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P1 law exam notes > Professional responsibility > Flashcards

Professional responsibility Flashcards

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1
Q

What is the madate of the Law society?

A

to govern Ontario’s legal profession in the public interest

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2
Q

What is the standard paralegals must meet to be permitted to provide legal services?

A

Paralegals must meet the standard of good character and competence

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3
Q

what code of ethics must paralegals follow when providing legal services?

A

The Paralegal Rules of Conduct

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4
Q

how many paralegal rules are there? And what are they

A

citation and interpretation, professionalism, duty to clients, Advocacy, Fees and retainers, duty to the administration of Justice, Duty to licensees and others, practice management, responsibility to the Law Society

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5
Q

How should the Paralegal rules and guidlelines be applied?

A

With common sense

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6
Q

where a paralegals personal sense of what’s right, may conflict with the Rules and guidelines what should they do?

A

A paralegal is obligated to comply with the Rules regardless if they agree or not

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7
Q

In what ways can a paralegal be suspended?

A

For disciplinary or administrative reasons

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8
Q

What happens when you become suspended?

A

A paralegal is not allowed to provide legal services, and must disclose suspended status to clients.

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9
Q

Are paralegals allowed to represent clients in proceedings under the Youth Criminal Justice Act?

A

No

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10
Q

What other skills must paralegals posses?

A

Cultural competence & act with integrity and honour

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11
Q

How must paralegals act with all persons they interact with?

A

Paralegals must be courteous, civil and act in good faith

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12
Q

How must paralegals go about any outside interests?

A

A paralegal should not be involved in anything that makes it difficult to distinguish what capacity the paralegal is acting or would result in a conflict of interest

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13
Q

How must paralegal mediators act?

A

Impartial

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14
Q

what is an undertaking?

A

It is a personal promise to carry out specific tasks and/or specific conditions. Paralegals must honour every trust condition once accepted, and has to be personally carried out by the paralegal making a promise

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15
Q

What is the Ontario Human Rights Code?

A

It gives every person a right to equal treatment w/o discrimination on various grounds …

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16
Q

what are the 3 types of discrimination?

A

direct discrimination, indirect or adverse-impact discrimination, and systemic discrimination

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17
Q

What act outlines the rules that employers must follow based on workplace harassment and violence?

A

the Occupational Health and Safety Act (also create policies within workplaces)

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18
Q

What is cultural competence

A

The ability to communicate respectfully and comfortably with people from differing cultures .. each person’s experience with the world is different, and how they view authority

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19
Q

what is an unconscious bias?

A

it is the rapid judgments about people and situations that each person makes w/o being aware of the person’s own thought process

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20
Q

What is a microaggression?

A

It is repeated, daily comments, questions or behaviours whether intentional or not that communicate hostile, derogatory or negative slights against those who are not a part of the dominant culture

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21
Q

How do we treat people equally?

A

Substantive equality recognizes that in order for people to be equal different treatment is required.. (diversity and inclusion, inclusive client service, inclusive workplaces

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22
Q

What is a prospective client?

A

Anyone seeking advice or assistance on a matter requiring a paralegal’s professional knowledge, even though the paralegal has not prepared a retainer agreement, or agreed to represent that person, the prospective client may reveal confidential information. Regardless of whether the paralegal is retained by the client after initial contact, the paralegal has a duty to protect confidential information & to avoid potential conflicts of interest

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23
Q

How to avoid phantom clients?

A

Always confirm in writing whether a paralegal will act for a client via retainer agreement, inform third parties that you represent the client’s interests only, and avoid discussing legal matters outside work environments

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24
Q

How to deal with firm clients?

A

Firm clients are also your clients

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25
Q

What is a joint retainer? And some basic guidelines

A

Occurs where a paralegal is retained to represent two or more clients in the same matter. information provided by one joint client about the matter cannot be withheld from the other joint clients, a paralegal may represent if all clients give seperate written consent

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26
Q

What to do if a contentious issue arises in a joint retainer?

A

The paralegal cannot continue to act for both or all of the clients and may have to withdraw completely

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27
Q

How to deal with third parties?

A

To ensure there are no misunderstandings about the involvement or authority of the third party, the paralegal should meet with the client privately to obtain direction on how to deal with the third party

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28
Q

What is a limited scope retainer?

