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.

 

Ellen Lockwood, ACP, RP, is a past president of the Paralegal Division and served as Chair of the Professional Ethics Committee of the Paralegal Division from 1997-2004. She is a frequent writer and speaker regarding paralegal ethics.