Questions and Answers of Ethics and Professional Responsibility

In 1982 the Orange County Apartment News carried an advertisement for the eviction services provided by LPS. The ad stated ‘‘Evictions as low as $65’’ and showed the picture of a purposeful
Respondents Brooking and Moeves are principals in Brooking, Moeves & Halloran, P.L.L.C. (‘‘the Brooking firm’’), a law firm established in September 2004. . . . Respondent Mullaney was
Why are nonlawyers allowed to practice before some administrative agencies?
Name five federal agencies that permit nonlawyer practice.
Do states allow nonlawyers to represent clients before their administrative agencies? Discuss.
Can paralegals who work under the supervision of a lawyer represent clients before administrative agencies for their attorney-employers?Discuss.
Can a state court prohibit a nonlawyer from practicing before a federal administrative agency within the state on grounds that such representation constitutes the unauthorized practice of law? Why,
Why must paralegals be careful to disclose their status as a paralegal/nonlawyer?
Name three job titles that are appropriate for paralegals to use in identifying their status. Name some titles that are not acceptable.
May paralegals sign correspondence on firm letterhead? What limitations might be placed on the form and content of such correspondence?
May paralegals have business cards? How should a card read? How might it be misused?
May paralegals’ names be listed on law firm letterhead? Why, or why not? Why have policies about this changed? Is this practice common?
Are freelance paralegals who work for lawyers engaging in the unauthorized practice of law? How might they be more susceptible to allegations that they have engaged in UPL?
How can the prohibition against nonlawyers representing clients in court be reconciled with nonlawyer representation of clients before administrative agencies? Do you think that the differences in
How can independent paralegals who work under the supervision of lawyers distinguish themselves from those who serve the public directly? Do different job titles make a difference? For example,
Do you think freelance paralegals who provide services to attorneys are engaged in the practice of law? Might lawyers who use the services of independent contractors be more likely to fail in their
A lawyer hires an independent paralegal who will (1) conduct initial interviews of clients that have requested estate planning services, and(2) supervise execution of estate planning portfolios
Are there any state administrative agencies in your jurisdiction that permit nonlawyer practice? Do nonlawyers appear before these agencies frequently or infrequently? What about paralegals working
Do any statutes in your state disallow fees for nonlawyer representatives in administrative agencies? Which ones? Do lawyers represent clients in these agencies or do most people represent themselves?
Contact ten local law firms, five large and five small, and find out:a. if their paralegals have business cards;b. if their paralegals are listed on the law firm letterhead;c. if their paralegals
Contact your local paralegal association and find out if independent contractor or freelance paralegals are widely used in your area.Interview five freelance paralegals and the attorneys who utilize
Contact the paralegal managers of five large law firms in your area and ask if they outsource any paralegal work. If they do, find out if the work is done locally or overseas and what measures are in
Is it UPL for a company to represent a debtor in negotiations with a creditor’s lawyer? See the Supreme Court of Georgia In re UPL Advisory Opinion 2003-1 (2005) or Cincinnati Bar Ass’n v.
Is it UPL for a financial service company to prepare loan documents and charge a fee for their preparation in connection with a mortgage transaction? See King v. First Capital Financial Services
Read Johnstone, Q. ‘‘Unauthorized Practice of Law and the Power of the State Courts: Difficult Problems and Their Resolution’’ 39 Willamette L. Rev. 795 (2003) for an interesting discussion
Read and brief The Florida Bar v. Neiman, 816 So. 2d 587 (Florida 2002), for a compelling example of a paralegal engaged in the unauthorized practice of law while in the employ of lawyers.
The Florida Bar has petitioned this Court to enjoin Rosemary W.Furman, d/b/a Northside Secretarial Service, from unauthorized practice of law in the State of Florida. . . . We find the activities of
The State of Florida appeals from orders issued in separate cases(1) dismissing charges against Scott E. Foster, Jr., and his wife, Martha J. Foster, purportedly arising from the unauthorized
Petersen, a nonattorney, has worked in Manti, Utah, since 1991.During that time, he has prepared wills, divorce papers, and pleadings and conducted legal research on behalf of clients for a fee.
