In 1983 Alton Logan was sentenced to twenty-six years in a federal prison for a murder he didn’t commit. The real killer, Andrew Wilson, confessed his part in the crime to his own attorneys. They were working on another murder case Wilson was involved with. Because of attorney-client privilege, Wilson’s lawyers weren’t able to share this information with Logan’s defense attorney, or the courts. The eventual outcome of the trial was the imprisonment of an innocent man.
The story seems unconscionable. How could the lawyers, who knew the truth, keep silent, withholding the key that would have set Alton Logan free? Because of two little words: trust me.
Trust is the bond of honor and the sacred ground of confidence between a client and their attorney. It is part of the code of ethics every attorney subscribes to. It would be wrong in the above instance for Wilson’s attorneys to break their oath for the sake of another. Their only duty was to their client and his ultimate good in this circumstance.
In the Absence of a Universal Moral Code, Ethics Are the Next Best Thing
Is it moral? Most would probably say no. But don’t get it twisted – ethics are not the same as morals. In reality, our legal system isn’t specifically about morality. Especially given the fact that not everyone subscribes to the same moral code. Simply put, society can’t always agree on what’s moral and what’s not, but in the world of law, business and healthcare, we have come to an agreement as to what is ethical and what isn’t.
Trying to make laws agree, based on morality alone would be impossible. So the legal world has created something else: a code of ethics. The code of ethics that attorneys follow align with the American Bar Association’s Model Rules of Professional Conduct.
In a nutshell,“…the Model Rules represent a responsible approach to the ethical practice of law and are consistent with professional obligations imposed by other law, such as constitutional, corporate, tort, fiduciary and agency law.”
Confidence within the attorney-client relationship is lined out in Rule 1.6 A. That section explicitly states that a lawyer can’t reveal information about a client unless the client gives informed consent. There are a few exceptions to the rule that have to do with perjury and future crimes yet to be committed, but all in all, what you say to your attorney is held in strict confidence.
As a paralegal, you will have access to client testimony from depositions, statements, and other confidential records. It’s safe to say that an attorney’s office is a buffet of juicy gossip fodder that creates a minefield of potential ethics violations.
Dana Fischel, ACP, CAS, a veteran paralegal and the treasurer of Inland Counties Association of Paralegals (ICAP) didn’t mince words when we asked her about what it takes to sidestep these landmines.
Ethics is a tricky business. Something that seems innocent can become a costly mistake. Something that seems like a favor can be a crime. Something that seems morally right can be ethically wrong. As a paralegal your best bet is to always err on the side of caution. It all boils down to restraint. You need to know when to keep your mouth shut.
Even Offering Casual Legal Advice is Strictly Forbidden
When it comes to handling a situation where a friend might be angling for some casual legal advice, Dana says…
“What’s ethical; and what’s not ethical? A paralegal is not authorized to practice law. It’s very easy to sit and sip wine with your friend and she brings up, ‘ I have a mom and she’s getting older…’ and because I work in that field – stop! Not your place giving legal advice on how to solve the problem. I can suggest to them to contact an attorney. I can talk about the procedural part, but I cannot give them legal advice.”
Each state’s bar has some slight variation on what it means to practice law. For instance, in California, a licensed real estate agent has the ability to handle real estate transactions, including drawing up the contracts and completing the closings, without the oversight of an attorney.
This isn’t the case in other states. Many states use attorneys to handle the paperwork. A paralegal, acting as an office assistant, can assist a real estate agent in California and it isn’t considered practicing law. If they go to another state, like Georgia for instance, they would be practicing law if they drew up paperwork without an attorney’s supervision.
Even a casual conversation can constitute offering legal advice in the eyes of the bar association. If a friend asked for advice on a legal matter, it would be easy for you to casually mention a solution… but what if you work for an estate attorney, and a friend asked about something related to a trust, and then acted on that advice and something went terribly wrong? This kind of thing can and does happen.
There are real precedents in place for casual conversations between friends ending in messy legal battles and the end of a paralegal’s career. Be warned.
Breach of Confidence… It’s Your Integrity and Your Career On the Line
And on the topic of talking it up a little with anyone outside the law office, Dana recommends being just as tight lipped…
“It’s very important to know where our boundaries are. Yes we can have a very juicy case in the office. I can know information about individuals that are not putting them in the best light, but it’s unethical for me to go outside the office and say to my friends, ‘Guess what? You will not believe who I just met. You may know him as a nice guy, but he’s doing this, this and that.’ and go and talk about names and talk about cases.”
Confidentiality is getting trickier by the day as information is now easily passed electronically. It’s a no-brainer that you can’t gossip about cases or even discuss them with anyone outside of the legal team working the case. But what about text? What if you text your significant other that you’re still working on the Brown case and will be an hour late getting home? Did you break a confidence? Yes. You mentioned a client’s name. It can happen that easily.
What if you had been the paralegal in the office handling the case for Andrew Wilson and knew you had information that could impact Alton Logan’s case? Would your moral judgment override your duty to your oath of confidence? If so, you not only put yourself at risk of a lawsuit, you will be placing your supervising attorney at risk as well. Under the Rules of Conduct, an attorney is responsible for a paralegal’s actions. You could lose your career, disbar the attorney, or worse.