Concise Guide to Paralegal Ethics
Second Edition
Therese A. Cannon
Chapter One
Regulation of Lawyers and Paralegals
In this chapter, you will learn about:
 The inherent power of the courts over the practice of
law
 The organized bar’s participation in lawyer regulation
 The role of the legislature and state statutes in
governing the conduct of lawyers
 The American Bar Association and its influence on
legal ethics
Page 1 of 2
Chapter One
Regulation of Lawyers and Paralegals







The evolution of the paralegal profession
Professional associations for paralegals
The status of paralegal regulation
The distinction between certification, licensing, and
limited licensing
The liability of paralegals and the lawyers who
supervise them
Guidelines for the utilization of paralegal services
Ethics guidelines promulgated by paralegal
associations
Page 2 of 2
ABA’s Model Codes of Ethics



Canons of Professional Ethics
Model Code of Professional Responsibility
Model Rules of Professional Conduct
Sanctions




Disbarment
Suspension
Probation
Reprimand (or reproval)
Professional Paralegal Associations





NFPA (National Federation of Paralegal
Associations)
NALA (National Association of Legal
Assistants)
AAfPE (American Association for Paralegal
Education
IPMA (International Paralegal Management
Association)
NALS (Association for Legal Professionals)
Certification

Certification is the voluntary recognition of an
occupation based on a person’s having met
specified qualifications.
Licensing

Licensing is a mandatory form of regulation
in which a government agency grants
permission to engage in an occupation and/or
use a title.
Arguments Favoring Licensing



Provides appropriate public recognition for
paralegals as important members of the legal
services delivery team
Ensures high standards and quality of work by
paralegals
Expands the use of paralegals, thereby expanding
access to legal services and lowering costs
Page 1 of 2
Arguments Favoring Licensing


Provides assurance to clients and employers of
paralegals of the qualifications
Encourages needed standardization in paralegal
education
Page 2 of 2
Arguments Against Licensing






Not a benefit to the public because attorneyemployers are already fully accountable to clients
Would increase the cost of legal services
Would stifle the development of the profession
Inappropriately limits entry into the profession
Unnecessarily standardizes paralegal education
Limits paralegals from moving into new areas of
practice or duties
Chapter Two
Unauthorized Practice of Law
In this chapter, you will learn about:
 The history of the unauthorized practice of law
 Definitions of practice of law
 The attorney’s ethical responsibility to prevent the
unauthorized practice of law and to supervise
paralegals
 Key areas of concern to paralegals in the
unauthorized practice of law
Factors Creating Need for Nonlawyer
Legal Services Providers



The decrease in funding for the Legal
Services Corporation that formerly
supplied legal services to people of low
and moderate income
The increase in the need for legal services,
due to the proliferation and complexity of
laws
The rising cost of legal services provided
by lawyers
Determining If Specific Conduct is
the Practice of Law

Consider



Whether the services required the skills and
knowledge of an attorney
Whether the activity is one that is traditionally
performed by a lawyer
Whether the services are essentially legal or are
“incidental” to some other transaction
What Constitutes the Unauthorized
Practice of Law?



Making Court Appearances
Establishing the Attorney-Client Relationship
Giving Legal Advice
What Constitutes
Giving Legal Advice?




Directing or recommending a course of action to a
client about how to proceed in a matter that may
have legal consequences
Explaining to a client his or her legal rights and
responsibilities
Evaluating the probable outcome of a matter,
including litigation
Interpreting statutes, decisions, or legal documents to
a client
Independent Contractor Paralegals

An independent contractor paralegal (also
known as a freelance paralegal) is a paralegal
who handles projects for attorneys on an asneeded basis.
Chapter Three
Confidentiality
In this chapter, you will learn about:




The foundations and basic principles of
confidentiality
The attorney-client privilege and the difference
between the privilege and the ethics rules on
confidentiality
Information that is privileged or protected by the
rule of confidentiality
How and when the privilege and the duty of
confidentiality may be broken or waived
Page 1 of 2
Chapter Three
Confidentiality (continued)




