The Ethics of Agreements

Ellen Lockwood, CLAS

Ellen Lockwood, CLAS

Canon 2 of the Code of Ethics and Professional Responsibility of the Legal Assistants Division is as follows:

A legal assistant shall not perform any of the duties that attorneys only may perform or do things which attorneys themselves may not do.

We are all familiar with the rule not to give legal advice. However, what agreements, if any, may a paralegal make with others involved in a matter?  May a legal assistant make an agreement with opposing counsel?  With counsel for other plaintiffs or defendants? With a judge?  With a trademark examiner?

Generally speaking, since legal assistants are prohibited from doing anything only attorneys may do, making or modifying agreements with others involved in the client’s lawsuit, sale, trademark application, or any other legal matter may be crossing the ethical line. Attorneys represent their clients as counselors, advocates, and guardians. Except in a few exceptions in administrative hearings, legal assistants do not represent clients. Since we do not represent the client, we cannot make agreements on behalf of the client.

Agreements with Opposing Counsel

Your attorney is away from the office and you are not able to contact her until much later today or tomorrow. Opposing counsel calls and would like an extension of time to respond to discovery requests. The deadline for responding to the discovery requests is tomorrow, but the opposing attorney will be out of town tomorrow and needs to know today.

Although it is polite to try your best to work with opposing counsel, you should not agree to an extension of time. Explain to the attorney that you cannot make such an agreement, but that you will do your best to contact your attorney and let her know as soon as possible. Although reasonable requests for extensions of time to answer discovery requests are generally granted, your attorney is representing her client when she agrees to do so. You do not represent the client, so you should not make such an agreement. In addition, unless opposing counsel had reason to believe you had received permission from your attorney to communicate her acceptance of such an agreement, relying on your agreement to an extension would be unwise and perhaps unenforceable since you do not have authority to make such an agreement.

Agreements with Judges

Your attorney has left the office for an important meeting and given you the dates he is available for trial in a particular case. The judge’s clerk calls to discuss trial dates with you. The judge’s clerk states that there is only one date available in the next six months. According to your attorney’s calendar, he is available then; however, that is not one of the dates your attorney indicated he was available. The judge’s clerk indicates that the date will probably not be available much longer that day.

Although tempting, unless you have instructions from your attorney allowing you to schedule him for things such as trial if his calendar is clear, you should not agree to a trial date. Your attorney may be frustrated at missing a chance to schedule an earlier trial date. However, that is better than having to explain to the judge why his office agreed to a date when he knew he wasn’t available.

Agreements with Others

As a intellectual property paralegal, I often speak to trademark examiners in the US Patent and Trademark Office about our clients’ pending trademark applications. At times, an examiner will say that she is willing to make a simple amendment to our client’s application if we will agree. Although I always identify myself as a paralegal at the beginning of all phone conferences with examiners, they sometimes forget who I am and ask if we will agree to an amendment. Even though it is tempting, and sometimes I even have discussed that very amendment with my attorney, I cannot make such an agreement. I inform the examiner that I will have my attorney call him back to let him know whether we will agree to the amendment.

Although these are just a few specific examples, you should always think twice before agreeing to anything regarding your attorney’s clients. You may even need to remind your attorney that you should not make particular agreements, even with her specific instructions, and that it would be more appropriate, and make you more comfortable, if she made those agreements herself.

Ellen Lockwood, CLAS, is the Chair of the Professional Ethics Committee of the Legal Assistants Division, a position she has held since 1997. She is Treasurer of LAD and a past president of the Alamo Area Professional Legal Assistants in San Antonio.