Ethical Considerations in the
Workplace
Laurie Borski
Working for a provider of legal
services, whether a lawyer, law
firm or other organization, may present
ethical situations that are not directly
related to the tasks performed or the legal
services provided. Working in an office
setting certainly provides an opportunity
for the ethical paralegal to lead by example.
On the other hand, an office setting
can also present unique ethical challenges.
Obviously, the ethical atmosphere of a
firm or organization influences the conduct
of its lawyers.1 It should also be recognized
that this ethical atmosphere has
an influence on the ethical conduct of the
staff.
A paralegal may be placed in an ethical
situation in which it is unclear what, if
any, action should be taken. The situation
may involve the actions of others or only
the paralegal. While some may prefer to
ignore the actions of others in certain
types of ethical situations unless they feel
they are directly impacted, others may find
it helpful to know what might be required
in these situations.
Three ethical scenarios are presented
with possible solutions. These situations
have been drawn from among those presented
to the Professional Ethics Chair for
direction over the last several years and
which seem to occur frequently. You may
have encountered one or more of these situations
in your personal experience. The
guidance offered herein is drawn from of
the Texas Disciplinary Rules of Professional
Conduct (the “Rules”).
The Rules state that the ethical conduct
of those employed by or providing legal
services under the supervision of a
licensed attorney is to be “compatible with
the professional obligations of the
lawyer.”2 Additionally, the Code of Ethics
and Professional Responsibility of the
Paralegal Division of the State Bar of Texas
states that: “[a]lthough the Code of Professional
Responsibility of the State Bar of
Texas does not directly govern paralegals
except through a supervising attorney, it is
incumbent upon the members of the Paralegal
Division to know the provisions of
the attorneys’ code and avoid any action
which might involve an attorney in a violation
of that code or even the appearance
of professional impropriety.” 3
Scenario One:
A coworker routinely arrives late to the office
and leaves early. Yet, when the monthly
hours for paralegals are published, the number
of hours this person has billed is equal to
or greater than those of the paralegals who
are routinely in the office during regular
business hours.
The first consideration to be made in this
ethical scenario is whether you really know
how many hours were worked and billed
by the coworker. Are you truly aware of
the work this paralegal accomplished during
a given day or month? Perhaps the
paralegal takes work home, comes in to
the office to work on weekends, or chooses
to work through the lunch hour on billable
projects rather taking a break. Do
you know whether the paralegal has an
arrangement with the supervising attorney
or is permitted under company policy to
work at or from home on certain projects?
If you cannot answer these questions affirmatively,
any action on your part would be
speculative.
However, if you know for certain that
the coworker in question is exaggerating
the amount of billable time being charged
to a client, you are obligated to report your
concerns to your supervising attorney.
The Texas Disciplinary Rules of Professional
Conduct state “[a] lawyer in good
conscience should not charge or collect
more than a reasonable fee, although he
may charge less or no fee at all.”4 Clearly,
exaggerating the amount of billable time
worked is not only charging “more than a
reasonable fee” but it may also violate the
fee arrangement agreed to by the client.
The Rules also state that: “[o]nce a fee
arrangement is agreed to, a lawyer should
not handle the matter so as to further the
lawyer’s financial interests to the detriment
of the client. For example, a lawyer should
not abuse a fee arrangement based primarily
on hourly charges by using wasteful
procedures.”5 If the supervising attorney
was aware that fee exaggeration was occurring,
he take the steps necessary to ensure
that the client was not unfairly billed.
The paralegal that “puffs” billable
hours also places a burden on the supervising
attorney with respect to an invoice’s
description of work performed. The Rules
state “[a] lawyer entitled to a fee necessarily
must be permitted to prove the services
rendered in an action to collect it.”6
Although this specific reference is found in
the section that deals with client confidentiality,
it could also apply to the supervising
attorney’s ability to justify legal fees
billed either to the client or to the court in
the event of an award of attorney’s fees.
Scenario Two:
A paralegal finds the workload has become more than can be effectively and responsibly handled by one person. The quantity of
incoming work has reached the point where the paralegal may feel that not only can the tasks not be performed within a reasonable
period of time, but also that important deadlines may be missed because the paralegal is simply not aware of everything contained in the towering in-box. To compound
the problem, the paralegal feels there
are no other paralegals or associates with
available time to assist.
In this situation there is no doubt that the
paralegal has an ethical obligation to
inform the supervising attorney that the
work assigned cannot be accomplished in
a timely manner. The paralegal also has
an ethical obligation to inform the supervising
attorney if there is a possibility that
deadlines may be missed or that deadlines
are not being properly calendared or
docketed due to an overwhelming flow of
work.
