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
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.
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.
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.
1 See Comment 7 to Rule 5.01, Responsibilities of a Partner or Supervisory Lawyer, Tex. Disciplinary R. Prof. Conduct.
2Rule 5.03, Responsibilities Regarding Nonlawyer Assistants, Tex. Disciplinary R. Prof. Conduct.
3Code of Ethics and Professional Responsibility of the Paralegal Division of the State Bar of Texas.
4Comment 1 to Rule 1.04, Fees, Tex. Disciplinary R. Prof. Conduct.
5Comment 6 to Rule 1.04, Fees, Tex. Disciplinary R. Prof. Conduct.
6Comment 15 to Rule 1.05, Confidentiality of Information, Tex. Disciplinary R. Prof. Conduct.
7Comment 6 to Rule 1.01 Competent and Diligent Representation, Tex. Disciplinary R. Prof. Conduct.
8Comment 7 to Rule 1.01 Competent and Diligent Representation, Tex. Disciplinary R. Prof. Conduct.
9Rule 1.01(c), Competent and Diligent Representation, Tex. Disciplinary R. Prof. Conduct.
10Rule 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.