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Contents
Video Case Index xv
Preface xvi
New in This Edition xviii
Resources for Teaching xx
Student Resources Online xx
Acknowledgments xxii
Chapter 1 Regulation of the Legal Profession 1

Why Are We Here? 2
What Are Lawyers? 2
What Kind of Education Is Required? 2
What Is the Bar Examination? 3
Is There a Moral Character Requirement? 4
What Else Is Required? 5
A Tax 5
An Oath 5
Proper Titles 5
Membership 6
Where Do Lawyer Ethics Rules Come From? 7
Early Canons 7
1960s Model Code of Professional Responsibility 8
Other Places Where You Can Find Ethics Rules 9
Finding the Law in My State 10
What Is the Authority of the ABA Models? 10
What Is the Authority of the State Supreme Court? 12
So, What Would a Disciplinary Action against a Lawyer
Look Like? 12
How Are Lawyers Disciplined? 13
What Are Paralegals? 15
National Association of Legal Assistants 16
National Federation of Paralegal Associations 16
NALS 16
American Association for Paralegal Education 17
U.S. Department of Labor 17
The Future 18
How Are Paralegals Regulated? 18
What Does It Mean to Be “Regulated by the Court”? 20
Have Paralegals Considered Self-Regulation? 20
vii
viii Contents
What Other Choices are Available for Regulating

Paralegals? 20
Licensing 21
Certification 21
Registration 24
Title Schemes 25
Summary 27
Chapter Review and Assignments 27
Key Terms 27 • Critical Thinking 27 • Assignments 28
Collaborative Assignments 29 • Review Questions 29
Reich v. Page & Addison 30

Hu v. Fang 32
People v. Myers 34
In the News 35
Video Case Studies 36
Chapter 2 Unauthorized Practice of Law 37

What Is UPL? 38
Why Should the Practice of Law Be Limited
to Lawyers? 39
Finding the Law in Your State 40
What Does History Say about UPL? 41
What Do the Modern Rules Say about UPL? 41
What Is It, Exactly, That Nonlawyers Cannot Do? 43
What Activities Look Like the Unauthorized Practice
of Law but Aren’t? 44
The “Incidental to” Rule 45
What Is Definitely Not UPL because There Is No “Giving
Legal Advice”? 46
What about Secretarial or Typing Services? 47
Are Kits and Books UPL? 48
What about Corporations? 49
Is Just Asking the Court for a Continuance UPL? 49
What’s So Bad about UPL, Anyway? 50
How Do Lawyers Help Others Commit UPL? 51
How Is Improper Supervision UPL? 52
And Improper Delegation Is UPL, Too? 52
How Is an Improper Business Relationship UPL? 53
What Is an Improper Division of Fees and
How Is It UPL? 53
What about Multidisciplinary Practices? Don’t They Split
Fees? 54
How Is Misrepresentation UPL? 55
Contents ix
How Are UPL Laws Enforced? 56

Penalties 57
Summary 58
South Carolina v. Despain 60

Cleveland Bar Assn. v. Pearlman 61
The Florida Bar v. Furman (Furman I) 65
The Florida Bar v. Furman (Furman II) 67
In the News 70
Chapter 3 Confidentiality 73
What’s the Big Deal about Confidentiality? 74
What Is “Confidential”? 74
How Long Does the Duty of Confidentiality Last? 75
How Can I Make Sure I Do My Duty? 76
What Confidential Information Can Be Divulged? 77
Exception 1: Doing Your Job 77
Exception 2: Need to Know 77
Exception 3: Express Waiver 77
Exception 4: Defending against Client Actions 77
Exception 5: Commission of a Crime 78
Exception 6: Preventing a Crime 78
Exception 7: Not “Client Information” 78
Exception 8 (May be): Seeking Help from Other
Professionals Who Have a Duty of Confidentiality 79
What Are Some “Not Exceptions”? 79
How Has Technology Changed Confidentiality? 80
E-Mail 81
Cell Phones/Text Messages 81
Computers 83
Outsourcing and Offshoring 83
Computer Backup Systems 84
Documents 85
Client File Retention and Confidentiality? 85
What Is the Attorney/Client Privilege? 87
Attorney/Client Privilege Contrasted 88
Where Do the Two Concepts Overlap? 91
So, Then, What’s the Work Product Privilege? 92
Are There Any Exceptions to the Work Product Privilege? 93
x Contents
Summary 93
Pellegrino v. Oppenheimer & Co. 96

Elkind v. Bennett 99
Insurance Co. of North America v. Superior Court 101
In the News 104
Chapter 4 Conflicts of Interest—The Duty of Loyalty 107

How Are Conflicts Created? 108
What Can the Freelance Paralegal Do to Avoid Conflicts of
Interest 110
How Can My Personal Life Create Conflicts? 111
Overreaching or Fraud 111
Transaction in Good Faith 112
Witness 112
A Financial Interest in the Case 112
Buying a Claim Today 112
Gifts Create Conflicts 113
Publicity Rights Create Conflicts, Too 114
Protecting the Firm’s Interest 114
Your Other Interests Can Create Conflicts 114
How Can Relations with a Client Create Conflicts? 115
What Conflict Problems Arise because of Outside
Forces? 116
What Conflicts Are Created by Representing Multiple
Clients? 117
Seller and Purchaser 117
Insured and Insurer 117
Husband and Wife 118
Debtor and Creditor 118
Representation of Corporations 119
Joint Representation of Criminal Defendants 120
What about Pro Bono Law Providers and Lawyer Referral
Services? Do They Create Conflicts? 121
If I Have a Conflict of Interest, What’s Going to
Happen? 122
Will My Entire Firm Be Disqualified? 123
Ethical Wall Theory 123
If the Clients’ Names are Confidential, and Their
Confidential Information Creates Conflicts, How Can I
Change Jobs? 125
Contents xi
If I Want to Get a Waiver, Who Has to Waive What? 126

If a Conflict Walks in the Door, What Should I Do? 126
Summary 127
Key Terms 127 • Critical Thinking 128 • Assignment 128
In re Complex Asbestos Litigation 129

Johnson v. Continental Casualty Co. 137
In the News 139
Chapter 5 Advertising and Solicitation 140

Why Do Law Firms Advertise? 141
The First Amendment 141
First Amendment Regulated 142
How Has Technology Changed the Rules of
Advertising? 142
Can Paralegals Advertise? 143
How Can I Find the Law On Advertising in My State? 145
What Is Solicitation? 146
Improper Solicitation 146
Solicitation That Is Permitted 150
What Is Direct Mail? 152
Can We Pay Someone for Referring a Case or Client
to Us? 152
What Is “Access to Justice”? 154
The Unpopular Client 154
Summary 155
Gideon v. Wainwright 157

Ohralik v. Ohio State Bar Association 160
In the News 167
Chapter 6 Fair Fees and Client Trust Accounts 168

How Do We Begin the Relationship with a Client? 169
What Are the Different Types of Fee Agreements? 170
Contingency Fees 171
Hourly Billing 173
Other Billing Methods 174
What Should Be in the Fee Agreement? 176
What Should Not Be in the Fee Agreement? 176
xii Contents
What Is a Retainer? 177

How Does a Law Firm Get Paid? 178
What Does It Mean to Unbundle Legal Services? 179
How Do We Get Fees from the Other Side in
Litigation? 180
Are Paralegal Fees Awardable? 181
What Is an Inappropriate Fee? 183
What Should the Fee Agreement Say about Client Files
and Fees? 184
What Are the Advantages of Pro Bono Service? 186
How Does a Client Trust Account Work? 186
Summary 189
Brown v. Legal Foundation of Washington 191

Blair v. Ing 195
Mullens v. Hansel-Henderson 198
In the News 201
Chapter 7 Competence and Negligence 203