A

Occurs where the paralegal and client agree that the paralegal will provide limited legal services or perform a specific legal task

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29
Q

When is client identification and verification required?

A

It is required when the paralegal is retained to provide legal services (full name, address, phone number) and must be documented the date it was obtained

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30
Q

How long must a paralegal keep the identifying records?

A

6 years

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31
Q

what makes a “competent paralegal”?

A

knowledge, skills, judgment, client service and communication

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32
Q

What to do if a paralegal finds themself incompetent?

A

They must: decline to act, refer them a lawyer or paralegal who is competent, or upon consent of the client become competent w/o undue delay, risk, or expense to the client

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33
Q

How do you obtain adequate knowledge about the client’s matter?

A
  1. investigate the facts
  2. identify issues
  3. ascertain client objectives
  4. consider possible options
  5. develop and advise appropriate course of action
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34
Q

what are most complaints to the Law society about?

A

Failing to manage client expectations. So make sure you do!

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35
Q

what are the requirements for annual continuing professional development (CPD) activities?

A

12 hours. To ensure a paralegals abilities remain at the required level of competence

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36
Q

what is the duty of confidentiality?

A

A paralegal cannot effectively serve the client unless there is full and unreserved communication between them. a paralegals duty of confidentiality requires at all times, to hold in strict confidence all information concerning the business and affairs of the client acquired in the course of a professional relationship.

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37
Q

How long does the duty of confidentiality last?

A

Indefinitely

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38
Q

In what situation can a paralegal disclose confidential information?

A

When required by law

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39
Q

What are the 5 situations a paralegal is permitted to disclose confidential information?

A

To prevent death or serious bodily harm, to defend against certain allegations, to establish or collect fees, to secure legal advice, and to detect and resolve conflicts of interest.. (but not disclose more info than what is required)

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40
Q

what is the duty to report misconduct?

A

If a paralegal has evidence that another licensee is or was engaged in misconduct, the paralegal is required to report it to the law society, it must be in good faith, w/0 malice or ulterior motive. This obligation applies to the paralegal’s own conduct as well

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41
Q

Where to keep and store client property?

A

keep client documents and other property out of sight and reach of those not entitled to it to reduce the risk of inadvertent disclosure

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42
Q

Should paralegals gossip about client matters?

A

No. never, a paralegal should not discuss client matters where the discussion may be overheard or intercepted

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43
Q

What is a conflict of interest?

A

exists when there is a substantial risk that a paralegals loyalty to a client would be materially and adversely affected by the paralegal’s own interest, or the paralegals duties to another client. A client may be unable to judge whether the paralegal’s duty have been actually compromised

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44
Q

When can a paralegal represent a client despite a conflict of interest?

A

a paralegal may represent conflicting interests if each affected client consents to waive the conflict. MUST BE IN WRITING. Consent must be fully informed and voluntary after disclosure of the conflict of interest

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44
Q

What is informed consent?

A

a paralegal must give client full and fair disclosure of all information relevant to a clients decision in sufficient time

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45
Q

what is independant legal advice?

A

In some cases, a paralegal in a conflict of interest situation should or must recommend that a client obtain unbiased. ILA before the paralegal may take any further step in the matter

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46
Q

Can a paralegal act for opposing parties in a dispute?

A

No, never. even with consent, the paralegals advice, judgment, and loyalty to one client would be materially and adversely affected by the same duties to other client.

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47
Q

What is the bright-line rule?

A

a paralegal cannot act for a client whose interests are directly adverse to the legal interests of a current client without their consent.

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48
Q

Can paralegals act against former clients?

A

paralegals have a duty not to act against former clients unless certain criteria are met

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49
Q

How to deal with short-term services (pro bono)?

A

the paralegal rules allow a paralegal to provide short-term w/o doing a conflict’s of interest check.

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50
Q

what restrictions do paralegals have to follow when transacting with clients?

A

paralegals are prohibited from: lending or borrowing money, buying or selling property, recommending an investment or, entering a common business venture

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51
Q

Are paralegals allowed to borrow from a client?

A

No, unless the client is a regulated lender i.e. a bank, credit union, or a “related person” spouse, family member, parent

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52
Q

are paralegals allowed to act for loved ones?

