Joryn Jenkins
November 17, 2011
AGENDA
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Who I am
Survey
Recent Developments
Florida Registered Paralegal Program Rule 20-7.1
Dilemma I
Dilemma II
Dilemma III
Dilemma IV
Dilemma V
Actual Opinions
MY BACKGROUND
 30 years in practice
 Florida Bar Professional Ethics Committee member;
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chaired Informal Ethics Opinions Review subcommittee
Chair, two of The Florida Bar grievance committees
Professor, Stetson University College of Law
Author, “Preparing Law Students for Ethical Practice,”
published in The Akron Law Review
American Inns of Court: local; state; national
HCBA: Peer Review Committee Charter Panel
Speaker: first time - 1993 Civil Trial Certification Review
June 1992 Issue Editor, ETHICS, The Federal Lawyer
EXPERT TESTIMONY
 Robert Fry, et al. v. Hoechst Celanese Chemical Group,
Inc., et al., Marion County Circuit Court Case No. 952225-CA-B. Rendered expert opinion regarding
conflict of interest of attorneys representing plaintiff
removed because of unlicensed practice of law and
overbroad contract to assume interests of would-be
plaintiffs; excessive fee, solicitation, unauthorized
practice of law.
EXPERT TESTIMONY
 Betsy Hapner v. Mark Skaggs, Hillsborough County
Circuit Court Case No. 93-9990-CC-X. Rendered
expert opinion regarding excessive fee, breach of
agreement by attorney retained to prepare a single
issue, criminal appeal for a flat fee, but sum uncertain.
EXPERT TESTIMONY
 Dallas I Construction & Development v. Carolco
Industrial Services, Inc. et al., Hillsborough County
Circuit Court Case No. 94-1872-B. Rendered expert
opinion regarding conflict of interest by attorney who
wanted to represent successive defendants with
conflicting positions.
EXPERT TESTIMONY
 Zombori v. Ray, Kievit & Kelly, et al., Escambia County
Circuit Court Case No. 95-1701-CA01-J. Expert opinion
regarding malpractice by attorney who neglected to
place witness on the stand.
SURVEY
Bankruptcy
Real Estate
Personal
Injury
Family Law
Civil
Litigation
Criminal
Government
RECENT DEVELOPMENTS
 November 15, 2007, the Florida Supreme Court
established the Florida Registered Paralegal Program
 Rule 20 of the Rules Regulating The Florida Bar
 Effective March 1, 2008
HOW MANY FLORIDA REGISTERED
PARALEGALS?
HOW MANY FLORIDA REGISTERED
PARALEGALS?
 As of November 15, 2011:
5313
HOW MANY LAWYER MEMBERS OF
THE FLORIDA BAR?
HOW MANY LAWYER MEMBERS OF
THE FLORIDA BAR?
 As of September 1, 2011:
91,368
WHAT IS A FLORIDA REGISTERED
PARALEGAL?
 A paralegal registered under Rule 20 is one who has
achieved a standard of education, work experience,
and/or national certification.
WHAT IS A FLORIDA REGISTERED
PARALEGAL?
 A paralegal registered under Rule 20 is one who has
achieved a standard of education, work experience,
and/or national certification.
 In order to maintain registration, an FRP must both
maintain a level of continuing education and adhere to
a code of ethics.
WHAT IS A FLORIDA REGISTERED
PARALEGAL?
 A paralegal registered under Rule 20 is one who has
achieved a standard of education, work experience,
and/or national certification.
 In order to maintain registration, an FRP must both
maintain a level of continuing education and adhere to
a code of ethics.
 An FRP is also subject to disciplinary measures, similar
to those governing the conduct of Florida lawyers.
BUT THE RULES ARE MORE
SPECIFIC!
 (a) Paralegal. A paralegal is a person with education,
training, or work experience, who works under the
direction and supervision of a member of The Florida
Bar and who performs specifically delegated
substantive legal work for which a member of The
Florida Bar is responsible.
