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Paralegal Power Break: Legal Ethics

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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.

Published in: Career
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Paralegal Power Break: Legal Ethics

  1. 1. Paralegal Power Break Legal Ethics
  2. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 12. Confidentiality • Rationale for privilege based on need for client to make disclosures to attorney so attorney may effectively represent client’s interests
  13. 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. 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. 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. 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. 17. Solicitation • Attorney also prohibited from soliciting through another person
  18. 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. 19. Fees • Work performed by paralegal commonly billed to client – Usually at rate significantly less than that for attorney
  20. 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. 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. 22. Trust Accounts • Accurate recordkeeping essential to properly account for monies received and disbursed
  23. 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. 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

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