All of the debtors involved in these matters consultedWe the People[WTP] to prepare bankruptcy petitions. In each case, Chapter 7 petitions were filed, and Vincent Gould was listed as the petition
This appeal arises from an adversary proceeding initiated by the United States Trustee (‘‘Trustee’’), during the bankruptcy proceeding of Debtor Jayson Reynoso, against Henry Ihejirika, d/b/a
In adopting the Unlawful Detainer Assistants Act (Bus. & Prof.Code 6400 et seq.) the Legislature found in part that ‘‘there currently exist numerous unscrupulous individuals . . . who purport to
The facts relating to this case are undisputed. The accused was licensed to practice law in California in 1974 and was admitted to practice law in Oregon in 1984. During the spring of 1988, the
What branch of government is primarily responsible for regulating attorney conduct? What level of government? State or federal?
What role do state bar associations play in governing lawyer conduct?
What role do the state and federal legislatures play in governing the conduct of lawyers?
What is an integrated bar? How does it differ from a voluntary bar?What is a specialty bar?
What is the American Bar Association? What role, if any, does it play in overseeing attorney conduct? In ethics generally?
When did the states first begin to adopt ethics codes?
Name and describe the different versions of model ethical rules that have been adopted by the ABA.
Why did the ABA decide so soon after the Model Code was adopted to undertake a major revision of it?
What are some issues that the ABA is now considering as it reviews the current Model Rules?
How many states follow the ABA Model Rules?
What are ethics opinions? Who writes them? Are they binding on attorneys?
Name and describe the three main direct sanctions for attorney misconduct that are enforced by the highest state court or state bar.
Name some other sanctions or remedies for attorney misconduct besides those that are imposed by disciplinary authorities.
Look at the ABA Model Code and Model Rules and compare the formats. Which do you find easier to work with?
Do you think that lawyers and paralegals should be governed by the states or at the national level? Consider how things have changed since ethics rules were first adopted—in the economy, the
Should there be rules that govern lawyers in international practice?How should these interface with state ethics rules and state and federal laws?
It has been said that general practitioners are a dying breed. What does this mean for the regulation of lawyers? Should the ethics rules cover individual lawyers or apply broadly to law firms?
Is your state’s bar integrated? Does the legislature share in governing lawyers in some way, such as funding for the courts? Does the judiciary work closely with the bar on matters relating to
Does your state have any laws that govern attorney conduct? What do these laws say? Where are they found in the state statutes?
When were the current rules of ethics in your state adopted? Does your state follow the ABA rules exactly or are some of the provisions different? If some are different, which ones and why?
Does your state or local bar association publish ethics opinions? If so, where do you find these? Are there any ethics opinions relating to paralegals?
Has your state’s highest court decided any cases in which the authority of the legislature to regulate attorneys was an issue? If so, what did the court decide?
Read the SEC rules adopted pursuant to Sarbanes-Oxley that govern the conduct of lawyers. Do you think that these provisions impinge on the inherent authority of the courts to govern lawyer conduct?
Read ABA v. FTC, decided by the U.S. Court of Appeal for the District of Columbia Circuit in December 2005. Do you agree with this decision? Should lawyers be subject to federal law such as this one?
Read Real Estate Bar Ass’n v. Nat’l Real Estate Information Serv., decided by the First Circuit U.S. Court of Appeal in June 2010.The facts in this new case are similar to those in Bennion
Defendant petitioner is a registered escrow agent under the Escrow Agent Registration Act . . . and employs licensed escrow officers for closing real estate transactions. Petitioner closed several
This case comes before us on appeal by the defendants from a judgment entered in the Superior Court declaring portions of two statutes enacted by the General Assembly (citations omitted)
When did the paralegal profession begin and what was the impetus for its development?
What are the two main professional associations for paralegals?
What is certification? What is licensing?
What states have some form of direct regulation of paralegals? What entity (court or legislature) adopted the regulation in each case?
What states have some form of voluntary certification of paralegals?What entity is responsible for these programs in these states?
What are the national associations’ programs for paralegal certification called? How do they differ?
