Chapter 15
The Official Word: Ethical Codes for Legal Professionals
IN THIS CHAPTER
Understanding the importance of ethics in the legal profession
Reviewing the rules of professional conduct
Appreciating the ethical codes of paralegal associations
Attorneys and paralegals are considered legal professionals. Paralegals perform many of the same tasks as attorneys and have similar responsibilities to the attorney’s clients. For this reason, as a paralegal, you’ll be expected to know and abide by the rules of professional conduct in your jurisdiction. In most states, these rules are very similar to the American Bar Association (ABA) Model Rules of Professional Conduct. Most of these rules apply to both lawyers and paralegals.
Additionally, paralegals must follow other special rules that define the types of duties they may perform. Essentially, paralegals may do anything an attorney does except give legal advice, set fees, and try cases in a court of law. Some states allow laypersons (people who aren’t attorneys) to fill out forms for clients for certain types of legal matters, like bankruptcy, as long as they don’t give legal advice about the form and don’t suggest to clients what type of forms they need. And, as we discuss in Chapter 5, some administrative courts allow paralegals to represent clients. But, for the most part, all the work you do as a paralegal must be supervised by a practicing attorney, so you have to abide by the ethical codes and considerations that apply to members of the bar.
To help you adhere to the ethical requirements of the paralegal profession, this chapter explains the most pertinent ethical rules provided by the ABA and national paralegal associations.
Doing What’s Right: The Importance of Ethics
It’s no secret that many people have doubts about the ethics of legal professionals. Dozens of books, Web sites, and even daily calendars are based entirely on lawyer jokes. These jokes rarely question the intellect of lawyers but focus almost exclusively on ethical considerations. A common line of jokes compares lawyers and sharks; invariably the shark gets the better treatment in the comparison!
The reality, of course, is that lawyers and paralegals are representative of the culture at large and, therefore, reflect the ethics of the culture. You can find legal professionals who are ethical and those who are unethical. And sometime the line that separates them can be fuzzy.
The reason that the legal profession is singled out for criticism may be that legal professionals represent clients in an adversarial system. If you’re involved in a legal battle, your perception is that the legal team that’s working hard for your side is honest and the tough tactics they use are necessary. The lawyers and paralegals working for the other guy must certainly be corrupt and dishonest and the tactics they use unethical. If they were honest, they would simply admit that your position should prevail and give you the settlement you deserve, right?
As a paralegal, your primary professional responsibility is to your supervising attorney. But the attorney is first and foremost responsible to the client, so as a representative of your supervising attorney, you’re responsible to the client as well.
Defining ethics in the field of law
Ethics in law is different from the ethics you may have discussed in a philosophy class. Legal ethics aren’t the ethics of Plato, Kant, and Rousseau. When lawyers are brought before state bar ethics boards, they aren’t asked to defend their views of right and wrong. Instead, it’s their behavior, especially in relation to their clients, that needs explaining. So, state bars and other related associations refer to the ethical standards for the legal field as “rules of professional conduct” or “codes or professional responsibility.” You should think of them in this way, too — as codes for how to behave properly.
The philosophical sort of ethics isn’t usually applied to attorneys and paralegals because the practice of law is particularly concerned with determining right and wrong. Legal professionals serve as tools their clients use to prevail in the legal system. The primary concern of you and the attorneys you work for is putting on the best case for the client, and that case may not necessarily be one that promotes a general good. You may even find that you sympathize with, and would rather be associated with, the other side.
Personal ethics might tell you not to argue for the client if you don’t believe in his case. For example, you and your attorney may think that a client your attorney has agreed to represent in a personal injury suit is a real jerk. But if the client has a legitimate case, the rules of professional conduct that govern the legal profession obligate you to provide that client with the best legal services possible, despite your personal feelings. Likewise, in criminal law, even though your attorney may think the client is guilty of the crime charged, the attorney must work to provide the best defense for the client. This issue is one you have to get used to when you work as paralegal.
If you want to be a philosopher, you should choose another profession. Very few paralegals get to pick and choose the cases they work on. You can choose your specialty and the attorneys with whom you work, but you’ll probably have to work on the cases you’re assigned. If you find the client to be morally offensive, some of the rules of professional conduct prohibit you from revealing any damaging personal information you may know about the client to anyone other than your supervising attorney (whom you’re required to tell everything about a client to). So when we talk about ethics in law, we’re really talking about professional responsibility to clients, the court, and the public, and not necessarily judgments of right and wrong or justice and injustice.