The work product rule
How the principles and rules of confidentiality come
into play for paralegals in practice
How to protect confidentiality of information and
records
Special problems in maintaining confidentiality with
technology
Page 2 of 2
Confidentiality

The principle of confidentiality is based on
the notion that:


an attorney must know all the facts if he or she is
to best serve the client, and
that a client will not provide full disclosure
without assurance that information that may be
incriminating or embarrassing will not be
revealed outside the lawyer-client relationship.
Attorney-Client Privilege

The general rule regarding attorney-client
privilege is that a client who seeks a lawyer’s
advice or assistance may invoke an
unqualified privilege not to testify and to
prevent the lawyer from testifying as to
communications made by the client in
confidence.
If a Paralegal Receives Privileged
Documents . . .



Refrain from reviewing such materials as
soon as it is evident that they are privileged
Notify the sender about the materials
Either follow instructions of the sender, or
seek a resolution of the disposition of the
materials from a court
Work Product Doctrine

Federal and state rules of evidence and
discovery provide for the protection of
materials prepared by lawyers in anticipation
of litigation.
Technology and Confidentiality
Consider how the following can cause breaches
in confidentiality:
 Electronic records
 Facsimile machines
 Cellular and cordless telephones
 Computers
 Electronic mail
Procedures to Protect Confidentiality
when Using Computers



Inform clients about the risks of electronic
communications and obtain their written
consent to use electronic mail
Refrain from using e-mail for very sensitive
communications
Mark all confidential e-mails as privileged
and include a statement telling the reader
what to do if the communication is
inadvertently sent to the wrong person
Page 1 of 2
Procedures to Protect Confidentiality
when Using Computers



Limit the recipients of a privileged e-mail to
those who are absolutely essential to the
privileged communication and warn recipients
not to send such communications on to other
persons.
Consider the use of encryption software
Consider closed networks using land-based
lines with regular clients
Page 2 of 2
Chapter Four
Conflicts of Interest
In this chapter, you will learn about:
 Rules governing conflicts involving clients,
including simultaneous and successive
representation
 Rules governing personal and business
conflicts
 Disqualifications caused by individual
conflicts of interest that are imputed to an
individual’s firm
Page 1 of 2
Chapter Four
Conflicts of Interest (continued)



Client consent to conflicts
Screens to protect against disqualification
The use of conflicts checks and paralegals’
responsibility to maintain records
Page 2 of 2
What Ethics Rules Governing
Conflicts of Interest Cover




Simultaneous representation of adverse
interests
Representation that is adverse to a former
client
Representation of clients whose interests
are aligned
Lawyer’s financial, personal, or business
interests that are or may be adverse to a
client
Concurrent Representation

Concurrent (or Simultaneous) representation
occurs when an attorney represents two
clients whose interests are adverse to one
another.
Consents (or Waivers)
Whether a court honors a client’s consent depends on a
number of circumstances, including:
 The extent of the disclosure and discussions with the
client about the implications of dual representation
 Whether the consent was truly voluntary and not given
under pressure from the attorney or others
 When the attorney raised the issue with his or her client
Page 1 of 2
Consents (or Waivers)
Whether a court honors a client’s consent depends on a
number of circumstances, including:
 The capacity of the client to understand fully the
implications of the dual representation and consent
 Whether or not the client consulted with and relied
upon independent counsel
 Whether the consent is written and signed
Page 2 of 2
Successive Representation

Successive representation is a conflict of
interest situation involving a current matter
and a former client whose interests conflict.
Other Conflicts Rules Cover:





Business transactions
with clients
Publication, literary, and
media rights
Financial assistance to
clients
A lawyer’s interest in
litigation
Gifts from clients




Agreements with clients
limiting the attorney’s
malpractice liability
Payment of attorney’s fees
by a third party
Relatives of lawyers
Sexual relations with
clients
Imputed Conflicts