How Is Competence Measured for the Lawyer? 204
What Is “Mental Competence”? 206
How Is Negligent Disregard for the Client Different? 208
What Are Some Dangers of Negligent Supervision? 209
What Does It Mean to Be a Specialist? 210
What Negligence Issues Arise in Unbundled Services? 211
What Are Some Defenses to a Negligence Claim? 212
What Is the Statute of Limitations in Negligence
Actions? 212
Who Can Sue for Professional Negligence? 213
Is There a Danger of “Negligent Referral”? 213
Who Will Be Responsible for the Lawyer’s Negligence? 213
How Do These Rules Apply to the Paralegal? 214
What Are Some Specific Acts or Omissions as
Negligence? 216
What Is Professional Liability Insurance,
and Can I Get It? 217
What’s the Best Way to Avoid Professional
Negligence? 219
How Can I Find the Law in My State? 220
Summary 220
Contents xiii

Collaborative Assignment 222 • Review Questions 222
Latham v. Castillo 222

Tegman v. Accident & Medical Investigations, Inc. 226
In the News 230
Chapter 8 The Duty of Diligent Representation 231

What Does Diligent Representation Mean? 232
Honest Communication with the Client 232
Where Is That “Boundary of the Law”? 233
Suppressing Evidence 234
Fabricating Evidence 235
What Is the Penalty for Creating or Preserving False
Evidence? 237
What Is Spoliation of Evidence? 239
How Are We Accidentally Deceitful? 239
What Is Material? 239
How Are We Deceitful in Discovery? 240
What Is Pretexting, and Why Is It Impermissible? 241
How Can I Avoid Being Told to Be Deceitful? 242
Is It Improper to Investigate Jurors? 243
Is It Improper to Talk to the Press? 243
How about Overpaying Expert Witnesses? 244
Or Giving Gifts to Judges? 244
Is There a Law That Says I Have to Be Nice to Opposing
Counsel? 244
What Duties Do I Have to the Court and Judicial
System? 246
What’s So Bad about a Loophole? 248
What Makes a Claim Frivolous? 248
How Bad Is It to Encourage or Aid a Client to Break
the Law? 249
How Is a Prosecutor Different? 249
What Exactly Is an Ex Parte Communication, and Why Is It
Bad? 250
How Can I Find the Law in My State? 251
Summary 252
Easton Sports, Inc. v. Warrior LaCrosse, Inc. 254

Midwest Motor Sports v. Arctic Sales, Inc. 258
In the News 262
xiv Contents
Chapter 9 The Umbrella Duty of Integrity 264

What Does the Duty of Integrity Look Like? 265
Is There a Duty to Report the Misconduct of Others? 265
Does the Judge Have to Report Lawyer
Misconduct? 266
Does Opposing Counsel Have to Report Lawyer
Misconduct? 266
Do We Have to Report the Misconduct of Others in Our
Law Firm? 267
Do I Have to Report My Own Misconduct? 269
Can I Just Threaten to Report Misconduct? 270
How Does the Duty of Integrity Apply to Paralegals? 271
Who Are the Appropriate Authorities? 271
Is There a Duty to Make the Law Better? 272
What Sorts of “General Misconduct” Are Prohibited? 273
What Is Involved in Protecting the Public Trust? 274
Summary 275
Critical Thinking 275 • Assignments 275 • Collaborative
Assignments 276 • Review Questions 276
In re Landry 276
In the News 279
Video Case Study 280
Appendix A NALA Code of Ethics and Professional Responsibility 281

Appendix B NALS Code of Ethics 283
Appendix C National Federation of Paralegal Associations, Inc. Model
Code of Ethics and Professional Responsibility 285
Appendix D Rules of Professional Conduct 290
Appendix E ABA Model to California Rule Translation 308
End Notes 310
Case Index 319
Subject Index 323

