Rule 3: Competency, advice, and confidentiality

Fiduciary relationship

required to act with scrupulous good faith, honesty, and candour

As a fiduciary, paralegal must put _ interest above their own

client’s

Fiduciary standard imposes duties of

honesty

competence

confidentiality

no conflicts

accounting for client property

Competence means one should only accept clients if

honestly believe they are competent or can become competent w/o delay

Competence is a - requirement, not a negligence standard

ethical

Competence is legal knowledge but also

familiarity with practice and procedures and resources

ability to deliver effective representation

What should you do if you believe your knowledge, skills, and resources are no longer adequate

decline to act

obtain consent to retain or collaborate w/another licensee

obtain consent to become competent

Competence means reviewing - and identifying - and advising clients of - at every stage of the retainer

facts

issues

available options

To express an opinion to the client, what must be gathered

all relevant facts

Opinions that are expressed to the client after gathering facts must be

genuinely held and competent

Skills include

research and applying the law to the facts

Professional judgement means

capacity to assess carefully and impartially

make reasonable and sensible decisions

T/F: competence does NOT include client service

false, it does

Client service means being

conscientious, diligent, and cost effective

T/F: if you feel the client won’t want to hear the truth about the merits of the case, you don’t have to tell them what it is

false, must be honest even if they don’t want to hear it

Scope of services and costs should be set out clearly at what point and then they should be _ a the file continues

beginning

updated

Fraud or illegal activities: paralegal cannot by act or omission

encourage dishonesty, fraud, crime, or illegal activity

Trust accounts can only be used for

provisions of legal services

What should you do if you are employed or retained by an organization and there is dishonest, fraudulent, or illegal activity

advise progressively senior executives

if activity continues withdraw

To obtain a benefit for your client you cannot threaten or advise a client to threaten without reasonable and lawful justification

criminal, statutory , or regulatory proceedings against someone

If a client instructs you to threaten proceedings against someone you must

withdraw (usually)

Who is considered to be of diminished capacity

minority

mentally disabled

When your client is of diminished capacity, you must

maintain professional relationship and accommodate until it becomes impossible

What must be done if a paralegal receives a report that is specifically stated to be withheld from the client

must be returned immediately

3 situations when client information may be discloses=d

client authorization

justified disclosure

permitted disclosure

Implied authorization

implied by paralegal-client relationship

Implied authorization for

partners working on client matters

to non-licensees as necessary

government forms as required

Express authorization

fully informed and voluntary written or spoken permission to disclose particular information

Express authorization should be

clear, informed, voluntary

When receiving express authorization must be satisfied the client understands

right to confidentiality

implications of disclosure

Authorizations should state

extent

who it applies to

time period

restrictions

Justified disclosure

required by law or order of tribunal of competent jurisdiction

Permitted disclosure: may disclose confidential information w/o authorization in the following cases

imminent risk of death or serious harm

defend against criminal or civil actions

defend against professional negligence/misconduct

establish or collect fees

secure advice from another professional

Guidelines for permitted disclosure

at paralegal’s discretion

don’t disclose more than is necessary

record the decision and reasons for it