Part 3: NALS Ch 2: Ethics Flashcards
Learn from the "NALS Advanced Manual for the Legal Professional"
“Ethics”
the principles or moral disciplines that govern an activity or profession
2 situations that pose the greatest ethical hazards to the experienced lawyer’s assistant:
- the pressure of deadlines resulting in work improperly prepared or assignments completed without sufficient supervision
- familiarity of the work leading to carelessness with client confidences or conflicts of interest
In 1967, the American Bar Association (ABA) stated in its Formal Opinion 316 that a lawyer can use the services of support personnel who______
“do not do things that lawyers may not do or do the things that lawyers only may do.”
“ABA Canons of Professional Ethics”
adopted in 1908 and included 32 canons of professional ethics. Fifteen more were added in the 1960s.
“ABA Model Code of Professional Responsibility”
Established in 1969 to supersede older “ABA Canons of Professional Ethics”.
Was organized into canons, ethical considerations, and disciplinary rules.
“ABA Model Rules of Professional Conduct”
Adopted In 1983 to define the role of the lawyer within the legal system
T/F: History of legal ethics
1908- ABA Canons of Professional Ethics (original 32)
1960s- ABA Canons of Professional Ethics (additional 15)
1969- ABA Model Code of Professional Responsibility
1983- ABA Model Rules of Professional Conduct
True
“ABA Model Rules of Professional Conduct” are also referred to as _______
“Model Rules”
Model Rules 1.1 through 1.18 concern
client-lawyer relationships
(including representation, fees, communication, confidentiality of information, conflicts of interest, duties to former clients, organizations as clients, clients with diminished capacity, safekeeping of client property, and declining or ending representation of a client)
Model Rules 2.1 through 2.4 concern
the lawyer’s role as an advisor, third-party neutral, and evaluator
Model Rules 3.1 through 3.9 deal with
lawyer as advocate and cover meritorious claims and contentions, expediting litigation, candor towards the tribunal (court), fairness to the opposing party and counsel, impartiality and decorum of the tribunal, trial publicity, and situations in which the lawyer must serve as a witness.
Model Rules 4.1 through 4.4 cover
transactions with persons other than clients and emphasize truthfulness of statements to others, communications with persons represented by counsel, dealing with unrepresented persons, and respect for the rights of others
Model Rules 5.1 through 5.7 cover
law firms and associations and include the responsibilities of supervisory and subordinate lawyers, responsibilities regarding the assistance of legal support staff, the unauthorized practice of law, and restrictions on the right to practice.
Model Rules 6.1 through 6.5 deal with
lawyers and public service, including pro bono work, accepting appointments, membership in legal services organizations, and law reform activities that may affect client interests.
Model Rules 7.1 through 7.6 concern
information about legal services and cover advertising, solicitation of clients, firm names and letterheads, as well as fields of practice and specialization
Model Rules 8.1 through 8.5 address
the lawyer’s responsibility to maintain the integrity of the profession and include bar admission, disciplinary matters, reporting professional misconduct, the commission of misconduct, and the jurisdiction to which the lawyer is subject
Because the “Model Rules” have served as the foundation for current ethical rules in all jurisdictions (including California), __________ are often of great use in interpreting and understanding a lawyer’s or lawyer’s assistant’s ethical obligations.
ABA publications
The “NALS® Code of Ethics and Professional Responsibility” was developed to
provide a professional standard specifically appropriate to the work of all legal support professionals
Which “Model Rule” sets forth responsibilities regarding nonlawyer assistants?
Model Rule 5.3
(a) a partner must ensure the firm has measures to assure nonlawyer assistant’s conduct is ethical
(b) direct supervisory lawyer must ensure nonlawyer assistant’s conduct is ethical
(c) Lawyer shall be responsible for unethical conduct if they order or ratify it, or are a partner of the firm and fails to take action.
“unauthorized practice of law (often referred to as UPL)”
doing things only lawyers may do (i.e. give legal advice)
Examples of information a lawyer’s assistant CAN share with client:
- time and place of a hearing,
- how to dress for an appearance in court,
- whether a specific piece of information or document may be needed by the lawyer in handling the case
Examples of information a lawyer’s assistant CAN NOT share with client:
- the status of the case, for example, “the motion was filed, the briefs were submitted, and the court has not yet ruled”
- opposing party has yet to respond to discovery requests or letter.