A

paralegals can offer pro bono work to family loved ones. In regards to whomever they are romantically involved it is not advisable. It might cause a power imbalance.

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53
Q

Are paralegals allowed to act as a surety for a client?

A

No. Never, with that a paralegal must not deposit with the court a paralegal’s own money.

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54
Q

How to deal with unrepresented parties?

A

A paralegal should make it clear that they are representing the interests of their own client

55
Q

What should paralegals use and establish in their own practice?

A

A conflict checking system

56
Q

What does it mean to act as a fiduciary?

A

It means a person who must act for another person with total trust, good faith and honesty, the client is the beneficiary

57
Q

what are some requirements of a fiduciary?

A

as a fiduciary the paralegal must put the clients needs before the paralegal’s own. They must be honest and candour, refrain from assisting or encouraging dishonesty, fraud or crime, encourage settlement or compromise, acting appropriately with clients of diminished capacity, dealing with clients under duress or undue influence, properly handling medical reports and handling errors and omissions

58
Q

Are you allowed to threaten your client with penal action?

A

No, must not in an attempt to gain a benefit for a client. threaten, or advise a client to threaten without reasonable and lawful justification

59
Q

How do paralegals deal with medical reports of their clients?

A

If a paralegal receives a medical report that contains findings that might cause harm or injury to the client if disclosed, the paralegal must try to dissuade the client from seeing the report. Where the client insists on reviewing such a report, the paralegal must also recommend the client do so at the office of the physician

60
Q

What to do if a paralegal makes an error or fails to do something the paralegal should have done?

A

first, promptly inform the client of error or omission, than promptly notify an insurer and co-operate with the insurer and make sure the claim be dealt with promptly, prepare to pay… In limited circumstances the paralegal may be able to continue to act for the client.

61
Q

How to deal with client property?

A

paralegals should only hold client property that is the subject of the legal services that the paralegal is providing to the client. Must be stored in a secure manner(safety deposit box, a safe). Paralegals must keep track of any property held for the client. “Valuable property record”

62
Q

What is a money retainer?

A

It is a contract that outlines the essential terms of the professional engagement with the client or an initial fee or deposit paid to the paralegal in advance to secure the paralegals services in the near future

63
Q

Where do client’s monies get deposited?

A

The money must be deposited into the paralegals trust account. As the paralegal works on the matter and after completion, the paralegal must pay the account from the money retainer held in trust.

64
Q

Who pays for disbursements and expenses?

A

Disbursements and expenses paid by the paralegal on behalf of the client may be paid directly from the trust upon the clients consent

65
Q

When is a paralegal not allowed to accept a money retainer?

A

in two circumstances: where the paralegal is employed by a charity or where there is a contingency fee agreement

66
Q

What are some ways fees may be billed to clients?

A

an hourly rate, a block, fixed, or flat fee, fees by stages, and contingency fees

67
Q

What are the rules about how much a paralegal should charge for disbursements?

A

Paralegals may only charge or accept a fee or disbursement that is fair, reasonable, and has been disclosed to the client in a timely fashion. It should be discussed at the outset of the retainer

68
Q

What is the rule about hidden fees?

A

The paralegal cannot hide from the client any financial dealings in the client’s matter. The paralegal cannot receive payment or compensation from anyone other than the client in a matter unless the client is informed and consents.

69
Q

What is a statement of account?

A

Whether interim or final, a statement of account (aka bill) delivered to the client must clearly detail the amounts the paralegal has charged for fees and disbursements also including HST and any interest charges . Must be carefully reviewed.

70
Q

Can a paralegal pay themself from the trust money?

A

yes but only if the work is complete and the paralegal has delivered a bill & there is sufficient funds in trust money. Otherwise it is a misappropriation of trust moneys and a form of professional misconduct.

71
Q

What is a referral fee?

A

It includes any financial or other reward for the referral of a matter. Plus a lot of guidelines

72
Q

What is a contingency fee?

A

It is a fee in which any part of the paralegal’s fees for legal services is dependant on the successful outcome or completion of the client’s matter. Since 2021, all contigency fees must contain a “standard form contingency fee form”. 4 kinds: fixed percentage, staged or graduated, partial, bonus or premium

73
Q

What stages of the paralegal-client relationship should a paralegal plan for each time?

