Advancing the Profession
Through Ethical Conduct
Javan Johnson, ACP, President, Paralegal Division, State Bar of Texas
Paralegals must work under the
supervision of an attorney, and
therefore the paralegal and the attorney
become team members. They work together
on behalf of clients and share in the
ethical and legal responsibilities arising as
a result of the attorney-client relationship.
Paralegals must know what their responsibilities
are, why they exist, and how they
affect them. Attorneys must also understand
these same ethical responsibilities.
A paralegal must also have full knowledge
of the ethical rules that govern attorneys,
in that those same rules govern paralegals,
a violation of such rules by a paralegal
may result in serious consequences for
the client, for the attorney, and for the
paralegal. Attorneys are governed by the
American Bar Association - Model Rules
of Professional Conduct, and by the State
of Texas through the Texas Disciplinary
Rules of Professional Conduct which sets
forth the rules attorneys must abide by to
practice law in the State of Texas. In that
paralegals are not regulated, there are no
"formal" rules paralegals must follow, but
the rules that regulate the attorneys, spill
over to their paralegals. Also, if a paralegal
is a member of the Paralegal Division of
the State Bar of Texas, they must agree to
abide by the Code of Ethics and
Professional Responsibility of the Paralegal
Division of the State Bar of Texas, hereinafter
referred to as the “Code,” and
which will be referenced herein.
A paralegal with a clear understanding
of the rules of ethics is an invaluable asset
to any law practice. Ethical behavior in the
workplace increases client satisfaction,
reduces the risk of liability for the employer,
and perhaps even more important, fosters
a sense of respect and pride for the
profession. The following tips offer some
suggestions on how you can incorporate
the rules of ethics and professional
responsibility into your daily life as a practicing
paralegal.
Set a High Standard for Competence as a
Paralegal.
There is a duty of competence set forth by
the rules for attorneys, and therefore, the
same is true for paralegals, i.e. Canon 9 of
the Code.
Keep abreast of changes in the law, in
technology and in ethics. Attend continuing
legal education seminars in your area of
practice, as well as in ethics.
CLE is not required in order to work as
a paralegal in Texas, but it is imperative to
keep up-to-date on legal knowledge and
skills.
CLE is only required for those paralegals
who are certified by NALA, NFPA,
TBLS, and other organizations. CLE is also
now required for membership in many
paralegal organizations, such as the
Paralegal Division of the State Bar of Texas,
and local associations.
CLE is very easy to obtain with the
Division, as well as the State Bar, offering
online CLE, live webcasts, in addition to
live seminars, such as the Texas Advanced
Paralegal Seminar (TAPS) held each Fall,
and other live presentations held throughout
the state. Most organizations and assoc
iations also accept self-study hours, so
reading the Texas Pa ralegal Journal, Texas
Bar Journal, advance sheets, legal periodicals,
and other materials constitute selfs
tudy.
Also, consult , and hundreds of other
websites that continue to post updated
laws.
Subscribe to e-groups that will be effective
for your work and profession, such as .
You will be able to send and receive valuable
information and questions to assist
you on a daily basis.
Take advantage of educational opportunities
offered by paralegal associations and
bar associations.
Understand that your paralegal education
and experience provide a foundation
on which you are expected to build
throughout your career.
Common breaches of the duty of competence
may be missed deadlines and
errors in documents. Strive to be detailed
and thorough in your work so these
breaches do not happen.
If you have an attorney that is not adequately supervising you, improve your
communications with the attorney to bring
this to their attention, i.e. force them to be
your supervisor.
Keep up with new software and updated
versions of programs you already use.
Evaluate whether the programs you are
using are being used to their fullest. Get
the appropriate training if the programs
are not being properly used. If there are
better programs for your office to use that
would be more efficient, be sure and
research and share that information.
Do these things at a minimum, and
always strive for the highest possible standard
with respect to competence and skills.
Recognize the Pitfalls of the
Unauthorized Practice of Law.
