Intro to Law

Week 9: The Paralegal Profession

9.1 California’s Paralegal Law and What Paralegals do

Tasks performed by a paralegal include, but are not limited to:

What can paralegals do? (Source: American Bar Association)

• Paralegals perform substantive legal work that would otherwise be done by attorneys. Clerical work is not substantive legal work.

• Paralegals can be delegated any task normally performed by a lawyer, as long as the lawyer supervises the work, except those forbidden by law.

• For example, paralegals can review and organize client files, conduct factual and legal research, prepare documents for legal transactions, draft pleadings and discovery notices, interview clients and witnesses, and assist at closings and trials.

• Paralegals must avoid the unauthorized practice of law. Generally, paralegals may not represent clients in court, take depositions, or sign pleadings. Some federal and state administrative agencies, however, do permit nonlawyer practice (the Social Security Administration is an example).

• Paralegals may not establish the attorney's relationship with the client or set fees to be charged and may not give legal advice to a client.

Week 10: Legal Careers and Resume

1. Video: Interviewing for a Paralegal position

• Lead with energy instead of experience. Show your excitement about the opportunity and the work you do. Anita credits her success in her job search to her passion, which her boss still talks about. Instead of discussing how many years of experience you have, or how many times you’ve done a certain type of project, show your enthusiasm for the job by saying something like, “This is my sweet spot. This is the work I love to do.” Calling out all of your years of experience (no matter how valid or meaningful) can have the unintended consequence of alienating or intimidating your interviewer, or making you appear to be a know-it-all.

• Adopt a consulting mindset. Approach your interviews as consulting conversations, showing curiosity and a learning mindset. Use good open-ended questions, combined with engaged listening, to better understand the organization’s context and unique challenges to identify where and how you can most add value. This approach will not only be more compelling but also will help you show up more confidently, as you elevate yourself to being a peer of your interviewer. The mindset shift is part of how you can change the perceived power dynamic from you really wanting or needing the job to you having the solution or know-how that the company needs.

• Demonstrate humility and a nonhierarchical approach. Lauren attributes her success in her interviews to showing genuine humility and demonstrating an egalitarian approach in collaborating with others. She demonstrated this by asking questions like, “Where do you want to take advantage of the brilliant work the team has already done, and where do you think it might be time for a slightly different approach?” She also made a point to talk about “supporting teams” versus “running teams” and was sure to give credit to the people doing the work. Given that collaboration is the norm for Millennials, anything that signals a hierarchical style, like asking about title or span of control, is a red flag about one’s ability to fit into a culture where the work is co-created.

• Connect with your interviewer. Research shows that starting with warmth is an effective way to influence others. This can be as simple as a smile. In finding ways to connect personally with her interviewer, Lauren made sure to use current references that a younger person could relate to, like a popular show on Netflix. Humor is another way to connect and show the other person you’d be enjoyable to work with. However, do not use dated references or self-deprecating humor like “that was pre-internet” or “that was probably before your time.” It’s uncomfortable and alienating.

• Show your ability to work well with diverse groups of people. Anita illustrated this by giving examples of projects she led across multiple functions, geographies, and levels of leadership, including new managers. In doing so, she conveyed her ability to work well with younger colleagues, without needing to specifically highlight age. Similarly, Lauren conveyed that her intent was to take advantage of people’s different experiences, and gave examples of working well with people from the military who were having their first experience in the private sector. This example showed she could collaborate with younger people who had a different set of experiences without calling attention to age.

• Look the part. Fitting in with a younger crowd doesn’t mean you need to wear a hoodie or look like everyone else. You should feel comfortable and authentic while being consistent with the culture. If necessary, get help in refreshing your wardrobe and accessories. Many department stores offer styling services for free. Anita brought her 26-year-old daughter shopping and bought a few outfits and some jewelry that were stylish and versatile for a range of companies. Another client got new, fashionable frames for her eyeglasses, which she wore to the interview so that she wouldn’t have to take her readers out.

