Guidelines for Ethical Conduct
The Model Guidelines for the Utilization of Paralegal Services (MGUPS) was initially created by the Standing Committee on Paralegals of the American Bar Association (ABA) during 1991 in order to “provide lawyers with useful and authoritative guidance in working with paralegals” (ABA, 2004, p. 1). After more than a decade, specifically during 2003, the guidelines were rewritten in order to “reflect the legal and policy developments” which have taken place from the initial year of its formulation (ABA, 2004, p.
1). These guidelines are as follows: Guideline No. One: A lawyer is responsible for all the professional actions of paralegal performing services at the lawyer’s direction and should take reasonable measures to ensure that the paralegals conduct is consistent with the lawyer’s obligations under the rules of professional conduct of the jurisdiction in which the lawyer practices. Guideline No.
Two: Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a paralegal any task normally performed by the lawyer except those tasks proscribed to a nonlawyer by statute, court rule, administrative rule or regulation, controlling authority, the applicable rule of professional conduct of the jurisdiction in which the lawyer practices, or these guidelines.
Guideline Number Three: A lawyer may not delegate to a paralegal (a) responsibility for establishing an attorney-client relationship, (b) responsibility for establishing the amount of a fee to be charged for a legal service, and (c) responsibility for a legal opinion rendered to a client. Guideline Number Four: A lawyer is responsible for taking reasonable measures to ensure that clients, courts, and other lawyers are aware that a paralegal, whose services are utilized by the lawyer in performing legal services, is not licensed to practice law.
Guideline Number Five: A lawyer may identify paralegals by name and title on the lawyer’s letterhead and on business cards identifying the lawyer’s firm. Guideline Number Six: A lawyer is responsible for taking reasonable measures to ensure that all client confidences are preserved by a paralegal. Guideline Number Seven: A lawyer should take reasonable measures to prevent conflicts of interest resulting from a paralegal’s other employment or interests. Guideline Number Eight: A lawyer may include a charge for the work performed by a paralegal in setting a charge and/or billing for legal services.
Guideline Number Nine: A lawyer may not split legal gees with a paralegal nor pay a paralegal for the referral of legal business. A lawyer may compensate a paralegal based on the quantity and quality of the paralegal’s work and the value of that work to a law practice, but the paralegal’s compensation may not be contingent, by advance agreement upon the outcome of a particular case or class of cases. Guideline Number Ten: A lawyer who employs a paralegal should facilitate the paralegal’s participation in appropriate continuing education and pro bono public activities. (ABA, 2004, p.
2-15). As can be seen above, the aforementioned guidelines determine a lawyer’s professional relationship with a paralegal. The first guideline serves as the foundation for the succeeding guidelines in the MGUPS. Fundamentally it serves to lay out that although the role of the paralegal is to aid the lawyer, the lawyer bears the responsibility of all the actions and decisions undertaken in the process of representing the client. Guidelines two and three, on the other hand, specify the responsibilities as well as the tasks which the lawyer may delegate upon the paralegal.
Both guidelines cohere with the first guideline as it specifies which tasks may be delegated upon the paralegal while at the same time placing the paralegal’s decisions and actions, in relation to the case, within the scope of the lawyer’s responsibility. This is further ensured by the fourth and fifth guidelines as they necessitate the lawyer to advise the parties involved within a case and in relation to a case regarding his utilization of a paralegal within the case.
The succeeding guidelines [guidelines six and seven], on the other hand, covers the lawyer’s responsibility to the client as it ensures that the code of confidentiality is practiced by the paralegal in relation to the information regarding a specific case. As can be seen above, guideline number seven ensures that no form of conflict of employment or interest should exist in relation to the paralegals involvement within the case at hand. The later guidelines [guidelines eight to ten] focus on the paralegals welfare as it determines the code of conduct in relation to the compensation as well as advancement of the paralegal.
In the same manner that lawyers have a set of guidelines to follow in relation to their utilization of paralegals, paralegals have also created a set of guidelines for their dealings with lawyers. An example of this is the National Federation of Paralegal Associations’ (NFPA) Model Code of Ethics and Professional Responsibility (MCEPR). Initially created during May 1993, the code serves to “delineate the principles for ethics and conduct to which every paralegal should aspire” (NFPA, 2006, p. 1).
In the following years, specifically during April 1997, the NFPA included the Model Disciplinary Rules in order “to make possible the enforcement of the Canons and Ethical Considerations contained in the NFPA Model Code” (NFPA, 2006, p. 1). The MCERP is thereby composed of two parts. The first part contains the guidelines for ethical conduct whereas the second part contains the sanctions for a paralegal’s failure to adhere to these guidelines. It is important to note that this presents us with one of the main differences between the guidelines created by lawyers and the guidelines created by paralegals.
Whereas the former merely sets out guidelines, the later specifies sanctions for a paralegal’s failure to adhere to these standards. It might be noted that the main rationale for this may be traced to the former’s dependence upon the sanctions set by the ABA for a lawyer’s inability to perform his duties and responsibilities however it is important to note that these sanctions are only applicable to the initial seven guidelines of the MGUPS. In addition to this, it is important to note that MCERP is patterned to the guidelines in the MGUPS.
What follows is the initial part of the MCERP which contains eight primary guidelines for the paralegal. These are as follows: Guideline Number One: A paralegal shall achieve and maintain a high level of competence Guideline Number Two: A paralegal shall maintain a high level of personal and professional integrity. Guideline Number Three: A paralegal shall maintain a high standard of professional conduct. Guideline Number Four: A paralegal shall serve the public interest by contributing to the improvement of the legal system and delivery of quality legal services, including pro bono public services.
Guideline Number Five: A paralegal shall preserve all confidential information provided by the client or acquired from other sources before, during, and after the course of the professional relationship. Guideline Number Six: A paralegal shall avoid conflicts of interest and shall disclose any possible conflict to the employer or client, as well as to the prospective employers or clients. Guideline Number Seven: A paralegal’s title shall be fully disclosed. Guideline Number Eight: A paralegal shall not engage in the unauthorized practice of law. (NFPA, 2006, p. 2-6)
The pattern followed by the MCERP on the MGUPS framework is evident if one considers the foundational aspects of the first three guidelines in the MCERP and the parallels between the later guidelines in both the MCERP and the MGUPS [e. g. guideline number four of the MGUPS is equivalent to guideline number seven of the MCERP]. The difference merely lies on the legal basis of the foundational guideline of the MGUPS. Note, for example, whereas the foundational basis for the guidelines of the MCERP are based on an honor system [e. g. ensuring the level of competence etc.
of the paralegal] the foundational basis of the MGUPS is based on the legal code. On a general note one might state that the main difference between both guidelines can be traced to the former’s [MGUPS and other guidelines created by lawyers’] embeddedness on the legal system and the former’s reliance on an ethical code. References American Bar Association. (2004). ABA Model Guidelines for the Utilization of Paralegal Service. Chicago: ABA. National Federation of Paralegal Association. (2006). Model Code of Ethics and Professional Responsibility and Guidelines for Enforcement. Np: NFPA.Sample Essay of PapersOwl.com