BUT THE RULES ARE MORE
SPECIFIC!
 (b) Florida Registered Paralegal. A Florida
Registered Paralegal is someone who meets the
definition of paralegal and the requirements for
registration as set forth elsewhere in these rules.
CERTAIN CONDUCT REQUIRED
 Rule 20-7 Code of Ethics and Responsibility
RULE 20-7.1(a)
 A Florida Registered Paralegal shall adhere to the
following Code of Ethics and Responsibility:
(a) Disclosure. A Florida Registered Paralegal shall
disclose his or her status as a Florida Registered
Paralegal at the outset of any professional relationship
with a client, attorneys, a court or administrative
agency or personnel thereof, and members of the
general public.
DISCLOSURE
 Effective October 1, 2011, the rule also provides:
Use of the initials FRP meets the disclosure requirement
only if the title paralegal also appears. For example, J.
Doe, FRP, Paralegal. Use of the word “paralegal” alone
also complies.
RULE 20-7.1(b)
 (b) Confidentiality and Privilege. A Florida
Registered Paralegal shall preserve the confidences
and secrets of all clients. A Florida Registered
Paralegal must protect the confidences of a client, and
it shall be unethical for a Florida Registered Paralegal
to violate any statute or rule now in effect or hereafter
to be enacted controlling privileged communications.
RULE 20.7-1(c)
 (c) Appearance of Impropriety or Unethical
Conduct. A Florida Registered Paralegal should
understand the attorney's Rules of Professional
Conduct and this code in order to avoid any action
that would involve the attorney in a violation of the
rules or give the appearance of professional
impropriety.
RULE 20.7-1(c)
 It is the obligation of the Florida Registered Paralegal
to avoid conduct that would cause the lawyer to be
unethical or even appear to be unethical, and
loyalty to the lawyer is incumbent upon the Florida
Registered Paralegal.
CERTAIN CONDUC T PROHIBITED
 Rule 20-7.1(d) Prohibited Conduct. A Florida
Registered Paralegal should not:
RULE 20-7.1(d)
 (1) establish attorney-client relationships, accept cases,
set legal fees, give legal opinions or advice, or
represent a client before a court or other tribunal,
unless authorized to do so by the court or tribunal;
RULE 20-7.1(d)
 (2) engage in, encourage, or contribute to any act that
could constitute the unlicensed practice of law;
RULE 20-7.1(d)
 (3) engage in the practice of law;
RULE 20-7.1(d)
 (4) perform any of the duties that attorneys only may
perform nor do things that attorneys themselves may
not do; or
RULE 20-7.1(d)
 (5) act in matters involving professional legal
judgment since the services of an attorney are essential
in the public interest whenever the exercise of such
judgment is required.
BUT THERE’S MORE!
 There are more affirmative obligations specific to the
performance of paralegal services.
RULE 20-7.1(e)
 (e) Performance of Services. A Florida Registered
Paralegal must act prudently in determining the extent
to which a client may be assisted without the presence
of an attorney. A Florida Registered Paralegal may
perform services for an attorney in the representation
of a client, provided:
RULE 20-7.1(e)
 (1) the services performed by the paralegal do not
require the exercise of independent professional legal
judgment;
RULE 20-7.1(e)
 (2) the attorney is responsible for the client, maintains
a direct relationship with the client, and maintains
control of all client matters;
RULE 20-7.1(e)
 (3) the attorney supervises the paralegal;
RULE 20-7.1(e)
 (4) the attorney remains professionally responsible for
all work on behalf of the client and assumes full
professional responsibility for the work product,
including any actions taken or not taken by the
paralegal in connection therewith; and
RULE 20-7.1(e)
 (5) the services performed supplement, merge with,
and become the attorney's work product.
BUT THERE’S MORE!
 Rule 20-7.1(f)
 (f) Competence. A Florida Registered Paralegal shall
work continually to maintain integrity and a high
degree of competency throughout the legal profession.
BUT THERE’S MORE!
