Alrighty. I shall attempt to break down ethics in this blog for you. Unfortunately, I did not have the foresight to obtain my textbooks out of storage this weekend (they are out of town) so I am working off the syllabus. I had forgotten exactly how little information was contained in it. However, with this course, hopefully you all should have the smarts to figure it out. It is pretty much common sense; however, the number one rule of life is "People Are Stupid." Unfortunate, yes, but due to this fact, the government was compelled to create a list of do's and do-not's to regulate attorneys and paralegals just to make your life difficult. Now, in lesson one, you learned that the government does not directly regulate paralegals. BUT, your supervising attorney (or general supervisor if you do not work in the legal industry) can and will be held responsible for your breach of conduct. This is an excellent incentive for you to do the correct and moral thing in your line of work. Most of the work in this course is contained in the textbook, under the Model RULES. These Rules are fairly straight-forward, so I suggest that you go through it and create an outline in a notebook with the main points. You all are pretty smart from what I hear, so hopefully you can take one phrase from the main points and soliloquize about them at length. I cannot stress how much this will bring together the rest of the course.
Now, about 75% of ethics can be summed up in one phrase: "Keep your stupid mouth shut." Yes, you are given permission to substitute any appropriate French adjective in place of "stupid." In any scenario, if you see someone blabbing off at the mouth, it should automatically scream "ETHICS BREACH!!!" in your mind. Plus, it helps that you will have a separate exam for this course, so you will know that you are looking for one. Do NOT discuss your cases outside the office; do NOT "share information" with a third-party regarding any case; do NOT speak with someone regarding a case, even a co-professional, without your supervisor's permission. Just keep...your...mouth...shut. If you do that, you have nothing to worry about.
In a breach of ethics, corrective action is determined, not by any paralegal oversight committe, and not by legislature, but by the state court system. Attorney's are not actually REGULATED by the ABA, but rather by the State Supreme Court. This is a common misconception in the secular world. The ABA merely provides guidelines, but actual sanctions and decisions stem from the Supreme Beings in the appropriate state. Therefore, any question about specific state-rules in an ethics situation will be found in the state Supreme Court's publications. This tid-bit of trivia knowledge will more than likely be tested on both the exam and the CLA.
As I do not have access to the textbook, I am unable to give guidelines on specific sanctions that may be placed on attorneys, but know that they are varied in both attitude and severeness. These are explained in detail in the text. I also suggest that you jot down an outline here titled "Sanctions for Breach of Conduct" and just make a list. It will be good to know them, and they will probably be tested as well.
Moving on to Unauthorized Practice of Law, commonly known as UPL. This is an interesting topic. What, exactly, constitutes the practice of law? Well, who knows? Attorneys have been around for several centuries, and they are still working that one out. But we DO know a few things. First, never, ever, EVER give a client ANY legal advice. This will unequivocally count. As a paralegal, you may be put in a unique position interacting with clients. As they get comfortable with you, they will tend to turn to you with their questions. You may answer questions about procedure- the next step the attorney is going to take, which forms are being filed, and all that stuff. But do NOT tell a client what to DO if it pertains to the legal system or to statute. You MAY suggest that they see a medical counselor, you MAY offer encouragement (however, do NOT state that they ARE going to win a case), and general hopes and suggestions along those lines. Do NOT tell them what to do with assets relating to a case, do NOT offer interpretations about the law, unless directed to do so by your supervising attorney. And if directed to do so, make absotively, posilutely sure that you remain within the strict guidelines given for that exact, particular situation by the attorney and do not stray from them.
The other areas that are well-defined about UPL are fairly clear: do not sign documents with your name, do not take depositions (your attorney will handle this and know (s)he has to anyway), and do not represent a client in court. Now, for those of you with friends representing themselves in a proceeding pro-se, they may turn to you for assistance because of your specific knowledge of the legal mysteries. This is a dangerous area to wade through. If you decide to assist them QUIETLY, you are taking too much risk, in my not-so-humble opinion. Because, if you slip, they can always blame it on you and get you for UPL. Do not let friendships stand in the way of your own professional safety.
