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The Ethical Duty of Confidentiality. Ethical Rules . Lawyers are bound by ethical rules enforced by their state: Most states have adopted (and adapted) the ABA Model Rules of Professional Conduct. A few states still utilize their versions of the ABA Model Code of Professional Responsibility.
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Ethical Rules • Lawyers are bound by ethical rules enforced by their state: • Most states have adopted (and adapted) the ABA Model Rules of Professional Conduct. • A few states still utilize their versions of the ABA Model Code of Professional Responsibility. • As part of the “cost” of practicing law, attorneys must comply with these rules or face sanctions.
Guidelines for Utilizing Paralegals • State codes may have specific guidelines for the types of duties paralegals may perform. • Ethical codes for attorneys include guidelines for the proper use and supervision of paralegals in law offices. • The ABA has adopted Model Guidelines for the Utilization of Paralegal Services.
Paralegal Codes • Paralegals are not personally bound by the lawyers’ codes, but any violations by paralegals will be imputed to their supervising attorney, perhaps resulting in discipline. • Paralegals who are members of a paralegal professional organization such as NALA or NFPA agree to be bound by their ethical codes.
Paralegal Codes, cont. • No uniform code, and no direct sanctions from attorney or paralegal professional organizations (ABA, NALA, NFPA, NALS) • NFPA, NALA, NALS Codes reflect the topics of the attorney codes, but include additional information about UPL.
Confidentiality • Ethical duty, imposed by Codes of Conduct for attorneys and paralegals • Based upon the clients’ need to be candid and open with their attorney without fear of disclosure • Anything learned during the process of representing a client may not be shared outside the legal team.
Confidentiality, cont. • May not share with: • Friends • Spouses • Strangers • Anyone who is not involved in the direct representation of the client • Continues forever, unless client waives it or information falls under a recognized legal exception
Attorney/Client Privilege • Evidentiary principle, not ethical • Belongs to the client, not the attorney • Extends to paralegals and other law office personnel • Does not automatically apply – must be invoked
Inadvertent Disclosure • Accidental releases of confidential or privileged information may occur. • May be handled in a variety of ways: • Automatic waiver (if confidentiality is breached with communications to a third party, privilege is automatically waived) • No waiver (if there has been no knowing and voluntary waiver by the client, privilege is not waived) • Balancing Test looks to • Nature of the methods taken to protect the source • Efforts made to correct the error • Extent of the disclosure • Fairness
Inadvertent Disclosure, cont. • ABA issued an ethics opinion: • A lawyer who receives a document from opposing parties or their lawyers and knows…that the document was inadvertently sent should promptly notify the sender in order to permit the sender to take protective measures.