Video Case Index
UPL: When Friends Ask for Help 36

UPL: Helping the Client without Practicing Law 71
UPL: Traditional Exceptions 71
UPL: Interviewing a Client 72
UPL: Working with a Witness 72
UPL: Working with Experts 72
UPL: Improper Supervision 72
UPL: Helping the Client Fill Out Forms 72
Privilege: Misdirected E-mail 105
Confidentiality: Need-to-Know Circle 105
Confidentiality: Public Information 105
Confidentiality: Disclosure of Damaging Information 105
Confidentiality: Family Exception? 106
Confidentiality: Attorney/Client Privilege 106
Conflict of Interest: Relationships with Clients 139
Conflict of Interest: Independent Paralegal 139
UPL: Disclosure of Status (Misrepresentation) 202
Fees and Fair Billing: Contemporaneous Timekeeping 202
Fees and Fair Billing: Using Time Effectively 202
Zealous Representation: When You Are Asked to Lie 263
Zealous Representation: Handling Evidence 263
Zealous Representation: Gifts to Judges 263
Zealous Representation: Candor to the Court 263
Zealous Representation: Signing Documents 280
xv
Preface
Ethics for the Legal Professional has set the standard for professional responsibility
textbooks for over twenty years. Since 1986, this text has led the pack—making
critical changes in each edition to adjust to the different learning styles of our
students, evolving teaching methodologies of our instructors, advances made
possible by technology, and (of course) changes in the law.
Once again, Ethics for the Legal Professional has made a few bold changes:
First and foremost, this eighth edition emphasizes finding and using your own
state law. We can’t create a different edition for each state. Our challenge, then, was
to make one edition flexible enough to teach the law of all fifty states. We did that
by teaching and reinforcing important research skills. Rather than reading about
some amorphous “model rule,” that we hope can one day be applied to some simi-
lar situation, beginning in Chapter 1 students are thrown head first into “here’s the
issue, now let’s go find that law.” At the end of a brief (focused) exercise, students
are armed with their own state law to apply to that everyday ethical issue. No foo-
lin’ around. This stuff is real and immediately relevant. And, because it’s real and
relevant, it’s more challenging (less dry, not so filling) and a lot more fun! (Caveat
emptor: If you don’t have a sense of humor, you won’t like this textbook.)
In this edition, the student will find more references to specific Rules but will
need to check references to the NALA, NFPA, and NALS codes. We took out the
margin boxes about them. Instead, we focus on three primary items in the margin
boxes: Key Terms (words you must understand for each chapter); Watch the
Video (relevant videos from our collection to watch and apply the law you have
just learned in a real-life situation—explained below); and Challenge Assignments
(research for the student who is looking for more).
The eighth edition continues to tackle ethical issues in the frank, conversational
style for which the author is well known. This book is purposefully written from the
point of view of the paralegal. The lesson is “we should do this” and “we should avoid
doing that” as opposed to “the paralegal should . . . or should not . . . ” The object is to
draw the paralegal into the profession in a self-assured manner. Ethics can be scary.
The eighth edition makes every attempt to put the student at ease, to use humor,
where appropriate, and to keep the tone warm and the language user-friendly.
Our goals haven’t changed with this edition. Our promise remains the same:
By the end of this course of study, the student will be able to recognize a potential
ethical issue, put a name on it (this is a conflicts issue; this is a privilege issue; and
so on), research possible courses of action, and make an educated decision about
the next steps. We don’t expect any student to know the right thing to do in every
ethical situation. We do expect the student to spot that ethical situation, name
it, and then research state law. That means that throughout this eighth edition
we ask the student to spot, name, research, find, and then apply your state law.
The exercises throughout the book teach, guide, and then give the student a gentle
push to do the work independently. Then we reinforce the lesson through more
guided and independent practice.
We recognize that researching on the Internet can be the black hole of time, so
xvi we’ve provided a Web site that contains information about your state law. If you
Preface xvii
can’t find your state law with our research guide, go to the Web site. Then, click on
your state. It’s as easy as that!
Our Video Case Studies have gotten rave reviews from students and t eachers!
Just like the textbook, the videos are upbeat, funny when appropriate, and designed
for critical thinking. Within a chapter, you will see a video icon in the margin to
let you know that this is a good time to show a video, and assignable video case
studies have been added at the end of each chapter. The video case studies can be
accessed by instructors and students at www.pearsonhighered.com/careers.
We’ve changed the way we look at learning objectives in this edition, too!
We begin each chapter with learning objectives. Along the way throughout each
chapter, students will find “Check Your Understanding” questions and then, at the
end, we have open-ended questions to see if those objectives have been learned.
But there are also several different types of end-of-chapter exercises to meet the
learning styles of all students. First, Key Terms are reviewed at the end of each
chapter. There are open-response answers that correspond directly to the learning
objectives of the chapter. There are critical thinking hypotheticals for class dis-
cussion or essay writing. These hypotheticals include the citation to the case on
which each is based so students can discover how a court resolved the issues. There
are collaborative assignments for small groups of students and assignments that
include exercises such as discovering local resources or watching a movie looking
for ethical issues. Each chapter includes “Cases for Consideration,” followed by
short essay questions. These cases have been edited to focus the student’s attention
on the ethical issues.
We took out many of the boxes that teachers said were distracting. Margin
boxes are now restricted to Key Terms, Challenge Assignments, and Watch the
Video.
We have also added an “In the News” article to the end of each chapter
designed to engender lively classroom discussion about ethical issues that are in
the news today. Here’s the point: Ethical issues go on around us every day, but not
everyone will find them in the newspaper or trade magazines. By putting them
directly into the text, we make the news more readily available, and we provide
discussion questions to go along with each article.
Appendices
Appendix materials are as complete as we could make them in the eighth edition.
We have provided the NALA, NFPA, and NALS codes so the student doesn’t have
to look to too many outside resources. We’ve provided an entire copy of the Rules
of Professional Conduct, graciously loaned to us by several states. These Rules are
word-for-word like the ABA Model Rules but are a compilation of the rules as they
were adopted by the states. The ABA Opinion on how to handle old client files has
been taken out.
New in This Edition
Each chapter has been updated for changes in the law and reorganized—ever
searching for the perfect explanation and the clearest example. Here is a more
complete list of the most important changes and clarifications in each chapter:
Chapter 1
• An expanded discussion of what education is required for lawyers
• A new discussion of NFPA’s certifications
• A new discussion about the authority of the Supreme Court of each state
• A reorganization of the chapter so that all of the lawyer information is in
one place, followed by all of the paralegal information.
Chapter 2
• “Why Should the Practice of Law Be Limited to Lawyers?” has been
moved to follow the explanation of UPL
• A discussion about LegalZoom and other online legal assistance has been
added
• An expanded section on penalties for UPL.
Chapter 3
• This chapter has been completely reorganized (again) to more clearly
compare and contrast attorney/client privilege with the duty of
confidentiality
• The discussion of the effects of technology on confidentiality has been
expanded and now includes sample confidentiality notices
• The discussion of the exceptions to the duty of confidentiality has been
expanded
• There are new sections on offshoring and outsourcing legal work
• There is a new section on computer backup systems and how confiden-
tiality can be maintained, even when you are backing up to the cloud
• An entirely new section on how to maintain confidentiality and change
jobs.
Chapter 4
• A new discussion about how freelance paralegals can avoid conflicts of
interest
• A more complete discussion of how personal relationships create
conflicts of interest
• A new discussion about how to look for a new job while still maintaining
the confidentiality of your present job
• A more complete discussion of how to get a waiver for a conflict
of interest.
xviii
New in This Edition xix
Chapter 5
• This chapter has been reorganized to clearly delineate the differences
between advertising and solicitation
• Some attorney advertising examples have been added
• A more complete discussion of how technology has changed the subject
of attorney advertising and solicitation
• “Runners” and “cappers” have been more completely explained
• The sections “Access to Justice” and “The Unpopular Client” have been
moved to the end of the chapter
• A more complete discussion of moratoriums on contacting potential
clients
Chapter 6
• The discussion of trust accounts has been moved to the end of the
chapter and expanded
• A new section on unbundled legal services and fees
• A challenge assignment has been added on the subject of the tax
consequences of settlements
Chapter 7
• The section heading of “other causes of action” has been deleted and the
content moved to the section on who is responsible for negligence
• A new discussion about the supervisor’s duty to ensure competence
• A new discussion of ensuring competence in outsourced legal work
• A new section on competence in unbundled legal work
• Added information about nonengagement letters.
Chapter 8
• A new section on the importance of honest communication with the
client
• An expanded discussion of the duty of candor to the court.
Chapter 9
• The discussion about the duty to report misconduct has been expanded
and includes several new cases
• A new section on how an integrity issue will happen in real life with
examples of how others have handled these situations.
Resources for Teaching
The following instructor supplements are available for download from the Pearson
Instructor’s Resource Center. To access supplementary materials online, instructors
need to request an instructor access code. Go to www.pearsonhighered.com/irc,
where you can register for an instructor access code. Within 48 hours of register-
ing, you will receive a confirming e-mail including an instructor access code. Once
you have received your code, locate your text in the online catalog and click on the
Instructor Resources button on the left side of the catalog product page. Select a
supplement and a log-in page will appear. Once you have logged in, you can access
instructor material for all Pearson textbooks.
Online Instructor’s Manual with Test Item File

The instructor’s manual, written by the author, contains the author’s general
thoughts about teaching ethics, sample syllabi, lesson plans, notes on teaching
methods and tools, lesson lecture suggestions for each chapter of the text including
activities, assessment suggestions, and answers to end-of-chapter review questions.
The Test Item File allows you to generate quizzes and tests using questions.
PowerPoint Lecture Presentation

The PowerPoint Lecture Presentation includes key concept screens and exhibits
from the textbook.
Student Resources Online
The following student resources can be accessed at www.pearsonhighered.com/

careers.
Paralegal Professional Ethics Video Series

The following videos presented in the book are available at www.pearsonhighered.
com/careers free of charge to adopters of the eighth edition.
● UPL: When Friends Ask for Help
● UPL: Helping the Client without Practicing Law
● UPL: Traditional Exceptions
● UPL: Interviewing a Client
● UPL: Working with a Witness
● UPL: Working with Experts
xx
Student Resources Online xxi
● UPL: Improper Supervision

● UPL: Helping the Client Fill Out Forms
● Privilege: Misdirected E-Mail
● Confidentiality: Need-to-Know Circle
● Confidentiality: Public Information
● Confidentiality: Disclosure of Damaging Information
● Confidentiality: Family Exception?
● Confidentiality: Attorney/Client Privilege
● Conflict of Interest: Relationships with Clients
● Conflict of Interest: Independent Paralegal
● UPL: Disclosure of Status (Misrepresentation)
● Fees and Fair Billing: Contemporaneous Timekeeping
● Fees and Fair Billing: Using Time Effectively
● Zealous Representation: When You Are Asked to Lie
● Zealous Representation: Handling Evidence
● Zealous Representation: Gifts to Judges
● Zealous Representation: Candor to the Court
● Zealous Representation: Signing Documents
Ancillary and State Specific Material

Codes and cases related to ethics in many states have been collected and are avail-
able at this website. Chapter Assignments and Challenge Project Resources work-
sheets, additional instructions, and links to helpful Web resources are provided to
aid completion of assignments.
CourseSmart
CourseSmart is an exciting new choice for students looking to save money. As an
alternative to purchasing the printed textbook, students can purchase an electronic
version of the same content. With a CourseSmart eTextbook, students can search
the text, make notes online, print out reading assignments that incorporate lecture
notes, and bookmark important passages for later review. For more information,
or to purchase access to the CourseSmart eTextbook, visit www.coursesmart.com.
Acknowledgments
Reviewers
I am deeply grateful for the insights and contributions from the following
reviewers:
Brian Craig, Globe University/Minnesota School of Business;
Abby Fromang Milon, University of Central Florida;
Julia Tryk, Cuyahoga Community College;
Kylie M. Wheelis, Virginia College Online;
Ronald A. Feinberg, Suffolk Community College;
George William Jenkins, III, University of Memphis;
Roberta Lahr, Mt. San Antonio College;
Hillary Michaud, Stevenson University;
Kathleen Mercer Reed, University of Toledo;
Bruce M. Rands, Pikes Peak Community College;
Carrie Vaia, North Hennepin Community College; and
Jean Volk, Middlesex County College.
xxii
chapter one digital resources
• Video case studies
• Ancillary and State Specific Material
Available at www.pearsonhighered.com/careers
chapter one Chapter Objectives