 Rule 20-7.1(g)
 (g) Conflict of Interest. A Florida Registered
Paralegal who was employed by an opposing law firm
has a duty not to disclose any information relating to
the representation of the former firm's clients and
must disclose the fact of the prior employment to the
employing attorney.
BUT THERE’S MORE!
 Rule 20-7.1(h)
 (h) Reporting Known Misconduct. A Florida
Registered Paralegal having knowledge that another
Florida Registered Paralegal has committed a
violation of this chapter or code shall inform The
Florida Bar of the violation.
OTHER ETHICS RULES?
 Rule 20-5.1 identifies categories of individuals who are
ineligible for registration as a Florida Registered
Paralegal, or for renewal of a registration previously
granted.
RULE 20-5.1
 The following individuals are ineligible for registration
as a Florida Registered Paralegal or for renewal of a
registration that was previously granted:
 (a) a person who is currently suspended or disbarred
or who has resigned in lieu of discipline from the
practice of law in any state or jurisdiction;
RULE 20-5.1
 (b) a person who has been convicted of a felony in any
state or jurisdiction and whose civil rights have not
been restored;
RULE 20-5.1
 (c) a person who has been found to have engaged in
the unlicensed (unauthorized) practice of law in any
state or jurisdiction;
RULE 20-5.1
 (d) a person whose registration or license to practice
has been terminated or revoked for disciplinary
reasons by a professional organization, court,
disciplinary board, or agency in any jurisdiction;
RULE 20-5.1
 (e) a person who is no longer primarily performing
paralegal work as defined elsewhere in these rules; or
RULE 20-5.1
 (f) a person who fails to comply with prescribed
continuing education requirements as set forth
elsewhere in this chapter.
RULE 20-5.2
 Duty to Update
 An individual applying for registration as a Florida
Registered Paralegal or who is registered as a Florida
Registered Paralegal has a duty to inform The Florida
Bar promptly of any fact or circumstance that would
render the individual ineligible for registration or
renewal.
Recent Developments
 On July 23, 2010, the Florida Bar Board of Governors
created a sub-committee to study mandatory
implementation of Rule 20.
Who studied mandatory implementation?
 The sub-committee was made up of nine members,
three Program Evaluation Committee members, three
Florida attorneys, and three paralegals.
What Did The Committee Do?
 The Special Committee to Study Mandatory Paralegal Regulation was
charged with studying the following:
 1) Whether the Supreme Court of Florida has the constitutional
authority to require mandatory regulation of paralegals.
 2) If so, should there be mandatory regulation of paralegals?
 3) If so, what should the mandatory regulation encompass and/or
require? It is the mission of this committee to propose a framework
that can be used for the adoption of rules. It is not the mission of this
committee to draft specific rules.
 4) If not, what other options exist within the framework of The Florida
Bar to provide additional regulation or recognition of the paralegal
profession? It is the committee’s mission to propose a framework that
can be used for the adoption of rules, not to draft specific rules.
June 15, 2011, The Florida Bar Reports:
 The Florida Bar Board of Governors has decided: no mandatory
licensing of paralegals.
 The Program Evaluation Committee unanimously rejected the majority
recommendation of the Special Committee to Study Mandatory
Regulation of Paralegals and instead endorsed the minority report.
 The PEC, which conducted a required review of the FRP program after
its third year, also recommended several ways of improving that
program, which were adopted by the board.
 Paralegal members of the special committee, and one lawyer, favored
regulation, while the board members on the committee opposed it.
 “We received a lot of comments about this. The vast majority of them,
including most of the paralegals who corresponded with me, were not
in favor of mandatory regulation,” Coleman said.
Who Do You Call at The Bar to Weigh In?
 It may be too late for the current round, but, if you have comments or
questions, contact Lori S. Holcomb, FRP Counsel, at (850) 561-5840,
lholcomb@flabar.org, or 651 E. Jefferson Street, Tallahassee, Florida
32399-2300.
 “We received a lot of comments about this. The vast majority of them,
including most of the paralegals who corresponded with me, were not
in favor of mandatory regulation,” Coleman said.
