Terms in this set (115)
Why is Regulation a current issue in Professionalism?
It is central to the debate about the evolution of the paralegal field.
Why is Education a current issue in Professionalism?
The lack of consistency in hiring standards and in uniformity of curriculum offered by different schools prevents paralegals from having a shared body of knowledge and a shared educational experience.
Why is Utilization a current issue in Professionalism?
The ambiguity that accompanies the development of a new profession has resulted in both underutilization of paralegals and vast differences in the way that paralegal services are utilized
Why is Exempt status a current issue in Professionalism?
Paralegals are entitled to overtime compensation under the Fair Labor Standards Act
Why is Gender and Diversity a current issue in Professionalism?
The paralegal career continues to be a female-dominated occupation that serves a still-male dominated profession.
What prohibits lawyers from bringing unmeritorious or frivolous claims or defenses?
Ethics rules, statutes, and court rules.
How have states and federal courts addressed discovery abuse?
By adopting statutes and court rules to streamline discovery, to expedite the pretrial stage, and to discourage excessive and unnecessarily lengthy discovery.
What provides for appropriate sanctions against lawyers, clients or both for filing unwarranted or other objectionable pleadings and papers?
Trial lawyers are expected to do what? What Model Rules is this?
They are bound by ethics rules to conduct themselves in a dignified and courteous manner in court. Model Rule 3.5 (c.)
What are lawyers supposed to be like in their representation of clients? What Model Rules are these?
All ethics rules call for lawyers to be honest. Model Rules 3.3 (a.) and 3.4 (a) and (b)
What ethics rules prohibit lawyers from doing regarding judges?
Ethics rules prohibit lawyers from attempting to influence judges and from implying that they can influence a judge.
What is Ex parte communications and why is it prohibited? What Model Rules?
Action taken by or on behalf of a party without the presence of the opposing party. This communication with jurors and prospective jurors, before and during trial, are prohibited to prevent influence and bribery. Model Rule 3.5 (a) and (b)
Lawyers are prohibited from communication with who and may only communicate with who? What ABA Model Rule?
They are prohibited from communicating with parties who are represented by counsel and may communicate directly with the represented person's counsel only. ABA Model Rule 4.2.
When are lawyers prohibited from giving advice to an unrepresented person?
If there is a possibility that this third person's interest may conflict with the clients.
Lawyers are prohibited from giving advice to an unrepresented person if there is a possibility that this 3rd person's interest may conflict with the clients, but they can do what?
Lawyers may advise this person to secure counsel.
What usual and permissible expenses can lawyers pay witnesses? (related to testifying)
Travel and Loss Wages
Why can no witness be paid a bonus fee that is contingent on the outcome of the case? Model Rule?
This would provide an incentive for false testimony. Model Rule 3.4 (b) Comment 3.
In most jurisdictions, a lawyer must not make a public statement if what?
"if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding."
Many states allow lawyers to make statements, why?
To protect their clients in response to publicity not generated by the lawyer or the client.
As representatives for the gov't, prosecutors have a special duty of what?
Of truth and fairness in the administration of justice.
Prosecutors must seek not only to convict, but what?
To seek justice and to ensure that all citizens are afforded their rights.
Do ethics rules in all jurisdictions establish the obligations of the prosecutors?
Yes, and local laws frequently impose additional requirements.
Is the line between what is permissible and what is impermissible always clear, regarding what paralegals can and cannot do?
What 3 things deny the client competent representation?
A failure to conduct a proper interview and identify key facts; A failure to perform necessary research; and poor legal writing.
What practical consequences can result to a legal assistant who violates the rules of professional conduct?
They can lose their job; it can affect their reputation to be able to work as an LA elsewhere; harm to the client and firm; negative impact on the public's perception of the legal system.
The usual sanctions that disciplinary authorities may impose on lawyers for misconduct are: (in order of least serious to most serious)
Private and public reprimand, suspension (with or without probation), and disbarment
Paralegals who work as freelance/ independent contractors are still required to do what?
They are required to adhere to the same UPL rules as employed paralegals.
The facts presented at trial and the outcome of the trial are dependent entirely on what?
The quality of the work prior to trial.
What does ABA Model Rule 1.3 provide regarding client representation?
It provides that a client be represented with diligence and promptness.
What does ABA Model Rule 1.1 require regarding client representation?
That a client be represented competently.
Name 3-4 good practices a law firm should follow to help it avoid malpractice.
