[Paralegal Strategies] Ethics: What About the All-Important 5 C's?

When you consider ethics issues, there are five areas that you must pay attention to...and each begins with the letter 'C'. Ethics are covered by the American Bar Association's Model Rules of Professional Conduct (www.abanet.org) and also by your state's Model rules. For purposes of this article, I will refer to the ABA's Model Rules.

1. Conflicts: Model Rules 1.7-1.11 refer to conflicts of interest that attorneys may encounter. Here are some tips to avoid conflicts:

> Have a system in place to check conflicts. This should include both former and current clients.

> Who's the client? Be sure it is clear whom the firm is representing. Is it the husband, the wife, or the husband and the wife? Is it the insurance company or the insured? The corporation or a corporate employee?

> Never use information you have gathered during the representation of a client to later sue that client.

> Pay attention to new hires, both attorneys and support staff. If they have a conflict, the firm may avoid disqualification by obtaining waivers from opposing parties and by screening the employee from contact with the matter.

2. Confidentiality: Model Rule 1.6 refers to the duty to keep all information related to the representation of a client confidential.

> Never discuss client matters with anyone outside the office. This includes billing information and factual situations...even if you don't mention the client's name. 'Outside the office' includes the hallway, elevator, restrooms, courthouse hallways, restaurants, parties and seminars.

> Be careful when you're using electronics. Conversations on a cell phone have an expectation of privacy but only when the parties take steps to keep the conversation private. Keep careful watch over your lap top...if it's stolen, a wealth of data could be lost or compromised.

> Emails and faxes also have an expectation of privacy but you should always have the client's permission (preferably in writing) before communicating this way. Be sure the client is available to receive the email or the fax so that the communication is not intercepted by a third party.

> There are some exceptions to the confidentiality rule: to prevent the client from killing or seriously harming someone; to prevent the client from committing a crime; to bring or defend a claim against a client. In each of these situations, the attorney may disclose only information essential to the matter.

3. Cash. Model Rule 1.15 covers the duty to protect the client's property.

> Know your state's rules regarding this duty as it varies from state to state.

> The client's funds cannot be commingled with the firm's funds.

> The firm can't 'borrow' from the client's funds, even with the intention of repaying the money before anyone finds out.

> The client's money may be transferred to the firm's business account only at such time as the fees are earned.

> Every firm must maintain a separate trust account which is also referred as an IOLTA account. (IOLTA = Interest on Lawyer Trust Accounts)

> There are strict rules for reconciling the trust account and also for persons who are allowed to handle the account. Again, check your state's rules for more information.

4. Competence. Model Rule 1.1 refers to the duty of the attorney to possess the legal knowledge and expertise to handle the client's issues.

> Have the resources and the time to handle the client's case, including properly trained staff and the necessary equipment.

> Be sure to attend appropriate continuing education events.

> Manage time effectively so that deadlines are met.

> Assess staff workload regularly to be sure work is getting done.

> Delegate work according to ability.

5. Communications. Model Rule 1.4 covers the duty to adequately and appropriately communicate with clients.

> Be sure clients understand that the attorney is not always available for immediate response and provide alternative personnel for the client to use to relay messages.

> The so-called "Blackberry Culture' has clients expecting attorneys to be available 24/7 and to respond immediately. Explain to clients that their issues are important and that they will receive a response once the matter has been given the careful consideration it deserves.

> While the attorney may delegate much client contact to paralegals, the attorney is obligated to maintain a direct relationship with the client.

> Clients must be kept reasonably informed of the status of the case and provided with enough information to make decisions.

> Withdrawal from a case requires special steps. The client must be informed and, in most instances, their file must be made available to them.

One last rule: Model Rule 5.3 refers to the lawyer's duty with regard to nonlawyer assistants:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) 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; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Your challenge: Familiarize yourself with the ABA's Model Rules of Professional Conduct, as well as the rules that have been adopted by your state. The ABA also has Guidelines for the Utilization of Paralegal Services that can be reviewed at www.abanet.org The attorney's ethical obligations are your obligations, too, and you should thoroughly understand the all-important 5 C's: Conflicts, Confidentiality, Cash, Competence and Communication. In the end, though, trust your instincts: if an action doesn't feel right or ethical, it probably isn't. Every state bar association maintains an ethics hot line. Call yours if you have questions.


©2009 Vicki Voisin, Inc.