 The Bar surveyed Florida Registered Paralegals and got a nearly
unprecedented 50 percent response rate. Out of more than 2,000
responses, “only 40 were in favor of mandatory regulation, which is an
interesting statistic by itself.”
Actual Opinions
 The National Federation of Paralegal Associations is
comprised of more than 50 member associations and
claims to represent over 11,000 individual members
reflecting a broad range of experience, education and
diversity. NFPA states that its Model Code of Ethics
delineates the ethical guidelines and standards for
conduct to which all paralegals should aspire and that
this document has received wide acceptance
throughout the legal community.
Actual Opinions
 NFPA provides its members with information related
to decisions and changes in ethics rules and
regulations on an ongoing basis, and the NFPA Ethics
Board regularly submits opinions on ethics issues.
Thus far, there have been 17 opinions published.
Disclaimer
 Before each opinion is this disclaimer:
 The following ethics and disciplinary opinion of NFPA
is offered based upon its positions and research in the
area of paralegal ethics. It should not be construed as
binding and must be interpreted in conjunction with
the applicable state's Supreme Court rules and
opinions governing the professional conduct of
members of the legal profession. This opinion may be
used for guidance and, by the appropriate entity, as a
persuasive argument in favor of the findings of NFPA.
95-1
 May an individual employed by a corporation use the
title "paralegal" when the corporation does not employ
in-house counsel to supervise or be accountable for the
individual's work?
95-1
 An individual employed by a corporation who is
qualified through education, training, or work
experience to provide substantive assistance to
attorneys retained by the corporation and who
provides such assistance can use the title "paralegal."
95-1
 Because the issue of ultimate responsibility for the
work product in that case clearly rested with counsel
retained by the corporation.
95-2
 Is it ethical for a legal assistant to have her/his name
appear on the law firm letterhead provided that the
legal assistant's designation is clearly indicated?
95-2
 In the absence of a legally binding opinion issued by
an ethics entity in the applicable state, NFPA believes
that the name of an individual employed or retained
by a law firm who is qualified through education,
training, or work experience to provide substantive
legal assistance to attorneys in a law firm may be listed
on the law firm's letterhead, provided that the
individual's name is followed by the designation of
"paralegal" or "legal assistant."
95-3
 May a paralegal with whom a conflict of interest in a
legal matter has been identified erect an ethical wall? If
so, what steps should be taken to erect and adhere to
that ethical wall?
95-3
 A paralegal employed by a law firm in any state, with
the exception of Nevada, must comply fully with the
implementation and maintenance of an ethical wall in
every instance in which a conflict of interest with the
paralegal has been identified. (See Endnotes 3 and 4.)
95-3
 (a) prohibit the paralegal from having any connection
with the matter;
 (b) ban discussions with or the transfer of documents
to or from the paralegal;
 (c) restrict access to files; and
 (d) educate all members of the firm, corporation or
entity as to the separation of the paralegal (both
organizationally and physically) from the pending
matter.
95-4
 Is it ethical for a paralegal to bill clients for tasks which
are more clerical and non-professional than substantive
in nature?
95-4
 A paralegal's ethical obligations require that the tasks
and services performed by the paralegal for which
compensation may be sought (1) be substantive and
not clerical in nature; and (2) consist of tasks and
services which otherwise would be performed by an
attorney. In certain situations, compensation for
services accomplished by the paralegal, but which
normally may be characterized as clerical or secretarial
in nature may be sought. However, in those situations,
the rate of compensation for clerical tasks should be
less than the market rate for paralegal time.
95-5
 Are contract paralegals retained by attorneys in law
firms, corporations and other legal entities, required to
comply with the same ethical obligations as employed
or traditional paralegals?
95-5
 Paralegals who are retained by an attorney, law firm, or
other attorney employer, referred to as "contract
paralegals," "freelance paralegals" and/or
"independent contractors," who perform paralegal
work with supervision by or accountability to an
attorney, must adhere to and should aspire to the same
principles for ethics and conduct of those set forth for
traditionally-employed paralegals.