A paralegal may not do what only an attorney
is allowed to do. If you do, this is committing
the unauthorized practice of law,
and can lead to serious consequences
which may include the loss of your job,
civil or criminal charges being brought
against you, and a potential of spending
time in prison or paying monetary damages
to someone. Those matters include:
- You may not give legal opinions or legal
advice of any nature.
- You may not represent a client in court.
The only exceptions that are allowed are
by statute, i.e. Social Security
Administration allows some types of
hearings to be attended by a paralegal.
The United States Bankruptcy Courts
are establishing the same type of situation
in certain hearings. Other adminis-
trative agencies may also be doing so.
- You may not establish an attorney-client
relationship. Your attorney has to establish
the attorney-client relationship and
agree to represent the client.
- You may not set the fees to be charged
for an attorney’s services.
- You must always disclose your paralegal
status and leave no doubt that you are
not an attorney.
- You may not sign pleadings yourself,
nor can you sign your attorney’s name
to pleadings. You may not sign a certificate of service since that is part of a
pleading. Only an attorney can sign
pleadings. TRCP 57.
Giving legal advice or opinions, in any
manner is not allowed, and is considered
the unauthorized practice of law. You may
not:
- Interpret the law for anyone or tell
someone what the law says.
- Sign a letter or any other documents
that contain legal advice without clearly
stating the attorney told you to provide
the information to them.
- Fill out legal forms for anyone, tell them
how to fill out legal forms, or even help
them fill out legal forms without an
attorney’s supervision.
- Recommend what someone should do
in any legal situation, other than recommending
that they seek the advice of an
attorney.
- Tell a client what to do in a situation
because you just "know" the attorney
will tell them the same thing.
- Interpret the law for someone’s situation.
How do you know what is giving legal
advice?
- Never advise someone of any matter
that could alter their rights or legal
position of the person whom you are
giving advice.
- This does not just include clients - this
includes family members, friends, coworkers
and others
- Even a friendly "Well, you should do
this...." can be construed as legal advice.
- A "If I were you, I would....." can be
construed
as legal advice.
- There is a very fine line between just
talking with someone about what they
should do, and that being considered
legal advice, when there is any type of
legal matter or potential legal matter
involved.
- Just because you may have heard an
attorney tell someone the exact same
thing you are telling someone, if YOU
tell it, then it’s legal advice. It can only
come from the attorney.
- Always refer the person to an attorney,
or tell them you will find out the information for them, then make it clear to
them that the answer came from the
attorney.
- And most of all, make sure you keep
your attorney apprised of the fact that
you cannot give legal advice. Attorneys
come to rely upon us heavily, and want
us to take the work load off of them,
and may unknowingly place you into a
situation that would require you to "advise"
someone of what they should do.
Remind the attorney you are the paralegal,
and the advice needs to come from
the attorney.
Always identify your self as a paralegal—in
all correspondence, in all conversations,
faxes, e-mails and any other form of communication with the public. Do not presume
someone will just know you are a
paralegal.
- You may have your name on letterhead
and business cards, but your identification
as a paralegal should be clear.
- Examples:
Jane Smith
Paralegal for Jason Jones
Jane Smith, ACP
Advanced Certified Paralegal
National Association of Legal
Assistants, Inc.
Jane Doe,
Paralegal
Board Certified Legal Assistant—Civil
Trial Law
Texas Board of Legal Specialization
- You may not solicit business for your
attorney or firm.
- Develop strategies for handling these
situations with tact and empathy.
If a client as a problem calling for
immediate attention, it is not sufficient to
tell him or her that as a paralegal you are
not permitted to give legal advice. Inform
the client you will find an attorney who
can assist the client and either you or the
attorney will get right back to the client.
Then be sure you follow up.
When in doubt if you are being faced
with a situation involving UPL, consult the
rules for guidance and speak with your
supervising attorney.
The best rule of thumb is to ask yourself
whether what you are about to say to a
person will directly affect that person’s
decision and actions, which in turn may
affect that person’s legal rights or position.
