A Question of Ethics – But Whose?

Janet E. Cook, RP

What Can Happen in the Legal Assistant Profession When a Legal Assistant is Under the Supervision of an Attorney Whose Ethical Handling of a Case Situation Becomes Not Only Questionable, But Sanctionable?

Have you given substantial thought why every legal professional seminar and specialty testing reserves a segment of its program to the study of ethics? Ever given thought to the fact that an ethical situation could culminate to the point legal assistants could find themselves testifying in Court regarding instructions given by a temporary supervising attorney, who happened to be the legal assistant’s supervising attorney’s co-counsel on a particular case? Would you be surprised to learn that hearings of this type can extend into weeks, that it could become necessary to subpoena a Court’s telephone records to substantiate testimony given at the hearings, that judicial decisions can be made which ultimately affect innocent parties in the case (i.e. Plaintiffs’ pleadings could be stricken), that an appeal process could become necessary to reinstate Plaintiffs’ pleadings, and that a Judge could be requested to recuse him/herself because of potential bias of a Court, due to a court coordinator’s clerical error? This error, involving the mishandling of privileged documents, would eventually become an ethical dilemma. Could you imagine a Judge formally being recused, the hearings continued in another Court and, after listening to the testimony, a Court could impose sanctions upon a supervising attorney for his breach of ethical standards? Is it hard to comprehend that a supervising attorney could instruct co-counsel’s legal assistant and his own staff to retain privileged documents negligently dispersed by a court coordinator, thereby placing co-counsel’s legal assistant and his own staff in an ethical situation ultimately culminating in the above?

The above synopsis consequences from the mishandling of a situation are some of the many reasons why so much time is devoted to reviewing ethical fact scenarios at seminars, testing procedures, meetings and other conferences. What are “ethics”? How do we define “ethics”? It has been said “ ‘Ethics’ create the guideposts for measuring conduct or electing a course of behavior in matters affecting the interrelation between the judicial system, lawyers, legal assistants, and clients.”1 Is this why almost every seminar conducted for attorneys and legal assistants has some segment of its program devoted to the subject of ethics? Although the legal profession is replete with seminars, conferences, Canons, Model Codes and Rules of Professional Conduct for the legal professional to review and apply, what happens when a supervising attorney fails to adhere to these standards?

When a legal assistant undertakes any form of certification or speciality testing the legal assistant knows that fact situations regarding ethics will appear on the test and the legal assistant will be instructed to “select” the response that would be considered the most appropriate answer for the illustrated scenario. Are potentially ethical concerns immediately obvious to the legal assistant when an ethical situation presents itself outside the multiple choice arena in which most of us are exposed to ethics questions? Is it safe to assume that by providing ethics discussions at seminars and conferences every legal assistant is adequately exposed to recognizing ethical concerns? And what about legal assistants who never attend seminars or conferences where ethics discussions are presented? How are those legal professionals being educated to be alert to potential ethical concerns?

If a legal assistant questions an instruction given by a supervising attorney as potentially evolving into an ethical concern, how can the legal assistant best address the concern? Ideally, the legal assistant might seek advice from another attorney and have him/her speak with the supervising attorney, but this is not always possible. However difficult the situation, a legal assistant or any nonlawyer working for an attorney does not have authority to disregard a supervising attorney’s instructions assigned to the legal assistant or nonlawyer. Review of the Model Rules of Professional Conduct, as adopted by the American Bar Association and the numerous Canons adopted by various legal assistant organizations, reveal that there are no provisions identified in the Rules and Canons which allow legal assistants to disregard direct instructions from a supervising attorney and thereby determine for themselves how they shall proceed with the assignment. That is what the Rules and Canons governing the employment of the legal assistant or nonlawyer are all about. They are designed, among other things, to put the attorney in the forefront of the decision making process, not the legal assistant or the nonlawyer. Rule 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS as set forth in the Model Rules of Professional Conduct states in part: “With respect to a nonlawyer employed or retained by or associated with a lawyer: (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct ratifies the conduct involved; or (2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”2 Therefore, attorneys are held to strict accountability for acts of the legal assistant or nonlawyer working under the attorney’s supervision. Strict accountability for the acts of the legal assistant or nonlawyer is a compelling phrase. But somehow, being relieved of accountability probably would not totally appease a legal assistant’s aggrieved professional dignity when the legal assistant is ordered by the lawyer1 to perform duties that breach the legal assistant’s own professional integrity.

