How Do I Remain Ethical?
Ellen Lockwood, ACP, RP
Editor’s Note: The following article is an
excerpt from the Paralegal Ethics
Handbook, which was written by the
Paralegal Division and was published by
West Legalworks, a Thomson business.
For more information and to order copies,
see full page ad on page 2 of this issue.
CHAPTER 2
HOW DO I REMAIN ETHICAL?
Overview
Paralegals must always take care to be sure
they are not crossing any ethical lines.
Paralegals must be familiar with the ethical
guidelines for paralegals and attorneys and
any rules and regulations specific to the
state in which they are working. (See
appendices.) Many paralegals inadvertently
do something unethical because an
attorney asked them to do it. The attorney
may not be aware that what he is asking
the paralegal to do is unethical. It is often
the paralegal’s responsibility to educate the
attorney regarding the ethical limitations
of a paralegal’s duties.
Procedures to Determine Whether a
Course of Action is Ethical
Answers to many ethics questions may be
found in this book, including answers to
common ethical questions later in this
chapter. But when a paralegal is asked to
do something unfamiliar, or which raises
questions, he should consider the following:
Check the rules, if any, regarding what
he is being asked to do. Rules will often
specify who may do something, usually
the attorney or the party. Even when the
rules do not specify who may do something,
it should be assumed the rules were
written with the assumption that they
apply to the attorney or party. Attorneys
will sometimes assume that if a rule does
not prohibit a non-attorney from doing
something, then it is permissible for a
non-attorney to do it. However, the
absence of a prohibition does not imply
permission for a non-attorney do something.
Paralegals do not have clients, attorneys
do. (Freelance paralegals only have attorneys
as clients.) The attorney-client relationship
is based upon the relationship
between the attorney and client, not the
paralegal and client. If what the paralegal
is being asked to do would be considered
representation of the client before a judge,
court, or agency, then it is likely something
only an attorney may do. This
includes signing pleadings (even by permission),
certificates of service, or other
legal documents and appearing on behalf
of a client in a hearing, conference, mediation,
or other proceeding.
Regarding billing and timekeeping matters,
a paralegal should consider whether
he would do it in front of a client. For
example, if he would be reluctant to double
bill, bill for more time than has
elapsed, round up time, or other similar
practices, then those actions are likely
unethical and should be avoided.
Check ethics resources (see appendices)
and ask respected paralegals their opinions.
If in doubt, a paralegal should inform
his supervising attorney that he is not
comfortable that it would be ethical to do
what the attorney is asking and suggest the
attorney or another attorney take care of
the task until the paralegal can further
investigate.
Remember: You are either ethical or
you aren’t. You can’t pick and choose
when to be ethical or which rules to follow.
If a paralegal is frequently asked to
do things he considers unethical, despite
his efforts to educate his supervising attorney,
perhaps he should consider finding a
different job, one where ethics are valued.
After all, the most important aspect of
your professional life is your reputation.
Common Ethics Questions
What is UPL?
UPL is the unauthorized practice of law
and is a criminal offense. UPL includes
giving legal advice, accepting cases or
clients, setting fees, signing pleadings,
appearing in a representative capacity in a
court of law, holding oneself out as an
attorney, or doing anything only a licensed
attorney may do. Courts have generally
prohibited UPL because of a perceived
need to protect individuals and the public
from the mistakes of the untrained and
the schemes of the unscrupulous, who are
not subject to the judicially imposed disciplinary
standards of competence, responsibility,
and accountability.
May a paralegal sign a pleading by permission?
Only an attorney or a party, if not represented
by an attorney, may sign a pleading.
The only person who may sign by permission
for a licensed attorney is another
licensed attorney. See F.R.C.P. 11(a). The
signatures of attorneys or parties constitute
a certificate by them that they have
read the pleading and that to the best of
their knowledge, information, and belief
formed after reasonable inquiry the instrument
is not groundless and brought in bad
faith or groundless and brought for the
purpose of harassment.
May a paralegal sign a certificate
of service or certificate of mailing?
No, only an attorney may
sign a certificate of service.
The certificate by
an attorney or party
shall be prima facie evidence
of the fact of
service. The onlyperson
who may sign by permission
for a licensed attorney
is another licensed attorney.
What must be contained in a paralegal’s
signature block on correspondence?
A paralegal supervised by an attorney can
sign letters on the law firm letterhead if
the signature block contains the paralegal’s
name and title.
Is a paralegal obligated to correct someone’s
assumption that he is an attorney?
Yes. Not to correct this assumption could
expose the paralegal to charges of UPL,
which is a crime.
May I discuss interesting facts about a case
with my friends or family?
Paralegals are obligated to preserve and
protect the confidences and secrets of a
client. Confidential information includes
both privileged information and unprivileged
information. Unprivileged information
means all information relating to a
client or furnished by the client acquired
by the lawyer during the course of or by
reason of the representation of the client.
Unless it is public record, even the fact
that the client has retained the lawyer
should be considered confidential information.
Thus, as tempting as it may be, it
is best not to discuss anything concerning
your lawyer’s cases with friends or family.
If a paralegal is traveling for one client and
works on another client’s file while on the
plane, may the paralegal bill both clients for
that time?
No. This is referred to as double billing
and is
tantamount to stealing. If a paralegal uses
part of the travel time to do another
client’s work, subtract that amount of time
from the travel time billed to the first
client. In other words, partition the time
and charge each client for the time actually
spent working on that client’s file or
while traveling in connection with business.
May a paralegal charge a client for work he
did not perform even if someone else in the
firm performed the work on the client’s
behalf but did not charge for it?
No. It is unethical to charge a client for
work not performed by the person billing
for the work, and it is tantamount to stealing.