Demonstrate Respect for Others and for
the Profession.
Canon 8 of the Code places a high standard
of ethical conduct and integrity on
paralegals and reads: "A paralegal shall
maintain a high standard of ethical conduct
and shall contribute to the integrity
of the paralegal profession."
We are constantly struggling for this
profession to maintain a more professional
image, given the media attacks and other
bad information that is spread. Our personal
ethical principles are key to our
maintaining the professionalism that is
necessary to be an effective paralegal.
Do your part to promote an atmosphere of mutual respect and well-mannered
behavior in your workplace by
behaving professionally at all times.
Understand that clients and members
of the public hold us to a higher standard
of ethical conduct. We are expected to
conduct ourselves with dignity and to
show respect for the law and for each
other.
Avoid even the appearance of impropriety.
Given that, you must from time to
time put your sense of professionalism and
dignity before your own emotions when
faced with unprofessional conduct on the
part of others.
Maintain ethical billing practices: do
not over bill time, do not "double bill"
time; do not bill time that is clerical in
nature and not substantive in nature.
Always give credit to the person who
deserves the credit for the work performed.
Do not take credit when it is not
your work.
If you make a mistake, do not cover it
up. Be truthful and honest and take any
consequences that might be associated
with it.
Do this for the good of your clients and
for the profession as a whole.
Understand and Observe the Rules of
Confidentiality.
The ethical rules on confidentiality create
the underpinnings of the attorney-client
relationship. Canon 4 of the Code places
this responsibility on paralegals.
Paralegals ability to provide the best
possible legal services for our clients
hinges on the trust and confidence that the
clients placed in them. Do nothing that
could jeopardize this.
Recognize common danger zones for
paralegals in preserving confidentiality,
such as discussing clients and cases with
family and friends, discussing a client’s
matter in public or a common area when a
conversation might be overheard, interviewing
clients in your office when other
clients’ files and documents are in plain
view, and discussing a client’s case with a
witness during an investigation.
Watch what is up on your computer
screen or what files are able to be observed
when others are in your office.
Be mindful of other persons nearby
when you are discussing matters out in
public. You never know who is sitting at
the next table—they may have some connection
with the matter you are discussing.
Be careful what is discussed of a confidential
nature while on a cellular phone,
and be cautious when sending e-mail messages
- watch the content of your message,
and be overly cautious in double-checking
exactly who is going to be receiving the
message.
Demonstrate Loyalty to the Client by
Recognizing Potential Conflicts of
Interest.
Canon 7 of the Code imposes the duties
regarding conflicts of interest.
Be diligent in following your firm’s
practices for conflict checking.
If you believe a conflict may arise in a
case you are handling, speak to your
supervising attorney immediately.
It is better to address conflict issues at
the earliest possible opportunity; waiting
until later may result in unnecessary cost
and embarrassment for you and for your
employer.
If changing jobs, if there is any chance
of a conflict of interest for cases and clients
that you may have been representing at
your former job, create an ethical wall by
immediately advising members of the new
firm, and your attorneys, and follow or
create procedures to wall off any chance of
working on those matters at your new firm.
No one should discuss the conflicting case
in your presence; you should not be
allowed any access to documents, even if it
means keeping that file locked up; and
above all, no one at the new firm should
ever request you to discuss your work on
the case at your prior firm.
Demonstrate Loyalty to Your Employer
through Your Professionalism.
You are a representative of your firm or
company.
Paralegals interact with clients, witnesses,
other firms, and court personnel on a
regular basis.
Refraining from gossip or negative
remarks about your firm or employer.
Attorneys and paralegals work together
as integral members of a team on behalf of
the clients.
If difficulties or conflicts arise with
your supervisor, speak to that person
directly in an effort to resolve them.
Practice Diligence in Completing Your
Work Promptly and Efficiently.
Prioritize your work to avoid neglecting
important projects.
Be scrupulous in maintaining your calendar
and tickler system.
