I was recently asked by a paralegal whether it was unethical to ask an attorney who was representing a defendant in an unrelated action if he would accept service for the defendant in a lawsuit that the paralegal’s firm was handling. They had not had any luck serving the defendant directly and the paralegal was understandably relieved when opposing counsel agreed to accept service. Unfortunately, the defendant was not at all happy and complained to the paralegal’s firm about his own attorney billing him for accepting service. Of course, it is not unethical to ask opposing counsel to accept service and the defendant’s issue was with his own attorney, not the paralegal’s firm. However, the paralegal’s firm was not pleased with this situation and advised the paralegal never to contact any opposing counsel again. It turned out that the paralegal contacted opposing counsel and arranged for service of the lawsuit without first notifying her supervising attorney.
Most people don’t like surprises that leave them unprepared to answer questions and attorneys are no exception. While attorneys are all different, it is best to keep your supervising attorney updated on what you are working on, the information you have gathered, and confirm how to proceed.
Sometimes paralegals use their judgment based on experience to determine when to update their attorneys. Until you are certain about when to update your attorney, it is a good idea to keep the attorney updated frequently. Some attorneys prefer to be copied on emails, others prefer weekly or daily briefings. Some attorneys prefer an email providing an update and requesting instructions on how to proceed and others prefer you to just stop by as matters come up to provide updates and get instructions.
Often it is helpful to ask the attorney when and how he or she would like to be updated. The attorney may request different methods and frequency of updates depending upon the situation. This approach is particularly helpful when just beginning to work with an attorney as well as when important ongoing matters arise. As the working relationship matures, it may be appropriate to discuss recurring situations with the attorney and determine the preferred method and frequency for providing updates.
While every area of law is different, generally the attorney should be advised regarding correspondence (including emails) and phone calls to or from an opposing counsel, as well as witnesses, court personnel, and governmental agency personnel.
Another consideration is whether someone else such as the client or another attorney might question your attorney about the situation and whether your attorney would prefer to have the information when asked rather than checking with you for an update before responding. The best course of action is to keep your attorney updated more than necessary. It is better to have your attorney let you know you don’t need to provide updates as frequently than to have your attorney question why he or she was unaware of specific information or a particular situation.
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.