ETHICS FOR THE LEGAL ASSISTANT
From the Prosecutor's Perspective Murff F. Bledsoe
Assistant District Attorney
The duties of legal assistants in prosecutor's offices vary widely, but all share a common denominator - they work for an elected public official. Every employee of an elected official is viewed as a representative of that office, and because of this their performance is equated with that of the official. Legal assistants should never engage in any practice that could reflect poorly upon the official and the office for whom they work.
Vicious Vic asks Nervous Nellie to go through a file and prepare copies of documents for defense counsel who has previously filed a motion for discovery. Nellie does so and then watches in a discovery conference with the defense counsel as Vic removes many of the documents that she has copied, including criminal history reports on two of the key eye witnesses. What should Nellie do?
Nellie should ask Vic, after the discovery conference, why he did not turn over the documents. Rule 3.09(d) of the State Bar Rules of Professional Conduct sets out the requirement that prosecutors must make certain types of evidence available to the defense. The Code of Criminal Procedure provides for the specific rules of discovery. The rules of discovery can be technical. Vic may be basing his actions on the defendant's motions. If the defense attorney has not properly asked for certain items, Vic is not obliged to turn them over. Again, if Nellie is seriously concerned about Vic's actions, she should go to his supervisor or the elected prosecutor, but she should not interject her legal judgment for that of Vic in a meeting with defense counsel.
A district or county attorney who is not prohibited by law from engaging in the private practice of law [to], at the discretion of the commissioner's court of a particular county, may conduct a private practice of law using the district or county office provided by that county for conducting his or her official duties. Article 41.011 Tex.Gov't Code.
Pursuant to the legislative intent behind section 41.011 of the Texas Government Code, a county attorney may use county-paid employees to perform private work in the county attorney's private practice of law, so long as the county commissioners court has approved the practice prior to the time the attorney renders services to the county. Tx.Atty.Gen. Letter Opinion 93-51. No legal assistant, however, should ever use public stationary, business cards or other material to imply that the private practice legal action is being conducted by the public official in an official capacity.
After work, legal assistant, Friendly Fran, is asked by her friend to run a criminal history on this great new guy she met at her club. Should Friendly Fran do what her friend asks?
No, she should not.
Texas Government Code, Section 411.085 provides:
(A) A person commits an offense if the person knowingly or intentionally:
Legal assistants in the prosecutor's office do not have as clearly defined a client as their counterparts on the defense side, yet there are several areas where confidentiality in a prosecutor's office is either legally required or highly advisable. For example, all grand jury proceedings are secret by law, and a legal assistant must not divulge any information to persons outside the prosector's office unless permitted to do so by a prosecutor or a court order.
Legal assistants may also become privy to important information in a criminal investigation. This information should not be divulged to an inappropriate source, because to do so could result in compromising the investigation. Deliberate disclosure of police action can, in fact, be a crime.
Finally, legal assistants in prosecutor's offices may become privy to damaging or embarrassing information about victims, witnesses, grand jurors or others. One should always be circumspect with this type of information and never forget the harm that careless dissemination could create for others.
As stated in Canon 8 of the Code of Ethics for Legal Assistants, "a legal assistant shall maintain a high standard of ethical conduct and shall contribute to the integrity of the paralegal profession."
Vic and Nellie are having lunch when one of Nellie's friends, Pushy Paula, a reporter for a local CBS affiliate, approaches them and asks Vic what's happening on the murder case. Can Vic comment? Can Nellie?
Probably not, at least not regarding anything substantive. Rule 3.07 and 3.09e of the Rules of Professional Conduct allow for very little public discussion about pending cases. Additionally, most prosecutors offices have policies prohibiting anyone other than the elected official from speaking with members of the media. Although Nellie could confirm such information as the charges filed and court dates, the best answer would be "Paula, I can't talk about that. You need to check with the D.A."
Prosecution legal assistant Hardluck Hilda has her home burglarized. Worthless Will is arrested and charged with the crime. Can the office where Hilda works prosecute Will?
Yes. Unless Will can show actual prejudice will occur if Hilda is a witness in the case, the prosecutor's office can prosecute.
Moving Mary leaves the employment of Sleazy Slime, a local defense attorney, and goes to work for District Attorney, Truth N. Justice. Can Truth's office prosecute the cases it has against Sleazy Slime's clients at the time Mary moves?
Probably so, if Truth's office takes measures to insure that Mary is not involved in any of the cases. Quoting from Formal Opinion Number 342 of the American Bar Association's committee of Professional Ethics, the Court of Criminal Appeals in State Exrel Eidson v. Honorable Billy John Edwards, Judge 104th Judicial District Court, held that "when an individual attorney is separated from participation on matters affecting his former client, that Ôvicarious disqualification of a government department is not necessary or wise'." Exrel Eidson, 793 S.W.2d 1(b) (Ct.Crim.App. 1990). By implication, the rule as set out in Eidson would apply to Mary.
Hopefully this discussion will help to resolve those thorny ethical questions that we all occasionally face. Remember do not be afraid to ask someone when you are in doubt as to what actions to take. As a general rule of thumb, if a legal assistant tries to do the right thing and does nothing that makes them feel uncomfortable or like they are trying to hide something, or get away with something without their supervising attorney making the decision and taking the responsibility, they will avoid these ethical problems.
TEXAS PARALEGAL JOURNAL
Winter 1996
©1996 Legal Assistants Division, State Bar of Texas