Chapter 3

KEY POINTS
n    Ethical rules are minimal standards of conduct that an attorney may not fall below.
n    Ethical rules do not apply directly to legal assistants, although they do apply indirectly.
n    Attorneys are directly responsible for the actions of a legal assistant working for them.
n    Nonlawyers, including legal assistants, are precluded from practicing law. Most states have criminal statutes related to the unauthorized practice of law.
n    “Practicing law” usually includes giving legal advice, representing clients in court, performing legal analysis, evaluating a case, accepting or rejecting a case, and setting a fee for a case.
n    Attorneys have an ethical duty to competently and diligently perform legal services for clients.
n    Attorneys have an ethical duty to maintain client confidences.
n    Attorneys have an ethical duty to avoid conflicts of interest.
CHAPTER OUTLINE/NOTES
I. Why Are Ethics and Malpractice Important to the Legal Assistant?
A.  Clients and attorneys must have total confidence that a legal assistant understands ethical problems and that the legal assistant’s ethical judgment is clear.
B.  A legal assistant must perform careful, high-quality work in everything he or she does. An error by a legal assistant can be very costly and can subject an attorney or law office to a malpractice claim.
II. Legal Ethics and Professional Responsibility
A.  Ethical Standards for Attorneys
1.   An ethical rule is a minimal standard of conduct. An attorney’s conduct cannot fall below the standard without losing his or her good standing with the state bar.
2.   Attorneys that violate the ethical standards may be subject to discipline including permanent disbarment, temporary suspension, public censure, private censure, or an informal reprimand.
3.   The ABA Model Rules of Professional Conduct, or a form of it, is used in nearly all states. Some states also use the older ABA Model Code of Professional Responsibility (1969). The ABA convened the Ethics 2000 Commission on the Evaluation of the Rules of Professional Conduct to review the Model Rules and recommend changes to them. That was completed in 2002, so the Model Rules has gone through a recent and total review.
4.   States are free to create their own rules of conduct for attorneys, but many simply modify one of the ABA’s ethical models.
B.  Attorney Ethical Rules Do Not Apply Directly to Legal Assistants
1.   Neither a state’s canons of ethics nor the ABA’s ethical rules apply directly to legal
assistants.
2.   Attorneys can be disciplined for the acts of their staff members, including legal assistants, since attorneys have the duty to adequately supervise their staffs. ABA Model Rule 5.3(b) states “A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”
3.   Attorneys cannot avoid ethical rules and accomplish an unethical act by delegating or allowing a staff member to do the act.
4.   Although a legal assistant cannot be disciplined by state regulatory bodies for violating state ethical rules, he or she would be held accountable by the attorney who hired or supervised him or her, up to and including termination. In addition, a legal assistant can be criminally charged with the unauthorized practice of law, and some courts have even upheld civil damages for negligence against legal assistants. So, it is in the best interest of the legal assistant to understand and abide by any ethical rules governing the conduct of attorneys.
C.  Voluntary Ethical Codes Established by Legal Assistant Associations
1.   Legal assistants have self-imposed voluntary ethical standards set out by national or local legal assistant associations, including the National Association of Legal Assistants (NALA) and the National Federation of Paralegal Associations (NFPA). See Transparency Masters 22 and 23 (Exhibits 3–3 and 3–4).
D.  Criminal Statutes Regarding the Unauthorized Practice of Law
1.   Nearly every state has criminal statutes that prevent nonlawyers from practicing law. These laws place criminal sanctions on nonlawyers, including legal assistants, who are found to be “practicing law.”
E.  The Unauthorized Practice of Law Ethical Problem
1.   Legal assistants may assist a licensed attorney in practicing law, but they themselves cannot practice law (see Exhibit 3–5 for a partial list of what legal assistants can and cannot do).
2.   The following items are used by courts to determine if a legal assistant is “practicing law”:
-     Has the legal assistant represented clients in court proceedings?
-     Has the legal assistant prepared legal documents without the direct supervision of a licensed attorney?
-     Has the legal assistant given legal advice to a client?
-     Did the legal assistant accept a client case, reject a case, or select a course of action alone?
-     Did the legal assistant set the fee for handling the client’s case?
-     Is the activity one that is “traditionally” performed by lawyers?
-     Has the legal assistant misrepresented his or her status as a nonlawyer?
