Legal Ethics and Paralegal Responsibilities (Chapter 2)

Ethics and Professional Standards

• Chapter focus: Chapter 2 (Legal Ethics) and its relevance to paralegals and attorneys.
• Quiz plan: likely Friday; review before quiz; set includes many terms; may cover roughly 20 questions drawn from a larger pool (e.g., 30–40 terminology). Thus, aim to become familiar with terminology rather than memorize every detail.
• Model Rules of Professional Conduct (MRPC): the ABA framework governing lawyers.
  • Paralegals work under lawyers and must follow these ethical rules through supervision.
  • MRPC are not a law that directly creates paralegal penalties, but govern professional conduct as applied by state bars.
• State bar adoption: ethics rules for lawyers are adopted by state bars; paralegals are regulated indirectly via supervision by lawyers.
• Availability of paralegal ethics codes: organizations exist with direct codes for paralegals (e.g., NALA, NFPA). Joining is not mandatory but provides formal guidelines and networking opportunities.
• Networking rationale: joining associations helps with cross-jurisdiction support when practicing in different counties/states; offers access to mentors and guidance across areas.
• Notary public role in ethics: Notaries play a role in document authentication and have their own ethical considerations; discussed later in the notes.\

Notary Public and Ethical Guidelines

• Notary status and ethics: paralegals may act as notaries; notaries verify signatures and witness signings.
• Importance of proper scope: notaries must follow notary laws; cannot notarize a signature that hasn’t happened in their presence.
• Notary duties relate to authenticating documents and preventing fraud by confirming identity and voluntary signing.
• Notary responsibilities intersect with discovery and client verification processes.

Confidentiality vs Attorney-Client Privilege

• Confidentiality (duty of secrecy): broad obligation to keep client information private.
  • Applies to conversations, emails, notes, documents, and any client information encountered in the office.
  • Applies even to initial consultations and to information not yet in court.
  • Breach can lead to disciplinary action against the lawyer; for paralegals, discipline follows the supervising attorney.
  • Example reminder: do not disclose client identities or case details in casual settings.
• Attorney-Client Privilege (evidence rule): specific protection for confidential communications between attorney and client for the purpose of seeking or receiving legal advice.
  • Extends to the attorney and the client, and to members of the legal team (paralegals, notaries, receptionists) who participate in providing legal services.
  • Privilege is lost if a third party is present during the confidential communication or if information is shared with others outside the legal team.
  • Client holds the privilege; the attorney is the custodian of privilege and can claim it in legal proceedings.
  • Confidentiality is broader than privilege and remains in effect, whereas privilege covers communications for legal advice in court/discovery.
• Practical example: private admissions by a client cannot be disclosed in court due to attorney-client privilege; casual mentions in front of others may break privilege.
• Relationship clarity: confidentiality and privilege require careful handling of who is present during discussions and what is shared.
• Lawyer work product vs privilege:
  • Work product consists of notes, research, and trial strategies prepared by the attorney or a paralegal for litigation.
  • Generally protected from discovery unless the opposing party demonstrates substantial need.
  • Drafts, memoranda, strategy documents, and notes are typical components of the work product.
  • Marking documents as attorney work product helps protect them from disclosure; however, in some circumstances, work product can still be protected under privilege.
• Lawyer work product safeguards:
  • It includes research strategies and anticipated trial plans.
  • It is kept within the legal team (computers and paper files) and is not shared outside the team unless necessary for the case.
  • If someone requests work product, objections can be raised on privilege grounds.
  • There can be overlap with attorney-client privilege when the client’s own statements are involved.
• Notable ethical practice: protect client confidentiality and attorney work product; do not disclose sensitive information without authorization.