• Reframe any inappropriate comments or questions. In Sanjiv’s case, he could have reframed the board member’s desire for “younger minds” by saying, “I think what you are really looking for is innovative thinking. I’d love to share some of my ideas that could help this organization amplify its impact and be a model for others in the field.” When asked if she would be OK with the late-night parties and drinking, Anita kept it brief and said, “I love to celebrate success with my team,” and then refocused the conversation elsewhere. If you’re unsure how to respond to an inappropriate comment or question, respond with curiosity, asking something like, “Can you say more about that?” or “Can you share more about what you’re hoping to learn, so I can address your underlying concern?”

• While ageism exists, focusing on what you can control and employing the strategies above can divert attention from your age and refocus it on why you are right for the job.

Week 11: Legal Ethics

11.1 Overview of Paralegal Ethics

History of Paralegal Ethics

• The legal profession became serious about ethics after the Watergate scandal in the 1970’s (almost everyone involved was a lawyer).

• The paralegal profession has grown, its ethical guidelines have improved also. Professional associations for paralegals.

• Guidelines for the utilization of paralegal services

• Ethics guidelines promulgated by paralegal associations

• The liability of paralegals and the lawyers who supervise them

Sanctions for attorneys

• Disbarment: Rescinding of a lawyer’s license to practice

• Suspension: Attorney is deprived of the right to practice law for a specified period of time

• Probation: Attorney can practice, but certain requirements must be met

• Reprimand (or reproval): Warning that ethical violations have occurred and will not be tolerated

Professional Paralegal Professional

• NFPA (National Federation of Paralegal Associations)

• NALA (National Association of Legal Assistants)

• California Alliance of Paralegal Associations (and local groups)

• California Association of Legal Document Assistants (CALDA) (LDA’s were formerly known as Independent Paralegals…visit www.calda.org for more info)

Legal Document Assistants (LDAs)

Confidentiality

1. Duty of Confidentiality: Paralegals, like attorneys, have a duty of confidentiality to the client. This is an affirmative duty that paralegals are bound to uphold.
1. Ethical Guideline: A paralegal shall preserve all confidential information provided by the client or acquired from other sources before, during, and after the professional relationship. (NFPA Model Code)

2. Attorney-Client Privilege
1. Communications between an attorney and client are also subject to a privilege (a privilege operates like a defense), when another party seeks disclosure of information that should be confidential).
1. Rationale: The privilege exists to encourage people to seek out legal advice and be honest/truthful without other parties being able to access this information. Paralegals, because they assist attorneys in providing legal assistance to clients, should be covered by the privilege also.

Conflicts of Interest

Preventing and Addressing Conflicts

11.2 Legal Ethics: Class Material

I. Development of Legal & Paralegal Ethics

1. Paralegal standards: As the paralegal profession has continued to grow and develop in terms of independence and professionalism, the national organizations (NFPA and NALA) have worked with bar associations to develop model rules and guidelines for paralegal ethics.

2. Sources of Rules and Guidelines -- National Federation of Paralegal Associations (NFPA): Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement http://www.paralegals.org
• National Association of Legal Assistants (NALA): Model Standards and Guidelines for Utilization of Legal Assistants (including ethical guidelines) http://www.nala.org
• California Alliance of Paralegal Associations: Ethics Guidelines http://www.caparalegal.org
• State Bar of CA, CA Rules of Professional Conduct, http://www.calbar.ca.gov

II. Confidentiality involves two separate, but related, issues:

1. The duty of Confidentiality
1. Paralegals, like attorneys, have a duty of confidentiality to the client. This is an affirmative duty that paralegals are bound to uphold.
2. From NFPA Model Code: 1.5 A PARALEGAL SHALL PRESERVE ALL CONFIDENTIAL INFORMATION PROVIDED BY THE CLIENT OR ACQUIRED FROM OTHER SOURCES BEFORE, DURING, AND AFTER THE COURSE OF THE PROFESSIONAL RELATIONSHIP.

