It is mandatory for attorneys to comply with the American Bar Association’s (ABA) Model Rules of Professional Conduct (Rules). These Rules are essentially a code of ethics and define a lawyer’s professional and personal responsibility. Likewise, a paralegal must follow and abide by the same ethical Rules as an attorney. NALA, The Paralegal Association (NALA) created 10 Canons that are based on the ABA’s Rules and paralegals are urged to follow these Canons. Canon 10 provides that a paralegal’s conduct is guided by the Bar Associations’ codes of professional responsibility and rules of professional conduct. Failure of a paralegal to abide by one or more of the Rules can create an ethical dilemma. In addition, if clients do not trust their lawyer or paralegal due to violations or manipulation of the Rules, it is only a matter of time before you lose that client. The paralegal plays a crucial role in maintaining the ethical standards of a firm. Exactly how does a paralegal recognize an ethical dilemma to begin with?
The majority of paralegals are well aware of the most common ethical rules and follow them everyday. These Rules state that a paralegal shall not:
· Enter into the attorney-client relationship;
· Negotiate fees with a client;
· Appear in court on behalf of a client; and/or
· Give legal advice
In other words, the Unauthorized Practice of Law or “UPL”. UPL is described in more detail below.
However, there are some additional Rules that, if not strictly adhered to, can create a fine line between violating a Rule and not violating a Rule. This fine line can create an ethical dilemma for the paralegal. Some examples of these ethical conundrums are identified below.
Unauthorized Practice of Law
Even though UPL was briefly mentioned above, it still has its fine line elements. As a paralegal becomes more knowledgeable in specific areas of law, it may be tempting to answer legal questions a client may have or offer advice on a legal issue. A paralegal cannot give advice. Doing so is the Unauthorized Practice of Law. If a client does have legal questions or is asking for advice, simply relay the client’s questions to the attorney and then give a response to the client. “Although the attorney has the primary obligation to not permit a nonlawyer to engage in the unauthorized practice of law, some states have concluded that a paralegal is not relieved from an independent obligation to refrain from illegal conduct and to work directly under an attorney’s supervision.” See the ABA Model Guidelines for the Utilization of Paralegal Services.
Confidentiality (In the workplace and at home)
Second to UPL, the most important ethical responsibility of a paralegal is maintaining the confidentiality of the client. A paralegal should never discuss a case or client with anyone outside of the legal team. This includes no discussions with your spouse, friends, or family, even if using vague descriptions. Not only can this jeopardize the rights of the client but it may also assist the case being made by opposing counsel, giving them the advantage, if client information was to be obtained.
Conflicts of Interest
A paralegal should ensure that there are no conflicts of interest for each case you are working on. If any are found, the supervising attorney needs to be notified immediately and asked to be removed from that case. If a conflict was ignored, opposing counsel could bring up the conflict of interest and win the case on that alone.
Exhibit Personal Integrity and Competence on a Professional Level
Paralegals serve as representatives of the law and are expected to maintain a high level of professional conduct, both within the workplace and in their personal lives. If not, a paralegal may lose his/her credibility and/or their job. A paralegal must perform their work efficiently and accurately and constantly strive to increase their knowledge and skill set.
Role of Technology
Technology has created new ethical issues for paralegals and attorneys. The use of social media, blogs, and e-mail has caused numerous issues among clients and law firms. Giving legal advice or exchanging information using the methods above can cause ethical concerns if you are not sure who you are sending information or advice to or who might be able to view it. This murky area is becoming very complex.
Always trust your gut. If you think there might be an ethical issue, there probably is. Do your research. Review your local Bar Association’s Rules of Professional Conduct, the ABA Model Rules, and the NALA Canons. If you still are not sure, contact a trusted paralegal and/or attorney outside your office and seek their opinion.
It is critical for a paralegal to take the Rules seriously, abide by them, and be able to identify potential ethical dilemmas. Failure of a paralegal to follow the Rules can result in a paralegal or attorney facing sanctions, fines, or jail time. If any of the above occur, a paralegal can be sure to have their “registered paralegal” or “certified” status revoked by the State or Association that issued the designation.
Kimberly Ross, a Certified Paralegal working with the construction industry attorneys at Zinzow Law, LLC. For more information, or to inquire about a free seminar on this or other legal topics, email firstname.lastname@example.org, or visit www.zinzowlaw.com.
www.americanbar.org (American Bar Association)
www.nala.org (NALA, The Paralegal Association)