Imputed (or vicarious) conflicts: the
imputation of a conflict to others in a firm so
that the entire firm is disqualified from
undertaking the representation
Screens

A screen isolates a disqualified person by
setting up law office procedures to prevent the
affected person from any involvement with or
communication about the matter.
Procedures for Using Screens



A memorandum to all individuals in the firm
informing them of a conflict and screen, and
admonishing them not to discuss the matter
with the disqualified person
Markings on files and documents to indicate
the limitations on access
Programmed computer warnings or blocks to
prevent screened employee’s access to
documents on the firm’s computer network
Chapter Five
Advertising and Solicitation
In this chapter, you will learn about:
 The key cases affecting the ways that lawyer
advertising is regulated
 The current status of legal advertising and marketing
 The ethics rules governing advertising
 How advertising rules apply to paralegals
 Ethics rules prohibiting direct solicitation of clients
 How the limits on solicitation apply to paralegals
 Advertising and solicitation on the Internet
False/Misleading Communication

False or misleading communications contain
material misrepresentations of fact or law, or
omit necessary material facts.
Legal Marketing







Firm Brochures
Newsletters
Rainmakers
Client surveys
Advertising
Web sites
Chat groups/threaded discussions
Solicitation

Ethical rules restrict the conduct of lawyers in
soliciting clients directly, either in person or
by telephone.
Runners and Cappers

There is a longstanding prohibition against
runners and cappers--agents of lawyers who
prey on accident victims by soliciting them
directly, usually at the accident scene or
hospital.
Chapter Six
Fees and Client Funds
In this chapter, you will learn about:
 How fee arrangements are made with clients,
including fixed fees, contingency fees, and hourly
fees
 Alternative fee arrangements
 Factors in determining if a fee is unethically
excessive
 Unethical billing practices
 Communication of fee agreements with clients
 Terms included in fee arrangements
Page 1 of 2
Chapter Six
Fees and Client Funds (continued)





Award of attorney’s fees under fee-shifting statutes
Inclusion of paralegal fees in fee awards
Fee-splitting and referral fees
Partnerships between lawyers and non-lawyers and
trends in this area
Client funds and client trust accounts
Page 2 of 2
Types of Fees




Fixed fees
Contingency fees
 Sliding scale
Hourly fees
Statutory/court awarded fees
Ethics Rules about Fees
Factors to determine whether a fee is unethically high:
 The time and labor required, the novelty and difficulty
of the questions involved, and the skill requisite to
perform the legal service properly
 The likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude
other employment by the lawyer
 The fee customarily charged in the locality for similar
legal services
Page 1 of 2
Ethics Rules about Fees
Factors to determine whether a fee is unethically high:
 The amount involved and the results obtained
 The time limitations imposed by the client or by the
circumstances
 The nature and length of the professional relationship
with the client
 The experience, reputation, and ability of the lawyer
or lawyers performing the services
 Whether the fee is fixed or contingent or the degree of
risk assumed by the lawyer
Page 2 of 2
What a Fee Agreement Covers









The scope of the firm’s services
Responsibilities of the client and the firm
The method of determining the fee
Rates for different professionals if services are billed
hourly
Costs the client is obligated to pay and when
Termination rights for both parties
Disposition of client files at the end of the matter
The method and time of fee payment
The procedure for and frequency of billings
Retainer

A retainer is a fee paid at the commencement
of agreed-upon work, to assure the availability
of the lawyer to handle specified matters
Documentation for Court to Award
Paralegal Fees




Credentials and experience of paralegals
Detailed descriptions of the work performed,
including the number of hours spent on each discrete
task
Information on paralegal compensation, overhead
allocated to paralegals, and hourly rates
Market data on practices and rates in the legal
community
Commingling

Commingling is the mixing of client funds
with lawyers’ funds.
Client Trust Account

