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The Ethical Paralegal 
An Elementary Guide

Do you know when you are stepping over the line?

Introduction

Attorneys have in them, like most people, an internal mechanism guiding them towards finding and making correct decisions. Yet, rarely this is not enough to rely upon when the legal question at hand may at times be convoluted. The American Bar Association (ABA) Model Rule 1.1 states that an attorney shall provide competent representation to a client…a representation that requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. However, even the most competent lawyer may not have an immediate answer, and going with one’s gut may not prove to be such a good idea for everyone involved. Being an overall good person does not make a good attorney, and it most certainly will not keep such an attorney from getting disbarred or thrown in jail.

            If experiences shape ones knowledge, different experiences may result in different ethical viewpoints. However, with the proper focus, instruction, and education, the legal professional can learn how to make the right choices and in the long-run assist his/her attorney. The ABA has assisted in providing a list of the “Top Ten Malpractice Traps and How to Avoid Them.” Keeping everyone satisfied without breaking the legal ethics of care, allegiance, and confidentiality starts with the ability to be relentless in balancing the promises of not only protecting the client relationships, but also in preserving the public’s confidence and judicial integrity. In this article we offer some tips on how legal professionals can better effectively and ethically serve their attorneys and clients. We hope that it will prove to be a resource.

How to effectively represent the client

In breaking down the details of how to competently represent ones client, the ABA’s “Top Ten” rules for deterring malpractice are as good of a starting point as anywhere else. Even though these rules were meant for deterring malpractice lawsuits, they are also fundamental procedures to adhere to while maneuvering through the maze of law. Ethically speaking, any law professional SHOULD NOT:

  • 1.   Miss Deadlines. Review, back-up filing system and know your statute of limitations!
  • 2.   Handle Stress through Substance Abuse. This is poisonous cocktail for potential client neglect, attorney misconduct, and costly mistakes.
  • 3.   Fail to Communicate with the Client. Communicate orally and frequently, in writing to safeguard confidence and satisfaction.
  • 4.   Fail to Screen their Prospective Clients. A problem client will only take away from your performance in other relationships.
  • 5.   Fail to Research and Investigate. Failure to know and to properly apply the law is at the core of unethical representation.
  • 6.   Fail to Spot a Conflict of Interest. Unexpected conflicts arise when both parties want the same representation, when a personal involvement exists, or when there is a monetary interest in the individual or organization.
  • 7.   Inappropriately Become Involved in Client Interests. A client’s personal business is hands-off.
  • 8.   Foster an Environment for Insufficient Documentation.Check the accuracy and content of all outgoing documents, make file management a priority, and always safeguard client information.
  • 9.   Sue for Attorney’s Fees. Payment plans and mediation are a far better way to resolve fee disputes.
  • 10. Avoid Problems with Denial. Don’t ignore the reality that four to seventeen percent of attorneys are sued every year because of one reason or another.

        Protecting the client by the attorney obeying these ABA guidelines helps for starting out on the right foot, but where does one go from there? It’s always a good plan to strategize, listen and learn. Do not talk down to a client, not because of ethical behavior alone, it just does not foster a successful environment. There is truly no such thing as knowing it all, no matter how much experience one possesses. Strategize by asking the right questions and recording all details. You never know when the seemingly unimportant turns out to be the whole case. Furthermore, some legal terminology may only sound like jibber-jabber, so drop it down a notch; it is not imperative that the attorney should flex his mind-muscles with the client; as a paralegal try to make the client feel at ease and keep him/her at ease. In the early stages, fact-finding is what counts and the paralegal can be an essential part of this process. Finding out the facts increases the lawyer’s ability to avert crisis and problem-solve (a huge advantage when considering how to skillfully represent one’s client).

