Table of Contents
Preface xix
1 Regulation of Lawyers and Paralegals 1
A Regulation of Lawyers 2
1 State Courts and Bar Associations 2
2 American Bar Association 2
3 State Statutes, Ethics Opinions, and Case Law 3
4 Sanctions and Remedies for Lawyer Misconduct 4
B Regulation of Paralegals 5
1 A Brief History of the Paralegal Profession 5
2 Direct Regulation of Paralegals: Certification and Licensing 7
Definitions of Terms 7
Regulation of Supervised Paralegals 8
The Regulation Debate 9
Nonlawyer Legal Service Providers 10
3 State Guidelines for the Utilization of Paralegal Services 11
4 Paralegal Association Codes of Ethics and Guidelines 11
5 Responsibility of Lawyers for Paralegal Conduct 12
Review Questions 13
Hypotheticals 14
Discussion Questions and Projects 14
Selected Cases 15
Selected References 16
2 Unauthorized Practice of Law 17
A Brief History of the Unauthorized Practice of Law 18
B Trends in the Unauthorized Practice of Law 19
1 Nonlawyer Legal Service Providers and Related Trends 19
2 Multijurisdictional Practice Issues 21
C The Practice of Law Defined 21
D The Attorney's Responsibility to Prevent the Unauthorized Practice of Law 22
E What Constitutes the Unauthorized Practice of Law 24
1 Making Court Appearances 24
Depositions 24
Pleadings 25
Exceptions 25
Administrative Agencies 26
2 Establishing the Attorney-Client Relationship 28
3 Giving Legal Advice 29
A Few Examples 30
Exceptions 31
Nonlawyer Legal Service Providers and Related Trends 32
F Disclosure of Status as Paralegal and Job Titles 33
G A Word about Paralegals as Independent Contractors 35
Review Questions 36
Hypotheticals 37
Discussion Questions and Projects 39
Selected Cases 41
Selected References 42
3 Confidentiality 45
A The Principle of Confidentiality 46
B Attorney-Client Privilege 46
1 Defined Generally 46
2 Disclosure of Privileged Information 47
3 Matters Not Covered by the Privilege 47
4 Inadvertent Disclosure of Privileged Material 48
5 Exceptions to and Waivers of the Privilege 50
6 The Privilege in the Corporate Setting 51
7 Court-Ordered Disclosure 52
C The Work Product Rule 52
D Ethics Rules of Confidentiality 53
E Confidentiality and the Paralegal 54
1 Application of the Rule to Paralegals 54
2 Protecting Confidentiality in Daily Practice 55
3 Special Issues Relating to Technology 57
Review Questions 60
Hypotheticals 61
Discussion Questions and Projects 63
Selected Cases 64
Selected References 65
4 Conflicts of Interest 67
A Introduction 68
B Conflicts Involving Representation of Clients 69
1 Concurrent Representation 69
General Rules 69
Consents 70
Withdrawal to Avoid Conflicts 71
Imputed Disqualification in Concurrent Conflicts 71
Issue Conflicts and Other Indirect Concurrent Conflicts 71
Lawyer's Professional Conflicts 72
Examples of Conflicts in Litigated Matters 72
Examples of Conflicts in Nonlitigated Matters 73
2 Successive Representation 74
General Rules 74
Defining "Substantial Relationship" 75
C Other Conflicts Rules 76
1 Business Transactions with Clients 76
2 Publication, Literary, and Media Rights 77
3 Financial Assistance to Clients 77
4 A Lawyer's Interest in Litigation 78
5 Gifts from Clients 78
6 Agreements with Clients Limiting Malpractice Liability 79
7 Payment of Attorney's Fees by a Third Party 80
8 Relatives of Lawyers 81
9 Sexual Relations with Clients 81
D Imputed Conflicts and Disqualification 82
1 General Rules 82
2 Use of Screens 84
E Conflicts Checks 86
Review Questions 88
Hypotheticals 89
Discussion Questions and Projects 91
Selected Cases 93
Selected References 93
5 Advertising and Solicitation 95
A Advertising 96
1 The Advent and Evolution of Lawyer Advertising 96
2 The Current Ethics Rules 98
3 Current Issues and Trends in Lawyer Advertising 100
B Solicitation 104
Review Questions 106
Hypotheticals 107
Discussion Questions and Projects 108
Selected Cases 110
Selected References 110
6 Fees and Client Funds 111
A Fee Arrangements with Clients 112
1 Fixed Fees 112
2 Contingency Fees 112
3 Hourly Fees 113
B Ethics Rules about Fees 115
C Fee Arrangements 118
D Court-Awarded Fees 121
E Fee-Splitting and Referral Fees 123
F Partnerships between Lawyers and Nonlawyers 125
G Client Funds and Property 126
1 Client Trust Accounts 126
Interest on Lawyers' Trust Accounts and Client Security Funds 127
2 Client Property and Files 128
Review Questions 129
Hypotheticals 131
Discussion Questions and Projects 133
Selected Cases 136
Selected References 137
7 Competence 139
A Introduction 140
B Legal Education 140
C Paralegal Education 141
D A Definition of Competence 143
1 Knowledge 143
2 Professional Skills 144
3 Thoroughness and Preparation 145
4 Diligence and Promptness 145
5 Communication with Clients 146
E Sanctions for Incompetence 146
F Trends in Legal Malpractice 147
G Factors Affecting Paralegal Competence 151
Review Questions 153
Hypotheticals 154
Discussion Questions and Projects 156
Selected Cases 158
Selected References 158
8 Special Issues in Advocacy 159
A Introduction 160
B Unmeritorious Claims, Delay, and Discovery Abuse 161
C Disruption in the Courtroom and Disobeying Court Orders 164
D Candor and Honesty 165
E Relationships and Communications with Judges 168
F Contact with Jurors 168
G Contact with Parties and Represented Persons 170
H Contact with Unrepresented Persons 170
I Contact with Witnesses 171
J Trial Publicity 173
K Special Rules for Prosecutors 174
Review Questions 175
Hypotheticals 177
Discussion Questions and Projects 179
Selected Cases 181
Selected References 182
9 Professionalism and Special Issues for Paralegals 183
A The State of Professionalism in the Legal Field 184
B Professionalization of the Paralegal Occupation 188
1 Commitment to Public Service 190
2 Commitment to Education 191
3 Commitment to the Highest Standards of Ethical Conduct 191
4 Commitment to Excellence 191
5 Commitment to the Paralegal Profession 191
6 Commitment to a Strong Work Ethic 191
7 Commitment to Acting with Integrity and Honor 192
8 Commitment to the Development of the Whole Person 192
9 Commitment to Exercising Good Judgment, Common Sense, and Communication Skills 192
C Current Issues in Professionalism 192
1 Regulation 192
2 Education 193
3 Utilization and Treatment 194
4 Exempt Status 194
5 Gender and Diversity 195
D Pro Bono Work 196
Review Questions 198
Hypotheticals 198
Discussion Questions 199
Selected References 201
Appendices
A NALA Code of Ethics and Professional Responsibility 203
B NFPA Model Code of Ethics and Professional Responsibility 207
Glossary 213
Index 219