Even if almost no one who works outside the field believes it, any paralegal will tell you that ethics really are the cornerstone of law.
In fact, some people might say that adhering to ethical standards of conduct is the key feature of the American legal system. After all, all countries have laws; the rule of law, however, depends on the honesty and integrity of the people responsible for administering it. And that includes paralegals.
Admittedly, you won’t hear a lot of talk about ethical issues in the average law office—these values are so deeply engrained there is rarely any reason to discuss them. Most paralegals would have a hard time even imaging themselves ever being in a situation where they’d be faced with some hard ethical dilemma.
But those situations can come up and there are strong rules in the legal system designed to cover them. Fortunately, most paralegals will never run into them, but it happens often enough that malpractice suits over ethical violations are a regular feature on dockets around the country: the legal assistant having an affair with a client’s husband during a divorce case … the paralegal who stole $32,000 from a client … the paralegal accused of falsifying court documents … all sad exceptions to the general rule that most legal professionals can be trusted and perform their jobs with the utmost integrity.
These rules are established both by industry groups (the American Bar Association and the National Association of Legal Assistants each have ethics codes applicable to paralegals) and by state and federal laws. The regulations are applied by the relevant bar association, usually operating under the authority of the state supreme court.
Punishment for violating ethical rules can run the gamut from a slap on the wrist to fines to disbarment for the responsible attorney. Because paralegals are not themselves admitted to the bar, punishment often falls on the attorney or firm they were working for. This isn’t a great resume builder, obviously, and usually results in permanent exile from the industry as well as any direct legal remedies levied by the courts.
It’s always the gray areas that are the most difficult for lawyers and paralegals to navigate. But there are five solid rules of professional ethics that paralegals must never, ever violate.
Do Not Enter Into An Attorney-Client Relationship
The attorney-client relationship is something of a precursor to many of the other rules of ethical conduct in the American legal system. With a license to practice law, anything that even resembles an attorney-client relationship is strictly forbidden.
This includes the attorney-client privilege in which clients can disclose things to their attorney without worrying about their counsel being compelled to divulge what they were told. As a paralegal, this doesn’t apply and you can be subpoenaed to testify if there is reason to believe you know something critical to a case or criminal investigation, and you could be charged with perjury if you don’t start singing when you’re on the stand.
A paralegal working for an attorney is still responsible for working within the constraints of that relationship, but cannot be the one to initiate that relationship. This can be particularly challenging since paralegals are often the first point of contact that potential clients may have with a firm—they interview and gather information, and naturally the prospective client will consider the consultation the first step in retaining an attorney.
This rule and the next rule are both very easy to violate during those initial contacts and paralegals have to be extra careful that prospective clients are crystal clear on the limitations and constraints paralegals operate under.
Do Not Negotiate Fees With a Client
This rule may seem pointless and arbitrary at first, but it actually relates right back to the first rule. Negotiating fees gets to the heart of the attorney-client relationship since it establishes the conditions of that relationship. The agreement to pay for legal services – even before payment is actually made – is considered the client’s part of the contract. This means it can only be negotiated between the attorney and the client directly.
Unsurprisingly, this may be the ethical stumbling block paralegals are most likely to encounter. Clients can’t always be expected to understand this constraint—in other aspects of daily life, it’s pretty common to discuss the cost of a service with any employee representing a business, not just the owner. Clients may raise the matter of cost completely innocently, but paralegals have to be prepared to deflect these discussions and direct clients to the attorney instead.
Do Not Misrepresent Yourself as Someone Who Can Provide Representation
This rule isn’t usually too hard to follow, since most courts won’t recognize a paralegal in the first place. And there are exceptions, since certain administrative law courts do allow paralegals to represent clients in limited circumstances.
The more complicated aspect of the rule revolves more around paralegals that work on a freelance basis providing legal services who might inadvertently give clients the impression that they can represent them in court. This might result from a combination of the client being ignorant about the limitations of the paralegal role and the paralegal making the mistake of not clearly and plainly explaining these limitations to the client. If you offer legal services independently, it’s wise to make this one of the first things you talk about with your client. In fact, we’d recommend you put it in writing.
There are also certain interactions with a court which do not necessarily involve a formal appearance in the courtroom but still technically count as representing a client. This is the case with the process in place for filing certain documents and orders.
Although paralegals frequently draft such legal documentation, they are not allowed to file it without the direct supervision and signatures of a lawyer.
The temptation to violate this is mostly rooted in expediency. But there are reasons that the attorney is designated as the responsible party in these relationships, and bypassing their authority starts the ball rolling for further ethical issues.
Do Not Give Legal Advice
This rule can be a challenging one to comply with both since the definition of what constitutes legal advice can be very hazy and since almost every aspect of a paralegal’s job revolves around devising and communicating proper legal strategy.
What does or does not constitute legal advice? Is something as simple as saying, “This case looks like a slam dunk” a violation? Many authorities believe so.
Making compliance with this rule even more difficult is the fact that most bar associations interpret legal advice as being whatever the client perceives as being legal advice. This can be as simple as a throwaway observation about how difficult or easy a case may be. It’s best to stay in your lane and hold any comments you might have, even if it’s just in an attempt to be friendly or avoid an awkward silence. Better to feel a little uncomfortable and tight-lipped than to be in hot water for playing it too loose.
In general, however, you are safe if you stick to providing basic factual and procedural information about the case or the courts. This doesn’t extend to predicting outcomes or discussing the merits of particular strategies, but it can include essential elements like filing deadlines, the requirements of the law, and the process of trying a case.