More practical tips

For the past few decades, a popular public view of the legal profession has been one of disenchantment. The social role and moral aspiration of the attorney has become tarnished because of the tension between client interests and public interests. All of the tough decisions that an attorney makes on a daily basis clearly has challenged the core principle of client loyalty. Always be aware of the fact that the paralegal is only an extension of the lawyer/client relationship, so the promises of diligence, skill, knowledge, loyalty, integrity, and fair and honest billing are also part of the paralegals job. However, it is the lawyer who oversees the carrying out of these responsibilities by the paralegal. Today, the responsibilities surrounding new technology are at the forefront in the management of a legal office. Subsequently, the ABA proposed the following website guidelines. The legal professional SHOULD:

  • 1.      Update their Websites Regularly.Always keep current information.
  • 2.      Use Disclaimers. Unjustified expectations can be avoided.
  • 3.      Know the Difference Between Legal Information vs. Legal Advice. Legal professionals should make clear that on-line conversations are general in nature unless otherwise stated.
  • 4.      Define the Formation of an Attorney-Client Relationship. When the public submits unsolicited information, the lawyer’s response may very well determine the way of the relationship.

Nevertheless, even though the ABA has made accessible numerous rules on legal ethics since 1908, the organization is private and membership is voluntary. The ABA has no authority to make decisions on disciplinary actions. “Every state has rules of ethics, also called Rules of Professional Responsibility or Rules of Professional Conduct.” These are the rules that govern lawyers, thereby protecting the judicial process. It is doubtful that the states would relinquish any authority over the legal profession, even though there are new challenges associated with advances in technology. Initiating and promulgating law is a duty. Just as in the national opinions of the ABA, each state’s ethics committee should continue to monitor and provide guidelines for preventing moral turpitude.

CONCLUSION

            Today’s lawyers learn and practice their trade differently than in the past. The workplace has changed. Life has changed. The client has changed bringing to the law office a myriad of new legal issues. A great deal of the grunt work is now done by paralegals, outsourcing, computers, or by other means. There is a huge reliance on what has been undertaken by others. “It is not at all obvious that aspiring lawyers become expert lawyers by spending months on what is largely administrative work. There is greater evidence that young lawyers learn their trade by working closely with, and observing, legal experts in action.” For this reason, the paralegal has become an extremely important player in the continuing success of his/her employer.

Finally, knowing and using the vast array of live and online educational tools, lectures, virtual supervision and i-tutorials that simulate actual legal transactions and disputes is becoming the leading path of training and education. In order to successfully serve the client, being a part of the virtual environment is a must. Doing what is ethically and legally right is an ongoing challenge, so stay in the loop – stay updated and educated. Don’t you or your firm be the next victim of ill-advised actions.


About the authors

Dr. Robert Diotalevi, Esq., LL.M., is the Founding Program Coordinator and Associate Professor of Legal Studies at Florida Gulf Coast University in Fort Myers, Florida. He has been a lawyer for 29 years. He possesses four degrees and has been internationally published. His e-mail is bdiotale@fgcu.edu  

Ms. Connie Comunaleis a Legal Studies major at FGCU. She is currently employed part-time in the field of Estate Planning. She has over a decade of experience in the areas of construction and real estate development. Her email is ccomunale1730@eagle.fgcu.edu


Works Cited

Kaiser, Michael. “Legal Ethics in the Digital Age (PowerPoint).” 2014 JD Supra, LLC. December, 20, 2011. http://www.jdsupra.com/post/documentViewer.aspx?fid=1f9f8872-9129-4924-9176-d2bdd101d938.

Orlik, Deborah. Ethics for the Legal Professional - Eighth Edition. United States of America: Pearson, Inc., 2014.

Susskind, Richard. Tomorrow’s Lawyers: An Introduction to Your Future. United Kingdom: Oxford University Press, 2013.

“The Top Ten Malpractice Traps and How to Avoid Them,” American Bar Association, January 8, 2013. https://apps.americanbar.org/legalservices/lpl/downloads/ten.pdf.



                                                  

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