The Code and The Rules
Paralegal Standards of Conduct and Integrity, Part 2
Laurie Borski, Ethics Chair
The Code of Ethics and Professional Responsibility of
the Legal Assistants Division of the State Bar of Texas (the “Code”) was adopted on March 27,
1982.1 The
Code serves as a general guide to the high standard of conduct and integrity by paralegals that is
fundamental to the profession.
Canon 6. A legal assistant shall not engage in performing paralegal functions other
than under the direct supervision of an attorney, and shall not advertise or contract with members
of the general public for the performance of paralegal functions.
The Rules address the part played by non-attorney staff
in assisting the lawyer in the rendition of legal services. However,
the Rules also make it incumbent upon the lawyer to provide the proper supervision.
A lawyer must make reasonable efforts to ensure that
non-lawyer employee conduct is compatible with the professional obligations of the lawyer.
Tex. Disciplinary R.
Prof. Conduct, 5.03 (a). The lawyer is also under a duty to provide appropriate ethical instruction and
supervision to non-lawyer staff and is responsible for their work product.
Measures taken by the lawyer in this regard should take into account that such employees do
not have legal training and generally are not subject to professional discipline.
Id at comment 1.
With respect to a paralegal providing direct legal
services to the public, this canon should be read to specifically exclude those situations
authorized by statute, court or agency rules. For those
paralegals employed in law firms, corporations or governmental entities, each lawyer in a position
of authority should make reasonable efforts to ensure the organization has measures giving
reasonable assurance that the conduct of nonlawyers is compatible with the professional obligation
of the lawyer. Id
at comment 2.
Canon 7. A legal assistant shall avoid, if at all possible, any
interest or association which constitutes a conflict of interest pertaining to a client matter and
shall inform the supervising attorney of the existence of any possible conflict.
The Rules devote the majority of space under
“Client-Lawyer Relationship” to defining potential conflicts of interest situations.
The sanctions for violating this basic tenet of the client-lawyer relationship has been the
subject of case law and the penalties levied against lawyers have ranged from private reprimand to
loss of their license to practice law.
Loyalty is an essential element in the lawyer’s
relationship to a client. Tex.
Disciplinary R. Prof. Conduct, 1.06 at comment 1. A
fundamental principle is that a lawyer may not represent opposing parties in litigation.
Moreover, as a general proposition, loyalty to a client prohibits undertaking representation
directly adverse to the representation of that client in a substantially related matter unless the
client’s fully informed consent is obtained and unless the lawyer reasonably believes that the
lawyer’s representation will be reasonably protective of that client’s best interests.
Id at comment 2.
Paralegals recognize that a change in employer may
result in conflict of interest situations. Your
employer may represent a certain client, and your change of employment could literally bring you to
the opposing side. Not all situations are as clear as
moving from advocate to opposing counsel however. The question is often one of proximity and degree.
Id at
comment 13. As soon as you have reason to believe a
conflict may exist,
you must immediately report that conflict to your supervising attorney or manager.
It is up to the supervising attorney to determine if an impermissible conflict exists and, if
so, to determine the best course of action. The Rules
are very clear as to conflicts of interest and the actions to be taken in the client’s best
interest. If such a conflict arises after
representation has been undertaken, the lawyer must take effective action to eliminate the conflict,
including withdrawal. Id at comment 1.
In the case of non-lawyer staff, a frequent approach is to erect a “Chinese Wall” that
prohibits any contact between the staff member and the client or matter for which the conflict is
believed to exist.
Canon 8. A legal assistant shall maintain a high standard of
ethical conduct and shall contribute to the integrity of the paralegal profession.
Lawyers are obligated to maintain the highest standards
of ethical conduct. Tex.
Disciplinary R. Prof. Conduct, preamble. This includes being competent, prompt and diligent in pursing a client’s
interests. A lawyer’s conduct should conform to the
requirements of the law, both in professional service to clients and in the lawyer’s business and
personal affairs. A lawyer should demonstrate respect for the legal system and for those who serve
it. A lawyer has a moral obligation to participate in
or otherwise support the provision of free or substantially reduced legal services to the
disadvantaged who cannot afford legal assistance. Above
all, each lawyer’s own conscience is the touchstone against which to test the extent to which his
actions may rise above the disciplinary standards prescribed by the Rules.
Id.
The practice of law is a noble profession.
It is incumbent upon paralegals to maintain the same high standards of ethical conduct
required of the lawyers with whom we work.
Canon 9. A legal assistant shall maintain a high degree of
competency to better assist the legal profession in fulfilling its duty to provide quality legal
services to the public.
The Rules define lawyer competence as possessing the
legal knowledge, skill and training reasonably necessary for the representation of the client.
Tex. Disciplinary R.
Prof. Conduct, 1.01 and comment. Competent
representation contemplates appropriate application by the lawyer of that legal knowledge, skill and
training, reasonable thoroughness in the study and analysis of the law and facts, and reasonable
attentiveness to the responsibilities owed to the client. Id at comment 1.
Paralegal competence includes the knowledge, skill and
training necessary for you to render the best possible service to the client.
Participate not only in formal continuing legal education programs but also in training that
enhances the skills with which you perform. Stay
informed on changes in the law that affects your area of practice through review of legal
publications and seminar attendance.
Canon 10. A legal assistant shall do all other things incidental,
necessary or expedient to enhance professional responsibility and the participation of legal
assistants in the administration of justice and public service in cooperation with the legal
profession.
This canon might be a “catch all” canon, requiring
that paralegals do what is necessary to enhance professional responsibility.
Lawyers as public citizens are called upon to seek improvement of the law, the administration
of justice and the quality of service rendered by the legal profession.
Tex. Disciplinary R.
Prof. Conduct 1.01, comment 4.
There is no question that the second half of the canon asks paralegals to contribute to the
integrity of the profession by performing pro bono and public service work, under the proper
supervision of attorneys as necessary. Personal
involvement in the problems of the disadvantaged can be one of the most rewarding experiences in
life.
1
The Code of Ethics and Professional Responsibility of the Legal Assistants Division of the
State Bar of Texas is available at lad.org
2
The Texas Disciplinary
Rules of Professional Conduct is available at Tex. Govt. Code Ann and at http://www.texasbar.com.
3
Southern Methodist University Underwood Law Library, Guide 306, Ethics Opinions of the State
Bar of Texas, available at http://library.law.smu.edu/resguide/txethics
Laurie
Borski is Chair of the Professional Ethics Committee of the Legal Assistants Division.
She has served on the LAD Annual Meeting and Election Committees and is a past president of
the Alamo Area Professional Legal Assistants in San Antonio. You can reach her at 210.250.6041 or laurie.borski@strasburger.com.
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