- any new legal issues that have arisen since a case concluded
When a family member, friend or neighbor wants the assistant to evaluate a legal situation (i.e. whether someone “has a case,” needs to see a lawyer, or can handle a legal matter themselves), the lawyer’s assistant should respond with____
- “I think you should speak with a lawyer,” or
- “I am not a lawyer, and I am not allowed to give legal advice.”
If there is an emergency which makes it impossible for the lawyer to appear in court or contact the court, the lawyer’s assistant can:
call the court and ask for direction in addressing the situation—(the answer is typically that the court will determine whether a continuance may be granted)
paralegals or legal assistants are sometimes allowed to appear at administrative proceedings in some state and federal agencies. to find out what the requirements are for this type of representation review ____
jurisdictional (not administrative) rules
it is probably best for the lawyer to quote all fees in whenever possible. However,
Lawyers sometimes instruct their staff in how to quote fees in limited situations. (i.e. not initial contact)
Only the lawyer may accept cases. (i.e. When a long-term client calls to ask for help with a traffic ticket, that’s a new matter, and the best answer is:
- to have the client discuss the ticket with the lawyer
- to say, “If you’ll send us a copy of the ticket, I’ll have the lawyer look at it and let you know whether he/she can help with it.”
Some lawyers need to be encouraged to maintain the lawyer-client relationship. Some things the assistant can do to ensure the lawyer communicates directly with the client:
- remind the lawyer of the need to follow through on phone messages,
- ask for permission to forward copies of pleadings and correspondence to the client,
- encourage the lawyer to send a status letter when a certain amount of time has elapsed, or key events have occurred
If the lawyer refuses to communicate with the client, who is answerable for misconduct?
the lawyer (not the legal assistant)
“direct supervision”
the lawyer directly supervising the actions of the lawyer’s assistant. (For example, the paralegal may draft a pleading, provided the lawyer reviews it before it is filed.)
No one without a law license may practice law in any jurisdiction, and in many jurisdictions practicing law without a license is____
a crime. (There are some jurisdictions where it is permissible for paralegals to do some legal tasks on their own, including drafting simple wills.)
A recommendation of a lawyer coming from someone employed in the field is likely to carry extra weight, however, the lawyer’s assistant should not ______ on behalf of the lawyer.
solicit business
The obligation to maintain confidential information:
- is a lifetime obligation, even after the client is no longer being represented
- extends to people who may have sought legal advice from the firm
- requires careful handling of any contacts by the press
examples of conflicts of interest by staff members (which must be reported to the lawyer otherwise could cause the disqualification of a firm in litigation):
- If the assistant has previously worked:
- with a law firm client on a different matter,
- on a case opposing the firm client,
- with the opposing counsel, - if the assistant knows or is related to any of the opposing parties in a matter
Two requirements for a lawyer in maintaining professional competence:
- provide competent representation to the client (includes quality of pleadings and correspondence)
- take continuing education courses (CLE) to maintain a license
Points for ethical handling of funds of clients and third parties
- Accurate accounting should be kept of the monies belonging to each client
- Distinguish between monies deposited against future legal fees and monies deposited to meet expected costs
- Each bill to the client should reflect any activity regarding the retainer and reflect the current balance of that client’s remaining retainer
T/F: Occasionally, the lawyer may be in possession of the funds of third parties—particularly in states where lawyers sometimes serve as escrow agents.
True
Ethical problems the notary will encounter include:
- a person requesting that the notary backdate the acknowledgment
- a lawyer witnesses a signature and asks the notary to notarize it on the lawyer’s say-so
Who is responsible to ensure legal support staff do not violate ethical rules?
- the law firm should define the ethical precepts for its staff
- lawyer’s assistant must seek clarification and instruction whenever needed
Both employer and the employee are bound to a strict code of ethics that ensures:
- excellent customer service
- encourages ongoing professional education and training
- maintains the integrity of the justice system