A

initial client or matter screening, non-engagement or engagement (letter), implementation, and disengagement or completion

74
Q

How should a paralegal inform a client they have completed their work?

A

The paralegal must confirm discharge, withdrawal or completion from representation of the client in writing. AKA “closing”, “reporting” “disengagement” “termination”

75
Q

What is effective client communication?

A

Paralegals are required to communicate with clients at all relevant stages timely and effectively whether negative or positive.This includes the use of plain language or providing a translator. Paralegals should be sensitive to their clients needs. When determining the right approach to communicate a paralegal should consider the clients age, education, physical health, level of understanding and sophistication

76
Q

When is a paralegal ONLY allowed to withdraw from representation?

A

For good cause; and on reasonable notice to the client

77
Q

Why do the rules around withdrawal from representation exist?

A

The paralegal should protect the client’s interests to the best of the paralegal’s ability and not abandon the client at a critical stage of a matter or when withdrawal would disadvantage the client.

78
Q

In what situations may a paralegal withdraw, but they don’t have to?

A

There has been a serious loss of confidence between the paralegal and the client (ex. lying loss of trust) or; after reasonable notice, the client fails to provide a retainer or pay the fees and no serious prejudice to the client wouid result.

79
Q

Is a paralegal allowed to withdraw right before trial?

A

No. Not if the trial date is not far enough in the future to allow the client to retain another licensee and have the oppportunity to adequately prepare,

80
Q

What is mandatory withdrawal?

A

in some cases, where the paralegal may wish to continue the retainer but cannot occurs when; the client discharges the paralegal, the client’s instructions require the paralegal to act contrary to the Paralegal rules, or the paralegal is not competent enough

81
Q

Upon withdrawal what should a paralegal do?

A

A paralegal should cooperate with the successor licensee to minimize expenses and avoid prejudice to the client

82
Q

What to do if a paralegal has to withdraw but the trial date is approaching?

A

With the permission of the court attempt to ask for the trial date to be adjourned

83
Q

What is Rule 7.01 of the Paralegal Rules?

A

Duty to licensees and others- paralegals are obligated to be courteous and civil and to act in good faith … Some conduct that is prohibited; engaging in “sharp practice” (trying to gain an advantage by using dishonourable means), deny reasonable requests from other licensees concerning trial dates, adjournments

84
Q

What is Rule 9.01 of the paralegal rules?

A

Duty to the Law Society- duty to respond promptly and completely to the law society, report misconduct, and certain charges and convictions, report the inappropriate removal or use of trust money, the abandonment of a practice

85
Q

What is Rule 6 of the paralegal rules?

A

Duty to the administration of Justice- states a paralegal’s duty to; aid in maintaining the security of court facilities, avoid making inappropriate public statements, and refrain from providing legal services while his or her licence is suspended. Paralegals are offices of the court

86
Q

How to be an effective advocate?

A

Involves gathering all the facts, developing a theory of the case, and marshalling the evidence in a persuasive manner

87
Q

what is a theory of the case?

A

It is the paralegal’s position on all the undisputed and disputed facts that will be presented before the trier of fact. Should be 1 paragraph. It should lead the tribunal to the conclusion that the client should succeed.

88
Q

How must a paralegal act as an advocate?

A

Raise fearlessly every issue, advance every argument, ask every question however distasteful, avoid and discourage the client from resorting to vexatious or frivolous objections, discourage the client from attempts to gain an advantage from mistakes or oversights made by the opposing side that do not go to the merits of the clients case etc.

89
Q

What are a paralegal’s duty acting as a prosecutor?

A

the paralegal is an advocate for the public and the administration of justice, their duty is not to seek a conviction but to see that justice is done through a fair trial on the merits

90
Q

How to ensure the independence and impartiality of a tribunal?

A

There should be no personal connection between a tribunal member or judge and any of the parties in the proceeding or their legal representatives

91
Q

How to dress for court?

A

As an advocate, a paralegal should instruct witnesses how to prepare for trial (suitable attire, be courteous and respectful)

92
Q

How to deal with represented persons?

A

A paralegal must not: approach/communicate or deal with them directly, attempt to negotiate. Unless through consent of their legal representative

93
Q

How to ensure a paralegal does not influence a witness’s testimony?

A

Best practice is to avoid all communications with the witness throughout all stages of their testimony regardless if they are sympathetic

94
Q

What is unsworn testimony?

