Attorney vs. Paralegal: Rules of Ethics & Professional Obligations

Ethics for the Attorney and Paralegal

The ethical foundation set in place for both attorneys and paralegals is an ever increasing matter of importance. Direct state regulation and regulation by state bar associations, like the ABA, continue to issue guidelines. Though their regulations and ethical obligations are very similar, the paralegal and the attorney vary slightly. For instance, paralegals are not directly regulated by the state, with the exception for California where it is required to meet specific educational requirements to be a practicing paralegal. The ethical codes and regulations that are set in place for attorneys indirectly affect the paralegal. For the most part, all states ethical codes are based directly off of the revised ABA canons: The Model Code for Professional Responsibility and the Model Rules for Professional Conduct. Lastly, even though paralegals are not being directly regulated does not mean that a violation of a rule governing attorneys will not have negative consequences to the client, the attorney, and the paralegal themselves.

Key Concepts

There are a handful of important key concepts that an attorney must manage to ensure ethical practice of the law. One of these concepts is known as conflict of interest. According to the Model Rules it is advised that an attorney should not represent a client if it directly conflicts with the interests of another client. A few examples include: Divorce cases, cases that involve a will, and cases that conflict with the interest of a former client.

Another key concept is confidentiality, and the safety measures that ensure confidentiality. Both attorneys and paralegals must not compromise any information that the client hasn't clearly consented. A good habit to employ would be the avoidance of speaking about cases to anyone not directly associated with the case. Vital information is easy to slip during casual conversation and can be picked up by third-parties listening in. Also, practicing digital safety measures online can help avoid losing information to hackers. Some exceptions to the confidentiality rule include: Disclosures to prevent harm, disclosures to ensure compliance with the Model Rules, and the defense against a client's legal action.

Attorney-client privilege is the concept, enacted immediately after a client or potential client speaks to an attorney, that protects any information regarding a client's legal advice or problems. Other information concerning the preparation of a client's case and the legal strategies being deployed in court are also considered privileged information; This is also known as work product. Paralegals must be cautious of what types of information is allowed to be disclosed, so inquiring to their supervising attorney is important. Typically, attorney-client privilege lasts indefinitely, unless given consent by the client.

Lastly, the work-product doctrine, as mentioned beforehand, is defined as, "An attorney’s mental impressions, conclusions, and legal theories regarding a case being prepared on behalf of a client. Work product normally is regarded as privileged information." Some information that wouldn't be considered work product would be financial statements relating to the client's business firm.

Legal Research and Writing

Before you can dive into the realm of legal research, it is important to complete a couple preliminary steps that will help guide the research. First we need to define the legal questions or issues that need to be resolved, and then we need to identify our research goals. In the matter of case studies, the goal should be to collect binding authorities that the courts must follow in order to make their decisions.

Once our these steps are complete, then it is time to collect primary and secondary sources that support our claims. Primary sources consist of documents that establish the law, like court decisions, statutes, and presidential orders. Secondary sources typically consist of: Legal encyclopedias, digests, and treatises. When analyzing cases it is important to understand the different aspects that exist in order to efficiently brief the case. When briefing a case, the most common headings to include are: Citation, facts, procedure, issue, decision, reasoning, and holding.

Online research has become an incredibly convenient method for finding primary and secondary sources. Free sites exist to perform general legal searches, however, more serious legal research commonly involves using a paid service. The most popular paid sites are Westlaw and Lexis. These services allow you to browse massive legal databases, refine your searches, and check your citations. 

When drafting a legal document it is important to consider a few things. The format in which the document is drafting may vary depending on who the document is intended; The format for court documents, general legal correspondence, and legal memorandum vary. Another helpful writing habit includes organizing and outlining the material logically and clearly; Thoughts should flow seamlessly, paragraphs should be labeled with a heading, and the language used should be simple, concrete, and gender-neutral when referring to the subject. When a document is deemed "complete" it should be proofread several times electronically and on a physical copy to ensure that the document is thorough, well organized, and neat.