1.) Perform tasks diligently and carefully. Not waiting until the last minute. 2.) Choose clients wisely. 3.) Ask a lot of questions about any confusion. 4.) Keep on-going communication with clients and respect their decisions.
What should a paralegal do if the lawyer he/she works for is not a good delegator or supervisor and does not review work appropriately?
A paralegal should approach them about the matter and ask for more assistance/supervision, or talk to the other people in the firm about the lawyer's lack of diligence.
What can a paralegal do if he-she is assigned a task that is beyond his/her knowledge and skill level?
A paralegal can ask questions, and ask for more assistance from the attorney, or talk to other paralegals regarding the subject so they can perform competently.
What practical consequence can result to lawyers who violate ethical rules?
They can be reprimanded, which is their unethical work not being tolerated anymore; they can have their license suspended for a certain period of time; and they can be disbarred which is losing their license.
What should a paralegal do if he/she discovers adverse controlling in the course of research?
They must report it to the supervising lawyer so it can be properly addressed in documents filed with a court.
When can a lawyer make a claim that is not warranted under existing law?
The ethics rules on unmeritorious claims do provide an important exception to the general rule against making claims or defenses that are not warranted by the law, that is, if the client is seeking to extend, modify, or reverse the law.
Define unmeritorious or frivolous claims, and give examples.
1.) Actions that serve only to harass or injure another maliciously
2.) claims or defenses that are unwarranted under existing law without the lawyer's having good faith argument to change the law. Ex: plaintiff who sues his competitor without proper grounds under the law for the purpose of driving him/her out of business.
What is zealous representation, and what other ethics rules does it sometimes conflict with?
It is a lawyer's exercising best efforts on behalf of a client within the bounds of the law and ethics. It sometimes clashes with other legal ethical duties such as the lawyers duty of candor to the court and proper administration of justices, rules of confidentiality and search for truth.
What kinds of information are normally not covered by the attorney-client privilege?
The identity of the client, the whereabouts of the client, and the fee arrangements between the lawyer and client.
The practice of law WITHOUT a license violates what?
It violates state law in most jurisdictions.
What is a common remedy for UPL?
Injunctive relief- court order to stop someone from engaging in certain conduct which is UPL in this case and is available in most jurisdictions.
What happened in Bates v. State Bar of Arizona?
Two lawyers challenged their discipline for advertising.
In most states, what entity is responsible for adopting rules relating generally to the practice of law?
The highest court in each state.
What is the largest professional association of lawyers in the world?
The American Bar Association, a voluntary association. 1/3 of the lawyers in the country are members. Most states have patterned their code of ethics on the models of the ABA.
The decision in Missouri v. Jenkins was important because it what?
Provided an incentive for lawyers to use paralegal services.
What are 3 types of activities that are most commonly cited as constituting the practice of law (UPL)?
Giving Legal Advice; Representing a Client in Court and Drafting Legal Documents that Appear to Use Legal Terms; and Interpreting Law Without Proper Supervision.
What jurisdiction was the first to adopt a code of ethics for lawyers?
What are 4 duties commonly performed by legal assistants?
Factual Investigation (including Interviewing Clients/Witnesses); Legal Research; Assisting and Summarizing Depositions; and Drafting Documents with Supervision.
When and why did the paralegal profession begin?
Late 1960s, early 1970s. They needed paralegals to reduce the cost for clients who couldn't afford an attorney, to help those of low-and-middle incomes to afford a lawyer, and to help lessen the work load of attorney's and law offices.
What is an "integrated" bar association?
A state bar in which membership is compulsory.
What DOES constitute giving legal advice?
Recommending a course of conduct to a client, outlining a clients rights, and interpreting a case for a client.
Why should paralegals disclose their status as nonlawyers?
To avoid being asked for legal advice, and to ensure that people don't think they are lawyers.
In the USA, is the ability to practice law a right?
In PA, is the practice of law by someone who is not authorized to do so a misdemeanor?
Why are paralegals in an ambiguous position in the legal profession? Give at least three reasons.
They can't legally engage in certain activities that are just for lawyers. They do substantive legal work that would've been done by lawyers and is paid for by the client. They are part of the professional staff engaging in legal work, not part of the support staff, but they can never be full and equal partners in the law firm.
What is a code of professional courtesy? What kinds of conduct does it require?
It advises lawyers how to conduct themselves and inform judges who can hold lawyers in contempt for behavior. Requires: frequent communication between clients, advising mediation, resolving matters expeditiously and not overcharging, acting courteously with other lawyers, cooperating in scheduling, and resolving disputes, acting vigorously but with civility with courts, also being punctual and honest with courts, duty to public, and upholding the legal profession.