A

As an advocate a paralegal should not appear to give unsworn testimony, unless permitted by the tribunal, express personal opinions or state as fact anything that is subject to legal proof or cross-examination

95
Q

What are some benefits of good practice management?

A

Ensuring clients are adequately served. Also allows paralegals to reduce the risk of a malpractice claim.

96
Q

What are some ways paralegals are permitted to provide legal services through?

A
  1. Sole proprietorship
  2. General partnership
  3. Limited liability partnership (LLP)
  4. Civil society organisation (CSO)
  5. Professional corporation
97
Q

Can paralegals market their legal services however they want?

A

No. paralegals must comply with the Rules to ensure they do not use means that are; false or misleading, offer services that are beyond permissible scope of practice etc.,

98
Q

What should a paralegal not do when advertising?

A

A paralegal should ensure that their advertising does not suggest that the paralegal is a lawyer and should take steps to correct any apprehension

99
Q

Are paralegal’s allowed to use the term “specialist” in advertisements?

A

No. It might suggest that the paralegal has been officially certified by the Law Society. In addition, a paralegal is not allowed to use emotional appeals, #1 ‘best” or “super” is not accurate or true. A firm name should also not refer to a specific geographical location.

100
Q

What is effective file management ?

A

paralegals may use a file opening checklist to make sure all required information is gathered each time they meet with a prospective client. Paralegal’s should assign a distinct file name and # to each file. Active client files should be stored seperately from closed files.

101
Q

What is a time management system?

A

paralegal’s who manage their time effectively are more productive. The basic features of an effective time management system are; time planning, reminders, and time docketting.

102
Q

How to keep track of non-billable hours?

A

Time dockets are records of time the paralegal spends on a client matter(detailed, time, description of work done). Paralegals should consider maintaining time dockets for all files, to ensure fee billings are accurate. Non-billable hours should be tracked to monitor paralegals own productivity.

103
Q

Should dockets be updated daily?

A

Yes. this allows paralegals to bill clients on a regular basis.

104
Q

How to deal with the loss or destruction of electronic information?

A

Paralegals should reglularly back up data. Perform routine checks to ensure data can be restored and have insurance to cover the cost to recover lost electronic information or hardware

105
Q

What financial obligations must paralegals keep in mind operating their own business?

A

professional regulation fees, lisbility insurance, employee salaries, office supplies, renting or leasing office space, remittance of HST

106
Q

what is an annual report?

A

Paralegals must, each year file with the Law Society an annual report, which includes info on their books and records for client funds (trust accounts) and their own funds.

107
Q

Who is in charge of any support staff?

A

Paralegals are responsible for the supervision of any support staff. Paralegals assume complete responsibility for all business entrusted onto them including any work products completed by employees (placement students)

108
Q

What to do in a case of unplanned absence?

A

Paralegals should appoint a power of attorney for the practice that grants another named licensee the authority to act during a planned or unplanned absence

109
Q

What does PIPEDA legislation require?

A

That all personal information must be safeguarded at all times. Also, prior to disclosing any personal information paralegals must obtain express consent from the client. paralegal’s must develop a “privacy policy” and discuss the use of personal information in the retainer.

110
Q

How do paralegals maintain their books and records?

A

There are 5 types of accounting systems; manual double entry , one write, spreadsheet software, general accounting software, legal accounting software

111
Q

Do legal practices usually have a general and trust account?

A

Yes, most practices will have one “general account” (for the business of the practice) & 1 mixed “trust account” (to hold client funds for future fees and disbursements). MUST NOT MIX.

112
Q

What is a general account?

A

Payments from clients for services already provided and billed by the paralegal or firm should be deposited to this account. Payments for a firm’s expenses will come from the general account (i.e. professional or liability insurance, lease or rent, office supplies, disbursements paid in a client’s behalf when there are no client funds in trust, bank fees)

113
Q

what is a general receipts journal?

A

All deposits to the general account MUST be recorded in the “general receipts journal”. To generate a steady cash flow, paralegal’s should establish a routine of billing. These records must be kept for 6 years.

114
Q

What is a general disbursements journal?

A

Any withdrawals from the general account must be recorded in the “general disbursements journal”. Ideally a paralegals general receipts should match or exceed the general disbursements. (6 years)

115
Q

What is HST?

