Welcome to Week 7!
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We will begin at the top of the hour.
Make sure your speakers are on and volume is
turned up.
The Paralegal Professional, 3e
Goldman and Cheeseman
1
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
The Paralegal Professional
Chapter Two
Ethics and Professional
Responsibility
Intro to Ethics & Professional
Responsibility
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Every profession develops a set of guidelines
for those in the profession to follow.
These may be codes of conduct or ethical
guidelines, such as the ABA Model Rules of
Professional Conduct for lawyers.
The Paralegal Professional, 3e
Goldman and Cheeseman
3
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Intro to Ethics & Professional
Responsibility (cont.)
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NALA and NFPA have ethics guidelines that
set forth the minimum in ethical behavior.
These ethical guidelines are referred to as Rules
of Professional Conduct.
The ABA (Codes of Conduct) maintains a
website that links to other National, State and
International ethics resources.
The Paralegal Professional, 3e
Goldman and Cheeseman
4
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Regulation of the
Practice of Law
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Authorized Practice of Law
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The practice of law is regulated by states to protect
the public from incompetent & unscrupulous
practitioners.
Various standards concerning knowledge of the law
& character references are usually required.
Although there is some reciprocity, each state has
its own requirements.
The Paralegal Professional, 3e
Goldman and Cheeseman
5
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Regulation of the
Practice of Law (cont.)
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There are, with a few exceptions, no state
licensing requirements for one to work as a
paralegal –unlike the procedures that lawyers
must follow to practice law.
The Paralegal Professional, 3e
Goldman and Cheeseman
6
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Regulation of the
Practice of Law (cont.)
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The state of Pennsylvania has specifically
addressed the unauthorized practice of law
(UPL) by paralegals and legal assistants.
The statute addresses concerns that the general
public will misinterpret the title of Paralegal as
denoting a person admitted to practice law in
the commonwealth.
The Paralegal Professional, 3e
Goldman and Cheeseman
7
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Unauthorized Practice of Law (UPL)
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Someone who practices law without
authorization from their state is committing
UPL.
Defined differently in different jurisdictions,
but typically includes
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Giving legal advice
Providing legal services
The Paralegal Professional, 3e
Goldman and Cheeseman
8
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Avoiding UPL
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# 1: Holding Oneself Out
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Parties with whom the paralegal has contact must
know the limited role the paralegal plays on the
legal team.
The Paralegal Professional, 3e
Goldman and Cheeseman
9
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Avoiding UPL (cont.)
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# 2: Giving Advice
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A paralegal cannot give a legal opinion or give
legal advice.
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Test: If legal rights may be affected, it is probably legal
advice.
The Paralegal Professional, 3e
Goldman and Cheeseman
10
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Avoiding UPL (cont.)
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# 3: Filling Out Forms
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UPL may consist of a non lawyer who explains,
recommends, advises, and assists in the selection,
completion, and corrections of errors and omissions
of legal forms.
The Paralegal Professional, 3e
Goldman and Cheeseman
11
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Avoiding UPL (cont.)
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# 4: Representing Clients
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Some jurisdictions and administrative agencies
permit those unlicensed or not admitted to practice
to appear in court or before administrative law
judges or referees on behalf of clients. Some
Federal agencies permit non lawyers to appear.
Any appearance before a court must be approved
carefully. A simple request for a continuance can
be considered by some courts to be the practice of
law.
The Paralegal Professional, 3e
Goldman and Cheeseman
12
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
UPL Guidelines
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Legal assistants & paralegals should:
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Disclose their status with a client, other attorneys, a
court or administrative agency or members of the
general public at the outset
The Paralegal Professional, 3e
Goldman and Cheeseman
13
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
UPL Guidelines (cont.)
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Legal assistants and paralegals should not:
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Establish attorney-client relationships, set legal
fees, give legal opinions or advice, or represent a
client before a court, unless authorized to do so by
said court: nor
Engage in, encourage, or contribute to any act that
could constitute the unauthorized practice of law.
The Paralegal Professional, 3e
Goldman and Cheeseman
14
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
UPL Guidelines (cont.)
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Legal assistants or paralegals may perform services for an
attorney in the representation of a client, provided that:
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The services performed do not require the exercise of
independent legal judgment;
The attorney maintains a direct relationship & control of all
matters with the client;
The attorney supervises the legal assistant;
The attorney remains professionally responsible for all
work, including actions NOT taken by the legal
assistant/paralegal.
The Paralegal Professional, 3e
Goldman and Cheeseman
15
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Ethical Obligations
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Ethical behavior is expected and required of
every member of the legal team: attorney,
paralegal, litigation support, information
technologist and outside consultants.
Duty to supervise:
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The obligation to ensure ethical conduct is that of
the supervising attorney.
The Paralegal Professional, 3e
Goldman and Cheeseman
16
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Ethical Obligations (cont.)
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Ethical obligations of lawyers are enforced by
the court in the jurisdiction where the attorney
is practicing or where the case is being tried.
Ethical Guidelines and Rules: Every profession
develops a set of guidelines for those in the
profession to follow.
The Paralegal Professional, 3e
Goldman and Cheeseman
17
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Ethical Obligations (cont.)
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ABA Model Guidelines for the Utilization of
Paralegal Services:
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A set of guidelines intended to govern the conduct
of lawyers who supervise paralegals.
