Ethical Walls

When a firm hires a paralegal who has worked for opposing counsel or an opposing client, the entire firm should be notified that an ethical wall is to be erected around the paralegal and that no one may do the following:

1.      Discuss the case in the presence of the paralegal

2.      Allow the paralegal access to any documents, both hard copy and electronic

3.      Engage in any discussions with the paralegal about her prior work on the case or work her previous firm may have done.

All these precautions are necessary to avoid the firm’s possible disqualification in the case.  Even an ethical wall is no guarantee that opposing counsel will not file a motion to disqualify your firm, despite the fact that the motion may ultimately be denied.  In the course of defending such a motion, firms may be required to produce billing records and other documents, and provide documentation of any ethical wall that was erected around the person in question.

Other areas of conflicts include other jobs you may hold, a family member’s employer, and stock you may own. 

If you think you may have a potential conflict, you should notify your attorney immediately so your attorney may determine if there is a conflict.

If you are contemplating changing jobs, be certain your potential new employer is aware of the cases and clients for which you have worked before you begin your new job.  In addition, be prepared to assist your new employer in determining how best to develop an ethical wall to shield you in the event of a possible conflict.  If you are a freelance or contract paralegal, keep a list of each firm for which you have worked, as well as the cases and clients for which you have worked.

(One more note regarding ethical walls: please don't refer to them as "Chinese Walls." That term is outdated and is no longer acceptable terminology.) 

Your Most Valuable Professional Asset

I have been fortunate to get to know many wonderful paralegals during my career. Most have impressive resumés with great work experience, notable education, important credentials, and inspiring accomplishments. When I think about these paralegals, I sometimes feel as if I am not doing enough in my profession and career. Regardless of what I do, I know I will never catch up to these paralegals in every area.

However, I also know several paralegals who have fabulous resumés but very few people would recommend them or want to work with them. Some of them are known to have difficult personalities, a few have questionable ethics, and others appear to be overstating their qualifications and experience.

So how can you stand out, particularly when surrounded by fellow paralegals with outstanding resumés? By your reputation.

There will ALWAYS be someone with more experience, more education, better credentials, and more impressive accomplishments. There is nothing you can do about that. What you CAN control is making sure you have a reputation for being knowledgable, dependable, conscientious, professional, and ethical. All of the wonderful information on your resumé can't overcome a bad reputation.

So, above all else, work to guard and improve your professional (and personal) reputation. Because when it comes right down to it, it's really all you've got.

But I Thought We Were a Team?

Most paralegals I know are satisfied with not being attorneys, but they view themselves as important members of the legal team and wish to be treated as such. Being a member of the lega team includes the following: - Being involved in the matter from the beginning - Being introduced to the client - Being involved in discussions regarding how the case will proceed, or at least given the "why" for the assignment - Having the professionalism to at least listen to our suggestions and recommendations - Treating us with courtesy and respect, whether in private or in front of the client and/or opposing counsel - Keeping us updated on developments in the matter without us always having to ask Sometimes we have to teach attorneys how to treat us as members of the team. Don't be afraid to let your attorneys know, in a professional manner, of course, not only how you want to be included but why doing so benefits the attorney and the client. And if, despite your best efforts, you are not valued and included as a team member, there is always the option to find a new team that will!

I'm Offended!

I was just copied on a series of emails between two people. To say that the exchange didn't go well might be an understatement. The originator of the email series was trying her best to gently deliver some news that she expected would disappoint or even anger the primary recipient of the email. Of course, even though the sender made an effort to not offend the recipient, the recipient took immediate and dramatic offense. The recipient picked apart the email and accused the sender of having made particular statements based on positions the recipient knows the sender does not hold. The sender sent reply emails in which gracious, sincere apologies were made as well as statements that the accusations were not true, only to have the recipient make more unfounded accusations.

Unfortunately, this type of exchange happens far too often, both in the professional world and in our personal interactions. Because I was copied on the exchange I am taking it as a reminder to do the following:

- Remember it is difficult to convey and discern tone and emotion in emails

- Analyze what was conveyed and compare it to what you know the other person's usual intentions and positions to be; if the communication does not match up to your prior experiences with that person, perhaps you should ask for clarification

- Give the other person the benefit of the doubt, at least until you can clarify his or her position

- Consider whether disussing the matter in person, or even over the phone, might be the best way for each of you to explain your positions

Too often we find we have taken offense where none was intended. By then it may be difficult to rectify the damage we may have with our accusatory and indignant responses.

