State Bar of Wisconsin

Proposed Ethics Rules for Paralegals Final Draft

Preamble: A Paralegal's Responsibility

A paralegal is an individual qualified through education and training, employed or retained to perform substantive legal work, supervised by an attorney licensed to practice law in this state, requiring a sufficient knowledge of legal concepts that, absent the paralegal, the attorney would perform the work.

As an integral partner in the delivery of legal services, the paralegal has a special responsibility for the quality of justice provided. The paralegal through his/her work with the supervising attorney seeks a result that is advantageous to the client but consistent with the requirements of honest dealings with others.

In all professional functions a paralegal should be competent, prompt and diligent. A paralegal should, whenever possible, assist in the communication with a client concerning the representation. A paralegal should keep in confidence information relating to representation of a client except as far as disclosure is required or permitted by the Rules of Professional Conduct or other law.

A paralegal's conduct should conform to the requirements of the law, both in professional service to clients and in the paralegal's employment and personal affairs. A paralegal should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A paralegal should demonstrate respect for the legal system and for those who serve it, including attorneys, judges and public officials. While it is a paralegal's duty, as a private citizen, when necessary to challenge the rectitude of official action, it is also the paralegal's duty to uphold the legal process.

As a public citizen, a paralegal should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a paralegal should cultivate knowledge in reform of the law and work to strengthen legal education. A paralegal should possess integrity, professional skill and dedication to the improvement of the legal system and should strive to enhance the paralegal role in the delivery of legal services. A paralegal should be mindful of deficiencies in the administration of justice and of the fact that the poor, an sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A paralegal should aid the legal profession in pursuing these objectives.

Many of the paralegal's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as in substantive and procedural law. However, a paralegal is also guided by personal conscience and the approbation of professional peers. A paralegal should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.

In the nature of law practice, however, conflicting responsibilities are encountered. A paralegal shall act within the bounds of the law, solely for the benefit of the client, and shall be free of compromising influences and loyalties. Neither the paralegal's personal or business interest, nor those of other clients or third persons, should compromise the paralegal's professional judgement and loyalty to the client. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.

Scope

The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of assisting in legal representation and of the law itself. Some of the rules are imperatives; cast in the terms of "shall" or "shall not". These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may", are permissive and define areas under the rules in which the paralegal has professional discretion. No disciplinary action should be taken when the paralegal chooses not to act or acts within the bounds of such discretion. Other rules define the nature of relationships between the paralegal and others. The rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a paralegal's professional role.

Furthermore, for purposes of determining the paralegal's role in relationship to an attorney's authority and responsibility, principles of substantive law external to these rules determine whether a client-attorney-paralegal relationship exists.

Failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. The rules presuppose that disciplinary assessment of a paralegal's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a paralegal often has to act upon uncertain or incomplete evidence of the situation. Moreover, the rules presuppose that whether or not discipline should be imposed by a violation, and the severity of a sanction, depend on the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.

Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules are designed to provide guidance to paralegals and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a paralegal's self-assessment, or for sanctioning a paralegal under the administration of a disciplinary authority, does not imply that an antagonist is a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of paralegals or the extra-disciplinary consequences of violating such duty.

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