By Lynne Prescott, CCLS
Rules of Professional Conduct
Rule 5.3 of the Rules of Professional Conduct addresses an attorney’s responsibilities regarding nonlawyer personnel. In the comments section of that rule, it reads:
“Lawyers often utilize nonlawyer personnel, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning all ethical aspects of their employment.” (Emphasis added.)
How does this translate to lawyers and their staff? Attorneys depend on their staff to perform a great deal of increasingly complex and sophisticated tasks, which of course is beneficial to both the lawyer and the client and for the most part, is accepted as being appropriate. However, the relationship between the lawyer and support staff is more than simply employer/employee. The mere fact of working in a law office immediately confers the status of a public representative of a professional person. Regardless of the duties performed in a law office, or who performed them, under the Rules of Professional Conduct of the State Bar of California, they are treated as if performed by the lawyer. To put it simply — the lawyer is responsible for the acts of his or her employees, and the employees are bound by the same code of ethics as the lawyer.
It’s extremely important that staff recognize that dealings with clients, other lawyers, the courts, and the public are not just reflective of the lawyer but can actually be equated with the lawyer. This means that the legal support staff, as extensions of the attorneys they work for, must conform their behavior to the same ethical obligations as an attorney. And while it is true that it is the attorney who ultimately faces potential disciplinary action or malpractice liability for a violation of ethics, support staff share an interest in avoiding ethics issues.
Professional Privilege
The legal profession is one of just a handful of professions that are covered by what is known as “professional privilege” and refers to the right to maintain absolute confidentiality unless compelled by law to break said privilege. This should tell us the significance society places on this privilege and the sanctity of the privileged relationship. As we have stated already, this extends to each one of us as representatives of the lawyer. Other professions or professionals covered by this privilege include clergy, physicians/psychologists/medical and mental health professionals, social workers, and accountants.
Confidentiality and Privileged Communication
The most important thing to remember is that everything you learn in the law office is confidential. Our graphic here accurately describes attorney-client privilege as a legal protection that keeps all communication between the lawyer and their client confidential. This privilege was created to build trust and encourage clients to freely share information that will help the attorney to best represent them. That responsibility extends to you, also. What is protected? All spoken or written communication, including phone calls, emails, text messages, written correspondence, conversations, etc. The law office staff are held to the same standard. Working in a law office is exciting, and you may learn all sorts of interesting things about prominent or well-known people in the community. It can be tempting to disclose some of this information to outsiders (including a spouse or family members). It is a natural response because it makes us feel important to be able to convey knowledge that others don’t have. Revealing information obtained through your employment can be extremely harmful or hurtful to other people.
Clients Seeking Your Help
As a result of developing a good working relationship with clients, they may ask you questions that would require the advice or opinion of an attorney. The information you have learned while working for the lawyer can become such second nature that you may forget it can be construed as legal advice. Regardless of the confidence you may have in your response, answering such questions violates the unauthorized practice of law statutes (unless it is the exact legal opinion of the attorney and you have been given permission to communicate it). This includes the preparation of legal documents, which should always be under the direction, supervision, and review of an attorney.
Safeguarding the Office to Minimize the Potential for Breaches
Look for areas in and around your workplace that are unprotected or could be better protected. Consider events that occur in the office that could lead to potential exposure or breaches. For example:
Reception Area
Open Areas of the Office
Guest Attorneys, Visitors, and Depositions
Social and Professional Events in the Office
Open Doors of Attorneys’ Offices
Computer Monitors
Desks, File Rooms, Conference Rooms
Restrooms
Parking Lots/Garages
The Unauthorized Practice of Law
Beware of UPL (the unauthorized practice of law). The ABA has emphasized paralegals’ independent duty to avoid UPL. Violations focus on several issues — prohibited activities (they cannot sign papers to be filed with the court, ask questions at a deposition or handle court appearances), permitted activities and how paralegals “hold themselves out.” It is easy to fall into a situation where the experienced and competent paralegal is the person the lawyer will naturally rely on to handle substantial aspects of a matter on behalf of a client. Sometimes they will understand the ins and outs of a particular field even better than a lawyer may understand it. Regardless, that should not cause the lawyer to find themselves in a situation where they have extended so much reliance on the paralegal to work independently that the paralegal is effectively making legal judgments on behalf of the client.