2. Attorney-client Privilege.
1. Communications between an attorney and client are also subject to a privilege (a privilege operates like a defense), when another party seeks disclosure of information that should be confidential). The privilege exists to encourage people to seek out legal advice, and it operates to prevent other parties from obtaining disclosure of information that the client has shared with the attorney. Paralegals, because they assist attorneys in providing legal assistance to clients, should be covered by the privilege also. (Hypothetical Problems at end of this packet)

III. Conflicts of Interest (portions of this summary are courtesy of Illinois Paralegal Association)

• Rules concerning conflicts of interest are designed to protect the client's interest. The foundation for conflicts of interest rules is the legal professional's responsibility to maintain client confidence and the legal professional's duty of loyalty to client interests.

• While conflicts of interest can arise in a variety of settings, conflict of interest problems involving the paralegal most notably arise in the context of the former client. The consequences of a former client conflict involving the paralegal can prove devastating for both the client and the law firm. Most significantly, the law firm by which the paralegal is employed may be disqualified from representing the client.

• The most highly publicized of such cases occurred in California and is documented in In re Complex Asbestos Litigation, 232 Cal. App. 3d 572, 283 Cal. Rptr. 732 (1991). In this case, a law firm was disqualified from representing several clients, plaintiffs in asbestos litigation, because the attorney had hired a paralegal previously employed by the firm representing the defendants in the same litigation. In reaching its holding, the court explained, "hiring a former employee of opposing counsel is not, in and of itself, sufficient to warrant disqualification of an attorney or law firm.

• However, when the former employee possesses confidential attorney-client information, materially related to pending litigation, the situation implicates ... considerations of ethics which run to the very integrity of our judicial process." Complex Asbestos, 232 Cal. App. 3d at, 283 Cal. Rptr. at 744. Therefore, because the consequences of a conflict can be so great, the paralegal must maintain a record-keeping system that tracks potential situations involving conflicts of interest.

• When a potential problem presents itself, the paralegal should advise the supervising attorney. Disqualification of the law firm may be avoided when proper procedures are in place that protect the confidentiality and loyalty owed to the client. Other kinds of conflict of interest problems involving the paralegal's personal or business interests might also arise, but may be cured where, upon being notified of the potential conflict, the client consents and the supervising attorney reasonably believes that the work will not adversely affect the paralegal's relationship with the client. Therefore, the paralegal should do such things as entering into a business transaction with a client only with caution. Perhaps the best course of action to follow is to avoid the possibility of a future conflict altogether.

• Conflict of interest rules are of special significance for the freelance paralegal. The freelance paralegal works for a number of attorneys, associated with different law firms, who represent different clients. Often, freelance paralegals find themselves doing a great deal of work in a particular area of law because they have developed a certain expertise. Therefore, the very nature of the freelance paralegal's work means that the prospect of a former client conflict arising is great. The freelance paralegal must take additional measures to avoid a conflict.

• From NALA Model Guidelines, Comment section: “The legal assistant must take any and all steps necessary to prevent conflicts of interest and fully disclose such conflicts to the supervising attorney. Failure to do so may jeopardize both the attorney's representation of the client and the case itself.”

• California Alliance of Paralegal Associations, Ethics Guidelines 7: “A paralegal shall avoid conflicts of interest and immediately disclose in writing any potential conflicts.” (*Note: This is substantially similar to the NFPA’s guideline on conflicts) HOW DOES A PARALEGAL KNOW WHEN A CONFLICT OF INTEREST EXISTS?

• For paralegals who are supervised by or accountable to an attorney, the attorney is obligated to determine whether there is conflict of interest between the paralegal and the client or legal matter. In practice areas where paralegals are not supervised by or accountable to an attorney but deal directly with the clients, paralegals make those decisions.

• Examples of when a paralegal may have a conflict of interest in a legal matter include changing jobs (as in the Asbestos case), family and close personal relationships (with party or with someone involved in the legal matter), and business/professional relationships outside the employment setting.

IV. Unauthorized Practice of Law

1. Establish attorney-client relationships; set legal fees; give legal opinions or advice; or represent a client before a court, unless authorized to do so by said court; nor

2. Engage in, encourage, or contribute to any act which could constitute the unauthorized practice law.*
1. *The Comment section for this Model Guideline admits there are no clear definitions of what constitutes “unauthorized practice of law” applied to paralegals. Therefore, just try to be as careful as possible to avoid any misunderstandings.