Legal professionals work for clients, which is the heart of what it means to be a lawyer or a paralegal. This is true whether you work for the district attorney’s office or for a private practice on behalf of individual clients. In all areas, at all levels, attorneys and paralegals first and foremost work for their clients. This concept unites everyone in the legal profession. The essence of ethics is fair treatment of the client, and most ethical problems arise when a legal professional fails to uphold a duty to the client.
Going too far: The unauthorized practice of law
As a paralegal, you perform many of the same tasks that attorneys do, but you’re not an attorney. You probably haven’t graduated from law school or passed the bar exam, so you’re not licensed to practice law. Although foregoing law school means you don’t have to live with a huge student loan debt (or the knowledge that you’ve just spent three years of your life performing uncompensated legal research assignments in the law library!), it also means that you can’t actually represent clients or be responsible for cases.
A paralegal must always work under the supervision of an attorney who’s a licensed member of the bar. That attorney is ultimately responsible to all clients and for all cases. Even though, in recent decades, a few states have expanded the types of duties paralegals can perform, licensed attorneys are still the only legal professionals who can give legal advice, set fees, and represent clients in most courts.
Anyone, including an experienced paralegal, who takes on clients without a law license may be found guilty of the unauthorized practice of law, which is a very serious offense. The penalties vary from state to state and may include jail terms of one year or longer and fines of $5,000 or more, in addition to repayment of all monies taken from unsuspecting clients. Those who experience the harshest penalties for unauthorized law practices are those individuals who pretend to be attorneys or who admit they aren’t attorneys but still offer legal services. As a paralegal, if you unknowingly overstep your authority, you probably won’t face the full extent of penalties, but sanctions are possible so all paralegals should know and follow the laws of their jurisdictions regarding who’s authorized to practice law.
The most important thing for you to remember as a paralegal is that you must work with an attorney on behalf of that attorney’s clients. You should think of the clients as “your clients” because you owe them the same duties and consideration that you would as an attorney. But you must remember that you aren’t allowed to advise and represent clients of your own; you must work under the supervision of a licensed attorney.
Following the chain of responsibility
In general terms, if an action is unethical for an attorney, it’s unethical for a paralegal. Duty to the client, the court, and the public applies to both types of legal professionals. There are, however, some differences in the level of responsibility. Chief among them is that, ultimately, the attorney is responsible to the client and is responsible for the paralegal’s behavior.
Paralegals can perform such tasks as interviewing clients and witnesses, preparing documents, and drafting documents without being guilty of the unauthorized practice of law because they’re working under the supervision of a licensed attorney who’s answerable for their actions. So, your supervising attorney is ethically bound to make sure you act ethically and professionally and to refrain from asking you to perform any task that isn’t within your scope of duty. Ultimately, the attorney determines what is and isn’t ethical based on her knowledge of the rules of professional conduct.
Even though your attorney supervises your work and has the ultimate responsibility to the client, you must be very aware of your role in maintaining an ethical standard in the law office. Your responsibilities are to refrain from the unauthorized practice of law, to perform the duties assigned to you by the attorneys you work for, and to uphold the ethical requirements of attorneys in your jurisdiction.
So, although you won’t be required to take the same ethics examination lawyers take, ethics plays an important part in your paralegal training. Ethics is the cornerstone of legal practice and without high ethical standards the system breaks down. Clients must be able to trust the lawyers that represent them, and also trust their lawyers’ staffs.
Your supervising attorney is responsible for your actions, so be very careful about the way you handle yourself. Your actions affect you, the reputation of your supervising attorney, and the reputation of the firm you work for.
Abiding by the Rules of Professional Conduct
In most states, the ethical rules that apply to legal professionals are called the Rules of Professional Conduct. These ethical codes comprise the central source of rules governing the behavior of legal professionals. Each state’s supreme court has the authority to admit attorneys to practice law and to regulate those attorneys after they’re admitted. Increasingly, state supreme courts have also claimed authority over regulating and disciplining (if not yet licensing) paralegals.
Attorneys are self-regulating, which means that they’re bound by rules of conduct that have been written by lawyers and judges. And disciplinary panels composed of lawyers regulate them.
The largest organization of lawyers in the country has had the biggest impact on the standards of professional conduct. The American Bar Association (ABA) is probably the most powerful force in the legal profession. The ABA’s Model Rules of Professional Conduct serves as the basis for codes of conduct in most states. The Model Rules and the state codes based on those rules define the appropriate conduct of a legal professional. The rules don’t discuss how a lawyer, and therefore the paralegal, should feel about a given situation; they describe how they should act in dealing with clients and legal staff to maintain the integrity of the legal profession.
You can access the complete and most current version of the ABA Model Rules of Professional Conduct at www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/. The link to this site is also available online at www.dummies.com/go/paralegalcareer2e.