95-5
 Specific attention should be given to ensure that the
attorney supervision is proper and not illusory; that
the paralegal does not engage in the unauthorized
practice of law; and that comprehensive procedures
are utilized to prevent working on legal matters with
which the paralegal has a conflict of interest, which
likelihood may increase as a contract paralegal.
95-5
 Contract paralegals need to make sure that their
attorney clients are familiar with both the
responsibility of the attorney to supervise the
paralegal's work as well as any applicable jurisdictional
requirements concerning independent contractors.
95-6
 What are the ethical implications, if any, of freelance
paralegal solicitation of attorney clients?
95-6
 Paralegals who are retained by an attorney, law firm or
other attorney employer, referred to as "freelance
paralegals," "contract paralegals" or "independent
contractors,“ and who perform paralegal work with
supervision by or accountability to an attorney, may
properly solicit prospective attorney clients to whom
they would provide such paralegal services. However,
contract paralegals should comply with attorney
advertising guidelines or advertising ethics rules
governing the jurisdiction(s) in which the prospective
attorney clients are situate.
96-1
 What are the ethical implications concerning client
confidentiality, if any, of paralegals communicating in
cyberspace?
96-1
 Paralegals communicating in cyberspace through any
form of electronic communication shall maintain and
preserve client confidences and secrets.
96-2
 What are the ethical implications concerning the
unauthorized practice of law as it relates to paralegals
communicating in cyberspace?
96-2
 NFPA first recognized that there is no agreement
about what constitutes the unauthorized practice of
law. Generally, paralegals may not set or negotiate a
client's fee; sign a legal document; represent a client in
court or before a tribunal; or give legal advice. The last
is the one that might be problematic in cyberspace.
96-2
 One way to ensure that a paralegal's cyber-
communications are not read as legal advice is by
properly disclosing that the author is a non-lawyer,
specifically, a paralegal.
96-2
 A paralegal's title shall be disclosed in each cyber-
communication to avoid misunderstandings and
misconceptions about the paralegal's role and
responsibilities. In addition, due to the nature of
cyber-communications and that paralegals may be
communicating with intended and unintended parties
and entities located in several jurisdictions, a
paralegal's jurisdiction (state in which he/she is
located) shall be disclosed in each cybercommunication to avoid misunderstandings and
misconceptions about the jurisdiction(s) to which the
communication may apply.
96-2
 Additionally, NFPA noted that some have suggested
including disclaimers in your cyber-communications.
96-2
 Nothing in this e-mail message should be construed as
a legal opinion.
96-2
 This e-mail communication is not intended as and
should not be interpreted as legal advice or a legal
opinion. The transmission of this email communication
does not create an attorney-client relationship between
the sender and you. Do not act or rely upon the
information in this communication without seeking the
advice of an attorney.
2000-1
 What language relating to a paralegal's education,
training, experience or recognition can be included in
advertising to the general public?
2000-1
 Under Ethical Consideration 1.7(c) of the NFPA Model
Code of Ethics and Professional Responsibility, a
paralegal may include in advertising material
statements of fact that are not false, fraudulent or
misleading.
2000-1
 Any reference to certification should provide sufficient
descriptive information to assure that a potential user
of the paralegal's services will not be misled as to the
significance or implications of any claimed certificate.
In the absence of a government-sponsored,
government-administered or court-approved program
that recognizes certification, appending the name or
abbreviation of a jurisdiction to the certificate in
question would constitute a misleading statement, and
is therefore prohibited.
2005-1
 What are the ethical implications surrounding a
paralegal attending and signing in for an attorney at a
CLE course?
2005-1
 While the paralegal may have enjoyed the seminar and
gained from the experience, the paralegal's actions
were unethical. Representing yourself to be anyone
other than who you are is unethical when done for the
purpose of deceiving another and can carry serious
legal and professional consequences.
