Ethics of Working with Clients When Attorney Is Not Present

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

I was contacted recently by a police officer who wanted to submit a complaint about a paralegal. The paralegal’s alleged actions that evening provide an example of how easily paralegals may cross the ethical line, often without intending to do so, and sometimes without realizing they have done so.  

The police officer stated he and other officers were conducting an investigation into a burglary and family violence matter one evening when a woman arrived. The woman identified herself as a paralegal and gave the name of the attorney for whom she works.

According to the officer, the paralegal then stated that although her supervising attorney did not represent the suspect with whom the officers were speaking, but did represent the sister of the suspect in an unrelated matter. The officer reported that the paralegal continued to interrupt the investigation by yelling at the suspect that she didn’t have to answer any of the police investigator’s questions.

In the situation described above, there are several ethical pitfalls and errors. First, if a client were to contact her attorney’s paralegal and ask for assistance for her sister, the paralegal should try to reach the attorney and ask for instructions on how to proceed. However, if the attorney doesn’t represent the sister and the attorney is not available to instruct the paralegal on how to proceed, then the paralegal should use her best judgment when considering whether to even go to the location. If the paralegal thinks the situation may be related to the attorney’s client’s situation, or if the paralegal believes there is a high likelihood the attorney will take on the sister as a client, then it might be helpful if the paralegal could witness the situation. If the paralegal does go to the location, the most the paralegal could do would be to observe and make notes.

While at the location, the paralegal could not give any advice regarding a legal matter, even speaking as a friend. Others will give a paralegal’s advice more weight than the advice of someone who doesn’t work in the legal field. The only advice or information a paralegal may pass along is that of the attorney, and then only if the paralegal is in contact with the attorney at the time of the incident.

The paralegal should also take care not to give the appearance that the paralegal represents the client. Even if the attorney represents the client, the paralegal should not do anything that would give someone the impression the paralegal’s presence is in a representative capacity. It should be made clear that any statements made or questions asked by the paralegal are coming from the attorney.

If a paralegal does something unethical, there is the option to file an ethics complaint against the paralegal. If the paralegal is a member of the Paralegal Division, an ethics complaint may be submitted to the current chair of the Professional Ethics Committee. Regardless whether the paralegal is a member of the Division, if the paralegal’s actions might be considered the unauthorized practice of law (UPL), a complaint may be filed with the UPL Committee of the Supreme Court of Texas utilizing their online form. And since attorneys are responsible for supervising their support staff, including paralegals, an additional option is to file a grievance against the attorney using the Bar’s online form.

In every situation, it is incumbent upon the paralegal to avoid UPL and giving even the appearance of any ethical violation, including the impression that the paralegal is there in any representative capacity.

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.