F.   Legal Technicians, Freelance Legal Assistants, and the Unauthorized Practice of Law
1.   A legal technician markets his or her services directly to the public and does not work under the supervision of attorneys.
2.   Legal technicians have experienced considerable problems with unauthorized practice of law statutes because they are not supervised by an attorney.    
3.   Freelance legal assistants are self-employed legal assistants who market their services to law offices. Because freelance legal assistants are supposed to be acting under the supervision of an attorney, they do not have as much trouble with unauthorized practice of law problems unless they are completely removed from attorney supervision and their work is not approved by an attorney.
4.   The legal assistant can avoid unauthorized practice of law problems by:
-     Always having your work approved by a supervising attorney.
-     Never letting clients talk you into giving the client legal advice.
-     Not starting sentences with “You should” or “I think.”
-     Always clearly identifying yourself as a legal assistant.
-     Not setting the fees in a case by yourself.
-     Not accepting a case by yourself.
-     Not appearing in court or representing a client before a court alone (unless specifically allowed to by the rules of the jurisdiction).
G.  Competence and Diligence
1.   Legal assistants and attorneys must perform legal services in a competent manner. ABA Model Rule 1.1 states “Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
2.   Legal assistants and attorneys must perform legal services in a diligent manner. ABA Model Rule 1.3 states: “Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.”
H.  Confidentiality and the Attorney-Client Privilege
1.   Client confidentiality refers to the need to keep information exchanged between a client and law office staff, including attorneys and legal assistants, confidential.
2.   The attorney-client privilege is a rule of evidence that precludes the disclosure of confidential communication between a lawyer and a client by the lawyer. For the privilege to be invoked, the communication must have been made in confidence between the client and the attorney for the purpose of obtaining legal advice.
I.    Ethical Prohibitions on Revealing Client Communications
1.   Ethical rules prohibit lawyers from revealing confidential information about clients. ABA Model Rule 1.6(a) states  “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. . . .” ABA Model Code DR 4-101(D) states “A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client. . . .”
2.   Legal assistants have a duty to preserve the confidences and communications of clients.
3.   Ways to protect client confidences include:
-     Resisting the temptation to talk about what goes on in the law office, whether or not it is client related.
-     Only talking about client matters to other law office personnel on a need-to-know basis.
-     Never discussing the specific facts or circumstances of a client’s case to anyone, not even friends or relatives. The statement “I promise I won't tell anyone” does not work.
-     Always clearing your desk of other case files when meeting with a client.
-     Not taking phone calls from other clients when meeting with a client.
-     Not talking about cases in public places, such as elevators or public hallways.
-     Being careful when responding to discovery requests, so as not to produce confidential client information.
-     Being careful using fax machines, e-mail, mobile telephones, and so forth, so as not to disclose confidential information.
J.   Conflict of Interest
1.   Conflict of Interest Problems
a.   A conflict of interest occurs when an attorney or legal assistant has competing personal or professional interests with a client’s case that would preclude him or her from acting impartially toward the client.
b.   Conflict of interest problems occur when:
-     An attorney or legal assistant has a personal, financial, or other interest in a case.
-     The attorney or legal assistant sometime in the past represented a client who is now an adverse party in a current case.
-     An attorney and a client enter into business together.
c.   Rule 1.7 of the ABA Model Rules states:
(a) . . . A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; . . .
(b) Notwithstanding the existence of a concurrent conflict . . . a lawyer may represent a client if:
(1) the lawyer reasonable believes that the lawyer will be able to provide competent and diligent representation to each affected client; . . .
(4) each affected client gives informed consent, confirmed in writing.
d.   Rule 1.8 of the ABA Model Rules states:
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless . . .
(b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent. . . .
2.   Conflict Checking
a.   Conflict checking should be done whenever a new case is accepted. The conflicts check should ensure that the law office does not have a potential conflict with the case the law office is getting ready to accept. See Transparency Master 25 (Exhibit 3–14) for a list of items to track in a conflict database.
b.   Some insurance companies writing professional malpractice insurance for attorneys require that the law offices have and use a conflict checking system.
