In the past two decades, the legal profession has expended great effort to define and refine the principles governing the ethical conduct of attorneys and judges. Sanctions for an attorney violating ethics rules can be private (letter of warning, private reprimand, admonition) or public (public reprimand, probation, suspension, disbarment). More than any other profession, the legal profession has embarked on a campaign to identify and police unethical conduct and fulfill its primary duty of serving the public and the legal system. This short information session will cover the fundamentals of legal ethics.

1. Paralegal Power Break
Legal Ethics

2. History of Ethical Rules
• Formulating ethical principles has been
ongoing task of ABA
– Established Canons of Ethics as early as 1908
• General statements of principle urging proper conduct
• ABA has no disciplinary authority

3. History of Ethical Rules
• In 1970, principles crystallized in ABA’s Model
Code of Professional Responsibility
– Quickly adopted by nearly all states
• Multistate Bar Examination devised separate
ethics test
– Most states then made part of state bar
examination

4. History of Ethical Rules
• In 1983, after several years of intense study
and dialogue, ABA reformulated legal ethics in
Model Rules of Professional Conduct

5. The Model Code and the Model Rules
• Although same issues addressed, comparison
reveals distinct difference
• Canons somewhat resemble Ten
Commandments
– Moral code to live by
• Model Rules reflect more sophisticated,
legislative approach

6. Codes for Legal Assistants
• Legal assistant organizations also formulated
ethical codes designed specifically for
paralegals
– Although infractions of rules do not invoke any
legal sanctions

7. Codes for Legal Assistants
• National Association of Legal Assistants (NALA)
drafted Code of Ethics and Professional
Responsibility in 1975
– Most recent revision published in 1995
– Composed of nine canons in ABA tradition
• But concentrates on unauthorized practice of law

8. Disclosure
• Many ethical problems can be resolved or
mitigated by full disclosure to clients
• Some conflict-of-interest situations may be
eliminated by disclosure of conflict to client
and opposing party and consent by both to
continued representation
• Written documentation of disclosure best

9. Defining the Practice of Law
• Defined in two ways as it relates to
professional ethics:
1. Addresses question of whether attorney is
rendering legal services
2. Defines practice of law in context of unauthorized
practice of law

10. Unauthorized Practice of Law
• Although states vary considerably on specific
activities restricted to lawyers, three activities
universally identified:
1. Legal representation before court
2. Preparation of legal documents
3. Giving of legal advice

11. Confidentiality
• Legal services based on assurance that private
facts of client will not be disclosed to third
parties
• Privilege extends to law firm employees
• Paralegal must be scrupulous in protecting
clients’ confidences

12. Confidentiality
• Rationale for privilege based on need for client
to make disclosures to attorney so attorney
may effectively represent client’s interests

13. Exceptions to Confidentiality
• Client may create exception to attorney-client
confidentiality privilege by one of two ways:
1. Client voluntarily disclosing otherwise confidential
information
2. Client consenting to attorney disclosing otherwise
confidential information
• Client’s intention to commit crime in future not
protected by confidentiality privilege

14. Conflicts of Interest
• Common conflict-of-interest problem arises
when attorney leaves one firm for another and
second firm represents party suing or being
sued by client of former firm

15. Conflicts of Interest
• Risk can be minimized by erecting “Chinese
wall” between attorney and those dealing with
case
• Because paralegals regularly deal with
confidential material, same problem may arise

16. Solicitation
• Ethical concerns aim at distinguishing
advertising from solicitation
• Ethics rules prohibit attorney from directly
contacting individual unless attorney
previously had some type of past relationship
with prospective client

17. Solicitation
• Attorney also prohibited from soliciting
through another person

18. Fees
• Based on contracts between attorney and
client
– Should be specifically discussed by attorney with
client
• Potential conflict emerges whenever fees not
adequately explained to client
• Recurring issue regarding fees concerns
contingency fees

19. Fees
• Work performed by paralegal commonly billed
to client
– Usually at rate significantly less than that for
attorney

20. Reporting Misconduct
• Ethics rules typically require attorney to report
ethics violation of fellow attorney
• If misconduct criminal, legal duty to report
crime falls on paralegal
• If misconduct of professional, noncriminal
nature, duty of paralegal less clear

21. Trust Accounts
• One of the most common reasons for attorney
discipline:
– Misuse of client funds
• Money held for client must never be
commingled with attorney’s personal accounts
– Nor should separate trust accounts be commingled
in any way

22. Trust Accounts
• Accurate recordkeeping essential to properly
account for monies received and disbursed

23. Malpractice
• Usually refers to professional negligence
• People (usually licensed) holding themselves
out as professionals held to professional rather
than ordinary standard of care
– Most provable instance of attorney malpractice:
• Attorney negligently allows statute of limitations to run,
barring further action on client’s lawsuit

24. Misconduct Outside the Practice of Law
• Attorneys subject to disciplinary action for
conduct unrelated to practice of law
• Violations of law by attorneys may be
scrutinized by bar
– In addition to criminal charges