By the end of this chapter, you will know the
answers to these questions:
Regulation
• What Are Lawyers?
• What Is Required to Become a Lawyer?
of the Legal
• Where Do Lawyer Ethics Rules
Come From?
• Where Are the Laws of Ethics
Profession
for My State?
• What Is the Authority of the ABA Models?
• What Is the Authority of the State
Supreme Court?
• How Are Lawyers Disciplined?
• What Are Paralegals?
{Hypothetical} • How Are Paralegals Regulated?
• What Does It Mean to Be “Regulated
by the Courts”?
Paralegal Mary Rose acts as both paralegal and
• Have Paralegals Considered
calendar clerk in the law firm of Attorney Smith. Smith Self-Regulation?
asks Mary to calendar the date an answer to a com- • What Other Choices Are Available for
plaint is due. Mary makes a mistake and calendars the Regulating Paralegals?
date sixty days from the day the complaint was served
instead of thirty days. As a result, Smith does not answer
the complaint on time, and his client’s default is taken.
1
2 Chapter 1
Why Are We Here?

A discussion of the regulation of the legal profession would be brief and simple if
all members of the legal profession subscribed to the same rules and were respon-
sible to the same authorities. Like most things, it’s just not that simple. So, we begin
our discussion of the regulation of paralegals with a discussion of the regulation
of lawyers. After we understand how lawyers are regulated (including where their
rules of ethics come from), we’ll take a look at what paralegals are, how they are
regulated, and what rules of ethics apply to them. What we will find is that the rules
of ethics for lawyers make them responsible for “regulating” the ethical obligations
of the paralegals they employ. We will also see that paralegals are responsible for
the same ethical obligations that are written by lawyers and to which lawyers sub-
scribe. And we’ll find that paralegal organizations have written codes of ethics that
reiterate these same ethical obligations. What about paralegals who don’t work for
lawyers? That question has a more complex answer. Not all of the questions about
paralegal regulation have answers here. Some of them will be up to you to answer.
The future of the paralegal profession is yours. That’s why we’re here.
We start, then, with an understanding of what lawyers are.
What Are Lawyers?

A lawyer (also called an attorney) is sometimes also referred to as a member of the
bar. Membership in the bar (short for bar association) is a privilege that is given
to people who have met certain requirements. These requirements include educa-
tion, a bar examination, and fitness of character. Each jurisdiction also has its own
additional requirements such as minimum age restrictions and/or mandatory fees.
What Kind of Education Is Required?

Typically, people who want to be lawyers attend a four-year college and then a three-
Key Terms
year law school. About half of all states require some undergraduate education,
Lawyer: a person educated ranging from two years of college to a four-year degree. Most jurisdictions require
in the law and who has a a Juris Doctor (JD) degree. A Juris Doctor is the degree awarded upon successful
license to practice law completion of law school. (Juris is Latin for law.) Some states allow a law school stu-
Attorney: another term dent to take the bar examination (discussed below) before graduation. A few states,
for lawyer such as California, New York, and Virginia, allow applicants to the bar who have
Member of the bar: been educated by means of law office study (something like an apprenticeship). A
a person who is licensed handful of states, for example, California, Minnesota, and Oregon, allow law study
to practice law may be through correspondence courses. Most of those states also allow law study online.
referred to with this term Additionally, all states have some requirements for people who studied law outside of
Bar association: the United States. Just a few states require law students to have taken s pecific courses
an association of lawyers, in law school. For example, Indiana, New Jersey, and Ohio require bar applicants
bar associations may be to have studied legal ethics. Educational requirements are detailed and different for
mandatory (integrated bar)
each state. If you are interested in finding out exactly what is required in your state,
or voluntary, depending
the American Bar Association’s (ABA) Comprehensive Guide is waiting for you at
upon the state.
www.pearsonhighered.com/careers under “Ancillary and State Specific Material.”
Juris Doctorate (JD)
The ABA accredits law schools. California has many ABA-accredited law
degree: a doctorate in law
schools and many that are not accredited. Most states only have accredited schools
Regulation of the Legal Profession 3
but now that a legal education is available through the Internet, states are having
to take another look at whether this education is rigorous enough for admission
to their bar. The ABA, as an accrediting body, can also take accreditation away or
suspend a school’s accreditation. A recent example of that process can be found at
www.pearsonhighered.com/careers under “Ancillary and State Specific Material.”
What Is the Bar Examination?

After the schooling requirement is fulfilled, in most states, people who want to
practice law must take a “bar examination.” Also called the bar exam, this test is
long, comprehensive, and grueling. (In California, the exam is three days long, and
approximately 50 percent pass.) Bar exams across the nation are made up of essay
questions and multiple-choice questions. Most but not all states have made the
Multistate Bar Examination a part of their general bar exam. The Multistate Bar
Exam is a six-hour, two-hundred multiple-choice questions exam. It is given on
the same day in all of the states so that the questions and answers cannot be shared
between a test taker in New York and one in California, for example. Most states
also use the Multistate Professional Responsibility Exam (MPRE) as part of their
general bar exam. The MPRE consists of sixty multiple-choice questions. Each
question sets up a hypothetical ethical situation such as the one discussed here. It
tests the ABA’s version of ethical codes for lawyers as well as the ethical codes for
judges. Because the law is ever changing, the MPRE must also change questions or
perhaps just change which answer is the correct one. Because MPRE cannot test Challenge
any state-specific law, it tests for an understanding of general concepts of profes- Assignment
sional responsibility—something big and global such as this one on the propriety Anyone can log in to the
of writing a letter of recommendation for a bar applicant: MPRE’s practice test on the
National Conference of Bar
Good Friend has asked Attorney to write a letter of recommendation for Good Examiners (NCBE) Web
Friend’s cousin (Cousin) who is applying for bar membership soon. Attorney site. All it requires is that
has never actually met Cousin but Good Friend assures Attorney that Cousin you create a username and
is an upstanding young woman who will make an excellent lawyer. What password. It doesn’t ask for
should Attorney do? any other information. Try
A. Write the letter of recommendation based on Good Friend’s assurances it now and then take it again
about Cousin. after you have finished your
B. Write the letter only if Attorney has never heard anything bad about Cousin. course of study in ethics.
If you are interested
C. Conduct a personal investigation of Cousin and write the letter if
in finding out more about
Attorney is satisfied, after investigation, of Cousin’s good character and
the MPRE, check out
fitness to be an attorney.
the NCBE Web site at
D. Tell Good Friend that Attorney cannot write such a letter under any www.ncbex.org
circumstances.
The answer to this question is C and would be C in all jurisdictions. We’ll learn all
about the “fitness” requirement and letters of recommendation on the next few pages.
All of the states have different bar exams. Some exams have a “practical” com-
ponent in which the examinee is, for example, given a mock-up “file” and asked to Key Term
produce a memorandum of law, just as would happen on the job. These “practical”
Bar exam: exam taken
components were phased into state bar exams in response to complaints that the
by people who want to
exam doesn’t test a person’s lawyering skills but, rather, determines how well the
become lawyers
person can take a test on legal theory. Some states test many subjects of law on their
4 Chapter 1
bar exam. Some test just a few subjects but expect the examinee to have greater depth
of knowledge. Yet another group of states allows any graduate of that state’s law
schools to become a member of that state bar without taking a test. (Wisconsin is an
example.) This is presumably due to the state’s belief that a nyone who can gradu-
ate from its law schools must have enough skill and k nowledge to practice law. On
the other hand, California, a state that has many law schools that are unaccredited by
the ABA and the state’s accrediting body (the State Bar of California), is of the opin-
ion that everyone is entitled to an education in the law, but if you want to actually
practice law, you have to show that you’ve learned enough to pass the test—thus, the
low passing rate on the California bar as compared with that of other states.
Is There a Moral Character Requirement?