The Rules provide that a lawyer has a
duty to provide competent and diligent
representation to his client:
Having accepted employment, a
lawyer should act with competence,
commitment and dedication to the
interest of the client and with zeal in
advocacy upon the client’s behalf. A
lawyer should feel a moral or professional
obligation to pursue a matter
on behalf of a client with reasonable
diligence and promptness despite
opposition, obstruction or personal
inconvenience to the lawyer. A
lawyer’s workload should be controlled
so that each matter can be
handled with diligence and competence.7
The Rules also state that:
Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be
adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer
overlooks a statute of limitations, the client’s legal position may be destroyed. Under paragraph (b), a lawyer is
subject to professional discipline for neglecting a particular legal matter as well as for frequent failures to carry
out fully the obligations owed to one or more clients. A lawyer who acts in good faith is not subject to discipline,
under those provisions for an isolated inadvertent or unskilled act or omission, tactical error, or error of judgment.
Because delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness, there is a
duty to communicate reasonably with clients; see Rule 1.03.8
In this respect, the Rules define “neglect”
as “inattentiveness involving a conscious
disregard for the responsibilities owed to a
client or clients.”9 If the situation is a
temporary one, it should be addressed
even though by definition legal matters are
not being neglected.
Whether some of the work can be
assigned to other employees of the firm or
organization is a management decision.
The paralegal should certainly cooperate
with management in trying to find the
best workable solution to the problem.
Scenario Three:
A coworker is observed engaging in improper
behavior at the office such that the coworker
would be subject to immediate dismissal if
attorneys or management were aware of the
behavior.
Let us assume that this situation does not
address minor grievances or personality
conflicts but illegal or unethical behavior
or serious crime. The Rules define “serious
crime” as:
barratry; any felony involving moral
turpitude; any misdemeanor involving
theft, embezzlement, or fraudulent
or reckless misappropriation of
money or other property; or any
attempt, conspiracy, or solicitation
of another to commit any of the
foregoing crimes.10
An ethical situation involving “serious
crime” must be reported to the supervising
attorney. In doing so, the paralegal
must disclose any situation where it is possible
that the complained of employee
might retaliate against the paralegal for
reporting the situation.
There should be a common sense
approach in determining the seriousness
of unethical behavior before reporting it.
You may be excused from reporting that a
coworker made a copy of his child’s book
report even though making copies on the
firm dime qualifies as theft. But you may
have an obligation to report behavior that
could expose the firm to liability, such as if
it were discovered that an employee who
claimed an on-the-job injury was doing so
fraudulently or if nonlawyers were drinking
alcoholic beverages on firm premises
after hours without permission.
Paralegals have a duty and obligation to
maintain a high standard of ethical conduct
that reflects on the profession as well
as the legal system. The United States is a
society of laws. As paralegals we help serve
as guardians of those laws and, in doing
so, preserve society.
Do you have a question regarding paralegal
ethics? Send it to ethics@txpd.org.
1 See Comment 7 to Rule 5.01, Responsibilities
of a Partner or Supervisory Lawyer, Tex. Disciplinary
R. Prof. Conduct.
2 See , Rule 5.03, Responsibilities Regarding Nonlawyer Assistants, Tex. Disciplinary R. Prof.
Conduct.
3 See Code of Ethics and Professional
Responsibility of the Paralegal Division of the
State Bar of Texas.
4 See Comment 1 to Rule 1.04, Fees, Tex. Disciplinary
R. Prof. Conduct.
5 See Comment 6 to Rule 1.04, Fees, Tex. Disciplinary
R. Prof. Conduct.
6 See Comment 15 to Rule 1.05, Confidentiality
of Information, Tex. Disciplinary R. Prof.
Conduct.
7 See , Comment 6 to Rule 1.01 Competent
and Diligent Representation, Tex. Disciplinary R.
Prof. Conduct.
8 See , Comment 7 to Rule 1.01 Competent
and Diligent Representation, Tex. Disciplinary R.
Prof. Conduct.
9 See , Rule 1.01(c), Competent and Diligent
Representation, Tex. Disciplinary R. Prof. Conduct.
10 See , Rule 8.04(b), Misconduct, Tex. Disciplinary
R. Prof. Conduct.
Laurie Borski is former Chair of the Professional
Ethics Committee of the Paralegal
Division and served on the Division’s Paralegal
Ethics Handbook Committee. She
has also served on the Annual Meeting and
Election Committees and is a past president
of the Alamo Area Paralegal Association in
San Antonio.
© Laurie Borski, 2007. |