V. Working With Attorneys

Hypothetical Problems

1. The Letters: You work in the county counsel’s office. Your office represents the county transit agency, which is being sued by a former employee for age discrimination. The transit agency contends that it fired him because he was consistently late to work. In fact, the agency consulted your office before sending this employee his termination letter. As the senior legal assistant, you were asked to review the agency’s rough draft of its letter before it was sent to the employee. Your office suggested some changes to the letter for legal reasons, and you assisted in re-drafting it before the final copy was sent. You have been called by the plaintiff’s attorneys to testify as to the contents of that draft letter in its earlier form. Can you be compelled to testify?

2. The Small Community: a husband and wife are planning to divorce. They live in a small community with a limited number of attorneys. The husband wants to prevent his wife from obtaining adequate counsel. Therefore, he visits each family law attorney in succession, shares his situation, but with no intent to hire them. He in fact already knows that he will retain Attorney A. The wife goes to one of the visited attorneys, Attorney B, seeking representation. As a paralegal with the law offices of Attorney B, one of your duties is to check client conflicts. You check the wife’s name before she comes in for her consultation with the attorney and find that your firm has already formed an attorney-client relationship with her husband. You inform the attorney, but he says that the initial consultation with the husband was provided for free, and that no form was signed. Do you think your firm can represent the wife or not?

3. The Complaint: John has worked as a paralegal for ten years. Over the years he has gained a great deal of expertise, especially in the area of intellectual property litigation. As a result, he has an above-average salary and is trusted by his boss to handle a great deal of responsibility. Recently his boss, attorney Amanda Ruiz, asked him to draft a complaint alleging trademark infringement and negligence. He drafted the complaint, and Amanda read it and then signed it. As was customary, John then sent a copy of the complaint to the client with a cover letter explaining it. Do you think John has engaged in the unauthorized practice of law?

4. Downtime: Minh Le is a litigation paralegal and is working on an employment discrimination case. The case is nearing trial and Minh Le has been assisting the attorney in preparing witnesses, evidence, and trial exhibits. On one particular day, Minh Le accompanies the attorney to court for a hearing on a pre-trial motion. The judge is late, and the bailiff informs them that the judge will start the hearing 45 minutes behind schedule. Minh Le has her laptop computer with her, and so she uses the time to begin drafting a motion in another case that she is working on for a different client of the firm. The attorney is talking on his cell phone to another clients for most of this time. Later, Minh Le bills the time spent in court to the second client whose motion she was writing on her computer. The attorney notices that she did not bill this time to his trial client’s case and asks her to double-bill the time spent waiting in court (once to the first client, and again to the second client). After all, he says, they were in court on the first client’s case, and so that client should pay for both of their time. Is this attorney’s suggestion appropriate? How should Minh Le handle this situation?

5. Moonlighting? Leticia, a legal assistant at a small law firm that handles Wills & Trusts, is asked by her close friend to prepare a living trust on behalf of her mother, who also has some questions about the tax consequences. The friend offers to pay her directly. Is it appropriate for Leticia to handle this task?

Week 12: Utilizing Paralegals

THE IMPORTANCE OF UTILIZING PARALEGALS

• Paralegals are often hired to deal with the customer service side of the practice, often being a spokesperson for the attorney.
• They gather all information, facts and proofs, engage in client conversations,
• Communicate with courts and other legal firms and
• Often provide office administration tasks.

• Paralegals are often highly skilled individuals with specific knowledge sets to support and assist lawyers with their practice at all stages, from intake to resolution, however, they are limited in scope over what they can and cannot do on their own and in a law practice.  Often, they are given the task to assess a case at intake and collect information to help decide whether it’s a case that would require legal advice and attorney representation.

• Notary/signing agent services, process serving, document typing, research, referrals, document preparation and

• Getting them the right forms and other support services that do not require legal advice and cost much less to administer.

• Gather information and point someone in the right direction by giving them referrals,

• Suggest resolutions or help them get their case facts in order better so they can hire an attorney, if needed.