The Code and the Rules – Paralegal Standards of Conduct and Integrity, Part 2

Laurie Borski

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. 

Canon 6. A legal assistant shall not engage in performing paralegal functions other than under the direct supervision of an attorney, and shall not advertise or contract with members of the general public for the performance of paralegal functions.

The Rules address the part played by non-attorney staff in assisting the lawyer in the rendition of legal services.  However, the Rules also make it incumbent upon the lawyer to provide the proper supervision.

A lawyer must make reasonable efforts to ensure that non-lawyer employee conduct is compatible with the professional obligations of the lawyer.  Tex. Disciplinary R. Prof. Conduct, 5.03 (a).  The lawyer is also under a duty to provide appropriate ethical instruction and supervision to non-lawyer staff and is responsible for their work product.  Measures taken by the lawyer in this regard should take into account that such employees do not have legal training and generally are not subject to professional discipline.  Id at comment 1. 

With respect to a paralegal providing direct legal services to the public, this canon should be read to specifically exclude those situations authorized by statute, court or agency rules.  For those paralegals employed in law firms, corporations or governmental entities, each lawyer in a position of authority should make reasonable efforts to ensure the organization has measures giving reasonable assurance that the conduct of nonlawyers is compatible with the professional obligation of the lawyer.  Id at comment 2.

Canon 7. A legal assistant shall avoid, if at all possible, any interest or association which constitutes a conflict of interest pertaining to a client matter and shall inform the supervising attorney of the existence of any possible conflict.

The Rules devote the majority of space under "Client-Lawyer Relationship" to defining potential conflicts of interest situations.  The sanctions for violating this basic tenet of the client-lawyer relationship has been the subject of case law and the penalties levied against lawyers have ranged from private reprimand to loss of their license to practice law.

Loyalty is an essential element in the lawyer’s relationship to a client.  Tex. Disciplinary R. Prof. Conduct, 1.06 at comment 1.  A fundamental principle is that a lawyer may not represent opposing parties in litigation.  Moreover, as a general proposition, loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially related matter unless the client’s fully informed consent is obtained and unless the lawyer reasonably believes that the lawyer’s representation will be reasonably protective of that client’s best interests.  Id at comment 2.

Paralegals recognize that a change in employer may result in conflict of interest situations.  Your employer may represent a certain client, and your change of employment could literally bring you to the opposing side.  Not all situations are as clear as moving from advocate to opposing counsel however.   The question is often one of proximity and degree.  Id at comment 13.  As soon as you have reason to believe a conflict may exist, you must immediately report that conflict to your supervising attorney or manager.  It is up to the supervising attorney to determine if an impermissible conflict exists and, if so, to determine the best course of action.  The Rules are very clear as to conflicts of interest and the actions to be taken in the client’s best interest.  If such a conflict arises after representation has been undertaken, the lawyer must take effective action to eliminate the conflict, including withdrawal.  Id at comment 1.  In the case of non-lawyer staff, a frequent approach is to erect a "Chinese Wall" that prohibits any contact between the staff member and the client or matter for which the conflict is believed to exist.

Canon 8. A legal assistant shall maintain a high standard of ethical conduct and shall contribute to the integrity of the paralegal profession.

Lawyers are obligated to maintain the highest standards of ethical conduct.  Tex. Disciplinary R. Prof. Conduct, preamble.  This includes being competent, prompt and diligent in pursing a client’s interests.  A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs.  A lawyer should demonstrate respect for the legal system and for those who serve it.  A lawyer has a moral obligation to participate in or otherwise support the provision of free or substantially reduced legal services to the disadvantaged who cannot afford legal assistance.  Above all, each lawyer’s own conscience is the touchstone against which to test the extent to which his actions may rise above the disciplinary standards prescribed by the Rules.  Id.

The practice of law is a noble profession.  It is incumbent upon paralegals to maintain the same high standards of ethical conduct required of the lawyers with whom we work. 

Canon 9. A legal assistant shall maintain a high degree of competency to better assist the legal profession in fulfilling its duty to provide quality legal services to the public. 

The Rules define lawyer competence as possessing the legal knowledge, skill and training reasonably necessary for the representation of the client.  Tex. Disciplinary R. Prof. Conduct, 1.01 and comment.  Competent representation contemplates appropriate application by the lawyer of that legal knowledge, skill and training, reasonable thoroughness in the study and analysis of the law and facts, and reasonable attentiveness to the responsibilities owed to the client.  Id at comment 1.

Paralegal competence includes the knowledge, skill and training necessary for you to render the best possible service to the client.  Participate not only in formal continuing legal education programs but also in training that enhances the skills with which you perform.  Stay informed on changes in the law that affects your area of practice through review of legal publications and seminar attendance. 

Canon 10. A legal assistant shall do all other things incidental, necessary or expedient to enhance professional responsibility and the participation of legal assistants in the administration of justice and public service in cooperation with the legal profession.

This canon might be a "catch all" canon, requiring that paralegals do what is necessary to enhance professional responsibility.  Lawyers as public citizens are called upon to seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.  Tex. Disciplinary R. Prof. Conduct 1.01, comment 4. 

There is no question that the second half of the canon asks paralegals to contribute to the integrity of the profession by performing pro bono and public service work, under the proper supervision of attorneys as necessary.  Personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in life.

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.