What is limited licensure? How do nonlawyer legal service providers differ from traditional paralegals who work under lawyer supervision?How do they differ from freelance or independent contractor
What are the arguments in favor of the licensing of traditional paralegals?The arguments against?
What is the ABA’s position on paralegal certification and licensing?
How many states have guidelines for the utilization of paralegals?What is their purpose?
What are the ABA Model Guidelines for the Utilization of Paralegal Services?
Do NALA and NFPA have rules on the conduct of paralegals? How are these rules enforced?
What are the NALA Model Standards and Guidelines for the Utilization of Legal Assistants? What do they contain? What is their purpose?
Can a paralegal assistant who is negligent while working on a client’s case be sued by the client for malpractice? Can this paralegal’s attorney-employer be sued? If so, on what legal basis?
Can a lawyer be disciplined for the unethical conduct of a paralegal whom he or she supervises? Can the paralegal be disciplined?
What does ABA Model Rule 5.3 say about attorney responsibility for paralegals?
Do you think that paralegals working under the supervision of attorneys should be licensed? Why, or why not?
Do you think that nonlawyer legal service providers should be licensed? Should they be permitted to give legal advice as they help‘‘customers’’ who are representing themselves?
If you were creating a licensing scheme for nonlawyer legal service providers, what would it include?
If nonlawyer legal service providers were licensed in your state, would you be interested in becoming licensed? Why, or why not?
Who is covered and not covered by the ABA definition of a paralegal?Do you like this definition? Why, or why not? How would you change it? How does it compare with some of the other definitions of
What methods can you suggest to improve access to legal services for low- and middle-income persons?
Do lawyers have an ethical obligation to delegate work to an employee who has the qualifications to do the work and is the least expensive to the client?
Many law firms outsource work to vendors, sometimes even offshore vendors. What is the ethical duty to supervise in that situation? Is it possible to supervise effectively at this distance?
What would you do if the lawyer you worked for had a heavy caseload and delegated everything but court appearances to you, including getting clients to sign retainer agreements, conducting intake
Is there a local paralegal association in your area? Is it affiliated with NALA or NFPA, or is it independent? What kinds of activities does it have? What are the benefits of membership? How many
Does your state or local bar have a committee that addresses paralegal issues? Can paralegals join it? What does it do?
Does your state or local bar have guidelines for attorneys who work with paralegals? Has it considered licensing of traditional paralegals or independent paralegals who provide services directly to
Has your state bar or court system conducted any studies on access to legal services or access to justice? If so, read the study and report on the findings about barriers to access and solutions,
Can you find any legal malpractice cases in your state in which a paralegal was implicated?
Is voluntary certification through the state bar, statewide paralegal association, NALA, NFPA, or NALS popular in your state or local area? How many paralegals in your state are certified?
Has your jurisdiction adopted Model Rule 5.3 or some version of it?Are there any disciplinary cases or ethics opinions interpreting this rule? Are paralegal-related issues addressed?
What are your state’s rules about disbarred lawyers working as paralegals?Do you think that disbarred lawyers should be able to work as paralegals? What are the risks to the client? Does this
As mentioned in this chapter, some law firms outsource work, such as legal research and document management, to vendors outside the country. Is it possible to exercise appropriate supervision under
Research the status of the Legal Technician Rule proposed to the Washington Supreme Court by the Practice of Law Board in January 2008. Study the history of the proposal. How did this proposal come
This is an attorney malpractice case arising from a real estate transaction.The lawyer represented a corporate client and employed an untrained paralegal who played a significant role in the closing
Child Support Collections (‘‘CSC’’), a debt collection agency, retained Struthers in December 1989 to work with another lawyer who had been handling CSC’s cases. The following day, the
Suzanne Akbas, a paralegal, formed a corporate entity titled U.S.Entry, Inc. to provide legal services to persons with immigration issues who were seeking to gain entry and establish lawful status in
A Canadian couple, Michael and Barbara Seguin, hired Lawless in 1987 to help them acquire permanent residency status in the United States. Lawless initially contracted to acquire residency status for
Beginning in approximately 1979, Giancola was employed in Chicago by attorney Samuel Poznanovich as a part-time secretary in his law office.Eventually, she became his full-time secretary. Giancola

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