1976, February, Pg. 157. Ethical Considerations for Paralegals and Investigators.

• Author: by Harold A. Haddon

5 Colo.Law. 157

Colorado Lawyer

1976.

1976, February, Pg. 157.

Ethical Considerations for Paralegals and Investigators

157Ethical Considerations for Paralegals and Investigatorsby Harold A. HaddonThe rapidly expanding use of paralegal assistants by attorneys poses many ethical problems which should be understood by lawyer and employee alike. Conduct of a legal employee which falls short of ethical standards prescribed for attorneys can result in discipline for the employer-attorney even though that conduct is legal and generally accepted as part of "market-place morals." The potential for mistakes is especially great in the fields of criminal investigation and collections, where the opposition enjoys a latitude for chicanery that those associated with attorneys must suffer without emulating. This article discusses some of the ethical constraints upon legal employees of all stripes.

THE SCOPE OF PERMISSIBLE PARALEGAL DUTIES

The term "paralegal assistant," if fairly applied, includes investigators, clerks, law students and secretaries who perform other than purely stenographic or filing labors. Drafting pleadings, interviewing witnesses and clients, examining court records, organizing litigation files and collecting delinquent accounts may be performed by nonlawyers under an attorney's supervision. Delegation of these tasks is perfectly permissible under EC 3-6 of the Code of Professional Responsibility, which recognizes that a lawyer often delegates tasks to clerks, secretaries, and other lay persons. Such delegation is proper if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. This delegation enables a lawyer to render legal service more efficiently and economically.

Under the aegis of EC 3-6, there has been a vast expansion in the utilization of paralegal employees. A review of ethical opinions rendered by the ABA and state bar associations indicates that only the following duties are strictly reserved as the exclusive province of attorneys:

---Counseling clients concerning matters of law;(fn1)

---Making fee arrangements with clients;(fn2) and

---Appearing in courts, administrative proceedings or depositions.(fn3)

Other matters, which clearly involve the exercise of judgment, may be delegated. For example, some state associations allow nonlawyer assistants to attend mortgage closings on behalf of clients(fn4) and to assist in business negotiations.(fn5) Legal research, interviewing witnesses, and drafting of correspondence,

158pleadings, wills and contracts are uniformly considered to be properly delegated to nonlawyers. Opinion is split among bar associations on the question of allowing paralegals to adjust or settle claims. Some states permit nonlawyers to negotiate settlements so long as the supervising attorney retains the ultimate review or veto power.(fn6) Other states take a stricter view and do not allow anyone but an attorney to engage in settlement negotiations.(fn7) This latter position appears unduly restrictive. So long as the attorney assumes responsibility for the settlement and exercises the final decision as to acceptance in an informed manner, considerable time and cost can be saved by allowing a paralegal to conduct preliminary negotiations. The Colorado Bar Association's Ethics Committee has not expressed an opinion on the subject.

So long as an attorney maintains a close supervisory relationship with the paralegal, few ethical questions arise. The most difficult situations occur where direct dealings with clients are involved. For example, a client or a witness may request advice concerning legal rights or duties. "Legal advice," although not capable of concise definition, is to be dispensed only by attorneys.(fn8) Clients, however, will often ask a legal assistant for such advice when the attorney is unavailable, and sometimes such requests will be made in an emergency. Even in a crisis, the paralegal must defer such requests to an attorney. If the client cannot wait, referral to an immediately available attorney is the only permissible alternative. Similarly, client interviews and screening should usually be done by an attorney,(fn9) although group legal service programs are allowed to conduct some screening by paralegals.(fn10) Attorneys with high volume practices should have the same latitude.

THE ATTORNEY'S LIABILITY FOR THE ACTS OF PARALEGALS

Common agency principles make it clear that an attorney may be legally liable for negligent or intentional acts which are performed by a paralegal within the scope of employment. Less commonly understood, however, is the exposure to professional discipline which an attorney faces for paralegal actions which are within legal boundaries but do not meet ethical standards required of attorneys. The paralegal is not answerable to state grievance committees,(fn11) but an employer-attorney is personally subject to discipline if the lay assistant violates a disciplinary rule.(fn12) Although statutory limitations may govern the activities of employees such as licensed investigators,(fn13) the acts of all legal assistants are additionally governed by the Code of Professional Responsibility. Although some paralegal organizations have adopted their own codes of ethics,(fn14) their actions are also restricted by the attorney's code. In the event of a conflict between the Code of Professional Responsibility and a more liberal statute or guideline adopted by a para-professional organization, the Code of Professional Responsibility must prevail since it is the lawyer who bears the ultimate responsibility for the quality and integrity of all work performed under an attorney's auspices.

Since attorneys are held to strict accountability for the acts of their paralegals, it is imperative that all lay assistants be fully informed of the rules which govern attorneys. Especially in the fields of collection and criminal investigation, paralegals are subject to strictures which do not encumber private or public agencies with no formal affiliations with attorneys.

PERFORMING COLLECTION WORK

There is a sharp division of opinion on the ethical propriety of allowing an attorney's employees to engage in collection activities, either for clients or on the attorney's own delinquent accounts. Some state bar committees strictly prohibit collection activity,(fn15) reasoning that it may lead to fee-splitting, advertising and disrepute for the profession. Other states, as well as the ABA, sanction such activity subject to

159strict ethical standards.(fn16) Colorado has no formal opinion on the subject.

In those states where it is considered proper for an attorney to delegate collection work to lay employees, many common "marketplace" tactics must be foregone. When a collector is employed by an attorney, no threats or coercion can expressly or impliedly be used. Such restrictions are not typically observed by independent collection agencies.(fn17) All of the following acts are prohibited if the collector works for or contracts with an attorney:

---The debtor may not be warned that failure to pay may injure his credit rating or community reputation.(fn18)

---The collector may not use deceptive methods to obtain information about the whereabouts or assets of debtors. For example, confidential records cannot be obtained by using false names and titles or under false pretexts, nor can the debtor be contacted by a paralegal using a false identity or pretense to gain the debtor's confidence.(fn19)

---The debtor cannot be advised that failure to pay might result in criminal charges for short checks, fraud, asset concealment, etc. Absolutely no threat or implication of possible criminal prosecution may be used to collect a debt.(fn20) This is a restriction which is often violated by attorneys as well as their employees, and discipline is frequently imposed for such conduct.

---The debtor cannot be told that his employer will be contacted, or that garnishment proceedings will be initiated. Neither can the employer be contacted prior to the time the claim is reduced to judgment and the right to garnishment exists.(fn21)

---A few bar associations do not allow an attorney or a paralegal to threaten, imply or state that a lawsuit will be filed if the debt is not paid.(fn22) Tactics such as mailing a copy of a proposed summons and complaint are condemned by several associations.(fn23) Most ethical opinions have sanctioned the use of a simple, dignified notification that suit will be filed if the debt is not paid.(fn24) A few, however, strictly prohibit even...