CH. 2 Paralegal Ethics Unauthorized Practice of Law
Protections
-Firm Policies Rule 5.3 requires a law firm to put in place policies and procedures designed to provide reasonable assurances that non-lawyers comply with the rules of professional conduct. -Firm Procedures Supervising attorneys must also monitor paralegal performance to ensure compliance with those policies and procedures.
Misrepresentation- disbarred lawyers
-It is unlawful for a disbarred or suspended lawyer to continue to "hold oneself out to be entitled to practice law." -Remove "Esq." and "Attorney at Law" and "Lawyer" from all references. -South Carolina - disbarred and suspended lawyers: **May not work as a paralegal or law clerk **May not be a South Carolina Certified Paralegal
Why is the practice of law restricted to lawyers?
-Public Policy concerns. -To protect the public.
What is the practice of law?
-The application of a rule of law -To a particular person's facts and -Giving a response
Make a list of the specific functions that constitute the practice of law and are prohibited to paralegals. What rationale lies behind each prohibition?
-The one lawyering function that is universally considered to be the exclusive province of licensed attorneys is the representation of a client in court proceedings. A court appearance, especially an adversarial one such as a pretrial motion or a trial, requires knowledge and skills that only a lawyer possesses by virtue of long and specialized education, training, and experience. -In a deposition, one of the key discovery tools, the attorney asks questions, usually in a face-to-face setting, of an opposing or a third party. The paralegal would not be qualified to answer any questions that might arise, to make objections for the record, or to give legal advice if called upon to do so. -A pleading constitutes a written "appearance" in court that only a licensed attorney can undertake. Lawyers must review these documents so that, in essence, the lawyer adopts the paralegal's work and it merges into the lawyer's.
What are the exceptions to the general rule against a nonlawyer appearing in court on behalf of a client?
-The right of self-representation in federal courts is guaranteed by statute (28 U.S.C. § 1654) and upheld in court cases. -One nonlawyer spouse to represent the other if both are joined as defendants in the same case and are appearing in propria persona. -All jurisdictions have rules permitting law students to engage in limited practice under a lawyer's supervision, and nearly all allow law students to represent clients in court. -An administrative agency is created by a state or the federal legislature to provide for the regulation of a highly specialized area.
What kinds of work can nonlawyer legal services providers perform without engaging in the unauthorized practice of law?
-Will execution: a paralegal may oversee a will execution or serve as a witness to a will so long as he or she does not give legal advice. -Real Estate Closing: bar association opinions that endorse the use of paralegals to attend real estate closings unaccompanied by a lawyer by placing certain conditions on the paralegal and lawyer. These conditions include attorney supervision and review up to the time of the closing; attorney availability to give advice during the closing if needed; client consent; a determination that the closing will be purely ministerial and that the client understands the documents in advance; and a prohibition against the paralegal giving legal advice or making legal decisions during the closing. -Negotiating settlements: The adjuster may make offers to settle directly to the paralegal. The paralegal must pass these offers on to the attorney, who discusses with the client whether or not to accept an offer. The paralegal may in turn communicate the decision to accept or reject to the adjuster and handle follow-up negotiations or settlement paperwork. The paralegal may not accept a settlement offer on behalf of a client, however, even if the paralegal knows that it is an offer the client should or will accept. -
UPL issues need to be viewed from
1. The point of view of the person asking for legal advice. 2. The point of view of the person giving the legal advice.
Give your best definition of what constitutes giving legal advice.
1. directing or recommending a course of action to a client about how to proceed in a matter that may have legal consequences 2. explaining to a client his or her legal rights and responsibilities 3. evaluating the probable outcome of a matter, including litigation 4. interpreting statutes, decisions,
Modern view of UPL
1.It is wrong to practice law without a license **This one gets you in trouble 2.It is wrong to assist someone who doesn't have a license in the practice of law **This one gets your boss in trouble
Traditional categories of UPL
1.Representing others in court 2.Giving legal advice 3.Creating legal documents
Traditional EXCEPTIONS of UPL
1.Representing yourself 2.Law school students 3.Some administrative agencies 4.The incidental-to rule 5.The conduit theory
When did the paralegal profession begin and what was the impetus for its development?
1967-68 profession began. Impetus was rising costs and lack of access to legal services
How many states have guidelines for the utilization of paralegals? What is their purpose?
26; to promote effective and ethical use of paralegals
To what extent are paralegals directly regulated at the present time?