The requirement of “good moral character” seems obvious for bar member-
ship. The question is, How do we measure it? The equation starts with this
premise: Good moral character is assumed in the absence of evidence of bad
moral character. For example, bar applications ask if the applicant has “ever
been arrested for, charged with, or convicted of a criminal act.” Conviction of a
crime does not automatically preclude bar membership, but there is an investi-
gation of arrests and so on to see if there is evidence that the applicant does not
have the good moral character required.
Some states publish standards of “bad” moral character. For example, a
prior felony conviction will prevent you from being a member of the Mississippi,
Missouri, and Texas bars. There is also a large body of case law on the issue of
moral character requirements for bar membership. Cheating in law school prob-
ably will not disqualify you from becoming a member of the bar,1 but cheating on
the bar exam probably will.2 Traditionally, telling the truth about prior misdeeds
is more important than the actual misdeeds themselves.3 There are examples of
people who have been convicted of murder later becoming lawyers. To gain bar
membership, the former criminal has to show that he paid his debt to society and
is rehabilitated, or that the person has changed for the better. People change. The
people in charge of bar admission recognize that.4
Good moral character is also shown by letters of reference from people who
have known the bar candidate for some time. If there are no complaints in your file
and your references are good (one would think you would get references only from
people who will say good things about you), you have proven good moral character.
Key Terms
There is a rule of ethics that requires lawyers to tell the truth and to not omit
Good moral character: any material facts when writing letters of recommendation for bar applicants.
the absence of evidence The same rule requires lawyers to respond to requests for information about bar
of bad moral character, applicants when asked by the admissions authority. Bar applicants must answer all
based on traits such as
of the questions in the application truthfully and completely. Refusing to answer
honesty, candor, fairness,
questions is grounds for denying the application, as Mr. Konigsberg found out in
trustworthiness, and
respect for state and federal
the case we discuss in the following section. The bar application is long and asks
laws questions that span the applicant’s lifetime. Some questions seem irrelevant to us,
but they must be answered nevertheless.
Rehabilitation: to show
that a person has regained
A famous case on moral character is Konigsberg v. California State Bar.5 This
good moral character case comes from the Cold War era, when many Americans were afraid of “the
Communist influence.” Mr. Konigsberg’s record showed that he may have attended
Communist Party meetings and criticized U.S. participation in the Korean War.
When Mr. Konigsberg’s application to the bar was denied, he sued the state bar.
His case went all the way to the top: The U.S. Supreme Court did not believe that
attendance at Communist Party meetings was enough to prevent him from being
a member of the California Bar. When the California Bar denied his application
again, Konigsberg sued again. In the next Konigsberg v. California State Bar6 (also
known as Konigsberg II), the U.S. Supreme Court affirmed the California State
Bar’s rejection of Konigsberg because of his refusal to answer certain questions
concerning membership in the Communist Party. Refusing to answer the ques-
tions, while not grounds for supporting an inference that he lacked good moral
character, was a sufficient impediment to the investigation of his application.
From this case we glean the rule that all questions must be answered, even if the
answer is not favorable to the applicant or seems irrelevant to the questions of
competence to practice law and good moral character.
There is a public policy reason for a good moral character requirement. The
legal profession needs the public to know that the profession is looking out for the
best interests of the public by not allowing people with “bad” moral character to prac-
tice law. Just as the profession needs to ensure members of the bar have appropriate
education for the sake of the public, so does it need to ensure members are of good
moral character. Logical, yes?
What Else Is Required?

A Tax
States are permitted to levy an “occupational tax” on the practice of law.7 This is a
tax on conducting the occupation of being a lawyer. In Connecticut, for example,
the 2012 Attorney Occupational Tax was $450. In Texas, it’s only $200. In addition
to paying a state occupational tax, lawyers in your area may have to pay a city or Challenge
county occupational tax. Assignment
Is there an occupational
An Oath tax on attorneys in your
state? Try this Internet
After satisfying the requirements to become a lawyer, in many states the lawyer is
search to find out:
“sworn in.” That means that the applicant must show up at a swearing-in ceremony “attorney occupational tax”
or appear in front of a judge and take an oath to perform his or her knowledge + “yourstate.” Substitute
skillfully and ethically in addition to support the constitution of his or her state the name of your state for
and the Constitution of the United States. The applicant does not have to swear an “yourstate.”
oath that invokes the name of God, however, as invoking the name of God cannot
be made a prerequisite to entering the practice of law.8 The next step is becoming a
member of the bar association, and that typically involves paying dues and adher-
ing to state regulations regarding continuing education. (Later, we will see that Key Terms
paralegal associations require continuing legal education, too.) Public policy: a course
of action taken by a
Proper Titles government for the good of
the governed people
When you graduate from law school, technically you are a “JD,” meaning that you
Esquire: Esq. is a
have a Juris Doctor degree. Only after you become a licensed lawyer you can call
designation used by lawyers
yourself “Esq.” (short for Esquire) or Attorney at Law or attorney or lawyer. To
6 Chapter 1
call yourself by any of those titles and not be a member of the bar fits under the
general category of the unauthorized practice of law, or UPL, which we cover in
Chapter 2. Lawyers who are partners in law firms are called partners or members
depending upon the legal form of the law firm: corporation, partnership, or lim-
ited liability company. The lawyers who work for the partners are usually called
associates. People who are still in law school but work for lawyers are called law
clerks. Because they are not yet licensed to practice law, law clerks do many of the
same tasks done by paralegals, including factual and legal research and drafting
documents. During the summer months, when law schools are typically closed for
summer vacation, law firms take on summer clerks. This is a good way for the firm
to see if this person will be a good match for the firm after graduation, and a good
way for the student to see if the firm or, indeed, the practice of law is a good fit for
him or her.
Membership
Many states require membership in the state bar association in order to have the right
to practice law in the state.9 These states are said to have “integrated” or “unified”
bars. Becoming a member of the state bar association makes each lawyer subject to
the rules of ethics enacted by the state and requires the lawyer to pay annual dues.
Other states do not require membership in a state bar association. Instead, they are
overseen by the state supreme court. Every state has rules of ethics, also called Rules
of Professional Responsibility or Rules of Professional Conduct. These are the rules that
govern lawyers.
Key Terms In addition to membership in a state bar association, many lawyers choose
to join local bar associations. These local bars may be county bars, city bars,
Partner: a person who is
a lawyer and a top member
regional bars, or special interest bars. Many lawyers also choose membership in
of a law firm that is a the ABA (American Bar Association). Contrary to urban legend, membership
partnership
Member: a person who is
lawyer and part of a limited Check Your Understanding
liability partnership
1. There are typically a few requirements to become a lawyer. What are they?
Associate: a lawyer who a. Graduating from a law school and passing a test
works in a law firm who b. Graduating from a law school, passing a bar exam, proving good moral
is junior to partners and character, taking an oath, and paying a membership fee
members c. Passing a bar exam and paying a fee to the state supreme court
Law clerk: a person d. none of the above
who works for a law firm
2. To show “good moral character,” a bar applicant must:
who is not yet a lawyer
a. have no arrests
Summer clerk: a law b. have letters of reference and no evidence of bad moral character
student who works for a law c. have a “clean” record
firm during the summer. d. receive a passing grade on a moral character exam
ABA: American Bar
3. Upon graduation from law school, a person is called:
Association. A voluntary
a. Esq.
organization of lawyers
b. JD
from across the country.
c. Attorney at Law
Its goal is to serve the legal
d. any of the above
profession.
in the ABA is voluntary. ABA membership offers lawyers many benefits such as
continuing education courses and eligibility to be involved in ABA committees,
commissions, and other activities.
Where Do Lawyer Ethics Rules Come From?