Notary Public Law and Practice in the Paralegal Context

• Notary functions relevant to paralegals:
  • Notary acts to verify signatures and prevent fraud.
  • Notaries must assess whether the signer signs voluntarily and verify identity with ID.
  • Notarized documents include acknowledgments and jurats.
• Notary procedures:
  • Acknowledgment: signer confirms signature is voluntary in front of the notary.
  • Jurat: signer swears that contents of the document are true before the notary.
• Notary’s role is helpful in a law office for efficient document processing, but notaries are different from attorneys; the notary’s duties do not grant legal advice.

Conflict of Interest

• Core concept: conflicts arise when professional duties are divided or compromised.
• Types of conflicts:
  • Concurrent conflict of interest: representing clients with directly opposing interests at the same time.
  • Successive (former-client) conflict: using information from a former client to the disadvantage of that client in a new representation.
  • Personal conflict: relationships that affect judgment or loyalty.
  • Third-party conflict: external interests that interfere with loyalty to the client.
• Key rules:
  • Must disclose conflicts and avoid representation if representation is compromised.
  • In some cases, conflict cannot be cured by withdrawal if the conflicted duties remain.
• Examples discussed:
  • Family law: representing both spouses creates a conflict of interest because duties to one client oppose duties to the other.
  • Contract disputes: representing both sides in a contract dispute is a conflict because the lawyer’s duties are to the clients’ interests, which diverge.
  • Successive conflicts: using information from a past client to harm their interests in a new matter is prohibited.
• Practical application: identify potential conflicts at the outset and address them before taking on a matter.

Unauthorized Practice of Law (UPL)

• Core prohibition: paralegals and others who are not licensed cannot give legal advice or perform activities that constitute practicing law.
• Examples of UPL issues:
  • Drafting and giving legal advice about divorce filings or other legal procedures.
  • Providing instructions on how to file forms or advising on legal strategy.
• How to handle perceived UPL:
  • If asked, respond with reference to the supervising attorney (e.g., "per Attorney [Name], this is the information they want me to convey").
  • Do not provide direct legal advice or draft documents that amount to legal advice.

What Constitutes the Practice of Law

• Definition: practice of law involves providing legal advice, representing clients in court, and drafting legal documents.
• Paralegals cannot replace attorney judgment; they can assist and inform but cannot make independent legal decisions.
• Attorneys maintain independent professional judgment and may decide on trial strategy, plea offers, and settlements; a paralegal’s input should support but not substitute for attorney judgment.

Fee Arrangements and Types of Contracts

• Chapter focus on contingency fee contracts:
  • Contingency fees are common in personal injury cases and are typically a percentage of the recovery (e.g., 30–40%).
  • Not allowed in criminal or family law matters.
  • If the case is won, the attorney takes the agreed percentage; if not, the client pays nothing.
  • Medical bills and clinic costs are often deducted from the recovery; clinics may be part of a collateral arrangement.
• Other fee structures:
  • Hourly billing vs lump-sum fees (flat fee) for criminal and family law matters.
  • Examples given: a lump sum like 5{,}000 for certain charges; a more expensive 50{,}000 fee for a first-degree felony due to trial costs.
• Plea negotiations and trial strategy:
  • Prosecutors often initiate plea offers (e.g., 20 years for a guilty plea) and defense counsel negotiates downward.
  • Defense attorneys typically do not initiate plea offers; they instead present options to clients and may negotiate with prosecutors.
  • Some cases may shift from planned jury trial to a plea, sometimes at the last minute, depending on negotiations and judge approval.
• Retainers and client trust accounts:
  • Retainers are placed in a client trust account; funds are not immediately earned and counted against the fee until work is performed.
  • In family law, a retainer may be used to cover ongoing work; as work is performed, funds are transferred from the trust to the operating account.
  • If work exceeds the retainer, additional retainer funds may be requested; any leftover funds are returned to the client.
  • Misuse of client trust accounts by lawyers (e.g., transferring client funds to operating accounts) is a common disciplinary focus; regular monthly reconciliation is essential.