A few states have taken steps toward the regulation of paralegals. Maine, South Dakota, Florida, Arizona, California
Correcting someone's misunderstanding
A lawyer has no duty to identify him/herself as a lawyer. A paralegal has an absolute duty to identify him/herself as a non-lawyer.
On what grounds is a paralegal's attorney-employer held liable for a paralegal who is negligent while working on a client's case?
A lawyer is responsible for a paralegal's unethical conduct if the lawyer ordered it or ratified it, or if the lawyer is a partner in the firm, has managerial authority, or is the paralegal's supervisor and fails to take remedial action.
May a paralegal who is negligent while working on a client's case be held liable for malpractice?
A lawyer is responsible for a paralegal's unethical conduct if the lawyer ordered it or ratified it, or if the lawyer is a partner in the firm, has managerial authority, or is the paralegal's supervisor and fails to take remedial action. HOWEVER Paralegals are subject to the same general tort principles that apply to lawyers and other professionals; that is, they are liable for negligent or intentional misconduct that injures a client.
How many states have guidelines for the utilization of paralegals?
At the time of this writing, about 30 states have some kind of guidelines.
Do NALA and NFPA have rules on the conduct of paralegals?
Both have codes of ethics to guide the conduct of their members. NALA calls its code the Code of Ethics and Professional Responsibility. NFPA has a Model Code of Ethics and Professional Responsibility.
What states have some form of direct regulation of paralegals? What entity (court/legislature) adopted the regulation in each case?
California, Florida, Arizona, New Mexico Court
What is licensing?
Certification of an occupation is usually a form of voluntary recognition of an individual who has met specifications of the granting agency or organization.
What is certification?
Certification of an occupation is usually a form of voluntary recognition of an individual who has met specifications of the granting agency or organization. In 1976, the first voluntary certification program was established by NALA, called the Certified Legal Assistant (CLA) program. In the 1990s, NALA developed advanced specialist examinations in a variety of areas, which are taken by paralegals who have already earned the CLA designation. Since then, NALA adopted the designation Certified Paralegal (CP), which CLAs can use instead of CLA if they prefer, in recognition of the growing preference for "paralegal" over "legal assistant." NALA also offers an Advanced Certified Credential in specialty areas.
NALA Paralegals shall
Disclose their status as paralegals at the outset of any professional relationship with a client, other attorneys, a court or administrative agency or personnel thereof, or members of the general public. Disclose their non-lawyer status.
Does selling a self-help divorce kit constitute giving legal advice? What about a software program or online service that helps a person complete forms that are filed with a court? What about answering legal questions on the Internet? Why or why not?
Distributing self-help materials does not constitute the unauthorized practice of law as long as the materials are not distributed in conjunction with direct personalized assistance in completing the forms or procedures by nonlawyers.
What are the national associations' programs for paralegal certification called?
In 1976, the first voluntary certification program was established by NALA, called the Certified Legal Assistant (CLA) program. Then, NALA adopted the designation Certified Paralegal (CP), NFPA developed a certification examination called the Paralegal Advanced Competency Examination (PACE). NALA's CLA program and the NFPA's RP are forms of certification.
What is limited licensure?
In June 2012 the Washington Supreme Court adopted a rule, first proposed in 2008, which established a Limited Practice Rule for Limited License Legal Technicians. Under this rule, the court established a board that will recommend areas of the law in which such persons might be licensed to provide services to clients. The rule also sets educational and experience requirements, defines permitted activities, and sets prohibitions and ethical and financial requirements.
What was the role of bar associations in limiting the practice of law to licensed attorneys?
In the mid- to late 1800s, state and local bar associations began to gain strength, and the first unauthorized practice of law (UPL) statutes were passed. These laws prohibited court appearances by anyone not licensed as an attorney, prohibited the practice of law by court personnel such as bailiffs, and made it illegal for an unlicensed person to hold himself or herself out as an attorney and for a nonlawyer to form a partnership with a lawyer.
How are the NALA and NFPA rules on the conduct of paralegals enforced?
It has Model Disciplinary Rules to establish mechanisms for enforcing the rules.
What does the ABA Model Rule 5.3 say about lawyer responsibility for paralegals?
Lawyer is responsible for his/her own paralegal
Is an attorney responsible for a paralegal's breaches of conduct such that the appropriate state entity may discipline the attorney?