Canon 3 of the National Federation of Paralegal Associations, Inc. (“NFPA”) Model Code of Ethics and Professional Responsibility states: “A PARALEGAL SHALL MAINTAIN A HIGH STANDARD OF PROFESSIONAL CONDUCT. EC-3.1 A paralegal shall refrain from engaging in any conduct that offends the dignity and decorum of the proceedings before a court or any other adjudicatory body and shall be respectful of all rules and procedures. EC-3.2 A paralegal shall advise the proper authority of any action of another legal professional which clearly demonstrates fraud, deceit, dishonesty, or misrepresentation. EC-3.3 A paralegal shall avoid impropriety and the appearance of impropriety.”3

Maintain, refrain, advise and avoid. These are great action verbs and they are applicable to any situation, but conceivably not immediately at the onset of what eventually could become an ethical concern. What would be considered contributing factors to an ethical concern as it begins to manifest itself into an ethical dilemma and how do contributing factors affect a potentially ethical concern? What if the legal assistant is under the supervision of a temporary supervising attorney, but not the legal assistant’s own employer? What if the legal assistant is given cause to question the temporary supervising attorney’s instructions? What if the legal assistant determines that the temporary supervising attorney is violating the ethical standards as set forth in the Rules and Canons? What if the legal assistant’s employer is not available for consultation? Should the legal assistant report the temporary supervising attorney’s conduct to the proper authority, without benefit of consultation with the legal assistant’s employer? What if there was no other source available for the legal assistant to consult? Or what if the legal assistant consults other attorneys and is advised to continue under the supervision of the temporary supervising attorney until the legal assistant’s employer could be consulted? And, what if the legal assistant is a new employee to the firm, perhaps for only two-and-a-half weeks?

As one might surmise, contributing factors definitely produce the possibility for a legal assistant to be exposed to an ethical situation, and conceivably, when the legal assistant least expects it. Therefore, legal assistants must never consider themselves immune from being involved in an ethical situation. We cannot regale ourselves into thinking perhaps, as legal assistants that: 1) we are invulnerable to a situation because of the years of experience we possess; 2) we always control the ability to avoid the very appearance of impropriety; or 3) as legal assistants we shall refrain from engaging in any conduct that offends the dignity and decorum of the proceedings before a court … and procedures.3 Certainly legal assistants shall refrain from offensive conduct, but realistically, initially carrying out the instructions of a supervising attorney would not always be identified as offensive conduct at the onset of what can potentially become a question of ethical consequences. As legal professionals we cannot become proverbial ostriches, sticking our heads in the sands of our profession, thinking that we are impervious to unpleasant and potentially ethical situations. Sometimes unethical situations present themselves in the most unlikely circumstances and that is why legal assistants should seize every opportunity to educate and inform themselves on matters concerning ethics. If you haven’t already, obtain copies of the Canons and Rules that govern the legal profession. Don’t just read them and then file them away. Study them, memorize them, and apply them to fact situations you encounter in your employment. Subscribe to legal assistant magazines and journals. Attend seminars where you know ethics will be discussed. Listen intently if someone speaks on a situation in which they had the misfortune to become involved. Learn from someone else’s experience, but whatever you do, DO NOT PASS JUDGMENT ON WHAT YOU THINK SHOULD HAVE BEEN DONE. Always remember you were not there, and because of a legal professional’s willingness to share their experiences, you become the benefactor of a learned experience. Take the opportunity to grow from another legal professional’s personal experience. One of the redeeming benefits of a career within the legal profession is learning continues every day you remain in the legal profession. As is evidenced by the number of lawsuits filed each day, the legal profession is not all black or all white—most of the legal profession exhibits shades of grey, and it is the grey areas of life in which we learn the most.

1 William R. Park, NALA Manual For Legal Assistants; Ch.2—Ethics, West Publishing Co. 1979

2 ABA Model Rules of Professional Conduct

3 NFPA Model Code of Ethics and Professional Responsibility

Janet E. Cook, RP, is a Board Certified Legal Assistant in Personal Injury Trial Law, Texas Board of Legal Specialization and a PACE registered paralegal. She is a member of DAPA, LAD and NFPA, and has been employed as a litigation paralegal with the Dallas firm of Demarest, Smith, Jones, Giunta & Moore, P.L.L.C. since 1996, working exclusively with Frank G. Giunta.