But You Work in a Law Office, Right?
A situation that often arises with legal support staff is when family, friends, or acquaintances find out you are working in a law office and assume you must know all about the law and ask you for legal advice. Why should they pay an attorney when they’ve got you?
Well, the obvious answer to that is you are not an attorney. And even if you know exactly how to help and what should be done, you run the risk of having your “help” misconstrued or even accepted as legal advice. This is a ripe situation for running into the unauthorized practice of law.
Conflicts and Ethical Walls
Although all the rules regarding conflicts that are applicable to lawyers are generally applicable to paralegals, the conflicts rules’ application to paralegals primarily focuses on lawyers’ hiring of paralegals. A paralegal moving to another law firm or law department cannot “switch sides,” i.e., assist in a matter adverse to the former client for whom the paralegal worked (on the same matter) as the old firm. ABA Model Rules and about half of the states’ rules permit firms to avoid imputation when hiring lawyers if they timely screen the lawyers from the firm’s matter adverse to the new hire’s former client. You must be very specific in matters that they have been involved in at their previous firms. The same considerations apply to nonlawyers. Establishing an ethical wall is necessary to prohibit certain lawyers and paralegals from having any connection with a particular matter, to ban discussions with those individuals regarding that matter, to restrict access to files concerning the matter, and to educate all members of the firm about insulating the new hire from the particular matter.
Remote Work
The same rules and principles regarding confidentiality, privilege, and ethical conduct that apply in an office setting also apply to a remote work environment. Family or other household members should not be privy to conversations, written/electronic communication, etc., that occur during the time you are working from home. That time should be treated and protected with the same vigilance as when you are in the office. Designate a room or space where you can work without interruption and without fear of committing any ethical breaches.
Be very careful about conducting remote work outside of your normal home working environment, such as coffee shops, hotels, airports, public transportation and the like. It can be difficult to safeguard information in these settings, even with security such as VPNs.
Electronic Devices, the Internet, and Social Media
You know the expression “What happens in Vegas stays in Vegas?” Well, what happens on the internet and social media stays, too; only it doesn’t stay private. Anything you post on the internet discussing work, even if you do not name names or cases, can come back to bite you. Consider the fact that you may be friends with coworkers, including attorneys, on social media or that people who know you also know what you do for a living and where you work. Is it really worth it to blow off steam on Facebook and risk your employer questioning the effect of your off-work activities on the office?
Remember that we are in the age of “ESI” (electronically stored information) and the fact that this information is discoverable and can be compelled in a production request. If you are comingling work calls, texts, and emails on your personal device(s), it is highly recommended that all office activity be handled on office-issued equipment, or that the firm reimburse you for the cost of the device(s) and the monthly service charges. Even in that situation, your personal data should be located on a different device.
Ethics Violations
Violations of ethics and professional conduct codes are not going to result in a slap on the wrist. If anything, there are going to be serious consequences that legal personnel are going to have to face should they be found in violation or breach of an ethical code. Instances of violations are usually reported by clients and other legal personnel through complaints filed with the bar association. And while it is not always clear who is liable for certain things in certain situations, ethical violations where liability is involved usually affect the entire firm. Consequences can involve anything from sanctions/fines, allegations of malpractice, suspension, to disbarment and termination from employment.
Conclusion
The responsibility for ensuring that legal support staff are in compliance with the Rules of Professional Conduct should not be absorbed only by the lawyer. Support staff need to insist on proper supervision, training, and review to protect not only the attorney, but themselves and the client. You are ultimately responsible for your own education, growth, and role in the law office. Don’t be afraid to ask questions or seek the guidance of those who have more experience.
Resources for Information on Legal Ethics
State Ethics Hotline (https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Ethics/Hotline)
NALA – National Association of Legal Assistants (https://nala.org/wp-content/uploads/2022/04/Model-Standards_Final_022523.pdf)
CAPA – California Alliance of Paralegal Associations (https://www.caparalegal.org/ethics-guidelines)
LPI – Legal Professionals, Incorporated (www.legalprofessionalsic.org)
Categorized in: Legal Procedure
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