The ABA is a private organization. Membership is voluntary. It has no authority
to discipline anyone. The ABA has over the years created committees and com-
missions to study the regulation of lawyers and to create “model laws.” If you
think about it, it is easier for a state to enact law if it has some premade laws
to look at. Then it doesn’t have to write anything from scratch. When some of
the finest legal minds and ethics experts come together and write a model code
of ethics, the states that use that code as a model for their own law start out
with a solid product. They also have the benefit of discussion and comment and
debate conducted by the ABA. If you were a state legislature or Supreme Court,
wouldn’t you be happier to let the ABA do the work for you? So, the ABA writes
and refines a model and puts it out to the states for adoption.
Early Canons
The first set of rules offered by the ABA was the 1908 Canons of Professional
Ethics. They were written by the ABA Committee on Professional Ethics and
adopted by the ABA at its thirty-first Annual Meeting in 1908. There were thirty-
two original canons that were adopted and used by many states for the next sixty-
plus years. They were based on the Code of Ethics adopted by the Alabama State
Bar Association in 1887, which was borrowed largely from the lectures of Judge
George Sharswood, published in 1854 under the title Professional Ethics, and from
the fifty resolutions included in David Hoffman’s 1836 publication: A Course of
Legal Study.10 Piecemeal amendments to the canons were occasionally made by
the ABA. Some of those early canons look rather like rules we have today, such as
the original Canon 9:
A lawyer should not in any way communicate upon the subject of contro-
versy with a party represented by counsel; much less should he undertake to
negotiate or compromise the matter with him, but should deal only with his
counsel.
That’s the same rule we have today. Another follows.
It is the duty of a lawyer to preserve his client’s confidences. This duty outlast(s)
the lawyer’s employment and extends as well to his employees; and neither of
them should accept employment which involves or may involve the disclosure
or use of these confidences, either for the private advantage of the lawyer or
his employees or to the disadvantage to the client, without his knowledge and
consent, and even though there are other available sources of such informa-
tion. A lawyer should not continue employment when he discovers that this
obligation prevents the performance of his full duty to his former or to his new
client.11
This rule is also the same!
8 Chapter 1
In other rules from the early ABA Canons, we see that the law has changed.
Challenge
Assignment An example is Canon 3412 that appears to permit lawyers to pay people for refer-
ring cases to them (“referral fees”), unlike the ABA’s position on them now. We
Do a search on the Internet
for “ABA opinions” and
talk about referral fees in Chapter 5.
you can read some recent
opinions online. 1960s Model Code of Professional Responsibility
The second ABA model was the Model Code of Professional Responsibility.
Challenge This model was released by the ABA in the late 1960s and adopted in some
Assignment form or another by forty-nine states. (California was the only holdout.) The
If Watergate is a reference Model Code had only nine canons, each of which was followed by Ethical
you are not familiar with, Considerations and Disciplinary Rules. The canons of the Model Code of
here’s a challenge assign- Professional Responsibility state in general terms the standards of professional
ment for you: John Mitchell,
conduct expected of lawyers in their relationships with the public, the legal
President Nixon’s former
system, and other legal professionals. The Ethical Considerations (EC) include
law partner, was Attorney
General of the United
reasons for the canons and guidelines that lawyers may consider while making
States during the Watergate ethical assessments. Also provided are the Disciplinary Rules (DR), a violation
Scandal. Go to www. of which is unethical as a matter of law. If lawyers should fall below the stan-
fordlibrarymuseum.gov and dards set forth in a DR, they will be subject to disciplinary action. As changes
read the indictment filed were made in case law and the needs of the public changed, the Model Code
against Mitchell and others. was also amended by the ABA, and those amendments were, by and large,
adopted by the states.
When you are researching in the area of professional responsibility, you will
Key Terms come across cases that refer to, for example, EC 4.3, so you should know what they
Canon: a rule or body of are. Because all of the states that once used the Model Code now use the law and
rules that set a standard for format of the Model Rules, you need to be able to translate from the Model Code
behavior to the Model Rules, or at least understand the relationship between the Code and
Model Code of Professional the Rules in your state. We’ll look at an example of that in a moment.
Responsibility: written by
the ABA in the 1960s, 49
states eventually used some
Code of Professional Responsibility examples:
form of this model for their
state rules of professional Canon 1: A lawyer should assist in maintaining the integrity and competence of
responsibility for lawyers the legal profession.
Ethical Consideration
(EC): reasons for the
EC 1-1 A basic tenet of the professional responsibility of lawyers is that every
canons and guidelines that
person in our society should have ready access to the independent professional
lawyers may consider while
services of the lawyer of integrity.
making ethical assessments
Disciplinary Rule (DR):
rules which if violated are DR 1-101(B) A lawyer shall not further the application for admission to the bar of
unethical another person known by him to be unqualified in respect to character, education,
or other relevant attribute.
Model Rules of
Professional Conduct:
written by the ABA in the
1980s, these rules serve as
a model for states’ rules of Model Rules of Professional Conduct Only a brief seven years passed
professional responsibility
before the Model Code’s shortcomings inspired the creation of a new ABA com-
for lawyers
mission. It would be called the Kutak Commission after its chair Robert Kutak,
an inspired e thicist/lawyer from Nebraska. With Watergate in the news and the
public’s awareness of lawyer ethics on the rise, the Kutak Commission released the
Model Rules of Professional Conduct in the mid-1980s. As of this writing, all states
except one have adopted some form of the Model Rules. Even California, again the
only holdout, is considering a change to a format modeled after the ABA’s Model
Rules. The ABA makes changes to the Model Rules periodically, and some states
adopt these changes, while others do not. Your state law, not the model, is what’s
important to you.
Other Places Where You Can Find Ethics Rules

There are rules of ethics that apply to us that come from places other than the
Rules of Professional Conduct. For example, if some ethical situation comes up
that is not exactly covered by the Rules, the ABA’s Standing Committee on Ethics
and Professional Responsibility might issue an “opinion” on that matter. When
there is an issue that concerns many lawyers in many states, the ABA’s committee
will consider and debate the matter and issue an opinion on it. This opinion is not
“law” in that it is not a statute. But insofar as judges rely on it, or quote it in cases,
it can become case law.
Your state’s ethics committee issues opinions as well. State bar opinions
(or opinions issued by the ethics committee of your state supreme court)
are u sually responses to questions posed by lawyers (when the question is
not specifically addressed by the rules of ethics or case law) and can be issues
that have arisen in response to new technology. For example, when e-mail
was new, there was a question about its security; so many lawyers wanted to
know if they should send sensitive information by encrypted e-mail. Ethics
committees in many states grappled with that gnarly question via “opinion.”
Opinions typically come in two flavors: formal and informal. Ethics commit-
tees can also respond to questions by writing a letter and not publishing the
response at all.
To look at some state ethics opinions we use Florida for our example. Go
to the Florida Bar Web site at http://www.floridabar.org and click on the link
that says “Ethics Opinions.” Then click on the link for the Index and choose any
topic and opinion. You’ll find that opinions are numbered in order starting with
1 each year, and preceded by the year of the opinion. So, opinion 01-4 is the fourth
opinion written in 2001. Notice also that the opinions typically provide references
Key Terms
to the Rules of Professional Conduct or case law or other authority used. That
makes it easy to do more research. Statute: a law enacted by
Opinions, once again, do not have the force of law like a statute does. a legislature, either state
or federal
Opinions will be relied upon (by a court or other authority) in the absence of
specific law. We call this “filling in the gaps.” Case law: law that is based
You will find laws that apply to your ethical responsibilities in other places, as on judicial decisions rather
than statute
well. For example, when we start talking about the attorney/client privilege, you’ll
have to go looking in your state’s evidence code. And, if you are working in the Ethics opinion: formal
field of probate, you will find ethics responsibilities all over the probate code. You or informal, opinions are
typically written by state
will also find rules about ethics in your court rules and rules of civil procedure. It’s
or local bar associations on
not easy finding the rules of ethics. Thanks to the Internet, it’s much easier now
ethical issues
than it was.
10 Chapter 1
Check Your Understanding