Uniformity of Paralegal Ethics: No single source
of ethical rules is set out for the paralegal.
At present, no sanction exists for the paralegal
breach of association rules except loss of
membership.
The Paralegal Professional, 3e
Goldman and Cheeseman
18
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Ethical Obligations (cont.)
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Paralegal Association Ethics Codes:
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1. National Federal of Paralegal Associations, Inc.
This is a professional organization composed of
paralegal associations and individual paralegals
throughout the U.S. and Canada.
2. National Association of Legal Assistants. This
association is the leading professional association
for legal assistants.
The Paralegal Professional, 3e
Goldman and Cheeseman
19
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Ethical Obligations (cont.)
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COMPETENCE
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Competent representation requires the legal
knowledge, skill, thoroughness and preparation
reasonably necessary for representation.
The Paralegal Professional, 3e
Goldman and Cheeseman
20
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Ethical Obligations cont.
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CONFLICT OF INTEREST
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A conflict of interest exists if the representation of
one client will be adverse to the interest of another
client.
Conflicts of interest may arise for paralegals when
they change from one employer to another if the
previous employer represented a client or handled
certain matters for a client during the period in
which the paralegal was employed.
The Paralegal Professional, 3e
Goldman and Cheeseman
21
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Ethical Obligations (cont.)
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Ethical Wall
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This is an environment in which an attorney or a
paralegal is isolated from a particular case or client
to avoid a conflict of interest or to protect a client’s
confidences and secrets.
Freelance of Independent Paralegals who work for
more than one firm or attorney face the potential
problem of a conflict of interest.
The Paralegal Professional, 3e
Goldman and Cheeseman
22
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Duty of Confidentiality
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Confidentiality: This is a duty imposed on the
attorney and each member of the legal team to
enable clients to obtain legal advice by
allowing the client to freely and openly give the
members of the legal team all the relevant facts
without fear of disclosure of those facts.
The Paralegal Professional, 3e
Goldman and Cheeseman
23
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Duty of Confidentiality (cont.)
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Limited situations in which disclosure of client
facts may be required:
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To prevent the commission of a future crime or
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To defend against a client’s suit.
The Paralegal Professional, 3e
Goldman and Cheeseman
24
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Attorney-Client Privilege
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This privilege is found in the state or federal
evidence code and is a rule of evidence that
applies in cases where the Rules of Evidence
apply:
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A court of law
A deposition
Other places where a witness is under oath such as
interrogatories, responses to requests for documents
or grand jury hearings.
The Paralegal Professional, 3e
Goldman and Cheeseman
25
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Attorney-Client Privilege (cont.)
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
The privilege belongs to the client not to the
attorney.
The person claiming the privilege, usually the
client, has the burden to establish the existence
of the privilege.
Extension of the Attorney-Client Privilege to
Others: extends to agents of the attorney for
the efficient administration of justice.
The Paralegal Professional, 3e
Goldman and Cheeseman
26
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Work Product Doctrine
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The Work Product Doctrine
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Limited protection for material prepared by the
attorney or those working for the attorney in
anticipation of litigation or trial
This doctrine
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Relates to the information provided by the client
regardless of whether they involve potential
litigation.
The Paralegal Professional, 3e
Goldman and Cheeseman
27
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Work-Product Doctrine (cont.)
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Exceptions and Limitations:
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Does not cover documents prepared in the normal
operation of the client’s business such as sales
reports, data analysis or summaries of business
operations.
Third-Party Document Exception: Courts have
made an exception when a lawyer is trying to find
out the other party’s strategy by asking about
documents already in his/her possession.
The Paralegal Professional, 3e
Goldman and Cheeseman
28
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Work-Product Doctrine (cont.)
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Exceptions and Limitations (cont.):
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Governmental Attorney Exception: Government
attorneys should have no privilege to shield
relevant information from the public citizens to
whom they owe ultimate allegiance as represented
by the grand jury.
The Paralegal Professional, 3e
Goldman and Cheeseman
29
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Work-Product Doctrine (cont.)
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Inadvertent Disclosure of Confidential
Information: The treatment will depend on the
individual jurisdiction. The courts follow no
single policy.
Judicial views:
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Automatic waiver
No waiver
Balancing test
The Paralegal Professional, 3e
Goldman and Cheeseman
30
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Work-Product Doctrine (cont.)
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Internal investigations and Evidentiary
Privilege:
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Internal investigations and audits mandated by state
and federal regulation create a body of documents,
some or none of which may be subject to
evidentiary privilege.
The Paralegal Professional, 3e
Goldman and Cheeseman
31
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Candor and Fairness
in Litigation
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It is the duty of the advocate to avoid any
conflict that undermines the integrity of the
process. The duty to the client to persuasively
present the case is a qualified duty, qualified by
the ethical obligation (candor) to not mislead
the court or opposing counsel with false
statements of law or of facts which the lawyer
knows to be false.
The Paralegal Professional, 3e
Goldman and Cheeseman
32
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.
Fairness to Opposing Party
and Counsel

The ethical rule of fairness to opposing counsel
and parties is an attempt to set the guidelines to
ensure justice is done if one’s client loses the
case.
The Paralegal Professional, 3e
Goldman and Cheeseman
33
© 2011, 2008, 2003, Pearson Higher Education,
Upper Saddle River, NJ 07458. • All Rights Reserved.