Posts Tagged ‘Rules of Professional Conduct’

When a client emails from work…

Wednesday, September 14th, 2011

According to ABAJournal.com (in a story brought to my attention through the KNOW: The Magazine for ParalegalsLinkedIn Group forum) the ABA Standing Committee on Ethics and Professional Responsibility has issued an opinion that under the ABA Model Rules of Professional Conduct if a client is emailing his or her lawyer from a work computer or an employer’s electronic device, there’s a good chance that the communication could be intercepted by the employer. This in turn may impose a duty on the lawyer to warn the client “of the potential confidentiality concern.”

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This opinion is, of course, only an opinion and it is based on the Model Rules, which may not be applicable to your state. However, it appears well reasoned. While the opinion and the rules themselves apply directly only to the attorney member of the legal team, this is of particular concern for paralegals because in many instances the paralegal is the primarly liason between the client and the law office. This means it will be the paralegal, not the attorney who will have the primary indication that the client is emailing from her workplace and should be warned of the confidentiality implications.

When this happens it is likely that the paralegal will have an inclination to so warn the client. However, “warn” appears to be a form of “advise” and paralegals cannot give legal advice. So, the correct step would be for the paralegal to bring the matter to the attention of the attorney. Alternatively, the law office could have a standard policy together with standard language to address this issue. If would be best to inform the client of the potential problem at the intial interview and request that all email be done through non-work devices and servers. In the event that the client “forgets” there can be a standing direction from the attorney to the paralegal to remind the client via the standard warning language.

Attorneys’ Ethical Obligations to Paralegals

Sunday, September 13th, 2009

One visitor to this blog arrived via an inquiry regarding an attorney’s ethical obligations to his or her paralegal.  Certainly attorneys have at least the same ethical obligations to their paralegals as any employer has to their employees. (In my opinion there is a vast variance between an employer’s legal obligations to employees and an employer’s ethical obligations, a variance greater than in many other areas.) One ethical obligation, however, stands out because it is specifically incorporated into the ABA Model Rules – the duty to supervise. Model Rule 5.3 states,

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(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

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Thus, the attorney has an ethical obligation to supervise paralegals that incorporates all other ethical obligations. Now, this obligation is frequently viewed as a rule imposed as an additional protection of the public similar to vicarious liability and the doctrine of respondeat superior. It certainly serves that role. However, I would argue that this is also an ethical obligation that the attorney owes to the paralegal. Yes, a paralegal has a right to adequate supervision from his attorney.

After all, the attorney and paralegal form an essential part of the legal team. Part of the teamwork requires that the attorney supervise the paralegal. The attorney cannot rightly simply send the paralegal off to accomplish a task without adequate instruction, training, and supervision, and then complain when the task is not completed to the attorney’s liking. At the very least the attorney must be available and open to communication from the paralegal seeking guidance.

This obligation to supervise is somewhat confusing as there is a lack of specificity as to what the constituent elements of “reasonable supervision” are. As previously discussed on this blog, there is also a great deal of confusion arising from uncertainty among the bar as to exactly what a paralegal is and what they can do. Nonetheless, it is the attorney’s responsibility to provide “reasonable supervision.”

This, in my view, is not a one-way obligation. There is confusion and the confusion is understandable given the current status of the paralegal profession. There is, however, at least,one member of the legal team that does know the capabilities of the paralegal and how much instruction, training, guidance and supervision is needed by the paralegal. That person is the paralegal.

You, the paralegal, have a right to reasonable and adequate supervision. You know when you need guidance. You know when you are not receiving adequate instruction. Take it upon yourself to make your needs known to your attorney through honest, direct, non-manipulative communication. If this is done diplomatically, both you and your attorney will benefit from the improved ability to work as a team

Can paralegal see client socially after legal relationship ends?

Tuesday, August 11th, 2009

One reader of this blog arrived here as a result of a Google search that asked, “can paralegal see client socially after legal relationship ends?” Here are some thoughts on the topic:

It is likely that you will not find a direct answer to this question in any of the various professional association Codes of Ethics such as the NFPA Model Code of Ethics and Professional Responsibility, but the answer can be derived from such codes as it can be derived for attorneys from the ABA Model Code. In general, since there are no paralegal code of ethics enforceable in the same way as the attorney’s bar rules are enforceable against attorneys, regulation of paralegal conduct is derivative of the rules governing attorneys. So, it is appropriate to look to rules governing attorneys and the advice given to them on issues such as this based on those rules.

