Articles
Ethics for Legal Support Professionals
Paralegals and legal assistants are an extension of the attorney(s) they work for. For the most part, they are bound by the same code of ethics that bind their attorneys. Questions that arise regarding privilege, confidentiality, zealous defense of a client, etc. can all be answered by looking to the ethics standards.
Attorneys are officers of the court and their support staff, as extensions of their attorneys, may also be considered officers of the court. The work performed by paralegals loses its separate identity and becomes a part of the work product produced by the attorney(s) they are working with. The very nature of the work that paralegals and legal assistants are performing, allows them access to material information and documents. Therefore, paralegals and legal assistants must be bound by the same code of ethics that binds the lawyers they assist.
This becomes particularly important when addressing questions of privilege and confidentiality. It is a paralegal/legal assistant’s responsibility to preserve and protect the confidences, secrets, information – written or verbal – of a potential, current or prior client. All too often we find ourselves sharing information with our peers. We visit with one another at professional functions and share stories with one another concerning our work day. Unfortunately, we sometimes find ourselves sharing too much information. Although it is definitely possible to relate a story without using names, it can still prove to be a dangerous practice. One minor slip can result in critical information being imparted to individuals who could ultimately do your client harm.
The best practice is to keep your opinions and personal stories to a minimum unless you are sure that a case is over, that the matters you speak of are matters of public record, or your story absolutely does not relate anything confidential or privileged. Remember sharing the name of a client or describing a client in such a way that people may surmise his/her identify is also a breach of confidentiality. Your client certainly doesn’t want the entire world to be aware of their personal business. It is wise to recall that what you tell one person will be a completely different story once it is retold to the 4th or 5th person. Don’t breach confidences.
Another critical issue that has arisen in recent years occurs when a paralegal or legal assistant relocates to another firm. Usually, this does not present a problem. However, there have been cases where firms have been relentless in their insistence that these persons be shielded from any and all contact with cases or clients with whom they had a prior connection. The paralegal or legal assistant who is contemplating moving to another firm, must be responsible for addressing any areas of conflict that may potentially arise.
Be diligent in your representation of your firm’s clients and also in your obligation to maintain confidentiality. Rule 1.6 (Confidentiality of Information) and Rule 5.3 (Responsibilities of Non-Lawyer Assistants) of the Colorado Rules of Professional Conduct are included below for your review. Refresh your memory regarding these rules and remember your responsibility to your client(s).
RULE 1.6 CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to reveal the client’s intention to commit a crime and the information necessary to prevent the crime;
(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(5) to secure legal advice about the lawyer's compliance with these Rules, other law or a court order;
(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(7) to comply with other law or a court order.
RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved;or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
