Rule # & Title/Discussion

  1. Rule 1.1: Competence

Discussion: This rule stipulates that it is required of each lawyer, irrespective of the specialization or type of employment to provide competent representation to a client. The term ‘competent representation’ is defined by the ABA as a legal representation that requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

This Rule has direction not only to lawyers, but also to paralegals. Thus, the Rule specifies that competence is a key requirement of legal representation. That is, competent representation constitutes the core of client-lawyer relationship, whereas the lack of competence in a legal representation will inevitably ruin client-lawyer relationship. As far as paralegals are concerned, competent legal representation is to a great considerable degree depends on the role of a paralegal in helping the attorney to provide such representation.

This Rule has twofold prescription: on the one hand, it restricts an attorney from assigning a task to a paralegal without ensuring that the paralegal is capable to perform the task competently, and, on the other hand, it prohibits a paralegal to carry out a legal task that lies behind his knowledge and skill. A paralegal can ensure that the Rule is not violating by letting his or her supervisor know about the questionable assignment. A violation of this Rule may be detrimental to both lawyer-client relationship and business reputation of a law firm.

2. Rule 1.3: Diligence

Discussion: This Rule provides that it is incumbent on each lawyer to adhere to the requirements of reasonable diligence and promptness in representing a client. That is, Rule 1.3 specifies conditions under which legal representation of a client must be performed, such as diligence and promptness.

This Rule is particularly important for paralegals, because paralegals are responsible for facilitating diligence and promptness in lawyer’s representation of a client. In other words, a lawyer is responsible for taking reasonably strenuous efforts to ensure that a client is represented diligently and promptly, while a paralegal is encouraged to take initiative and exert oneself aiding the lawyer. The fact is that a paralegal can make a significant contribution to the promotion of diligent and prompt representation of a client by a lawyer, because a paralegal is more knowledgeable of the office environment and office systems, taking into consideration that he or she performs office tasks on a regular basis.

To that end, it is undisputed that a paralegal is capable both of contributing to a lawyer’s adherence to the Rule and of contributing to its violation if the paralegal fails to take strenuous efforts to help a lawyer in cases when promptness and diligence of legal representation is threatened.

3. Rule 5.3: Responsibilities Regarding Nonlawyer Assistant

Discussion: This Rule makes it clear that, in relation to a nonlawyer professional who is employed or retained by or associated with a lawyer, a lawyer must take reasonable efforts to guarantee that the law firm possesses necessary measures to ensure that the nonlawyer’s conduct is compatible with the professional duties of the lawyer.

The legal reasoning underlying Rule 5.3 is that lawyers cannot maintain and enjoy the managerial authority in the framework of a legal firm or any other association of lawyers without being bound to carry out a spectrum of responsibilities in relation to paralegals and other nonlawyer assistants. Moreover, this Rule makes it crystal clear that paralegals play important role in lawyers’ work and, therefore, are subject to professional ethics.

The fact is that lawyers usually employ assistants in their work, such as investigators, law student interns, and paralegals. Such assistants act for the lawyer in rendition of the lawyer’s professional services. Given this, it is incumbent on a lawyer to provide paralegals with relevant instructions and supervision concerning the ethical facts of their employment. Violation of this Rule may be detrimental not only to lawyers, but also to paralegals who are dependent on the lawyers’ instructions and supervision. Actually, a lawyer is completely responsible for his or her paralegals’ deeds, particularly because paralegals do not have legal training and are not subject to professional discipline.

4. Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

Discussion: This rule warns that a lawyer must not practice law in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. Thus, there are two major implications from the legal wording of Rule 5.5. First, it is legally prohibited for a lawyer to provide paralegal with any sort of assistance that may be evaluated as the lawyer’s facilitation or encouragement of a paralegal towards practicing law.

As a matter of fact, a paralegal cannot practice law independently, or, namely, without a lawyer’s instructions and supervision. The second implication of this rule is that a paralegal must not take independent steps in the practice law without making sure that all legal tasks he or she undertakes have been previously agreed upon by the supervising lawyer. In this connection, a paralegal may help the supervising lawyer stick to the requirements of Rule 5.5 by way of drawing his or her attention to the consistency between the assigned tasks and the paralegal’s knowledge and skill.

On the other hand, if a paralegal fails to comply with the requirements of his or her job as assigned by the supervising lawyer it may lead to the situation when the responsible lawyer becomes liable for practicing law in violation of the regulation of the legal profession.