Lawyers are also liable in civil suits for the negligent conduct of paralegals who they employ or retain. Paralegals themselves are potential defendants in civil legal malpractice suits brought by clients who believe paralegals in their attorney's employment may have acted negligently.
May a paralegal's attorney-employer be held liable for a paralegal who is negligent while working on a client's case?
Lawyers are also liable in civil suits for the negligent conduct of paralegals who they employ or retain. Paralegals themselves are potential defendants in civil legal malpractice suits brought by clients who believe paralegals in their attorney's employment may have acted negligently.
What are an attorney's responsibilities to prevent UPL? What might happen to an attorney whose paralegal engages in the practice of law?
Lawyers are obligated by various rules not to aid the unauthorized practice of law. This prohibition makes attorneys responsible for the training and supervision of, and delegation of legal work to the nonlawyers they employ. The obligation of adequate supervision applies to all areas of ethics— such as confidentiality, conflicts, and competence— but carries special force in the area of unauthorized practice. It is the duty of a partner, lawyer with managerial authority, and supervising lawyer to make "reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the 'nonlawyer assistant's' conduct is compatible with the professional obligations of the lawyer."
What were the purposes of the early unauthorized practice rules?
Limitations on who can practice law in the United States can be traced back to the colonial era. At that time a proliferation of untrained practitioners caused local courts to adopt rules requiring attorneys who appeared before them to have a license granted by the court.
What kinds of legal functions do most nonlawyer legal service providers perform? Whom do they serve? In what areas of law do they work?
Most nonlawyer legal service providers work in the areas of practice in which low- and moderate-income people need assistance, such as in landlord/ tenant matters, divorce, child support, bankruptcy, and immigration. Some run "typing services" that assist persons only by typing documents, usually to be filed with the court, after the "customer" fills in the blanks. Others provide more complete information and assistance, helping the customer decide what forms to use, what information to include on the forms, and where to file them.
Can the same state body discipline the the paralegal?
Most states follow the principles of this rule and hold lawyers responsible for the unethical conduct of paralegals and other nonlawyers who work for them. Recent revisions to the Comments to Model Rule 5.3 confirm that this rule applies to paralegals and other nonlawyers outside the firm who are retained to assist the lawyer and states that the extent of the lawyer's oversight depends on "the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed...."
How are the national associations' programs for paralegal certification different?
NALA has both individual members and affiliated local chapters. Members sign a statement of commitment to NALA's code on their membership application, and a mechanism is in place at the national level to investigate allegations of code violations and to remove from membership or to remove the CLA/ CP designation from any member who has violated the code. NFPA issues ethics opinions on current concerns of interest to practicing paralegals. These opinions have addressed such matters as communications over the Internet and the role of paralegals who work in the corporate setting.
What are the two main professional associations for paralegals?
NALA: National Association of Legal Assistants; AAfPE: American Association for Paralegal Education
Give a complete definition of practice of law.
No one definitive list of activities constitutes the practice of law. • Preparing pleadings and legal instruments, such as wills, contracts, deeds, leases, and trusts • Preparing any document by which legal rights are secured • Preparing documents for or making statements to a client that contain legal opinions, arguments, or interpretations of the law • Appearing in court on behalf of clients or acting as an advocate in a representative capacity • Giving legal advice— that is, applying knowledge and judgment to a client's particular situation and advising of rights and responsibilities and possible courses of action
How do non lawyer legal service providers differ from traditional paralegals who work under the supervision of attorneys?
Non lawyer legal service providers will be able to offer a certain set of legal advice without the oversight of an attorney, whereas, a traditional paralegal must have attorney oversight.
A lawyer is ethically responsible for the conduct of a paralegal if the lawyer:
Orders the conduct Ratifies the conduct, or Fails to take remedial action for a problem. Rule 5.3 SCRPC Rule concerning supervision of non-lawyer assistants.
What states have some form of voluntary certification of paralegals? What entity is responsible for these programs in these states?
Oregon had; Texas, NC, FL, OH,
What state(s) have some form of voluntary certification of paralegals?
Oregon, Texas, North Carolina, Ohio, and Florida Texas adopted a voluntary certification program for paralegals in 1994. Since 2004, the North Carolina State Bar and the Ohio State Bar have established certification programs for paralegals, and the Florida Supreme Court has adopted rules for a Registered Paralegal Program.
What are the ABA Model Guidelines for the Utilization of Paralegal Services and what kinds of conduct do they cover?
Serve as a model for states and as a guide to help lawyers use paralegal services effectively and appropriately
What are the two main professional associations for paralegals?