Understand your own limits, and speak
to your supervisor if the volume of work
becomes so overwhelming that you run
the risk of neglecting projects or missing
deadlines.
It is better to ask for assistance from
your paralegal co-workers or from your
supervisor than to ignore the problem
until it is too late.
Recognize Your Role as the Client’s
Contact, and Promote Responsiveness to
the Client’s Questions and Concerns.
Common complaints by clients about
attorneys and some of their staff members
is that they are unresponsive.
Make it a point to return your clients’
phone calls in a prompt and courteous
manner.
When a client has a question calling for
legal advice, bring it to the attorney’s
attention quickly, and encourage the attorney
to respond to the client promptly.
If the attorney is busy, offer to pass
along the message the message, being careful
to avoid giving legal advice yourself.
Know When to Ask for Help and Where
to Get It.
Every paralegal should have a copy of
the ethical rules for attorneys and paralegals.
Regularly review ethics opinions, disciplinary
proceedings, and cases interpreting
the rules of professional conduct.
When questions or concerns about
ethics arise, know where to turn for help.
Some firms may have a designated person
within the firm as the "contact person"
for ethical inquiries.
Many state and local attorney licensing
and regulatory agencies, bar associations,
and paralegal associations provide services
to legal professionals who have ethical
questions.
Inquire about your firm’s policies
regarding ethical questions and take
advantage of all available resources.
Become Active in Local, State and
National Professional Associations.
Collaborate with and learn from your colleagues
as a member of a paralegal professional
association, such as your local associations,
the Paralegal Division, or even
one of the national associations, NALA or
NFPA.
These organizations take pride in raising
awareness about the paralegal profession,
and provide excellent sources of
information for their members and for the
public.
These associations also have promulgated
ethical guidelines for paralegals and
publish ethics opinions and cases on ethics
to guide their members.
Consider becoming certified. The Texas
Board of Legal Specialization offers specialty
exams in Civil Trial, Personal Injury,
Family, Estate Planning and Probate, Real
Estate and Criminal. NALA offers the
Certified Legal Assistant/Certified
Paralegal exam, and the Advanced
Certified Paralegal exams; NFPA offers the
PACE exam; and other associations also
offer exams.
Remember, the paralegal profession is
an unregulated profession. We now have
the Paralegal Standards which were
approved by the State Bar of Texas in April
2006, however these are not “required
guidelines” for paralegals or attorneys.
However, attorneys and paralegals are
encouraged to follow these standards, and
individually meet those standards. If we
are expected to be treated as professionals,
then we have to be professional in every
respect. Raise the bar, and advance the
profession by raising your own standards!
Javan Johnson, ACP, is a freelance paralegal
who began her own business in
Longview in February 1999, specializing in
civil trial litigation, after working 20 years
for a sole practitioner. She has a bachelor’s
degree in Business Administration and
Business Education from Baylor
University. Javan obtained her CLA in
1990, earned the NALA Advanced
Certified Paralegal designation in 1993, and
became certified in Civil Trial Law by the
Texas Board of Legal Specialization in
1996. Javan has served the Paralegal
Division of the State Bar of Texas (PD) for
many years as subchair and chair on various
committees, served on the Board of
Directors as District 14 Director, served as
President in 2000-2001, and now serves as
President for 2006-2007. She was the
recipient of the Award of Excellence in
2004. In addition to being a charter member
of PD, Javan is also a charter member
of the Northeast Texas Association of
Paralegals, Inc. (NTAP), in Longview, and
has served that organization since its
inception in 1988 in a number of different
offices, including President. Javan participated
in the start-up of the legal assistant
program at Kilgore College in 1988, and
has been an instructor in that program
since that time. Javan has been married to
her husband, Brett, for 20 years, and has
one son, Cameron, age 18.
Additional References:
Paralegal Division, State Bar of Texas Code
of Ethics and Professional Responsibility
Paralegal Division, State Bar of Texas;
Ethics FAQS as posted on www.txpd.com
|
