

Fees• Work performed by paralegal commonly billed

to client– Usually at rate significantly less than that for

attorney

Reporting Misconduct• Ethics rules typically require attorney to report

ethics violation of fellow attorney• If misconduct criminal, legal duty to report

crime falls on paralegal• If misconduct of professional, noncriminal

nature, duty of paralegal less clear

Trust Accounts• One of the most common reasons for attorney

discipline:– Misuse of client funds

• Money held for client must never be commingled with attorney’s personal accounts– Nor should separate trust accounts be commingled

in any way

Trust Accounts• Accurate recordkeeping essential to properly

account for monies received and disbursed

Malpractice• Usually refers to professional negligence• People (usually licensed) holding themselves

out as professionals held to professional rather than ordinary standard of care– Most provable instance of attorney malpractice:

• Attorney negligently allows statute of limitations to run, barring further action on client’s lawsuit

Misconduct Outside the Practice of Law• Attorneys subject to disciplinary action for

conduct unrelated to practice of law• Violations of law by attorneys may be

scrutinized by bar– In addition to criminal charges