The National Federation of Paralegal Associations (NFPA) and National Association of Legal Assistants (NALA) were established. Other associations: NFPA National Federation of Paralegal Associations NALA National Association of Legal Assistants AAfPE American Association for Paralegal Education IPMA International Paralegal Management Association NALS An Association for Legal Professionals
When did the paralegal profession begin?
The paralegal field's beginnings can be traced directly back to the late 1960s.
What are the exceptions to the general prohibition against giving legal advice?
The paralegal may communicate advice so long as it is the advice of the attorney. It must be the exact legal opinion of the attorney, however, without expansion or interpretation by the paralegal.
What is the difference between setting fees and quoting fees? Which is prohibited as UPL?
The prohibition on "setting fees" does not preclude a paralegal from quoting standard fees to a prospective client or a client with the lawyer's permission and with the proviso that only the lawyer can actually contract with the client for legal services and determine the fee that will be charged to handle the client's case.
Why did the paralegal profession begin?
The rapidly rising cost of legal services, combined with the lack of access to legal services for low- and middle-income Americans, caused the federal government, consumer groups, and the organized bar to take a close look at the way legal services were being delivered.
What are all the potential consequences of engaging in the unauthorized practice of law? Do most states address violations of UPL rules or statutes?
The unauthorized practice of law is a misdemeanor in more than 30 states and subjects a person to civil contempt proceedings in more than 25 states.
What are the ABA Model Guidelines for the Utilization of Paralegal Services?
These guidelines were written to provide a model for states that want to adopt such guidelines and to encourage attorneys to use paralegals effectively and appropriately.
What is the purpose of state guidelines for the utilization of paralegals?
To promote the effective and ethical use of paralegals, highlight the key ethical matters that come into play when a nonlawyer is involved in the delivery of legal services, such as unauthorized practice of law, confidentiality, conflicts, and fee splitting.
UPL is a crime, just not a violation of RPC
Unauthorized practice of law is also a crime in many states, including South Carolina. S.C. Code Ann. § 40-5-310 states that practicing law without a license is a felony, with a penalty of up to five years in prison and/or a five thousand dollar fine.
Historical view of Law
Work that is: -Traditionally done by lawyers -"Commonly understood" to require the legal skill of a lawyer -Requiring legal skill and knowledge beyond that of a layperson -Characterized by the relationship between lawyer and client
Can a paralegal assistant who is negligent while working on a client's case be sued by the client for malpractice? Can this paralegal's attorney-employer be sued? If so, on what legal basis?
Yes. Yes. respondeat superior
Do NALA and NFPA have rules on the ethical conduct of paralegals? How are these rules enforced?
Yes; NALA can remove members at a national level.
What is certification? What is licensing?
certification = form of recognition within a profession when someone meets certain qualifications licensing = mandatory form of regulation in which government grants permission for someone to engage in particular activity
Failure to follow your own policies and procedures is
evidence of lack of due care.
What are the NALA Model Standards and Guidelines for the Utilization of Legal Assistants? What do they contain? What is their purpose?
guidelines sued to serve as educational/ informational tool for attorneys and state bars, and to provide a model for states.
What is the ABA's position on paralegal certification and licensing?
opposed to it; neutral on voluntary
A Firm must have
policies and procedures and follow them.
What are the arguments in favor of the licensing of traditional paralegals? The arguments against?
public recognition, higher standards/quality of work, expanding access to legal services and lowering costs, encourage needed standardization, provide guidance
That failure can, and will be, used against
the firm in the event of a lawsuit tied to conduct related to those policies and procedures.
Can a lawyer be disciplined for the unethical conduct of a paralegal whom he or she supervises? Can the paralegal be disciplined?
yes
What are the arguments against the licensing of traditional paralegals?
• not benefit the public because attorney-employers are already fully accountable to clients • increase the cost of employing paralegals and therefore increase the cost of legal services • stifle the development of the profession • inappropriately limit entry into the profession • unnecessarily standardize paralegal education • restrict the movement of paralegals into new areas of practice or duties
What are the arguments in favor of the licensing of traditional paralegals?
• provide appropriate public recognition for paralegals as important members of the legal services delivery team • ensure high standards and quality of work by paralegals • expand the use of paralegals, thereby expanding access to legal services and lowering costs • provide assurance to clients and employers of paralegals of their qualifications • encourage needed standardization in paralegal education
