Back in 2009 I made the statement, “Certainly both attorneys and paralegals must refrain from becoming engaged in an intimate relationship with a client during the course of the professional relationship” in a post on whether a paralegal see client socially after legal relationship ends. Of course one makes such statements never thinking that someone might ask you to back them up with law. Sure enough, four years later I’ve been asked to do so by an attorney who had pointed out that another attorney’s paralegal appears to have formed a relationship with a client. The attorney responded by saying something like, “I wasn’t able to spend as much time on research as I would have like, “What she does outside the office is no business of mine.” A response to the first attorney’s question could not be general, i.e., based on the Model Rules of Professional Responsibility because each state has its own set of rules. I did not have time to fully research the question, but here’ what I came up with over the weekend. What are your thoughts?
Your exchange with _________ raises two issues. One is the basic issue of whether the paralegal’s possible involvement with a client is unethical, but he also claims that the relationship is “none of my business.” It is best to address each of these issues separately. Both are a bit more difficult to address in California than in some other jurisdictions because of the way the California Rules of Professional Responsibility are written.
The California Rules do not have a specific rule that clearly states an attorney’s responsibility for the conduct of his employees such as that in the Model Rules:
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or …
However, the Legal Information Institute at Cornell University School of Law makes this comparison of the California Rules to the Model Rules:
Although California does not have a direct counterpart to MR 5.1, CRPC 1-120 and CRPC 3-110 impose certain supervisory duties on lawyers and partners. CRPC 1-120 provides that “[a] member shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act.” Moreover, CRPC 3-110 prohibits a member from “intentionally, recklessly, or repeatedly fail[ing] to perform legal services with competence.” “Competence” means “to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” The Discussion to CRPC 3-110 specifies that “[t]he duties set forth in rule 3-110 include the duty to supervise the work of subordinate lawyer and non-lawyer employees or agents.” Although CRPC 3-110 is a prohibition against acting incompetently, inferentially it imposes a duty of competent performance.
When comparing the rules as to liability, CRPC 3-110 can be read to impose greater liability than MR 5.1…. For example, California courts have imposed liability on lawyers with supervisory duties whether or not the lawyer had knowledge of the specific conduct and whether or not the lawyer could take remedial action. See, e.g., In the Matter of Hindin (Review Dept. 1997) 3 Cal. State Bar Ct.Rptr. 657 (involving the failure of an associate to file appellate papers and another associate leaving a courtroom prior to the court calling and hearing the motion); Trousil v. State Bar (1985) 38 Cal.3d 337, 211 Cal.Rptr. 525, 695 P.2d 1066 (secretarial errors delay the mailing of a settlement check); Crane v. State Bar (1981) 30 Cal.3d 117, 177 Cal.Rptr. 670, 635 P.2d 1163 (lawyer’s staff contacts individuals represented by another lawyer). [Emphasis added.]
Indeed, an attorney’s duty to supervise and educate legal staff is fairly well engrained in California law:
The attorney is the professional responsible for supervising the work of his or her legal assistants. (Vaughn v. State Bar (1972) 6 Cal.3d 847, 857, 100 Cal.Rptr. 713, 494 P.2d 1257.) “[E]ven though an attorney cannot be held responsible for every detail of office procedure, he must accept responsibility to supervise the work of his staff.” (Ibid.; see also Spindell v. State Bar (1975) 13 Cal.3d 253, 260, 118 Cal.Rptr. 480, 530 P.2d 168 [“An attorney has an obligation to adequately supervise his employees….”]; ABA Model Rules Prof. Conduct, rule 5.3, com. [“A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product”].) Thus, Valdez was responsible for supervising Lui’s work and is responsible for Lui’s work product, including his mistake in calendaring the OSC hearing. (Cf. Zamora v. Clayborn Contracting Group Inc. (2002) 28 Cal.4th 249, 259, 121 Cal.Rptr.2d 187, 47 P.3d 1056 [assuming error of legal assistant attributable to counsel]; Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276, 274 P.2d 930 [assuming error of secretary attributable to counsel].) Hu v. Fang, 127 Cal. Rptr. 2d 756 (2002.)
