Paralegals bring many benefits to a legal practice, and with benefits come many ethical responsibilities. These responsibilities involve not only the manner in which paralegals should conduct themselves but also the ethical considerations that the lawyers who supervise them need to make.
Ethical rules for paralegals to follow
Paralegals are bound by a set of ethical guidelines that dictate their professional conduct. According to NALA’s Code of Ethics and Professional Responsibility, these guidelines commonly include:
Paralegals cannot establish an attorney-client relationship.
Only attorneys can form an attorney-client relationship, by agreeing to provide legal representation. Although paralegals can and often do interview clients, gather information regarding a case, and even prepare a retainer agreement for a client’s signature, they cannot decide whether or not to take a case – that is the attorney’s responsibility.
Paralegals are prohibited from setting client fees.
Paralegals are not allowed to determine the fee that will be charged for legal services, although they can relay fee information given to them by their supervising attorney to the client.
Paralegals are not permitted to give legal advice.
Lawyers spend years in order to become qualified to give legal advice. A paralegal can share legal advice that comes from an attorney or direct a client’s question to the attorney themselves. But if a paralegal gives legal advice or holds themselves out as an attorney in any way, they are said to be engaging in the unauthorized practice of law.
Paralegals are not allowed to represent clients in court.
Although the right of self-representation is provided for by statute, this right does not include the right to be legally represented by a non-lawyer, including a paralegal. Although paralegals often assist their supervising attorney at trial, they are not permitted to advocate for a client in court.
According to NALA, a paralegal must “not perform any of the duties that attorneys only may perform nor take any actions that attorneys may not take.”
Ethical considerations for attorneys working with paralegals
Lawyers who employ paralegals have certain ethical obligations as well, and the failure to observe them could result in significant financial as well as reputational harm to themselves and their firm. Some of the common ethical dilemmas present in the lawyer-paralegal relationship include:
Proper supervision
According to Guideline 1 of the ABA Model Guidelines for the Utilization of Paralegal Services, “a lawyer is responsible for all of the professional activities of a paralegal performing services at the lawyer’s direction and should take reasonable measures to ensure that the paralegal’s conduct is consistent with the lawyer’s obligations under the rule of professional conduct.”
Appropriate supervision is key because a lawyer is ultimately responsible for all the actions of any paralegal under their employ.
Conflict screening
Most law firms would never risk hiring a new lawyer without conducting a conflict check, and the same should be true for paralegals. Firm employees hired to work so closely with clients should be screened upon employment offer, and their hiring should be contingent on the results of that conflict check.
If a paralegal is hired without being screened, the firm runs the risk of being disqualified from representing a client or being involved in a particular matter, should a conflict come to light later on.
Confidentiality
The attorney’s ethical obligations regarding client-lawyer relationships and confidentiality extend to paralegals as well as all non-lawyers working with the client. This obligation of confidentiality covers all types of client communication, including documents, files, phone calls, email communications, in-person conversations, posts on social media, and even discussions at home with a spouse or significant other.
These client confidences must be maintained indefinitely, even after the matter is closed or long after those involved have left the firm.
Fee splitting
A lawyer may not split fees with non-lawyers, and referral fees are also strictly prohibited. If a lawyer wants to give a paralegal a bonus at the end of the year, a compensation plan that includes bonuses can be implemented, as long as the amounts are based upon the individual’s productivity or the firm’s profitability.
A paralegal is a critical member of the legal team and can greatly enhance a firm’s efficiency and productivity.
But to ensure that an ethical relationship is maintained, a lawyer must provide a paralegal with proper supervision, adequate training, appropriate tasks to perform, and perhaps most importantly, high standards to strive for.
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Do you know of other ethical requirements concerning paralegals? Tell us about them in the comments!