A client trust account is a bank account set up
by a lawyer in which funds are kept that
belong to one or more clients
Chapter Seven
Competence
In this chapter, you will learn about:
 Definitions of lawyer and paralegal competence
 Key components of competence for paralegals
 Sanctions for incompetence
 Trends in malpractice
 Common dilemmas confronting paralegals in
the area of competence
 Factors in the work environment that affect
competence
Definition of Competence



Legal knowledge, skill, thoroughness, and
preparation
Reasonable diligence and promptness
Communication with clients to keep them informed
about the status of their matters, to comply with
reasonable requests for information, and to explain
matters so that clients can make informed decisions
Most Common Bases for
Malpractice Claims





Substantive incompetence
Management incompetence
Poor communication skills and practices
Fee misunderstandings
Substance abuse and stress
Advice for Avoiding Malpractice
Suits





Use carefully drafted letters of engagement as well as
letters terminating or declining representation
Clients should be selected carefully
Lawyers and clients should enter into complete and
well-drafted fee agreements for each representation
Clients should be charged reasonable fees that are in
accord with fee agreements
Clients’ phone calls and e-mails should be returned
promptly
Page 1 of 2
Advice for Avoiding Malpractice
Suits (continued)





Lawyers and paralegals should listen to clients
carefully and try to understand their goals and
expectations
Lawyers should exercise independent judgment on
clients’ behalf and should respect clients’ decisions
Law firms should have good management systems and
well-trained personnel
Lawyers and paralegals should be scrupulous in
handing clients’ funds
Lawyers and paralegals should know the limits of their
competence
Page 2 of 2
Attorney Review

This is the responsibility of supervising
attorneys to review work of paralegals.
Chapter Eight
Special Issues in Advocacy
In this chapter, you will learn about:
 The duty to represent clients zealously
 Unmeritorious claims, delay, and abuse of discovery
 Disruptive courtroom tactics and sanctions for those
actions
 Sanctions for disobeying court orders
 Contempt power and its use
 Candor and honesty in areas involving paralegals
Page 1 of 2
Chapter Eight
Special Issues in Advocacy







Relationships and communications with judges
Contact with jurors
Contact with represented parties
Contact with unrepresented parties
Contact with witnesses
Trial Publicity
Special rules for prosecutors
Page 2 of 2
Unmeritorious Claims, Delay, and
Discovery Abuse
Two specific kinds of acts fall into this category:
 Actions that only serve to harass or to injure
another maliciously
 Claims or defenses that are unwarranted under
existing law unless the lawyer has a good
faith argument to change the law
Examples of Disruptive Conduct in
the Courtroom






Raising an unfounded objection to break opposing
counsel’s train of thought
Making faces or gestures to the judge or the jury
Asking a question that alludes to evidence known to
be inadmissible
Insulting the judge or opposing counsel
Referring to the proceedings in an insulting or rude
manner
Making unsupportable, inflammatory, or prejudicial
side remarks to the jury
Contempt

Contempt is an act that obstructs the
administration of justice, impairs the dignity
of the court, or shows disrespect for the
authority of the court.
Ex Parte

Ex parte means an action taken by or on
behalf of a party without the presence of the
opposing party.
Contact with Parties and
Represented Persons

Attorneys are prohibited from communicating
with parties who are represented by counsel
and must communicate directly with the
person’s counsel.
Chapter Nine
Professionalism and Special Issues for
Paralegals
In this chapter, you will learn about:
 The role of paralegals in the legal
profession
 Definition of professionalism
 Special issues for paralegals
 Paralegal participation in pro bono
activities
Qualities of Professional Paralegals
Commitment to:
 Public service
 Education
 The highest standards
of ethical conduct
 Excellence
 The paralegal
profession




A strong work ethic
Acting with integrity
and honor
Development of the
whole person
Exercising good
judgment, common
sense, and
communication skills
Regulation








Is there a need for regulation?
Who should be regulated?
Who should do the regulating?
Should regulation be mandatory or voluntary?
What level of regulation is appropriate?
What educational requirements, if any, should be
required?
What kind of examination, if any, should be
required?
What, if any, tasks should paralegals be
authorized to perform only if they are regulated?