Some states have a special certification as a Certified Legal Document Preparer. You might want to look into this. It allows for a certain amount quasi-legal work. Basically, someone comes to you and says they want to change their name or file for divorce or something. What you do is hand them the appropriate documents to fill out. Then they bring the completed docs back to you, and you file them with the court and publish any appropriate public announcement. It might be a viable supplement to look into. However, always remain on the alert to what you say. Again, NEVER GIVE ADVICE. (also, and duh, do not ever represent yourself as an attorney. Rather, always make it explicit that you are NOT one.)
Confidentiality: when you are interviewing a client, it is always wise to clearly state to them that any information they share with you will be kept secret between you and the office. This will break down at least a few barriers for the client and allow them to be more honest with you. Do not trust their Hollywood/Law & Order knowledge which they will bring with them. Make things clear from the beginning that what they say is confidential and will not be shared outside the office. Even if they admit that they did in fact murder someone, you still cannot broadcast that information. None at all, no matter how serious. This is known as the Attorney-Client privilege. Note it in your outline. Also, there is a Work Product privilege. This allows for all the attorney's documents to be protected against opposing counsel. Again, the rule holds: Keep Your Mouth Shut. When the client knows that you willnot AND cannot share the information they tender to you, you are ensured against obtaining inaccurate information. BUT, always hold to another premise: Whatever you are told is a lie. Always look for contradictions in clients' statements, and always attempt to verify facts independently. This will ensure that the attorney is fully informed as the facts so he doesn't look like an idiot later on. Pay attention to the chart given on page 6 of the syllabus.
People are stupid, and whatever you are told is a lie. These are the two most powerful weapons you can have in your arsenal when approaching any new situation. And your backup safety is the general consideration of Confidentiality. Keep this moral standard in your mind 24/7. Now, those of you that drink have to pay special attention to this rule. I have seen it personally more than once- a paralegal gets drunk, loses his inhibitions and doesn't know what he is doing/saying, and inadvertantly starts talking about the case weighing on his mind most at the time. You have a very special position as a paralegal with access to very special information; and this information should be very closely guarded. Decide for yourself if you can handle this risk.
On to a more practical area: Conflicts of Interest. This is a difficult one to discuss. Basically, any situation that will tear an attorney between two clients is a conflict. For instance, he cannot represent two opposing parties in the same proceeding; he cannot use knowledge obtained confidentially from his representation of a client against that client in the future; an attorney cannot be bribed (duh); cannot front funds for the client (except when working on contingency); etc. Again, without the aid of the text, this is a difficult topic to discuss. However, the text does cover this very succinctly. Take your notebook and create an outline of the nine specific conflicts brought up in the text and syllabus, and this time make a summary about them.
Solicitation and Advertising: two fairly separate and clear methods. In advertising, the attorney is allowed to put up posters, billboards, phone ads, ect. as long as he makes no specific representations to his clients. This is why all the advertising you see fluffs up the prior experience of the attorney- to give the public knowledge of who and what he is. However, he is refrained from saying things like "I win all divorce cases" and stupid things like that, and from making false statements (duh). Advertisements just must be extremely general.
Solicitations, on the other hand, are much more highly regulated. A solicitation occurs when the attorney or his agent initiate personal contact with a potential client, unilaterally. This is pretty much never allowed, it's really a form of victimization. The client must come to you, unless the person being solicited is family or a former client. These special relationships allow for direct approach of the attorney to the client. The rules governing solicitation, however, only apply to cases where the attorney will make money. If the attorney wants a case pro-bono because he has to get his hours in, he is allowed to go out and make that direct contact.
It's 2:30 am over here, so I am going to cut this off with lesson 5. Hopefully, this will allow at least a little clarification about the material. It is mostly common sense all conditioned and explained. I have attempted to give an overview, and supplement the syllabus, as opposed to breaking each lesson's individual components down. Please e-mail me your input as to this, any feedback will be appreciated as I have never done this before.
Steven
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