Legal Ethics
The Black’s law Dictionary (6th Edition) defines legal ethics as the usages and customs prevalent among the members of the legal profession, which relate to their moral and professional duties towards:
- One another
- The public
- Clients
- The courts
Therefore, in the context of paralegals, legal ethics refer to upholding the standards of behavior in the legal profession by acting in a way consistent with the usages and customs that have come to be associated with law as a profession.
Legal ethics is an all-encompassing term and applies to every kind of behavior that can be professionally associated with a paralegal. Thus, a paralegal must be diligent enough to understand the ethics he/she is bound to follow during his/her professional conduct in order to avoid an ethical problem that can create hassles in his/her career.
Legal Ethics as Rules
The paralegals are considered as specialists who are slightly less educated than the lawyers, but nevertheless, their social status is high. In order to uphold their dignity, paralegals need to follow certain established limits of permissible conduct.
These limits exist both in the written form and as customs and usages. For instance, the paralegals who are members of professional associations, like the National Association of Legal Assistants (NALA), are bound by their Code of Ethics and Professional Responsibility that were adopted in 1975. NALA mandates that the performance of a paralegal’s duties shall be measured by the provisions (canons) contained in the Code of Ethics and Professional Responsibilities, which are:
1. A paralegal should not encroach on the domain of attorneys, i.e., the paralegal should not perform any of the duties that only attorneys may perform. As a corollary, the paralegals must not take any action that even attorneys may not take.
2. A paralegal should assume responsibility for all the tasks that are properly delegated and supervised by an attorney. However, for the application of this canon, the attorney must be responsible to the client for the work done by the paralegal and subsequently delivered to the client. Additionally, the attorney must also maintain a direct relationship with the client.
3. A paralegal should not be part of any action or omission, which can be construed as unauthorized practice of law.
4. Unless authorized by any court or recognized agency, a paralegal should not:
- Establish attorney-client relationships.
- Prescribe a fee for such a relationship.
- Render legal opinions or advice.
- Represent a client before a court or recognized agency.
5. A paralegal should not indulge in any action or omission that has the effect of assistance or involvement of the attorney in violation of professional ethics.
6. A paralegal should exercise discretion and professional judgment consistent with his/her knowledge and experience. However, he/she should not provide any independent legal judgment or opinion, which only an attorney is eligible to provide.
7. In order to avoid any potential confusion, a paralegal is duty bound to disclose his/her status as a paralegal before setting off on a professional relationship with any attorney, client, court, or an administrative agency, etc. In this regard, a paralegal should ensure that he/she renders only so much advise/service to the client as warranted in the absence of the attorney.
8. A paralegal should uphold the confidentiality of the client, i.e., he/she must treat the communication with the client as privileged and refrain from disclosing or discussing the intricate details with anyone.
9. A paralegal should exercise caution in upholding the doctrine of privileged communications between a client and an attorney.
10. A paralegal should lay special emphasis on avoiding the conflict of interest with the employer by disclosing the existing and pre-existing employers who may be found in conflict with the interests of current or prospective employers. This may be achieved by asking for a list of cases the employer is currently handling. In case a conflict of interest is found with any of the existing clients of the employer, a paralegal should recuse himself/herself from assisting the employer in such a case.
11. A paralegal should consult and adhere to other ethics and responsibilities prescribed by any statute or rule of court.
12. Every Bar Association has its own codes of professional responsibility and rules of professional conduct. A paralegal should consult and adhere to codes and rules of the Bar Association he/she is associated with.
Legal Ethics as Customs
Besides, there are certain customs and usages that have come to be associated with the conduct of the paralegals. These include:
1) In case of doubt or uncertainty, a paralegal should not proceed till the doubt is cleared or uncertainty gives way to certainty. For instance, if a paralegal is given an assignment, which he/she is not experienced in, the suggested course of action is to disclose the inexperience rather than delivering a shoddy assignment. Similarly, if a paralegal is unsure about signing a legal document, he/she must clarify from an authentic source before signing.
2) A paralegal should avoid rendering legal advice if he/she is being coaxed into giving one.
3) A paralegal should maintain a healthy distance from the competitor of the client, unless the attorney advises otherwise.
4) The overall conduct of a paralegal should be above reproach. The paralegal must maintain a professional dignity and strive for excellence in his/her skills and behavior.
The Ethical Wall
A discussion on legal ethics for paralegals is never complete without referring to the concept of Ethical Wall (sometimes, referred to as “Chinese Wall” or “Screen”). In simple terms, an Ethical Wall represents a boundary, which should not be crossed by the paralegal in case conflict of interest is identified with any client or individual.
The National Federation of Paralegal Associations (NFPA) Model Code of Ethics and Professional Responsibility (May 1993) defines an Ethical Wall as “the screening method implemented in order to protect a client from a conflict of interest.”
The implications of an Ethical Wall, without limitation, are:
(a) The paralegal is not permitted to have any connection with the matter whatsoever;
(b) The paralegal is barred from discussing such matter with anyone;
(c) No transfer of documents to or from the paralegal shall be permitted;
(d) The paralegal is not allowed to access the files relating to the matter in question; and (e) The employer shall be duty bound to educate all the staff and employees in his/her office about the prohibition of the paralegal in all forms from the pending matter.
The concept of Ethical Wall provides a double protection to the clients regarding their discussions and pending matters with the attorney. As a general practice, the attorneys take their responsibilities seriously and do not compromise on the confidentiality and conflict of interest matters. But with the Ethical Wall in place, even the paralegals are made accountable in case of compromise on these issues. So, the clients are reassured that the integrity of their discussions is upheld in the form of privileged information.
Moreover, the Ethical Wall also protects the paralegals against the suspecting potential employers. If no such wall was there, it would’ve been extremely difficult for the paralegals to hop on to a new job, since the chances of conflict of interest grow as the paralegal becomes more experienced in his/her profession.