The Code of Ethics and Professional Responsibility of the Legal Assistants Division of the State Bar of Texas (the "Code") was adopted on March 27, 1982.1 The Code serves as a general guide to the high standard of conduct and integrity by paralegals that is fundamental to the profession.
The reason for the Code’s existence is set out in the preamble:
The paralegal profession is by nature closely related to the legal profession. Although the Code of Professional Responsibility of the State Bar of Texas does not directly govern legal assistants except through a supervising attorney, it is incumbent upon the members of the Legal Assistants 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.
On January 1, 1990, the new Texas Disciplinary Rules of Professional Conduct (the Rules) 2 became effective, replacing the attorneys’ code. The Rules are mandatory and provide a minimum standard of professional conduct for lawyers that, if violated, may subject a lawyer to disciplinary action. Professional disciplinary and disability proceedings are addressed in the Texas Rules of Disciplinary Procedure.
Like the Rules, our Code is a set of mandatory rules, or canons, that govern paralegal professional behavior and provide a minimum standard of professional conduct. Paralegals that violate these canons are subject to disciplinary action, either through LAD (if they are a member) or through the State Bar’s disciplinary proceedings. Nor are the canons intended to be self-limiting. The preamble states: "the enumeration of these canons does not exclude others of equal importance although not specifically mentioned."
Just as our profession is closely related to the legal profession, our Code of Ethics and Professional Responsibility is closely related to the Texas Disciplinary Rules of Professional Conduct. 3
The Rules are lengthy and detailed, as you would expect. The purpose of this article is to introduce you to the Rules and highlight the relationship between the Rules and our Code.
Canon 1. A legal assistant shall not engage in the practice of law as defined by statutes or court decisions, including but not limited to accepting cases or clients, setting fees, giving legal advice or appearing in a representative capacity in court or before an administrative or regulatory agency (unless otherwise authorized by statute, court or agency rules); the legal assistant shall assist in preventing the unauthorized practice of law.
The first half of this canon addresses the unauthorized practice of law, providing some of the prohibited activities by way of example.
Note that this canon specifically excludes certain situations, such as when a person is represented pro se, or those in which nonlawyers are authorized to represent the public directly such as in certain administrative and regulatory law matters. These types of special situations are not the focus of discussion in this article.
A lawyer is a representative of clients, an officer of the legal system and has a special responsibility for the quality of justice. Tex. Disciplinary R. Prof. Conduct, preamble. A paralegal that provides legal services directly to the public without authorization is not qualified to render competent legal services. The Rules provide that the public has a right to be protected "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." Id at 5.05, comment 1.
Licensed attorneys may employ paralegals and delegate functions to them. So long as the attorney supervises the delegated work, retains responsibility for the work and maintains a direct relationship with the client, a paralegal cannot reasonably be said to have engaged in an activity that constitutes the unauthorized practice of law. Id at 5.05 (b), comment 4.
The Rules are clear on the duty to report professional misconduct. Tex. Disciplinary R. Prof. Conduct, at 8.03. The lawyer having knowledge of the misconduct is required to report it. Frequently, the existence of a violation cannot be established with certainty until disciplinary investigation has been undertaken. Id at comment 2.
The second half of the canon makes it incumbent on paralegals to assist in preventing the unauthorized practice of law. Should you become aware of someone engaging in UPL, you have a duty to report the activity to the LAD Ethics Chair (if you believe the illegal activity is being conducted by a LAD member) or to the State Bar Disciplinary Committee.
Canon 2. A legal assistant shall not perform any of the duties that attorneys only may perform or do things which attorneys themselves may not do.
The language of this canon is broad because the definition of what constitutes the practice of law is established by law and varies from jurisdiction to jurisdiction. Tex. Disciplinary R. Prof. Conduct at 5.05, comment 3. Paralegals may not sign pleadings, even with an attorney’s permission, nor can they sign certificates of service on pleadings. Paralegals may not represent clients in court (unless authorized by law, as discussed above). Paralegals may not refer to themselves as attorneys or let stand uncorrected a person’s assumption or perception that they are attorney. Paralegals also should avoid referring to a client of their attorney or firm as "my client."
The second half of this canon states that the paralegal shall not perform or do things the attorney may not do. Again, the language is broad and examples run the gamut from neglecting delegated matters to committing criminal or fraudulent activities.
Canon 3. A legal assistant shall exercise care in using independent professional judgment and in determining the extent to which a client may be assisted without the presence of any attorney, and shall not act in matters involving professional legal judgment.
This canon recognizes that the rendition of legal services calls for the professional judgment of the lawyer and that the one receiving the services generally will be unable to judge whether adequate services are being rendered and is, therefore, in need of the protection afforded by regulation of the legal profession. Tex. Disciplinary R. Prof. Conduct at 5.05, comment 3. The Rules define "competent professional judgment" as the product of a trained familiarity with law and legal processes, a disciplined, analytical approach to legal problems and a firm ethical commitment. Id. In other words, it is the educated ability to relate the general body and philosophy of law to a specific legal problem of a client. Id.
A paralegal may relay information to a client that is substantive and/or which contains legal advice, so long as the client understands the information is being relayed at the attorney’s direction. And the reverse certainly applies: should a client seek advice or information that involves professional legal judgment, the paralegal can offer to relay the question to the attorney.
Canon 4. A legal assistant shall preserve and protect the confidences and secrets of a client.
The Rules go into detail on the confidentiality of information and instances when a lawyer may or may not reveal confidential and/or privileged information.
The confidences and secrets of a client are protected in the interest of proper functioning of the legal system. Free discussion between lawyer and client is necessary for the lawyer to be fully informed and for the client to obtain the full benefit of the legal system. Tex. Disciplinary R. Prof. Conduct, 1.05 (a). Confidential information includes both privileged information, which is protected by the lawyer-client privilege and various rules of evidence, and unprivileged client information, generally defined as all information relating to the client or furnished by the client acquired during a lawyer’s representation of that client. Id.
A lawyer who employs non-attorney staff is obligated to provide appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of a client. Tex. Disciplinary R. Prof. Conduct, 5.03 (a) and comment 1.
Canon 5. A legal assistant shall not solicit legal business on behalf of an attorney.
Lawyers may not pay, give, or offer to pay or give anything of value to a person not licensed to practice law for soliciting prospective clients for, or referring clients or prospective clients to, any lawyer or firm. Tex. Disciplinary R. Prof. Conduct, 7.03 (3)(b). These sorts of activities have always been considered to be against the best interest of both the public and the legal profession. Such actions circumvent the Rules by having a non-lawyer do what a lawyer is ethically proscribed from doing. Id at comment 3.
1 The Code of Ethics and Professional Responsibility of the Legal Assistants Division of the State Bar of Texas is available at txpd.org
2 The Texas Disciplinary Rules of Professional Conduct is available at Tex. Govt. Code Ann and at http://www.texasbar.com.
3 Southern Methodist University Underwood Law Library, Guide 306, Ethics Opinions of the State Bar of Texas, available at http://library.law.smu.edu/resguide/txethics
Laurie Borski is Chair of the Professional Ethics Committee of the Legal Assistants Division. She has served on the LAD Annual Meeting and Election Committees and is a past president of the Alamo Area Professional Legal Assistants in San Antonio.