Only the person who performed the
work on behalf of a client may charge for
it.
What documents may a paralegal sign?
The general rules for paralegals are as follows:
A paralegal may sign correspondence,
including e-mail correspondence, so long
as no legal advice is given and the paralegal’s
name, title, and either the firm name
or the name of his supervising attorney are
included.
A paralegal may sign correspondence
from an attorney by permission so long as
the paralegal’s title is clearly indicated and
the letter does not contain legal advice or
agreements. If the letter contains legal
advice or agreements, the attorney
should sign or have another
attorney sign by permission.
A paralegal is not allowed
to sign legal agreements,
pleadings, or certificates
of service.
May I make an agreement
with opposing
counsel on behalf of
my attorney?
Yes, but only in certain
instances. If an attorney
requests a paralegal contact
opposing counsel for
scheduling purposes, the paralegal
may make an agreement as to
dates and locations. If the attorney asks a
paralegal to contact opposing counsel to
obtain an extension of time in which to
object and respond to discovery requests,
the paralegal may obtain that agreement
on his behalf. Keep in mind that any
agreements between attorneys or parties
touching on a pending suit must be in
writing and, in many jurisdictions, filed
with the court in order to be enforced.
Thus, the letter will bear the signature
block of, and be signed by, your attorney
and not by the paralegal, even with permission.
Responsibilities that require the competent
professional judgment of the lawyer
cannot be delegated. Permitting a nonlawyer
employee to prepare and sign correspondence
that threatens legal action or
provides legal advice or both creates the
appearance that the lawyer is not exercising
his or her legal knowledge and professional
judgment in the matter.
When may a paralegal accept a referral fee
from an attorney?
Under no circumstances may a paralegal,
or anyone who is not a licensed attorney,
accept a referral fee from an attorney.
Receipt of and making these payments
may even be considered a felony.
When may a paralegal solicit clients?
A paralegal may not solicit legal business,
either for himself or for an attorney. This
is not to say that freelance paralegals may
not solicit attorney clients; they just cannot
solicit non-attorney clients for whom
they provide direct legal services.
When may I use an attorney signature
stamp?
Keep in mind that this is a stamp of the
attorney’s signature, not just the attorney’s
name, so using an attorney signature
stamp is the equivalent of a paralegal signing
the attorney’s name by permission.
For letters that do not include legal advice
or that deal with some administrative matters,
using a stamp is probably fine.
However, using an attorney stamp on
pleadings, engagement letters, settlement
offers and documents, and correspondence
that includes legal advice and particular
court documents is never appropriate.
If there is any doubt as to the use of an
attorney signature stamp, insist that the
attorney sign the document.
May paralegals negotiate settlement agreements?
Attorneys are required to provide competent
and diligent representation to a client.
Offers and counter-offers that constitute
realistic bargaining for settlement, the
judgment of the defendant’s attorney as to
when and how much should be offered,
and of the plaintiff ’s attorney as to the
adequacy of the offer, is itself a measure of
competence. The client is entitled to this
full measure of competence from his
attorney in the bargaining process and to
the benefit of his attorney’s analysis and
recommendation concerning all offers of
settlement. After the full disclosure and
recommendation from the attorney, the
burden of decision then shifts to the
client. Therefore, it would seem that
paralegals are precluded from negotiating
settlement agreements. Paralegals may
deliver settlement offers, as well as
responses to settlement offers, on behalf of
their supervising attorneys.
What is an ethical wall and what is it used
for?
An ethical wall is a device by which a law
firm helps to preserve and protect the confidences
and secrets of a client and avoid
conflicts of interest pertaining to a client.
Paralegals are not in a position to determine
whether a potential conflict is of
concern and should let their supervising
attorneys make that determination.
Freelance and contract paralegals have a
particular responsibility to keep up with
the cases on which they have worked and
the parties and attorneys involved to avoid
possible disqualification of an attorney for
whom they may work in the future. In
any event, a paralegal is obligated to
inform the supervising attorney of the
existence of any possible conflict.
When a firm hires a paralegal who formerly
worked for opposing counsel or an
opposing client, the entire firm should be
notified that an ethical wall is to be erected
around the paralegal and that no one may:
(1) discuss the case in the presence of the
paralegal; (2) allow the paralegal access to
any documents, including keeping files
locked away from any cabinets to which
the paralegal would normally have access;
and (3) engage in any discussions with the
paralegal about prior work on the case or
work his or her previous firm may have
done. These precautions are necessary to
avoid the firm’s possible disqualification in
the case.
What is my duty with respect to reporting
UPL or other fraudulent activities once I
become aware of them?
Once a paralegal becomes aware of UPL or
other fraudulent activities, there is a duty
to report such behavior to the appropriate
authorities. To do otherwise is to knowingly
assist in the behavior. Paralegals
should report ethics violations up the
chain of command in the firm or company
for which they work.
Should paralegals identify themselves at the
conclusion of a letter and/or fax if it is sent
by them at the attorney’s request?
Paralegals must always identify themselves
by name and title on any business correspondence
they send. This includes email,
faxes (and fax cover sheets), as well as regular
hard copy letters or documents. It
matters not to whom the letter is
addressed or by whom it was requested; if
it is business correspondence or documentation
on which the paralegal’s name
appears, the paralegal’s title must also be
included. This applies to business cards
and letterhead on which the paralegal’s
name appears.
May a paralegal offer paralegal services such
as drafting and filing documents to the public?
The majority of states prohibit offering
paralegal services directly to the public.
Paralegals should check their state laws
carefully as those that do allow paralegals
to offer services to the public have strict
regulations. If such businesses are not
permitted in a particular state, paralegals
may not offer services of any kind directly
to the public.
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