Written by: Victoria N. McCloskey
Ogden, Sullivan & O'Connor, P.A.
Recently, I was asked to give a presentation to a local paralegal’s association on Ethics. Before being asked to give the ethics presentation, I had only the vaguest idea of how the ethics rules applied to the paralegals and legal assistants in my office. I assumed the same confidentiality rules applied as well as the other Rules of Professional Conduct (“RPC”). Truthfully, I had never really thought about it, even though I work with paralegals and legal assistants on a daily basis. After all, working with paralegals and assistants is an integral part of most attorneys’ practices and, as it turns out, an attorney bears a significant duty to ensure compliance by his or her paralegals and legal assistant with the RPCs. Failure to meet this obligation can result in serious consequences for the attorney.
Although every state has its own rules governing professional conduct of lawyers, until recently, paralegals were not regulated by their own set of ethical rules. Whereas attorneys have the RPCs, paralegals do not have their own similar ethics code. In 1991, the American Bar Association adopted Model Guidelines for the Utilization of Legal Assistant Services, available for download at http://www.abanet.org/legalservices/paralegals/. The National Federation of Paralegal Associations (“NFPA”) and National Association of Legal Assistants (“NALA”) are the two primary national professional associations for paralegals and legal assistants, and membership in either is voluntary. Both organizations have developed their own codes of ethical conduct for their memberships that are similar to the ABA Model Guidelines. The NFPA Model Code can be obtained at http://www.paralegals.org, and the NALA Code can be obtained at http://www.nala.org/code.aspx.
Despite lacking a mandatory ethics code of their own, paralegals and legal assistants are still required to comply with the RPCs, albeit somewhat indirectly. Under RPC 5.3, an affirmative duty is imposed upon attorneys to ensure that any “nonlawyer employed or retained by or associated with a lawyer” engages in conduct that is consistent with the lawyer’s own professional obligations, which includes conformity with the RPCs. The rule imposes a duty on lawyers to supervise nonlawyers and to make certain that the nonlawyer complies with the RPCs. Should a paralegal or legal assistant violate any RPC at the direction of the lawyer, or if the violation is ratified by the lawyer, or if the lawyer fails to take proper remedial action once the violation is known, the lawyer may be held responsible under the RPCs. In short, the RPCs are applicable to a lawyer’s supporting staff through the operation of RPC 5.3.
In a somewhat related rule, the lawyer also has a responsibility, under RPC 5.5(a), to avoid assisting a nonlawyer in the unauthorized practice of law. So what happens if the paralegal is not adequately supervised by the attorney and the paralegal engages in the unauthorized practice of law, thereby causing injury to a client? In Florida, there are serious consequences. Pursuant to Fla. Stat. 454.23, “any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree.”
It is important to note that paralegals may engage in certain types of activities that may, at first glance, appear to be the practice of law. Each state defines “the practice of law” in a slightly different way, and each definition provides a number of exceptions and exclusions to what will constitute the practice of law. Paralegals can fall under these exceptions, including: those who serve as courthouse facilitators, providing information and legal forms to pro se parties; those who provide assistance with the preparation of domestic violence protection orders and anti-harassment orders; and those who represent parties in administrative proceedings. But even within these exclusions, the paralegal’s conduct will still be governed by the RPCs pursuant to RPC 5.3.
I hope this article has given you a basic understanding of how paralegals are governed by the RPCs and your responsibility to ensure that your paralegal not only follows the same ethical rules that you do, but also avoids the unauthorized practice of law. If your paralegal has graduated from an ABA-accredited Paralegal Studies program, he or she should have taken a course in legal ethics and will understand the duties imposed by the RPCs for your specific states and the kinds of conduct that are ethically permissible. For example, in Florida, the Bar has adopted Rule 20-7.1 - Code of Ethics and Responsibility, which requires Florida Registered Paralegals to adhere to the above-referenced code. A copy of 20-7.1 can be obtained at www.floridabar.org.
Written by Victoria N. McCloskey, Esq. Ms. McCloskey is an associate attorney with Ogden, Sullivan & O'Connor, P.A. in Tampa, Florida. She can be reached 813-223-5111 or at vmccloskey@ogdensullivan.com.