2005-1
 When the paralegal was first presented with the
request to sign in on behalf of the attorney, s/he
should have refused to make such a misrepresentation
and communicated to the attorney that such a
representation would not only be unethical, but could
also be fraud.
2005-1
 If the attorney continues to insist that the paralegal
attend the seminar, as instructed, then the paralegal
should inform an Office Manager, Senior Partner, or
other appropriate firm official in writing of what the
paralegal has been asked to do and that the paralegal
has refused to do it.
2005-1
 Further, the paralegal may be required to report such
an indiscretion to the local bar association or a
disciplinary committee, if required by his or her state.
2005-1
 If the paralegal does attend the CLE, s/he should
indicate that that his or her attendance was in place of
the attorney on the CLE sign-in form, thereby not
misrepresenting the situation.
2005-2
 What are the ethical implications concerning disbarred
attorneys teaching paralegal courses?
2005-2
 Are there or should there be ethical provisions that
govern whether a disbarred attorney can teach at a
paralegal school?
2005-2
 There are no ethical provisions regarding the
employment of a disbarred attorney to teach at a
paralegal school. Ultimately, the decision to hire a
disbarred attorney is a matter of policy and requires
careful consideration of several factors.
2005-2
 Was the attorney disbarred because of ethical
violations? Then he is an inappropriate role model.
2005-2
 Was the attorney disbarred because of attenuating
factors, such as personal difficulties, addiction,
depression, abuse or inexperience? Did it happen so
long ago that he has been rehabilitated?
2005-2
 Are there, or should there be, ethical provisions that
govern whether a disbarred attorney could be
employed as a paralegal?
2005-2
 The ABA’s Rules of Professional Conduct do not apply
directly to paralegals, or to their work. However, some
states do have rules or statutes regulating the
employment of disbarred attorneys within the legal
workplace. A Florida Bar rule regulates the hiring of
disbarred attorneys and even prohibits certain
attorneys from employing a disbarred attorney for the
first three years of disbarment. The Florida rule also
prohibits the disbarred attorney from contact with
both clients and trust fund accounts.
2005-2
 Disbarment might be a violation of NFPA’s Ethical
Code. While there is no direct prohibition against a
disbarred attorney performing paralegal tasks, NFPA’s
Ethical Code would cast some doubt as to the
qualifications of a disbarred attorney.
2005-2
 For any rule governing the employment of a disbarred
attorney as a paralegal, the primary concern would be
the possibility of UPL, that the disbarred attorney
might render legal advice. The attorney, when
licensed, was able to and became accustomed to giving
legal advice. Once disbarred, the (former) attorney
could easily give legal advice as a matter of habit. Most
attorneys may have a general knowledge of UPL.
However, trained paralegals have a heightened
awareness of the prohibitions.
2005-2
 Finally, there is also the possibility that a licensed
attorney might not properly supervise a disbarred
attorney as prudently or as cautiously as s/he would
supervise a paralegal.
2005-3
 Is there a "published" rule on paralegals receiving part
of settlements in cases?
2005-3
 Yes, the ABA Model Rules, specifically, Rule 5.4
Professional Independence of a Lawyer. Most state bar
associations also have similar rules; sometimes this is
called “fee splitting,” and is prohibited unless with
another lawyer.
2005-3
 However, while it is unethical for an attorney to enter
into fee-sharing agreements with non-lawyers, an
attorney may offer a bonus to a paralegal, provided
that the bonus is based on the paralegal’s work
performance and not based on the settlement amount
in the case.
2006-1
 What means of compensation can a paralegal receive
for referring business to their firm?
2006-1
 A paralegal certainly can refer business to his/her firm.
What means of compensation are ethical for the firm
to offer, and what means of compensation may the
paralegal accept, in the event that the potential clients
retain the firm?
2006-1
 As before, a bonus for his/her work on the file is
certainly allowed.
2006-2
 What steps should a law firm take to preserve client
confidentiality when it hires or otherwise uses outside
persons or businesses?