In PA, are parties permitted to represent themselves in civil actions and criminal actions?
Does the ABA provide a uniform set of guidelines which mandatorily apply to all jurisdictions and establish uniform rules and regulations pertaining to a lawyer's conduct?
What are the two national paralegal associations? What are their codes of ethics?
NALA- Code of Ethics and Professional Responsibility.
NFPA- Model Code of Ethics and Professional Responsibility.
In which of the following circumstances can an attorney generally reveal info that would otherwise be protected by the privilege?
a. the client sues the lawyer for malpractice.
b. to prevent death or substantial bodily harm.
c. the lawyer is charged with ethics/violations related to the representation.
d. ALL OF THE ABOVE - answer.
Commingling is what?
The mixing of client funds with the lawyer's funds.
Under the rules about fee splitting, lawyers can do what?
Lawyers can sometimes split fees with another lawyer.
In what kinds of cases are contingency fees prohibited?
Divorce and Criminal.
Under the ABA Model Rules, what kinds of fee agreements have to be in writing and signed?
What is typically prohibited by ethics rules? (dealing with fees)
a. Loaning a client money -ANSWER
b. Payment by credit card.
c. Discounting of fees.
In some states, the privilege applies in the corporate setting to communications between the lawyer and the people who are responsible for management relating to the issue involved. This test is called the:
a. Subject matter test
b. Upjohn test
c. Control group test- ANSWER
d. Work product rule
Concurrent Representation is what?
When a lawyer represents two clients who interests are currently adverse.
Is information disclosed during an initial consultation with an attorney privileged only if the prospective client hires the lawyer?
Are lawyers permitted to divulge their clients settlement limits, without client consent, if the judge orders them to do so?
What is a general rule for Paralegals?
Paralegals should not sign pleadings for the lawyer. Engage in UPL, to be specific.
What does NOT constitute giving legal advice: (for the paralegal)
Updating a client about his or her status.
Limitations restricting who can practice law in the US were first adopted?
In the colonial period.
About how many paralegal programs are approved by the ABA?
More than 275 approved today.
Conflicts of interests are based on what principle or principles of ethics?
b. Loyalty and Confidentiality- ANSWER
d. Zealous Representation
Which is a proper role for the paralegal in the matter of a client's fee?
a. The paralegal can quote typical fees with the lawyer permission.
b. The paralegal can prepare the fee agreement
c. The paralegal can sign the fee agreement for the lawyer
d A and B.- ANSWER
What were the traditional restrictions on lawyer advertising?
Could only use business cards, announcements of attorney personnel changes within a firm or of a new address, and Christmas cards to existing clients were permitted.
Rules prohibiting solicitation have what?
a. Have been overturned by the U.S. Supreme Court
b. Have been greatly modified by the U.S. Supreme Court- ANSWER
c. Are essentially the same as they have been for 30 years.
d. All of the above.
What is typically prohibited by state ethics rules? (dealing with ads)
b. Undignified ads
c. Claims about quality - ANSWER
d. Ads placed on the front doors of people's homes
Why has a poor public image plagued the legal profession for the last half-century?
They believe lawyers are greedy, unethical, hard to communicate with, lacking in compassion and respect, overzealous abusers of the legal system, "impaired" because of some substance abuse, bill high rates, and finally the competiveness and zeal of lawyers has led to abuses of the system.
The organized bar has attempted to address the poor public image of the legal profession, how?
- Reforming the lack of disciplinary systems.
-Bar-sponsored programs have been found in every states
-Court rules and statutes limit discovery and provide for severe sanctions against lawyers for abuse
-Encouraging pro bono work and charities.
What is the general rule about simultaneously representing two clients whose interests are adverse.
Concurrent or simultaneous representation is permitted if:
1. The lawyer can adequately represent the interests of each client.
2. Each client consents after full disclosure or informed written consent.
What are the requirements for a court to honor client's consent for concurrent representation?
-Extent of disclosure
-Whether it was voluntary
-When attorney raised issue
-If its written and signed
What else should a clients consent for concurrent representation include?
-Consideration for consent
-Procedures to screen to protect confidentiality
-Procedures to follow if client withdraws consent.
Under no circumstances is it permissible for an attorney to become involved in direct business transactions with clients. True or False?
In PA, there are no circumstances under which it is permissible for clients to leave their attorneys substantial gifts in their wills. True or False?
When is it permissible for an attorney to be involved in a sexual relationship with a client?