Vicki Voisin, "The Paralegal Mentor", delivers simple strategies for paralegals and other professionals to create success and satisfaction by setting goals and determining the direction they will take their careers. Vicki spotlights resources, ethics issues, organizational tips, and other areas of continuing education to help paralegals and others reach their full potential. She publishes a bi-weekly ezine titled Strategies for Paralegals Seeking Excellence. More information is available at www.paralegalmentor.com (Subscribers receive a free special report titled ‘Is Your Computer Talking Behind Your Back?’ and are invited to attend free monthly Paralegal Mentor Mastermind Calls that feature guest experts discussing issues of interest to the paralegal field.)

Ethics Lessons: Let's Get Ethical...Let's Get Technical!

Technology rules! This is one truth known to all paralegals and other legal professionals.

We have entered the age where nothing is fast enough. Thanks to technology, we can work faster but it does not guarantee we are working smarter.

If legal professionals do not allow the time to check their work for accuracy, to ensure security, guarantee confidentiality and protect the attorney-client privilege, they are doing a disservice to the firm and its clients.

Are you familiar with the ethics rules that apply to the use of technology in the law firm? Now is a great time to learn those rules and also earn CLE credit.

Let's Get Ethical...Let's Get Technical will be offered on Thursday, May 14th, at 1:00 pm Eastern time. This ninety-minute teleclass (you only need to be on your phone...no computer is necessary) has been approved by NALA for 1.5 hours of ethics CLE. (California CLE credit application is pending)

This content-rich high-quality course will include a comprehensive handout for your reference, as well as lots of great information, including

• How the web is redefining 'public' information
• Why social media can be helpful...and how it can be a negative
• The issues of Metadata
• Rules, Codes and case law that you should be aware of
• How to properly redact documents for online filing
• The perils of using your BlackBerry, your laptop and your cell phone
• Killer tips for using technology in litigation

For more information and to register, follow this link.

Hope to see you on May 14th!

Vicki

Practice-Of-Law Definition Hits New Roadblock: Exemption Includes Paralegal Services

The practice of law remains difficult to define. This article appeared in today's issue of the Pacific Business News (Honolulu):

The issue of crafting a new definition for the practice of law in Hawaii is once again before the Hawaii Supreme Court, but state Attorney General Mark J. Bennett has spoken out against the revised rules, dealing a new blow to the efforts led by the Hawaii State Bar Association.

The bar association submitted its revised draft of a new definition for the practice of law last month after more than a year of occasionally contentious discussions in which professionals such as accountants, insurance agents and real estate brokers accused the lawyers of trying to steal their work.

The new four-page draft makes a point of saying that the rules are not intended to restrict anyone from doing their usual business. The public has until April 27 to comment.

After reviewing the rules in November, Bennett wrote to the bar association saying he could not support the revised rules because they were laden with exceptions and exclusions that were overly broad, ambiguous or do “not make sense.”

Bennett also quoted former state legislators who decided that defining the practice of law was “fruitless because new developments in society, whether legislative, social or scientific in nature, continually create new concepts and new legal problems.”

The new draft contains a dozen exemptions, including the preparation of real estate contracts, purchase and lease agreements and tax returns; selling or soliciting insurance and annuity products; performing paralegal services; and selling legal forms to the public. There are other exemptions for individuals who choose to represent themselves in court, who participate in labor negotiations and arbitrations or who lobby at the Legislature.

Groups including the Hawaii Association of Realtors, Hawaii Insurers Council and the Hawaii Society of Certified Public Accountants were heavily involved in retooling the new draft.
The bar association said it was surprised by Bennett’s position since several state deputy attorneys general from his office were intimately involved in the discussions and reviewed various drafts of the rules as they were being written.

In a letter to the court, Jeffrey Sia, immediate past president of the bar association, wrote that the exemptions strike a balance between the concerns of all the stakeholders involved in the discussions.

“It was not the [association’s] intent to take away the lawful livelihood of nonlawyers or hinder the public’s access to legal services,” Sia wrote. “These types of exceptions are not novel.”
Only licensed attorneys can practice law in Hawaii, but there is no definition that describes precisely what the practice of law is. So the Hawaii Supreme Court asked the bar association to write an acceptable definition of the law business.

Its goal was to protect Hawaii residents and businesses from untrained, unlicensed and unregulated individuals offering advice on legal matters.

At least 25 other states and the District of Columbia have adopted similar rules or statutes defining the practice of law or protecting consumers from amateur legal advice.

If the Hawaii Supreme Court approves the rule changes, the earliest they would take effect would be July 1. The proposed rules are available on the Hawaii State Judiciary’s Web site: http://www.courts.state.hi.us/.