Preserving the client-lawyer relationship
The first topic covered in the ABA Model Rules of Professional Conduct concerns the client-lawyer relationship. Because the representation of clients constitutes the heart of the legal profession, it’s no surprise this topic would come first. And because most ethical problems emanate from this relationship, it’s fitting that this topic has two times more rules devoted to it than any other topic in the rules.
Rules in this first topic (Rules 1.1–1.16) provide guidance to legal professionals in the areas of:
- Confidential communications
- Fees
- Conflict of interest
- Duties to former clients
- Duties to clients with diminished capacity
- Safekeeping property
- Declining or terminating representation
- Duties to prospective clients
Here is a summary of the model rules that are most important to you as a paralegal:
- Rule 1.1 states that an attorney has to provide competent representation to a client. Attorneys and their staffs must perform adequate research for, and give proper attention to, each client’s case.
- Rule 1.2(d) says that an attorney can’t advise a client to do things that the attorney knows are criminal or fraudulent, even if these activities would help the client’s case.
- Rule 1.3 maintains that an attorney has to represent a client with reasonable diligence and promptness. Undo feet dragging in carrying out the activities related to a client’s case is unethical.
- Rule 1.5(a) claims that the fees an attorney charges must be reasonable. Determining what’s reasonable depends on the amount of experience the attorney has, the complexity of the case, the location of the law practice, the potential costs incident to the case, and other considerations.
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Rule 1.6 prevents an attorney and any member of the legal staff from revealing information relating to a client’s case. The only exceptions to this rule are if the client agrees to the disclosure or if the attorney has reason to believe that the disclosure would prevent a client from committing a criminal act that would likely result in someone’s death or substantial bodily harm.
When you work as a paralegal, you must not give out any information about a client’s case (including mentioning that a specific person is a client) to anyone, even family members. You’re also obligated to make every effort to insure that a client’s confidential information is safe from public view, so all case documents need to be locked up at the end of the day, away from the eyes of janitorial staff or any other individuals who may be in the office during or after hours. -
Rule 1.7 states that an attorney can’t represent a client if there’s a conflict of interest. In other words, an attorney can’t get involved in a case that would adversely affect another client. The two exceptions are if the attorney reasonably believes that his involvement in another case wouldn’t harm a relationship with another client or if the attorney tells both of the clients affected about the risks of multiple representation and both clients agree to go ahead with having the same attorney.
This issue comes up in divorce cases when an attorney who has represented both spouses on matters while they’re married is asked by one spouse to represent him or her in the divorce.
- Rule 1.8(a) prevents an attorney (and, therefore, a legal staff member) from entering into other business deals with clients. Exceptions may occur in these circumstances:
- When the client understands the written terms of the transaction and agrees that they’re fair and reasonable
- When the client has the opportunity to get advice about the business deal from another attorney who isn’t involved in the transaction
- When the client agrees to the terms of the business deal in writing
- Rule 1.15 requires that an attorney hold clients’ property in separate accounts from the attorney’s own property. This rule regards any money an attorney collects from outside entities on behalf of a client, like debt payments designated for a client, any refundable legal fees, or any monies a court awards to a client. For instance, if an attorney performs collection work for a client, any payments the client’s debtors make to the attorney’s office have to be deposited in an account that’s separate from the law office’s general account.
- Rule 1.16(a) states that an attorney has to withdraw from a case in the following circumstances:
- When continuing the case would violate any of the ethical rules or other laws
- When the client dismisses the attorney
- When something about the attorney’s physical or mental condition significantly weakens his ability to provide competent representation for the client
Other areas of the model rules concern clients or potential clients. You should be aware of these rules, too, most specifically Rule 7.3, which prohibits an attorney from soliciting business from a prospective client who hasn’t approached the attorney on her own. This rule can get pretty complex in its application. There’s a fine line between advertising one’s services and soliciting business, and the rules allow attorneys to advertise. The distinction is that advertising is directed to a general audience who may seek legal counsel in the future. Improper solicitation usually occurs when an attorney personally offers services to an individual who is in obvious immediate need of legal services — the clichéd notion of “ambulance chasing.”
Dealing with others in and out of the law office
Rules regarding law firms and contacts made with people outside the law office include several topics of great importance to paralegals. Rule 5.3 says that an attorney may not help a nonattorney engage in the unauthorized practice of law. A paralegal is a nonattorney, so this disciplinary rule directly relates to the use of paralegals in the law office. What the rule means is that attorneys may not ask or allow paralegals to do the following:
- Represent themselves as attorneys.
- Perform tasks that only attorneys may do, like give legal advice, argue cases in court, or establish legal fees.