Certainly both attorneys and paralegals must refrain from becoming engaged in an intimate relationship with a client during the course of the professional relationship. There are several reasons for this, including:

  • Such a relationship can affect the objectivity of the members of the legal team
  • The lawyer and paralegal may be taking advantage (even if not consciously) of the already existing special relationship with the client – on in which the client is dependent upon the lawyer or paralegal
  • In most instances legal proceeding are stressful and traumatic placing the client in the position of not being able to make objective decisions about intimate relationships with others involved in those proceedings
  • Such a relationship can affect the expectations of the client

For these reasons and others dating clients during the professional relationships is not permitted as it violates the Code provisions requiring objectivity and the like. For example, the American Academy of Matrimonial Lawyers advises :

D. Lawyers and Clients Should Maintain an Appropriate Professional Relationship.

Sometimes friendships and even romances develop between lawyers and clients. Many lawyers have close personal friendships with former clients. But because of the intense emotional nature of a divorce, it is usually best for lawyers and clients to defer establishing a social relationship until after the case is over. Romantic relationships are not advisable as they interfere with a lawyer’s objectivity and affect a client’s expectations. A divorce lawyer and a client should never have a sexual relationship during the case.

This does not, however, settle the question as to whether a paralegal can ethically date a client once the professional relationship is over. While the issue of objectivity may be eliminated, there is still the question of whether the client has gained enough distance from the professional events to make a free, knowing and independent decision to enter into the romantic relationship. Keep in mind that the lawyer and paralegal must not only avoid a direct violation of the specific rules of conduct, but also ” avoid impropriety and the appearance of impropriety.” NFPA Model Code EC-1.3(b).

Finally, keep in mind that whatever the rules of conduct may provide, your employer’s vision of what constitutes “the appearance of impropriety” should be considered. Should the client again need legal services make sure you advise your attorney of the romantic relationship before the client engages the services of the attorney. It may affect the lawyer’s decision on whether or not to take the matter, and whether to assign you as a paralegal on that matter.

Facebook Ethical Issues

Monday, August 3rd, 2009

Paralegal Gateway’s Weblog has an interesting post on potential ethical issues arising from the use of Facebook by members of the legal profession. Entitled “Lawyer Cannot Ask Paralegal to ‘Facebook Friend’ A Witness,” the post includes, “The Philadelphia Bar Association Professional Guidance Committee hustled out its Opinion 2009-02 which held that a lawyer could not ask a “third person” (presumably a paralegal or office employee) to Facebook-friend a deposition witness so the lawyer could surreptitiously access the witness’ Facebook page….The Philly Bar concluded that this was improperly deceptive under their Rule 8.4…”

You might think that the paralegal/attorney relationship, being somewhat personal in natural would not entail much by way of formal ethical discussion.  However, that relationship can be the source of some of the most difficult ethical decisions a paralegal has to make: What do I do if I know my attorney is violating the Rules of Ethical Conduct and/or a law? And, even worse, what do I do if my attorney asks me to do something ethical?

Fortunately, you can find some guidance in the ethical codes of various paralegal associations. In an earlier post I discussed the importance of you, as a professional, belonging to one or more of these associations and participating in their listservs, reading their journals and the like. The ethical codes of these organizations are not laws, but they do provide a good framework to use in facing these difficult issues.

Some common sense must be invoked in interpreting the language of the code. The attorney asking you to tell a client he is in court when he is really in his office is dishonest, but is not likely to rise to the level requiring (or even suggesting) reporting.

As stated above, these codes do not have the force of law. In particular situation you may want to seek legal advice yourself. Some states do have particular laws making failure to report certain actions such as judicial bribery, a crime.  However, for the most part, it is really of a matter of ethics rather than legal consequence for the paralegal (unlike an attorney who can lose his license.)  In most cases it is going to be a matter of balancing your personal interest (you will likely lose your job if for no other reason than the attorney may lose his license), against your personal integrity, protecting the public and maintaining the integrity of the legal profession.  In the end, I would hope that personal integrity wins out over personal interests, but you must be the judge in each situation.

If you do decide to report, I do suggest obtaining legal advice first from an attorney outside of the one in which you work. Remember that attorney has a firm obligation to keep what you tell her confidential. That attorney can advise you regarding protections to which you may be entitled, the proper authority to which you should report and the correct procedures for reporting.  Generally, you will receive immunity from being sued by your employer for slander and libel, and may be entitled to certain protections against on-the-job retaliation under “Whistleblower” laws. She will help you analyze the situation to determine whether you have the necessary facts, have properly interpreted the facts and validate your decision regarding the proper balancing of interest and integrity.

A Professional Is Ethical

Friday, July 31st, 2009

Here I’m not talking about the legal ethics you studied in class, although for attorneys the rules governing their professional conduct are often referred to as “Rules of Professional Conduct.” Certainly every attorney will want you to know, respect and apply the rules of legal ethics demanded of them by the court or other body that supervises and disciplines them as professionals. They will require you do to so even if they are not naturally inclined towards following them simply to avoid discipline. Most attorneys are aware that they are responsible for what their staff does even if they do not understand the particular role of a paralegal and their special obligation to supervise paralegals.

What you need to show your attorney is not only that you understand the ethical requirements of the legal profession, but that you have and follow a personal ethic that raises you to the level of a professional. Now I am not suggesting that non-professionals are not ethical or never have to make ethical choices. My remarks are made in the context of our discussion of you as a paralegal having or wanting more responsibility – responsibility reserved to professionals as a result of their specialized knowledge and experience. With that responsibility comes more opportunity for non-ethical choices and an higher expectation for ethical behavior.