1. The largest, voluntary association for lawyers and the one that drafts model
codes of professional responsibility is called:
a. the American Bar Association
b. the Association for Lawyers
c. the Model Lawyer Association
2. Ethics opinions issued by your state’s bar or Supreme Court committee are:
a. the law of the state
b. advisory and useful for filling in the gaps when there is no statute on the issue
c. just as good as a statute
Finding the Law in My State

To find your state law on professional responsibility, do this search in your favorite
Internet search engine. Be sure to put “rules of professional conduct” in quotation
marks so it is searched as a complete phrase. Substitute the name of your state for
the term “yourstate.” If your state has two words in it (e.g., North Dakota), be sure
to put the state name in quotes, too.
“rules of professional conduct” + “yourstate”
Your state’s rules may not be called by exactly that name, so you may
have to adjust your search terms a bit. Another way to find them is to visit
www.pearsonhighered.com/careers and click on “Ancillary and State Specific Material.”
We’ve provided a link to your state’s rules of professional conduct. Go and do that now.
In another browser window, find the ABA Model Rules of Professional
Conduct. You can either search for it or navigate to it on the ABA’s Web site at
http://www.americanbar.org.
Compare your state’s Rule 1.1 to the ABA Model. How closely aligned is your
state’s rule to the model? Look at Rule 8.3 on the lawyer’s duty to report the mis-
conduct of other lawyers. This is a rule that was adopted in various different ways.
Also look at the exceptions to Rule 1.6 on confidentiality. These are two examples
of rules where the states differ in their viewpoint. We will be working with your
state’s professional conduct rules in this course of study. It’s important for you to
have a copy of those rules as we move forward because, as you will see, the ABA
Models, while good for study, are not “law.”
The ABA does not allow its entire Model Rules to be reprinted. For that rea-
son, we’ve provided you with the various state Rules that most closely resemble the
Model in Appendix D.
What Is the Authority of the ABA Models?

Committees and commissions of professional organizations sometimes produce
“uniform codes” such as the Uniform Commercial Code. A “uniform” code is
meant to create the same law in all of the states. The same is true of model codes
and rules. If all states adopt the same law, it is easier for people to transact business
across state lines. Organizations create models so that states can adopt the same or
similar laws. These sample “uniform codes” and model codes are meant to be just
that: models. The models themselves have no authority. The model is given author-
ity only when it becomes a state’s enactment within its own state codes. Some parts
of the model may be omitted by a state. Some parts may be modified. This is a very
important concept to remember as we go forward and study the rules of ethics, so
it bears repeating. When you see the expression “Model Rules” or “Model Code,”
you are looking at a model, or sample, law. It does not have the force of law. That
is to say, it is not actually law. The words of the model become law only when they
are adopted in your state. So, it is very important that you study the law of your
state, and not the ABA Models. If you haven’t done so already, now is the time to
locate your state’s rules of professional conduct.
Take a look at how this works using Nevada as an example. Nevada did not
adopt the Preamble or Scope sections of the Model Rules, nor did it adopt the
“Comments” to the Model Rules. (The Comments take each rule and explain it more
thoroughly so we can see how the rule may work in action.) Instead, Nevada adopted
its own Guidelines for Interpreting the Nevada Rules of Professional Conduct, which
states that the ABA Model Rules may be “consulted for guidance” in understand-
ing and using the Nevada Rules. You can see that there are substantial differences
between the ABA Model and what you need to know if you work in Nevada.
Additionally, it is important for you to know that the ABA periodically makes
changes to its model. The state where you live may incorporate these changes into
its Rules, or it may not. To sum up, then, the rules you need to look at are the most
current rules of professional conduct adopted and used in your state.
When you are researching in your state’s case law, you will see references to the
older Code of Professional Responsibility as well as references to older editions of
your state’s Rules of Professional Conduct. In order to use this case law to make your
point, you’ll have to learn to connect the older law numbers to the new numbers.
Let’s look at an example of that. Say you are researching the rule of law we talked
about earlier—the lawyer’s duty to tell the truth in letters recommending others for
bar membership. You find a case from several years ago (Case 1972) that discusses
this rule of law, but it is called Code of Professional Responsibility EC 1.3. Then
you find a more recent case on this rule of law (Case 2009), but it is called Rule of
Professional Conduct 8.1. Both cases are discussing the same law. When your state’s
law was based on the ABA Model Codes of Professional Responsibility, your state
used the Code numbering system—ECs and DRs. Your state law changed sometime
between Case 1972 and Case 2009, and now the same law is numbered 8.1.
Unless you live in California, your state is using some form of the ABA
Model Rules. Most of the states that adopted the ABA Model Rule format are
using the same numbering system that the model uses (Rule 1.1, 1.2, 1.3, etc.). If
you compare the ABA Model Rules to your state’s rules, you’ll see if your state is
using the same numbering system or if you should be aware of some modifica-
tion. For example, in Kentucky, when the legislature adopted the new model, it
put them in the Supreme Court rules at 3.130; so instead of Rule 8.1, the rule
number is 3.130(8.1). In Florida and Missouri, the rule number has 4- in front of
it. Rule 1.2 becomes Rule 4-1.2. If you are aware of that small modification, you
will be able to easily translate the generic rule numbers we use here in the textbook
to your state’s rule numbers. (If you are interested in seeing the spreadsheet that
12 Chapter 1
shows all of the state’s numbering systems, check out the State Rules Spreadsheet
at www.pearsonhighered.com/careers.)
If you are in California, we’ve provided a chart in the appendices that will
help you find the rules that apply to you as we proceed with our study.
What Is the Authority of the State

Supreme Court?
A state’s constitution grants the supreme court of that state jurisdiction over all
matters concerning admission to the bar and discipline of attorneys in that state. Each
state’s supreme court promulgates and amends rules about disciplinary enforcement
and rules of professional conduct. Those rules typically create a board, committee, or
commission that is put in charge of admission to the bar and attorney discipline. The
supreme court exercises ultimate authority over that disciplinary body, its members,
and the staff. The supreme court usually appoints all members of the disciplinary board.
There is typically a “Bar Counsel” or head person in charge of reviewing complaints
and assigning the complaints that have merit ones to subcommittees for investigation.
Only the supreme court can impose public discipline (e.g., reprimand, pro-
bation, and disbarment). That means that a lower court (such as a trial court)
does not get involved in attorney discipline. Whatever official body the supreme
court creates (something like an Office of Disciplinary Counsel) prosecutes a
case (is the petitioner) before a disciplinary board. That board writes an opinion
that includes the facts and a recommendation for discipline and submits that to
the supreme court. The supreme court, then, issues an order of discipline. This
could be along the lines of the board’s recommendation or it may be a discipline
that is different from the board’s recommendation. This is “self regulation” in
that the court system is regulating members of the bar.
So, What Would a Disciplinary Action

