Transcript
Chapter 2 & 3
Part 1
Critical Thinking pages 75 – 76
Questions 2, 5, 6, 7, 10, 11, 13 & 15
2. Why is “just giving advice” potentially the unauthorized practice of law?
“Just giving advice” is left to one who has a legal education, taken the Bar Exam and is licensed to practice law. A paralegal can take care of documents, research and is supervised by an attorney. A paralegal is not licensed to offer any type of legal advice.
5. How can the paralegal avoid UPL?
The most common and basic rule a paralegal can follow to avoid UPL is to inform any prospective client or current client, or anyone else, that they are not lawyers. The paralegal is the person who a client has most contact with. For this reason, most clients think that paralegals can offer advice when no, they cannot. Paralegal is not licensed in this area.
6. How do unauthorized-practice-of-law statutes protect the public?
Unauthorized-practice-of-law statutes protect the public by seeing to it that everyone in the justice system is held accountable for their actions. The statutes clearly state what is acceptable and unacceptable duties and obligations are to the public regarding behavior, confidentiality, privilege or any other service that a licensed law professional has to offer.
7. Why should the paralegal be familiar with the ABA Model Rules of Professional Conduct?
The ABA Model Rules of Professional Conduct are a set of guidelines for lawyers when utilizing paralegals or legal assistants. It is beneficial for a paralegal to be familiar with these guidelines, this way the paralegal also knows what obligations are expected under supervision on the lawyer.
10. Would a paralegal dating a client have a conflict of interest? How could such a relationship create compromising influences and loyalties?
Yes, there would be a conflict of interest.
The paralegal is involved on a personal level as well as a professional level.. The paralegal may not be looking out for the best interest of the lawyer. Emotions may interfere with decisions on how lawyer is proceeding with case. It would be difficult for a paralegal to be loyal to both sides.
Rule 1.7 Model Rules of Professional Conduct addresses conflict of interest. A lawyer should not represent another client if “representation of one client will be directly adverse to another client” unless both clients consent to dual representation in writing. The lawyer’s personal interests or those of third parties who are not clients, such as family members, may also create a risk of conflict that must be avoided”.
The paralegal is supervised by the lawyer; in turn the paralegal falls under the same ethics, duties and obligations as the lawyer.
11. What are the reasons for protecting privileged communications?
Privileged communications can easily be stripped of being “privileged”. Privileged communications are saved for the attorney-client privilege for obtaining advice. Privilege applies to when attorney is being asked questions under oath. As long as the client shared the information with the attorney only, no one else, the information is considered “privileged” information. Once information is shared with others, the attorney-client privilege is gone. As the justice system has evolved, the paralegal falls under the attorney-client privilege. The paralegal is whom the client will have the most communication with.
13. What are the potential dangers in paralegals moonlighting?
If moonlighting, a paralegal is risking being placed in a situation of UPL. Many people assume that a paralegal can offer advice. This is not the case. Paralegal is schooled and licensed to be a paralegal, not practice law as an attorney is. A paralegal may have the best intentions of just typing up a form for someone, but it will most likely not be just that. The paralegal may also be placed in a situation where conflict of interest may arise being involved in multiple personal/professional activities.
15. Does a client have an attorney-client privilege regarding information given to a paralegal during the preparation of a case? Explain.
Yes. Communication between client and attorney is for the client to obtain legal advice. The client-attorney privilege prevents the attorney from being required to reveal information when under oath unless the client authorizes to share. This privilege includes all of those who act as an agent for the attorney, paralegal.
Critical Thinking page 125
Questions 16 & 18
16. Why is accurate time keeping important to the paralegal and the law firm?
Accurate timekeeping is essential to track the time spent with clients so the office will be compensated properly by its client. Without the billing, accurate time keeping, there will be no revenue. Not keeping proper records can lead to malpractice claims by a client if the client thinks that funds were used improperly. Lawyers keep track of their time, paralegal theirs and also functions in the office are tracked, ie copies, faxes, long distance calls. But it is not enough to just keep track of your time. There is a need to also understand the basics of accounting. A paralegal will be dealing with a client’s personal financial records – debits and credits.
18. What is an IOLTA account, and what is the reason behind maintaining one?
An IOLTA account, Interest on Lawyers Trust Account, is a special interest bearing account where a client’s funds are deposited due to the funds being so small, no interest will be earned. The income generated by the funds in this account are used for the public good. The IOLTA is easy to reconcile because there is no accounting involved.
Part 2
Tegman v. Accident & Medical Investigations (pgs 78-85)
Answer the following questions in a brief of the case: Questions 1, 2 & 3 pg 78
How does the court define “the practice of law”?
What is the standard or duty of care that this court imposes on a paralegal who dones not have a supervising attorney?
What action does this court suggest that a paralegal take when it becomes clear that there is no supervising?
CASE BRIEF
TEGMAN v. ACCIDENT and MEDICAL INVESTIGATIONS
107 Wash App. 868, 30 P.3d 1092, 68 Cal.Rptr. 758
(Wash. Ct. App. 2001) Court of Appeals of Washington, Division One
FACTS:
Washington Court of Appeals defines “the practice of law” does not just mean appearing in court. It includes “legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured”.
ISSUE:
The standard duty of care the court imposes on a paralegal without a supervising attorney is to the duty of care owed by an attorney. That duty of care being the degree of care, skill, diligence and knowledge which is commonly possessed and exercised by a reasonable, careful and prudent lawyer.
RULE OF LAW:
When it becomes clear to a a paralegal that there is no supervising attorney, the paralegal is to take initiative to find out who the supervising attorney will be. Once given a name, the paralegal is to then confirm with that attorney regarding being supervisor.
REASONING
The court found that the standard of care owed by an attorney was also then owed by Mullen which required her to notify the plaintiffs of: (1) the serious problems concerning the accessibility of their files to persons who had no right to see them, (2) the fact that the client settlements were not processed through an attorney’s trust account, but rather, McClellan’s own account, (3) fact that McClellan and AMI, as nonlawyers, had no right to enter into contingent fee agreements with clients and receive contingent fees, (4) the fact that McClellan was, in fact, engaged in the unlawful practice of law, and that, generally, (5) the clients of McClellan and AMI were at substantial risk of financial harm as a result of their association with AMI. Mullen breached her duty to her clients with the above.
Jean v. Nelson
863 F.2d 759 (11th Cit. 1988)
Questions 1, 2 & 3 pg 127
Does this rationale encourage lawyers to use paralegals?
This rationale does encourage attorneys to use paralegals. By using a paralegal, the attorney will not be spending time typing up pleadings and motions and will also be saving the client billing cost. Paralegal rates are lower than attorney rates.
Does this decision facilitate the availability of lower-cost quality legal services?
This decision does help with cost related issues. The paralegal rate to be billed to customer is at a lower cost than that of an attorney
Should an attorney be allowed to charge more than out-of-pocket costs for paralegal service?
Yes, but not at an exuberant rate. The reason for paralegals is to help clients with the burden of high costs of having an attorney. The paralegal being able to interview, collect findings and prepare paperwork on behalf of attorney with their supervision leaves more time for the attorney to prepare case for presentation to court.