5. Rule 5.7: Responsibilities regarding law-related services

Discussion: This Rule Prescribes that a lawyer must be subject to the Rules of Professional Conduct with regard to the provision of law-related services. The Rule defines the term ‘law-related services’ as the services that may be reasonably performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non lawyer.

This Rule pertains to paralegals, because it is incumbent on paralegals to facilitate the provision of law-related services by the lawyer. However, a lawyer must show due care and diligence when providing law-related services by showing the client precise distinctions between law-related services and legal services so that the client could not misinterpret law-related services as legal services.

Paralegals are particularly responsible for the delineation of the boundary between law-related services and legal services. They must ensure that the lawyer clearly understands the difference between the two types of services.

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html

Exercise # 8: ETHICS

Please, explain why you think placing unearned client funds in an office operating account would not be ethical and would not be a safe practice. Please explain how you would handle the situation if you began working for an attorney who routinely placed client funds in an office operating account.

Answer:

Placing unearned client funds in an office operating account would not be ethical and would not be a safe practice because of several reasons. The first and foremost reason is that the aforesaid practice is contrary to the rules and principles of professional and ethical conduct. Thus, Rule 1.15 of the ABA Rules of Professional Conduct strictly prohibits such practice. To be more accurate, Rule 1.15 “Safekeeping Property” prescribes that a lawyer must not hold property of clients or third persons that is in a lawyer’s possession in connection with a representation together with the lawyer’s own property. It is clearly stated in the Rule that property of clients or third persons, which is in a lawyer’s possession in connection with a representation, must be kept in a separate account maintained in the state where the lawyer’s office is located, or elsewhere with the consent of the client or third person.

Also, the Rule clearly articulates that it is unsafe to kept a client’s unearned funds not in a separate account, but in a lawyer’s account or an office operating account, because only a separate client account can guarantee that the client funds will not be accessed by unauthorized individuals. Apart from the formal explanation (existence of Rule 1.15), it is also doable to provide other arguments why placing unearned client funds in an office operating account would not be ethical and would not be a safe practice. Thus, the fact is that attorneys should be viewed as fiduciaries, or, in other words, professionals who are entrusted to exercise a high standard of care on behalf of their clients.

The importance of fiduciary responsibility is particularly highlighted in the situation when a lawyer must handle client funds. As a fiduciary, a lawyer must ensure that the unearned client funds are held in a client trust account, not on an office operating account, because there must be no mixing of client funds and office funds. Similarly, it is incumbent on a paralegal to take great care whenever he or she is authorized by the lawyer to manage client funds.

In answer to the second part of this exercise, it needs to be emphasized that anyone who knowingly assists a lawyer to place client funds in an office operating account may suffer the same consequences as a lawyer. Thus, Rule 8.4 of the ABA Model Rules of Professional Conduct prescribes that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, such as Rule 1.15, knowingly assist or induce another to do so, or do so through the acts of another. Besides, some acts with client funds may be qualified as theft or fraud.

Therefore, to avoid possible legal consequences, it is incumbent on a paralegal to refrain from assisting an attorney to place client funds in an office operating account and, in cases of knowledge about such misconduct, to inform the competent authorities.

  1. Post your definition of a tort and your definition of a contract. List the differences between the two

Definition of a tort

The term ‘tort’ should be understood as a civil misconduct, or, in other words, a breach of duty which is imposed by law and does not originate from a contract, for which there is a remedy, such as damages.

Definition of a contract

The concept of contract should be defined as an agreement between two or more parties which establish their mutual rights and duties and creates obligations that are enforceable and recognizable by law.

Differences between tort and contract

  1. The fundamental difference between the two phenomena lies in the nature of duties associated with them. Thus, on the one hand, the duties violated as a result of tort are established by law, whereas, on the other hand, the contractual duties violated as a result of a breach of a contract are establish by the contract itself.
  2. Tort and contracts serve different functions: on the one hand, a contract is a product of two or more consenting parties and, thus, liability for the breach of contract stems from the mutual consent of the parties to undertake certain duties and be liable in case of the failure to fulfill the duties. On the other hand, a tort requires no consent of the parties and is usually issued by one party against another.
  3. The purposes of the two phenomena are different as well. Torts are conceived to punish for the breach of legal duties, whereas contracts are designed to compensate for the breach of contractual obligations.
  4. Contract is broader, whereas tort is more specialized.
  5. The two phenomena require different standards of proof.

References:

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents.html

Paralegal for Dummies – S. Hatch

Paralegalism – Statsky

http://www.legalmatch.com/law-library/article/contract-and-tort-law.html