Against a Lawyer Look Like?
Now that we know how to find the rules of ethics, we can look at how they might
be applied. Violations of the rules of professional conduct are disciplinary in
nature (as opposed to civil or criminal). That is to say that when a lawyer violates a
rule of professional conduct and the lawyer disciplinary authority of the state finds
out about it, that authority will begin the disciplinary process against that lawyer.
Here’s an ethics complaint start to finish:
Attorney Jameson represented the estate of Robert Bennett, who died in a car
accident. Bennett was survived by his wife (Jane), a son (Dick), and a daughter
(Sarah). Dick served as executor of his father’s estate. In preparation for her
own death, Jane set up a trust with herself and Dick as co-trustees. The trust
was to benefit both Dick and Sarah after Jane’s death. As Jane’s mental health
began to fail, Sarah became convinced that Dick was t aking money out of the
trust account and using it for himself. Sarah called Attorney Jameson and told
him about missing assets and money. Jameson retrieved his firm’s file from
storage and discovered certain evidence that tended to show that Dick was not
handling the trust properly. Jameson gave a copy of that evidence to Sarah,
who gave it to her own lawyer who used it to file a motion to have Dick Bennett
Another random document with
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[136] De situ Daniæ, cap. I.
[137] De situ Orbis, lib. II. c. VI.
[138] De Geogr. lib. IV. cap. 45. & V. cap. 4.
[139] De situ Brit. lib. I. cap. VIII. 10.
[140] Cæsar de Bello Gall. lib. II. cap. IV.
[141] Cæsar de B. G. lib. V. cap. XXIII.
[142] Notæ in Cæsar. p. 124.
[143] Descript. Orbis, v. 284, &c.
[144] Edit. Oxoniæ Hudson. 1717. 8. p. 50. No. I.
[145] Hist R. lib. XXXIX. pag. 114. consulas & Phil. Trans. N. 193.
[146] Hist. Nat. lib. III. cap I.
[147] e Thesauro Oyzeliano XXVII. Tab 12. exhibet Grævius in Florum p.
526. Edit. Amst. 1702. 8. Maj.
[148] Hist. Rom. lib. LXXVI. p. 867.
[149] Edit. Havniæ 1757, p. 67.
[150] Cosmog. p. 731. Edit. Gron.
[151] Hist. lib. I. cap. II.
[152] Rom. Hist. lib. LXXVI. p. 867.
[153] In Geticis suis.
[154] Vide infra, pag. 162.
[155] Hist. Eccl. lib. I. cap. I.
[156] Origin. lib. XIV. c. VI.
[157] Caput de Brit.
[158] Apud Salmasium. Plin. Exercit. cap. XXIII.
[159] XXX oportet legere.
[160] Editor Bedæ oper. Cantabr. 1722. Fol. Maj.
[161] Nat. Hist. lib. II. cap. CVIII.
[162] Censorinus de Die Nat. cap. XIII.
[163] In oratione Ægyptiaca.
[164] Ogyg. p. 11, 12, &c. Inis Mor. apud Cambd. Brit. p. 6. (h.)
[165] Philostr. Dion.
[166] Geogr. script. Græcorum min. 8. Oxoniæ 1703.
[167] Vide supra, pag. 157. N. 52.
[168] Mela de situ Orbis, lib. III. cap. VI.
[169] Comment. de B. G. lib. V. c. XIII.
[170] Biblioth. Hist. lib. V. c. XXI.
[171] Geogr. lib. IV. p. 199.
[172] De Bell. Gal. lib. V. cap. XIII.
[173] Philos. Trans. N. 330. pag. 266.
[174] Bibl. Hist. lib. V. cap. XXI.
[175] Geogr. lib. II. pag. 63, & 128.
[176] De Bell. Gall. lib. V. cap. XIII.
[177] Bibl. Hist. lib. V. c. XXI.
[178] Geogr. lib. IV. p. 199.
[179] Iliad Σ. 487.
[180] Ptolemæus, &c.
[182] De Bell. Gall. lib. V. cap. XIII.
[183] Bibl. Hist. lib. V. cap. XXI.
[184] Geogr. lib. IV. p. 199.
[185] Ibid. lib. II. p. 128.
[186] N. H. lib. IV. c. XVI.
[187] Lib. IV. p. 215.
[188] Cap. de Brit.
[189] Geogr. lib. II. p. 104.
[190] N. H. lib. IV. c. XVI.
[191] N. H. lib. III. c. I.
[192] Philos. Trans. N. 330. p. 266.
[193] P. 79. & 161.
[194] Vita Agricolæ, c. II.
[195] N. Salmon’s New Survey of England, vol. II. p. 841.
[196] Geogr. lib. II. p. 118, & 122.
[197] Descriptio Orbis, v. 7.
[198] Geogr. lib. II. p. 127, & 137.
[199] Polybius lib. II. p. 142. Plin. N. H. lib. III. c. V. Solinus c. VIII.
[200] Hist. Rom. lib. CV. apud Tacitum. Vita Agr. c. X.
[201] Apud Tacitum, l. c.
[202] Climat. VII. part. II. p. 272.
[204] Geogr. lib. IV. p. 199.
[205] De situ Orbis, lib. III. c. VI.
[206] Nostra autem ætas ex multis multorum itineribus certam
quodammodo totius insulæ jam deprehendit dimensionem, a Tarvisio
enim circumactis curvatisque littoribus per occasum ad Belerium plus
minus DCCCXII mill. pass. numerantur, inde conversa in austrum littoris
fronte ad Cantium CCCXX mill. pass. Hinc secundum Germanicum mare
angulosis recessibus per DCCIIII. mill. pass. ad Tarvisium protenditur, ut
hac ratione totius insulæ ambitus MDCCCXXXVI. mill. colligat. Brit. p. 2.
id est, 2140 milliaria Regia Statutaria.
[207] N. Hist. lib. IV. c. XVI.
[208] Supra, p. 90 & 100. Anonymus Ravenn. Geogr. lib. IV. cap. iv. & xi.
Frontem codicis, qui in Biblioth. D. Marci Venetiis extat, ornat effigies
Ptolemæi, vestitu regio induti, imposita capiti corona, error est, nonnullis
quoque viris recentioris ac medii ævi. Symoni Grynæo in Præfat. ad
Almagestum Basileæ 1538. &c. &, ut Vossius de Scient. Mathemat. p.
162. testatur, ante eum aliis.
[209] Lib. de rebus Geticis.
[210] De Bell. Gall. lib. V. c. XIII.
[211] Vide Horsley’s Britannia Romana, p. 361. nec non Philos. Transact.
No. 190, 241, 255.
[212] Vide Dr. Stukeley’s Carausius, p. 134 & 169, &c.
[213] Geogr. lib. II. c. III.
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Ethics and Professional Responsibility for Paralegals,

(eBook PDF) Business Professional Ethics 7th Edition

Business Law and the Legal Environment, Standard

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Business and Professional Ethics 9th Edition Leonard J.

Chapter 1 Regulation of the Legal Profession 1

What Other Choices are Available for Regulating

Reich v. Page & Addison 30

Chapter 2 Unauthorized Practice of Law 37

How Are UPL Laws Enforced? 56

South Carolina v. Despain 60

Pellegrino v. Oppenheimer & Co. 96

Chapter 4 Conflicts of Interest—The Duty of Loyalty 107

If I Want to Get a Waiver, Who Has to Waive What? 126

In re Complex Asbestos Litigation 129

Chapter 5 Advertising and Solicitation 140

Gideon v. Wainwright 157

Chapter 6 Fair Fees and Client Trust Accounts 168

What Is a Retainer? 177

Brown v. Legal Foundation of Washington 191

Chapter 7 Competence and Negligence 203

Key Terms 220 • Critical Thinking 221 • Assignments 221

Latham v. Castillo 222

Chapter 8 The Duty of Diligent Representation 231

Easton Sports, Inc. v. Warrior LaCrosse, Inc. 254

Chapter 9 The Umbrella Duty of Integrity 264

Appendix A NALA Code of Ethics and Professional Responsibility 281

End Notes 310

Case Index 319

Subject Index 323

UPL: When Friends Ask for Help 36

Online Instructor’s Manual with Test Item File

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The following student resources can be accessed at www.pearsonhighered.com/

Paralegal Professional Ethics Video Series

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chapter one Chapter Objectives

Why Are We Here?

What Are Lawyers?

What Kind of Education Is Required?

What Is the Bar Examination?

Is There a Moral Character Requirement?

What Else Is Required?

Where Do Lawyer Ethics Rules Come From?

Other Places Where You Can Find Ethics Rules

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