Ellen Lockwood, CLA—Ethics
Chair
Canon 2 of the Code of Ethics and Professional
Responsibility of the Legal Assistants Division is as follows:
A legal assistant shall not perform any of the
duties that attorneys only may perform or do things which attorneys
themselves may not do.
We are all familiar with the rule not to give legal
advice. However, what agreements, if any, may a paralegal make with
others involved in a matter? May
a legal assistant make an agreement with opposing counsel?
With counsel for other plaintiffs or defendants? With a judge?
With a trademark examiner?
Generally speaking, since legal assistants are
prohibited from doing anything only attorneys may do, making or
modifying agreements with others involved in the client’s lawsuit,
sale, trademark application, or any other legal matter may be crossing
the ethical line. Attorneys represent their clients as counselors,
advocates, and guardians. Except in a few exceptions in administrative
hearings, legal assistants do not represent clients. Since we do not
represent the client, we cannot make agreements on behalf of the client.
Agreements with Opposing Counsel
Your attorney is away from the office and you are
not able to contact her until much later today or tomorrow. Opposing
counsel calls and would like an extension of time to respond to
discovery requests. The deadline for responding to the discovery
requests is tomorrow, but the opposing attorney will be out of town
tomorrow and needs to know today.
Although it is polite to try your best to work with
opposing counsel, you should not agree to an extension of time. Explain
to the attorney that you cannot make such an agreement, but that you
will do your best to contact your attorney and let her know as soon as
possible. Although reasonable requests for extensions of time to answer
discovery requests are generally granted, your attorney is representing
her client when she agrees to do so. You do not represent the client, so
you should not make such an agreement. In addition, unless opposing
counsel had reason to believe you had received permission from your
attorney to communicate her acceptance of such an agreement, relying on
your agreement to an extension would be unwise and perhaps unenforceable
since you do not have authority to make such an agreement.
Agreements with Judges
Your attorney has left the office for an important
meeting and given you the dates he is available for trial in a
particular case. The judge’s clerk calls to discuss trial dates with
you. The judge’s clerk states that there is only one date available in
the next six months. According to your attorney’s calendar, he is
available then; however, that is not one of the dates your attorney
indicated he was available. The judge’s clerk indicates that the date
will probably not be available much longer that day.
Although tempting, unless you have instructions
from your attorney allowing you to schedule him for things such as trial
if his calendar is clear, you should not agree to a trial date. Your
attorney may be frustrated at missing a chance to schedule an earlier
trial date. However, that is better than having to explain to the judge
why his office agreed to a date when he knew he wasn’t available.
Agreements with Others
As a intellectual property paralegal, I often speak
to trademark examiners in the US Patent and Trademark Office about our
clients’ pending trademark applications. At times, an examiner will
say that she is willing to make a simple amendment to our client’s
application if we will agree. Although I always identify myself as a
paralegal at the beginning of all phone conferences with examiners, they
sometimes forget who I am and ask if we will agree to an amendment. Even
though it is tempting, and sometimes I even have discussed that very
amendment with my attorney, I cannot make such an agreement. I inform
the examiner that I will have my attorney call him back to let him know
whether we will agree to the amendment.
Although
these are just a few specific examples, you should always think twice
before agreeing to anything regarding your attorney’s clients. You may
even need to remind your attorney that you should not make particular
agreements, even with her specific instructions, and that it would be
more appropriate, and make you more comfortable, if she made those
agreements herself.
web WIZARDS
http://www5.law.com/tx/bar/lsg/districts.htm#k
Very useful for finding information on the Texas courts and personnel.
It is the online version of the Texas Courthouse and ADR guide, arranged
by county.
http://www.elaw.com
This is a fee-based site that allows you to access attorney work
product,