2006-2
 Attorneys and their staffs must abide by
confidentiality at all times. When outsiders are used
by the firm, the firm must take steps to assure that
they abide by the same confidentiality requirement.
Among the ways to accomplish this is to secure a
contract commitment from the outsiders to preserve
the confidentiality of all client-related information.
2006-2
 The law firm should take the following steps:
 (1) Before hiring the outsider, inquire into the steps the outsider
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normally takes to preserve the confidentiality of information to
which it has access.
(2) Determine whether the outsider is already under an
obligation of confidentiality under the code of conduct of the
outsider's business or profession.
(3) Restrict the outsider's access to client-related information
that is essential to perform the task or tasks the outsider is asked
to perform for the firm.
(4) Obtain a contract commitment from the outsider not to
reveal any client-related information.
(5) Take any other reasonable steps calculated to assure the
preservation of client confidentiality by the outsiders.
2006-3
 Can a paralegal continue to work in a law office during
the thirty (30) days his/her attorney supervisor has
been suspended from the practice of law?
2006-3
 There is a fine line with regards to a paralegal doing substantive
paralegal work vs. clerical tasks. As such, it may not be practical for a
paralegal to work in an office for the length of the suspension unless
the suspended attorney has designated another attorney to oversee his
office operations. The options are limited in that it is difficult for the
paralegal to continue to perform their job functions without the
supervision of an attorney but because of the circumstances and the
length of the suspension it may not be feasible for them to move to
another firm. The obligation, we believe, falls upon the suspended
attorney to try to make arrangements to allow the paralegal to keep
his/her position without violating the professional conduct rules
prohibiting the paralegal from working unsupervised.
2007-1
 Whether or not volunteering to draft bylaws or being
asked to draft bylaws for a “Neighborhood Association”
would be an ethical violation?
2007-1
 It is the opinion of the Ethics Board that drafting
bylaws or any other legal documents for an
organization or volunteer association is not allowable
if the paralegal is acting on his/her own and not under
the supervision of an attorney.
2008-1
 What are a paralegal's obligations and responsibilities
when an attorney becomes impaired due to age or
disability?
2008-1
 Under the published NFPA ethical considerations as
they exist, a paralegal has no special responsibility or
obligation in the situation as presented. However,
depending on the degree of impairment demonstrated
by the particular actions of the attorney, the paralegal
may be under an ethical obligation to report the
behavior of the attorney to the appropriate authority.
DILEMMA I
 Pat Paralegal is having lunch with her friend, Sandy,
who wants to pick Pat’s brain before doing anything
precipitous. Sandy confides that she and her husband
are being foreclosed, that financial difficulties have
precipitated their separation, and that she is
considering divorce, but she knows that they also need
bankruptcy protection.
DILEMMA I
 Sandy says she doesn’t have any friends who are
lawyers, but she knows that Pat works for Larry
Lawyer, so she asks Pat what to do.
DILEMMA I
 Pat knows that a couple can get bankruptcy protection
for the same price that an individual can, and also that,
if Sandy is getting divorced, it would be better for her
if both she and her husband file bankruptcy. She
wants to explain this to her friend.
 How should Pat handle it?
DILEMMA I
 Can Pat advise Sandy? If so, what can she tell her?
 If not, why not?
DILEMMA I
 Can Pat do the bankruptcy work? If not, why not?
 Can Pat refer Sandy to Larry to do the work? If so, can
Pat work on the case?
 If so, can she accept a referral fee from Larry?
 If she can work on the case, can she accept a bonus
from Larry for her work on the file?
DILEMMA I
 Can Pat do the dissolution of marriage work? If not,
why not?
 Can Pat refer Sandy to Larry to do the work? If so, can
Pat work on the case?
 If so, can she accept a referral fee from Larry?
 If she can work on the case, can she accept a bonus
from Larry for her work on the file?
DILEMMA II
 Sandy makes an appointment for a consultation with
Larry to discuss her divorce case, which Larry asks Pat
to handle.