3.   The Ethical Wall
a.   The general rule is that courts tend to disqualify a whole firm when a conflict of interest problem arises. However, some courts have carved out an alternative to disqualification. The alternative is called the Ethical or Chinese Wall theory.
b.   The ethical alternative occurs when a firm effectively isolates the legal assistant or attorney with a conflict of interest from having anything whatsoever to do with the case, creating an “Ethical Wall” around him or her.
c.   An Ethical Wall is put in place by instructing staff members not to talk to the person with the conflict about the case, and by limiting the person’s access to the files (including computer files) of the case.
4.   Legal Assistant Conflicts of Interest
a.   Conflict of interest problems for legal assistants usually occur when a legal assistant changes employment.
b.   Legal assistants can avoid conflict of interest problems when changing employment by:
-     Bringing up the issue of potential conflicts in the job interview.
-     Being absolutely honest about his/her past.
-     If a potential conflict is discovered, the legal assistant should immediately inform the supervisor.
K.  Resolving Ethical Problems
1.   When resolving ethical problems:
-     Talk to your legal assistant manager or supervising attorney regarding the ethical problem.
-     Talk to another attorney or legal assistant in the firm regarding the ethical problem.
-     Join a professional legal assistant association that covers ethical issues.
-     Be familiar with the ethical rules of your state.
-     Subscribe to legal assistant periodicals that deal with ethical issues.
-     Report ethical violations to the state bar association if necessary.
-     When considering ethical questions, think conservatively and do not take chances.
-     Do not ignore or procrastinate regarding the ethical problem.
L.  Answers to Common Legal Assistant Ethical Questions
1.   Legal assistants in many states may have business cards, and some states allow for a legal assistant’s name to be on law office letterhead, but the legal assistant’s name should be set apart from the lawyers’ names.
2.   Legal assistants may sign letters prepared on law office letterhead in most states, as long as they sign their name “legal assistant” or “legal assistant to X.”
3.   Legal assistants should not discuss fee issues with clients, even on a preliminary basis such as discussing a fee range.
III. Malpractice and Malpractice Prevention
A.  Introduction to Malpractice
1.   Legal malpractice occurs when an attorney’s or law office’s conduct in representing a client falls below the standard skill, prudence, and diligence that an ordinary lawyer would possess or that is commonly available in the legal community.
2.   The most common causes of legal malpractice include:
-     Failure to know/properly apply law
-     Failure to know/ascertain deadline
-     Failure to obtain consent/inform client
-     Failure to calendar properly
3.   Ways to avoid malpractice problems:
-     Return client phone calls immediately.
-     Send clients status reports about their cases.
-     Contact clients regularly and ask them for their opinions about how to proceed with the case.
-     Always reduce fee agreements to writing.
-     Always send regular billings to clients so they do not get “sticker shock.”
-     Resolve fee disputes, if possible.
-     Do not work on cases that you are not qualified to handle.
-     When a case is accepted, always send an engagement letter.
-     When a case is rejected or a case is closed, always send a disengagement letter.
WEB LINKS
http://www.abanet.org/cpr/home.html
American Bar Association site for Professional Responsibility.
http://www.abaparalegals.org
American Bar Association side devoted to the use of legal assistants in law practices.
http://straylight.law.cornell.edu/ethics/
On-line legal ethics library.
http://www.calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10128
California State Bar Association site related to legal ethics.
http://www.cobar.org/group/index.cfm?category=1607&EntityID=CETH
Colorado State Bar Association site related to legal ethics.
http://www.findlaw.com/01topics/14ethics/index.html
Findlaw.com ethics site.
http://www.legalassistanttoday.com
Home page for Legal Assistant Today magazine.
http://www.legalethics.com/
Home page for Legal Ethics.com.
http://www.megalaw.com/top/ethics.php
Megalaw.com ethics site.
http://www.michbar.org/opinions/ethicsopinions.cfm
Michigan State Bar Association site devoted to legal ethics.
http://www.nala.org
Home page for the National Association of Legal Assistants.
http://www.paralegals.org
Home page for the National Federation of Paralegal Associations.
http://www.paralegals.org/displaycommon.cfm?an=1&subarticlenbr=330
National Federation of Paralegal Associations devoted to legal assistant ethics.
KEY TERMS
ABA Model Code of Professional Responsibility
ABA Model Rules of Professional Conduct
attorney-client privilege
client confidentiality
conflict of interest
ethical rule
Ethical Wall
legal malpractice
legal technicians