- Perform legal work without attorney supervision.
If an attorney asks you to take on a duty that may be considered the unauthorized practice of law (such as draft a pleading without her supervision), you should politely remind her that you aren’t allow to perform that task without attorney supervision.
You should be aware of some other model rules that relate directly to law-office activity. Rule 3.1 prevents an attorney from bringing a frivolous claim or asserting a frivolous defense. It’s unethical for an attorney to file a case that she doesn’t think has a valid cause of action or to put forth a defense that isn’t justified. It’s especially unethical for an attorney to file a case for the sole purpose of maliciously injuring another party.
As a paralegal, your duty is to your supervising attorney, and it’s his job to uphold the ABA model rules. If a client asks you to violate an ethical rule or you’re aware of violations committed by another person in your office, report the incident to your supervising attorney. He’s responsible for handling the situation. If your supervising attorney violates the rules of ethics, you may report the violation to another attorney in the firm and let her handle it. You are under no obligation to report the actions of your supervising attorney to anyone outside the firm.
Regarding communications with other parties, Rule 4.2 prohibits an attorney (and the legal staff) from communicating with the opposing party about the subject matter of the case if the attorney knows the party has attorney representation. Attorneys and their staffs may only contact the attorney for the opposing party when the other attorney consents to direct client communication. So, don’t make contact with opposing parties if they have their own attorneys.
The model rules also regulate attorney communications with the court. Rule 3.3(a) states that an attorney may not knowingly
- Make false statements to the court about the facts or law related to a case.
- Neglect to tell a court about laws or other authority that opposes a client’s position if the other side doesn’t bring up the law or authority. (If an attorney knows about a law that is unfavorable to his client’s case, he may present the adverse authority and then show how it’s substantially different from his client’s. This rule isn’t intended to prevent an attorney from representing the client’s best interests.)
- Offer false evidence.
As a paralegal, you need to make sure that your efforts in the law office don’t break any of the tenets of Rule 3.3(a). So, for example, if your legal research discovers legal authority that adversely affects the client’s case, you must bring that authority to your supervising attorney’s attention.
Maintaining the integrity of the profession
As a paralegal, you’re responsible for helping to maintain the integrity of the legal profession. Rules regarding honesty and decency require you to refrain from engaging in dishonest, criminal, or unprofessional behavior, and to report the unethical behavior of other legal professionals. For instance, Rule 8.3 requires that attorneys who know that another attorney has seriously violated one or more of the ethical rules must report the attorney’s conduct to the appropriate disciplinary body.
Your primary duty is to report unethical behavior to your supervising attorney so that she can inform the appropriate authority.
Other topics of the model rules apply mainly to practicing attorneys. For example, rules governing the way in which an attorney provides legal advice or serves as an arbitrator don’t apply to you because, as a paralegal, you usually won’t be engaged in these practices. However, on the whole, the ABA Model Rules of Professional Conduct of each state apply to paralegals as well as practicing attorneys. The good news is that, although you should be familiar with the rules governing attorneys, most of the important ethical considerations that apply to paralegals are also covered in rules specific to paralegals that we discuss in the following section.
As a paralegal, you’re required to follow the same code of conduct that attorneys do. Your violations of this ethical code may result in disciplinary action against the attorneys you work for. Such discipline would likely make other attorneys unwilling to hire you as a paralegal!
Sorting through the Codes of Paralegal Associations
Although paralegals must adhere to the ethical codes designated by the ABA, perhaps the best sources of ethics information for paralegals are paralegal organizations. Chapter 2 provides lots of information about organizations like the National Association of Legal Assistants (NALA), the National Federation of Paralegal Associations (NFPA), and other associations that are composed of and created for paralegals. Many of these associations have created ethical guidelines specific to paralegals. These codes closely mirror the ABA Model Rules of Professional Conduct but focus on areas that are most relevant to paralegals.
Applying the standards of the National Association of Legal Assistants
The National Association of Legal Assistants (NALA) is one of the largest national associations of paralegals. NALA works to maintain the integrity of the paralegal profession. One of its functions is to outline ethical standards to maintain the reputation of the paralegal profession through the Model Standards and Guidelines for the Utilization of Legal Assistants – Paralegals.
The important standards set forth by NALA are not laws; they are merely guidelines as set forth by a large organization. So, for instance, NALA’s statement that a paralegal should have a certain number of hours of paralegal education or work experience is merely its interpretation of an ideal standard — it’s not a legal requirement. Currently, only one state, California, mandates any sort of education or work experience requirement for paralegals.