Lying Clients

Clients sometimes lie. There. I said it. Clients may withhold information, often intentionally, and some tell outright falsehoods.

As paralegals we know that often a tiny bit of information can completely change a situation. That means it's our job to ferret out all relevant information as we possibly can before taking the matter to the attorney. Unfortunately, one of the best ways to figure out what questions to ask to get the most information from clients is the experience of finding out later that a client did not provide all the needed information. At my office we regularly update our trademark search request form to require the client to provide specific information that prior requestors did not provide and which affected the advice given by the attorney. We have also added some language to some of our opinions that state we are assuming certain things and if those assumptions are incorrect, to let us know.

What techniques do you use to try to ensure your clients are providing all the relevant information?

Can Personal Volunteer Activities Create Conflict of Interest?

I was recently contacted by a paralegal who was trying to address her supervising attorney's concerns with the paralegal's volunteer efforts. The paralegal works for a solo practioner who also handles criminal defense cases. The paralegal volunteers with a religios group that works with inmates at an area prison. The group's activities including helping the inmates with anger issues, self esteem, and GED classes.

In prison where the paralegal volunteers is not one from which her supervising attorney gets clients. The paralegal intentionally avoided volunteering at the county jail for that reason. She also does not tell anyone at the prison that she is a paralegal, does not discuss any legal issues while volunteering, and has made it clear to her fellow volunteers that there is to be no mention of her being a paralegal.

The problem is her attorney feels her activities are a potentail conflict of interest. She has reviewed with her attorney the steps she has taken to avoid potential issues but her attorney still isn't satisfied.

I'd be interested in your comments as to whether the paralegal should stop her volunteer activities in order to avoid a potential, though perhaps unlikely, conflict of interest.

Ethics of Owning Stock in Client of Firm

In addition to the usual conflicts issues and avoiding trading on confidential and privileged information a paralegal may be exposed to, more and more firms are instituting policies and procedures that take these concerns to a higher level.

Do you or your immediate family own stock? If so, you may want to be sure none of the companies in which you or your family own stock are clients of the firm for which you work. Paralegals should also check your firm’s policies regarding ownership of stock in companies the firm represents. Many firms have implemented such policies to try to limit the potential for conflicts and insider trading.

The potential for conflicts and insider trading allegations may also be raised when any employee of a firm has a family member who works for a client of the firm, regardless of which section of the firm the employee works. For example, a paralegal works in the immigration section of a law firm and her husband works for the XYZ Corporation, a client of the firm. The firm doesn’t do any immigration work for XYZ Corporation, only tax work. Although the paralegal does not work in the tax section of the firm, the paralegal may learn information about the work the firm is doing for XYZ Corporation. The paralegal may also get information from her husband about XYZ Corporation’s business that, combined with information from her job, may constitute a conflict. While all law firm employees should be well aware that any information to which they are exposed through their work should be considered confidential and privileged, some employees may consider discussions with their spouses either the exception to the rule, or necessary to ensure their spouses’ position or advantage with the spouses’ employer.

Because of this potential problem, paralegals should be careful not to discuss their work with firm employees other than those directly involved in the project. Paralegals should also take care not to discuss confidential or client proprietary information where it may be overheard by anyone, including other firm employees.

It is important to note that not everyone associated with a particular client is necessarily entitled to the same information. Paralegals should ask their supervising attorneys for a list of the people associated with the client with whom information may be shared. If someone other than one of the previously identified people contacts the paralegal for information, the paralegal should confirm with the supervising attorney what information may be provided to the requester. Providing information to the wrong person may not only violate the attorney-client privilege, but could provide a basis for an opportunity for insider trading.

With so many people hoping to gain any advantage, and clients ever more sensitive to the implications of misappropriated information and even the appearance of impropriety, paralegals must be ever vigilant to protect and preserve confidential, proprietary, and privileged information.