Only if the relationship existed before he/she became a client of the lawyer and if its a serious type relationship. If there is no reason to believe the client is being taken advantage of.
The rules against solicitation by lawyers prohibit what else?
a. Don't extend to paralegals
b. They also prohibit a paralegal from soliciting for the lawyer- ANSWER
c. Extend to employees but not independent contractors.
Exceptions against solicitation are provided for:
Former clients, Relatives, and other lawyers.
Under lawyers advertising rules, what is most likely to violate ethics rules? (Example)
Paralegal name without a title in an ad.
Until 1977, what did the ethics rules on advertising require?
That lawyers COULD NOT ADVERTISE.
What branch of gov't primarily regulates the legal profession?
Lawyers can be prosecuted for engaging in UPL if they do what?
Practice law in a state in which they are not licensed, practice law when they are under suspension, and practice law before obtaining a license.
The paralegal profession first came into being during which time period?
Late 1960s-early 1970s.
The number of paralegal education programs in the country is estimated as what?
The definition of UPL has been what?
It has been developed over time though case law in most jurisdictions, including PA
ABA approval of paralegal programs is what?
a VOLUNTARY form of recognition.
The best definition of "diligence" is what?
Persistent attention to a matter.
What term is defined as "a form of recognition of an occupation, usually undertaken voluntarily and based on a person's having met specific qualifications?"
What term is defined as "mandatory form of regulation in which a gov't agency grants permission to engage in an occupation and to use a title?"
What is most likely to be found unethical as UPL?
A. Paralegal carrying business cards with his/her title and firm name.
B. Paralegal signing a cover letter enclosing legal documents
C. A paralegal signing a letter that contains legal advice.- ANSWER
D. A paralegal having his/her name on the firm letterhead.
The general rule regarding successive representation is that a lawyer will be disqualified from successive representation only if the interests of the former and current client are truly adverse and if the past and current matters are substantially related. T or F?
A lawyer cannot generally lend money to a client:
a. Except for advancing costs of litigation.- ANSWER
b. Except for advancing living expenses during litigation.
c. Under any circumstances.
d. Only with a signed permissory note.
To undertake or continue concurrent representation, there must be what?
There must be first, an assurance of adequate representation of both clients, and second client written consent.
ABA Model Rule 1.8 (a) disallows business transactions with clients unless they are:
1. objectively fair to the client 2. client is given a clear written explanation of the terms 3. client has an opportunity to consult independent counsel concerning transaction and client consents in writing.
What conflict arises when married or other closely related attorneys represent adverse interests?
The possibility that it will result in confidential info being disclosed.
The practice of billing clients for paralegal time is what?
a. Has not been widely accepted in the US
b. Is not considered ethical.
c. Is prohibited by ethics rules.
d. Was endorsed by U.S. Supreme Court.- ANSWER
What is a fixed fee?
(Flat fee) - Fee for legal services based on a set amount
-Used for routine legal services
What is a contingency fee?
-Fee that depends on the successful outcome of a case and is based on a percentage of the recovery.
What is an Hourly fee?
Based on hourly rates and amount of time actually expended.
Most common method of billing in matters other than plaintiff civil litigation.
What is the Ethics Rules on fees?
Most states ethics rules prohibit lawyers from charging or collecting an unreasonable fee.
In what two bodies of law do we find the principle of confidentiality?
1.) The evidentiary rule of attorney-client privilege which includes the lawyer work product doctrine.
2.) The fiduciary duty of confidentiality established under the rules of legal ethics.
What is the general rule of the Attorney-client privilege?
It lasts indefinitely. Client that seeks a lawyers advice or assistance may invoke an unqualified privilege not to testify and to prevent the lawyer from testifying as to communications made by the client in confidence to the lawyer. Client is the holder of the privilege and the only one that can waive it.
If a court orders a lawyer to provide documents that the lawyer believes to be privileged, the lawyer should:
a. Invoke the privilege and argue to protect the privilege. -ANSWER
b. Turn them over no matter what because the court has so ordered.
c. Contact the judge ex parte to request nondisclosure.
d. None of the above.
What is the purpose behind the rules regarding confidentiality?
It is fundamental to the lawyer-client relationship. Lawyers are in a fiduciary relationship with their clients, which requires the lawyer's highest trust, confidence, loyalty, and good faith.
Flat fees (fixed fees) are typically used in what type of matters?
a. Personal injury
b. Wage-earner bankruptcy -ANSWER
c. Business litigation
d. Intellectual property
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