A

If the revenue from a legal services practice exceed a certain amount, the paralegal must register with the CRA to collect and remit HST on billings and disbursements. HST is payable by clients on the paralegal’s fees and some disbursements. If a paralegal has received HST from a client, the HST should be removed from trust and deposited to the general account until the paralegal is required to remit to the CRA.

116
Q

What is a fees book?

A

To track the HST receivable on fee billings each month, all fee billings should be recorded in the “fees book”. (6 years)

117
Q

What is an example of client trust funds?

A

Settlement funds. These funds belong to the client and are held for the benefit of the client. Any unused trust funds must be returned to the client at the end of the retainer.

118
Q

What happens to the interest earned on a mixed trust account?

A

The interest earned must be remitted by the financial institution to the Law Foundation of Ontario (LFO). Also paralegals must report to the Law Society when they have opened or closed a trust account.

119
Q

What to do if a client wishes to receive the interest earned on the client’s funds?

A

the client must instruct the paralegal to open a “seperate interest-bearing trust account”.

120
Q

What is a trust receipts journal?

A

All deposits to the trust account must be recorded in the “trust receipts journal”. When making sny deposit or transfer to trust, the paralegal must keep the duplicate deposit slip, the ABM receipt (these are the source documents). (10 years)

121
Q

What is a clients trust ledger?

A

The deposits for each individual must be recorded in the “client’s trust ledger.” (10 years)

122
Q

Who has access to all the accounts?

A

Paralegals must be in control of their trust accounts. In a firm the managing partnersof the firm are likely to be in control of the firms trust accounts

123
Q

Are there any restrictions on accepting cash?

A

to aid in the prevention of money laundering, for any one client file, a paralegal may only accept less than $7500 CDN in cash.

124
Q

What is a clearance period?

A

It refers to the period of time it will take for funds to actually become available for use (usually 5-10 days). Paralegals must be aware of these. Paralegals must ensure that funds have cleared before disbursing any of these funds.

125
Q

What to do with NSF cheques?

A

NSF cheques that result in “overdrawn” balance it is a paralegals responsibility to replace the money back into the account. A paralegal should review the client trust ledger accounts regularly to ensure that there are sufficient funds in trust

126
Q

What is a general cash journal?

A

The general cash journal is comprised of the general receipts and general disbursements journal

127
Q

what are two optional things paralegal’s can do to keep track of their books?

A
  1. Clients’ general ledger- it lists every client and tracks all the expenses, invoices, and payments
  2. Monthly general reconciliation- checking all entries in the general account statement against the general account source documents, books, records, to ensure they match
128
Q

What is a trust cash journal

A

It is required to have; the trust receipts and trust disbursements.

129
Q

What is a Trust transfer record

A

This is a record that tracks any amounts of money transferred between client’a trust ledger accounts and explains the reason for such transfer. (6 years).

130
Q

What is a monthly trust comparison? (10 years)

A

is a REQUIRED record. Must be completed by the 25th of every month. It ensures that a firms trust accounting records agree with the banks trust acciunt statements, the two amounts MUST BE THE SAME.

131
Q

What is a duplicate cash receipts book?(6 years)

A

For every amount of cash a paralegal receives the paralegal must prepare and keep a book of duplicate cash receipts. One copy is given to the client and one is kept with the accountign records. TRY TO GET THEIR SIGNATURE. (be weary of someone who does not want to sign)

132
Q

What is a valuable property record? (10 years)

A

paralegals are required to keep a record of all valuable property other than money that they receive (detailing what the item is, value, date received). Avoid holding onto these valuables for an extended period of time, and should only hold property related to the matter for what they were retained for.

133
Q

What subgroups do indigenous people fall into?

A

First nations, Metis, and Inuit

134
Q

What is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)?

A

recognizes Indigenous rights, major step t9 reconciliation, with that the Truth and reconciliation Comission of Canada (CRC)

135
Q

When working with an Indigenous client what should a paralegal consider?

A

paralegals have a special obligation to contribute to the reconciliation process. They should be mindful that a trauma-informed approach may be appropriate

136
Q

What is an anti-racist approach?

A

paralegals should also consider adopting this approach that seek to counte the effects of racism.

P1 law exam notes (5 decks)

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