 Can Pat do that?
 What, if anything, can Pat do in this initial meeting
with Sandy?
DILEMMA II
 Paralegals Interviewing Clients/Potential Clients
 Ethics Opinion 88-6 (April 15, 1988) – “It is not
impermissible per se for a lawyer to have a nonlawyer
employee conduct the initial interview with a client,
although the practice is discouraged and must adhere
to certain guidelines. . . . [w]hile nonlawyer
employees may perform delegated functions
under the direct supervision of a lawyer, they may
not counsel clients about legal matters or
otherwise engage in the unauthorized practice of law.”
In other words, DO NOT GIVE LEGAL ADVICE.
DILEMMA II
 Sandy retains Larry to handle her divorce case, which
then turns nasty. Larry instructs Pat to prepare a
witness, another friend of both Sandy and Pat, for
deposition by the opposing lawyer.
 Can Pat do that?
 What, if anything, can Pat do to prepare her friend for
deposition?
DILEMMA II
 Cannot give legal advice.
 Can give non-legal advice.
DILEMMA II
 (1) listen closely to all questions before answering;
DILEMMA II
 (2) do not be afraid to ask attorney to repeat a question
or ask her to rephrase a question because you did not
understand the question;
DILEMMA II
 (3) answer simply “yes” or “no,” if possible, and, if not,
keep answer as short as possible to be responsive;
DILEMMA II
 (4) don’t let emotions show, if at all possible;
DILEMMA II
 (5) do not volunteer information.
WHAT ELSE SHOULD PAT DO?
 Prepare Larry to defend the deposition. Alert Larry to
the fact that Pat cannot give the witness legal advice
and that perhaps there are legal issues that Larry
ought to discuss with the witness prior to the
deposition.
DILEMMA III
 You are working in a law firm that charges minimum
amounts for certain activities. For example, a phone
call is never less than .1 hours. Can you do this
without violating the rules?
DILEMMA III
 You’re on a business trip to Denver for Client Jones and
you do work for Client Smith on the airplane. Can you
bill them both for your time, Jones for your travel and
Smith for your actual work?
DILEMMA III
 You have two bankruptcy clients with the same issue,
that require a non-form motion and legal research.
You do the research and prepare the motion(s).
 Can you bill them both for the research?
 Can you bill them each for the full amount of time
spent on drafting the initial motion, which you then
used as a form for the second client’s motion?
DILEMMA III
 You have deduced that you cannot “double bill” this
time. Larry instructs you to do so. What do you do?
DILEMMA IV
 Sandy shows up unexpectedly to take Pat to lunch.
She waltzes into Pat’s office without warning. Pat is in
the middle of several different assignments for several
different clients. Is this a problem for Pat? If so, why?
DILEMMA IV
 Passive compliance
 Maintaining confidentiality
 Keep your desk clean.
 When you leave your desk, turn documents remaining
for work over so that passers-by cannot read them.
DILEMMA IV
 Active compliance
 In-house
 Overhear or read something confidential
DILEMMA IV
 Active compliance
 Opposing counsel
 Overhear or read something confidential while in
opposing counsel’s offices
 Inadvertent discovery – copied on e-mail chain
accidentally
 Inadvertent discovery – in-house memo in legal mal
case that was NOT work product privileged
DILEMMA V
 Pat discovers that her boss is addicted to painkillers.
What does she do?
DILEMMA V
 Pat discovers that her boss is sleeping with one of their
clients. What does she do?
DILEMMA V
 Pat discovers that her boss has violated the Rules
Governing The Florida Bar. What does she do?
ETHICS
 Like the practice of law – there are never any “open
and shut” answers.
 The important thing is to recognize when there are
ethics issues.
 When there are, reach out to your network (peers,
friends, family, Florida Bar) to address them.
THE END
Joryn Jenkins
Joryn Jenkins & Associates, PA
3839 West Kennedy Boulevard
Tampa, FL 33609
813/870-3839
Joryn@JorynJenkinsLaw.com