It is likely ____________l is maintaining that the paralegal’s conduct is none of his business because most of it occurs outside of the office. While my quick research did not turn up law in California that directly addresses this aspect of this issue, logically it makes no sense. The law is clear that the attorney is responsible for seeing that the ethical standards are met because of the connection to the client, not a connection to a particular place or a particular time of day. For example, would he claim it none of his business if his paralegal was posting client confidential information on her person Facebook page from her home after work hours?
Thus, if the paralegal’s conduct is unethical, it is indeed the attorney’s business. Again, this is a bit more difficult to answer in California than in some jurisdictions. There is no separate governing body with disciplinary powers over paralegals. (The major paralegal professional associations each have an ethical code of conduct, but they have no governmentally sanctioned authority to discipline paralegals for violations.) Instead, discipline is handled as indicated in the cases cited above by disciplining supervising attorneys for ethical violations committed by their employees. Thus, we normally look to the standard of conduct imposed on the attorney, it being his obligation to give his assistants “appropriate instruction and supervision” on that standard.
As with the previous discussion, the California Rule is more leans more favorably to the attorney than the rules in other jurisdictions:
Rule 3-120 Sexual Relations With Client
(A) For purposes of this rule, “sexual relations” means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.
(B) A member shall not:
(1) Require or demand sexual relations with a client incident to or as a condition of any professional representation; or
(2) Employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or
(3) Continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently in violation of rule 3-110.
Some of the discussion of this rule seems applicable to any case of a relationship between a member of a legal team and a client, e.g., “Often, based upon the nature of the underlying representation, a client exhibits great emotional vulnerability and dependence upon the advice and guidance of counsel. Attorneys owe the utmost duty of good faith and fidelity to clients.(See, e.g., Greenbaum v. State Bar (1976) 15 Cal.3d 893, 903 [126 Cal.Rptr. 785]; Alkow v. State Bar (1971) 3 Cal.3d 924, 935 [92 Cal.Rptr. 278]; Cutler v. State Bar (1969) 71 Cal.2d 241, 251 [78 Cal.Rptr 172]; Clancy v. State Bar (1969) 71 Cal.2d 140, 146 [77 Cal.Rptr. 657].)”
In general prohibitions on such relationships focus on two perspectives: (1) the possibility that a vulnerable client will be “taken advantage of” by a legal professional, and (2) the probability that the legal professional’s objectivity and judgment on behalf of the client. (This being the logic, it appears, behind Rule 3-120(B)(3).)
This issue has been the subject of an article in the California Bar Journal. That article concludes (as do most other writings on this topic regardless of the jurisdiction,) “Both the California Rules of Professional Conduct and the ABA Model Rules of Professional Conduct prohibit lawyers and clients from engaging in “sexual relations” unless they predated the representation. Even then, however, other ethics rules may apply to the extent that sexual involvement may adversely impact the attorney-client relationship.”
A 2002 panel of attorneys sponsored by the University of Virginia School of Law reinforces this position, stating, sex between a client and lawyer can pose significant dangers to both the client and the lawyer. The client is often the vulnerable person in the relationship and can even personally depend on the lawyer, especially in family law or domestic relations cases. The lawyer “needs a certain amount of emotional distance” to keep his client’s interests in mind as well.
If the paralegal is used as a clerk or secretary, there may not be much risk. However, if the paralegal is used to communicate with the client, conduct legal research, engage in legal analysis, drafting motions or agreements, etc., she is subject to the same probability of lack of objectivity and poor independent judgment as the attorney.
So, the bottom line is that __________ is quite wrong in stating that the paralegal’s involvement with his client is none of his business either in the sense that there is nothing ethically wrong with the conduct or that it is not his responsibility.