A Florida jury has found in favor of a paralegal had an oral contract with her attorney for a bonus based on a percentage of attorney fees she generated. This is an interesting case on several levels.
One is the contract level, of particular interest because I’m teaching contract law this semester. The jury found there was a contract for 2004 but not for 2005, but of course there is no explanation why they so found and we do not have enough facts from the news report to come up with anything other than pure speculative theories.
On the level of ethics, there is the issue of an attorney sharing fees with non-lawyers, something prohibited by the Rules of Professional Ethics. If the attorney made this contract, which she continues to deny, it is clearly a violation of the rules. Presumably the paralegal knows the rules of professional ethics and consciously agreed to engage in conduct that violates those rules simply because it benefited her. I’m not sure I’d want to based a legal case on that! Even if you win, you lose your ethical reputation. By the way, did the paralegal have an obligation to report the offer of a bonus based on sharing of legal fees to the proper authorities when it was made
Also on the ethical level, is this an instance that illustrates a problem with the concept of a paralegal being regulated through the ethical rules governing their supervising attorney. Given the court ruling under the present system their is no penalty to the paralegal for entering into the unethical agreement or for failing to report the attorney’s unethical conduct. The entire penalty goes on the attorney even though the paralegal was clearly engaged in the same unethical conduct. It is difficult for paralegals to claim the status of a separate profession and the respect of being a professional under these circumstances.
There is, of course, also much to be said about the paralegal – attorney relationship and the necessity for clear (and in this case written) communications. There is not enough time to deal with this one here today. The topic is touched upon here and in The Empowered Paralegal.
Finally, combining the contract and ethical levels, the court ruling that the attorney cannot defend against the alleged contract on the basis that it violates the rules of ethics is an interesting application of the concepts of malum in se versus malum prohibitum, estoppel, and quasi-contract. (Recognizing, however, that there may be a difference between laws governing act such a gambling and the like, and “mere” ethical rules.)