Case Management, Client Communication, and Ethical Obligations

• Client communication: important to return client calls and provide updates; helps maintain trust and reduce risk of disciplinary action.
• Ethics in client interaction: treat clients with respect; avoid judgment; maintain professionalism regardless of personal feelings toward the client.
• Notable legal malpractice concepts:
  • Legal malpractice occurs when a lawyer’s negligence harms a client (e.g., missed deadlines, misadvice).
  • Negligence standard involves four elements: ext{Duty}, ext{Breach}, ext{Causation}, ext{Damages}.
  • If negligence leads to a worse outcome that would have been avoided, the client may have a malpractice claim.
• Case management concept: if lawyers miss deadlines, they may still try to cure the error if possible (e.g., extensions); however, missed deadlines that cannot be cured may adversely affect the case.
• Immigration deadlines and case timing: deadlines are critical; sometimes cases can be continued or resubmitted, but timing can be stringent.

Disciplinary Actions and Professional Consequences

• Possible disciplinary actions for lawyers:
  • Reprimand: public warning for minor misconduct.
  • Suspension: temporary removal from practice (e.g., 6 months to 1 year).
  • Disbarment: permanent removal from the practice of law.
• Notable context: bars publish disciplinary actions publicly; transparency helps regulate the profession.
• Notary-specific disciplinary considerations: notarial misconduct can also have consequences, though typically separate from attorney licensure.

Notary Procedures: Acknowledgments, Jurats, and Verification

• Notary responsibilities in practice:
  • Witness and verify signatures to prevent fraud.
  • Verify identity with ID and ensure signer’s voluntary action.
  • Acknowledgments confirm the signer’s signature; jurats require the signer to swear the content is true.
• Document storage and handling: ensure signed and notarized documents are properly filed and stored; confidentiality still applies to these documents when appropriate.

Statute of Limitations and Case Timelines

• Statute of limitations varies by crime and civil action and is jurisdiction-specific.
• Some civil cases can take several years to reach trial due to court congestion (and backlogs from events like the COVID pandemic).
• Timelines influence trial strategy and potential settlements; missing deadlines in some contexts can nullify claims, while in other contexts may be fixable with extensions or refilings.

Case Examples and Real-World References

• Notable case references discussed:
  • John Allen Rubio: capital murder case discussed to illustrate high-stakes client interactions and ethical considerations.
• These examples surface how ethics, confidentiality, and non-judgment obligations apply even in extreme cases.

Knowledge Check

• Question: If a lawyer asks a paralegal to give legal advice or settlement advice, what rule is violated?
  • Answer: Unauthorized Practice of Law (UPL).
• Question: Which disciplinary action is permanently disbarment?
  • Answer: Disbarment.
• Question: What is the difference between confidentiality and attorney-client privilege?
  • Answer: Confidentiality is a broad ethical duty covering all client information; attorney-client privilege is a rule of evidence protecting confidential communications for legal advice, limited to communications between attorney and client (and certain participating staff) and subject to exceptions when third parties are present.
• Question: What type of fee arrangement is typically used in personal injury cases and is not allowed in criminal or family law?
  • Answer: Contingency fee contract (fees based on a percentage of recovery).
• Question: What are the four elements of legal negligence?
  • Answer: Duty, Breach, Causation, Damages (in sequence).
• Question: What is the role of a client trust account?
  • Answer: To hold client funds (retainers) separate from the attorney’s operating funds; funds are drawn as work is performed and leftover amounts are returned to the client.
• Question: What is the difference between a grief-like or joking scenario and an ethical breach in confidentiality?
  • Answer: Disclosure of client information to non-essential personnel or the public breaches confidentiality and can lead to disciplinary action; privilege remains with the client and is limited to confidential communications for legal advice.
• Question: Can a lawyer represent both spouses in a family law matter without issue if it’s a joint representation?
  • Answer: No; concurrent conflict of interest arises when representing directly opposing interests; such representation is typically prohibited unless a valid waiver is obtained and conflicts are managed appropriately (in practice, this is rarely allowed in family law).