You can access the full version of NALA’s Model Standards and Guidelines for Utilization of Legal Assistants – Paralegals at www.nala.org/sites/default/files/modelstandards.pdf. This link is also available online at www.dummies.com/go/paralegalcareer2e.
Defining the qualifications of a paralegal
The first section of the NALA code deals with its definition of a legal assistant or paralegal. NALA defines paralegals as individuals with the training and expertise to work in substantive and procedural areas of the law on tasks that would otherwise be completed by a licensed attorney.
The next section of the code defines NALA’s qualifications of a paralegal. As we mention in Chapter 1, there are two ways to train to be a paralegal: education and on-the-job experience. The NALA code defines the standards of training that the organization feels should be required of all paralegals.
NALA has come up with its own definition of a paralegal. It doesn’t set laws for regulating paralegals on either the state or federal level. So, don’t think you can’t be hired if your particular qualifications don’t exactly match NALA’s standards.
Designating the duties a paralegal can perform
The NALA code says that, in general, a paralegal can perform any task that is properly delegated and assigned by an attorney. The attorney must remain ultimately responsible both for the task and for supervising the paralegal. Paralegals interview clients, maintain records, perform investigations, draft documents, conduct legal research, write legal memos, assist attorneys in settlement conferences and at trial, and much more.
Relating to the client
Several of the NALA guidelines deal with the appropriate relationship between paralegals and clients. Many of these guidelines mirror those of the ABA’s Model Rules of Professional Conduct. You must maintain confidentiality, avoid conflicts of interest, and act in a professional manner to forward the interests of the client.
Paralegals must also follow some guidelines specific to paralegals. For example, at the outset of any communication with clients, paralegals are required to disclose the fact that they are legal assistants and not attorneys. Paralegals are not allowed to establish attorney/client relationships, set legal fees, give legal advice, or represent a client before a court (except under special circumstances).
These guidelines were developed by the NALA based on the accepted practice in many jurisdictions. The attorney and the paralegal are required to know specific state laws regarding the use of paralegals.
Knowing the National Federation of Paralegal Associations code
If you join a local or state paralegal association, you’ll probably become affiliated with the National Federation of Paralegal Associations (NFPA). As we discuss in Chapter 2, NFPA is a federation comprised of individual members and paralegal associations from throughout the United States and Canada.
Like NALA (see the earlier section), NFPA is also committed to upholding the integrity of the paralegal profession. In fact, NFPA’s Model Code of Ethics and Professional Responsibility is very similar to NALA’s Model Standards. That makes things easier for you and other paralegals!
The difference between the codes is really one of emphasis. NALA calls its standards “guidelines,” while NFPA refers to them as “rules.” NFPA seems to be less interested in answering common ethical questions and more focused on describing proper professional conduct. The first three sections of the NFPA code calls on paralegals to maintain a “high level of competence,” a “high level of personal and professional integrity,” and a “high standard of professional conduct.” Although these sections contain much the same information as the NALA guidelines, they’re more detailed as to the kinds of behaviors a good paralegal should avoid.
The online content also contains this link to the entire contents of NFPA’s Model Code of Ethics and Professional Responsibility: www.paralegals.org/files/Model_Code_of_Ethics_09_06.pdf.
The NFPA code includes a rule (which, in this case, means a suggestion, not a legal mandate) that each paralegal aspire to contribute a certain number of hours per year of pro bono work. Your contribution should be directed toward helping persons of limited means or the organizations that help such persons. The code also directs you to support efforts to improve the legal system.
The NFPA code also includes model guidelines for enforcing its code. The guidelines include recommendations for associations to structure a “disciplinary committee.” This committee would be called to hear allegations of misconduct by a paralegal and would be composed mainly of other, experienced paralegals.
Cracking the codes of other organizations
Other paralegal organizations and associations have their own codes of ethics. These codes are usually similar to the ones NALA and NFPA have written (see the earlier sections). NALS (see Chapter 2) has a code of ethics called the NALS Code of Ethics and Professional Responsibility ; the code is similar to NALA’s and NFPA’s, but it’s shorter and less specific. The AAPI code contains just ten canons that, like the other codes, hold paralegals to the highest level of professional behavior.
You can read the NALS code at www.nals.org/page/history. A link to the code is also included online. Some state paralegal associations tie their ethical codes to specific state laws and are, therefore, more pertinent than the codes of national organizations. The online content provides a list of many of these local associations.
Maintaining ethical standards is crucial when you work as a paralegal. By adhering to rigorous ethical codes throughout your career as a paralegal, you’ll stay out of legal and professional trouble and uphold the reputation of the paralegal profession. Most importantly, you’ll provide your office’s clients with the professional legal service that they deserve.