Entire Issue - National Association of Legal Assistants

ETHICSTIPS
Simple Good Manners
Be Sure You Stay a ‘Good Apple’
by Libby Roleson, Ethics Chair
The old saying warns us that “One bad apple spoils the
entire barrel,” but that is not necessarily the case in our profession.
On one hand, there are the bad apples who set up shop
in jurisdictions where their questionable conduct is illegal and
they are the subject of UPL investigations and recipients of
“cease and desist” letters. On the other hand, there are those of
us who stay within the confines of ethical standards, guidelines,
and statutes. We don’t let the bad apples sour our ethics.
To illustrate my point, here is a little story involving a colleague
who told me about a situation she recently encountered
regarding a Chapter 13 bankruptcy proceeding—specifically
Section 341(a) creditor meetings (“creditor meetings”). If you
are unfamiliar with bankruptcy, creditor meetings are merely
administrative proceedings administered by the bankruptcy
trustees. They give the creditor the opportunity to question a
debtor about his/her plan to repay debts. They are not governed
by the rules of the bankruptcy court.
For more than two years, Ms. Doe had been employed as
a bankruptcy paralegal for a law firm that represents a major
creditor. After being hired, she accompanied her supervising
attorney to Section 341(a) creditor meetings and was properly
introduced as the firm’s paralegal to various bankruptcy attorneys
and paralegals, as well as the bankruptcy trustees. After a
time, the supervising attorney felt Ms. Doe was ready to attend
creditor meetings on her own.
After reviewing the file and consulting with her supervising
attorney and the creditor, Ms. Doe received explicit
instruction as to what the creditor would or would not accept
from the debtor in the form of repayment, repossession of the
collateral, and so forth.
At one creditor meeting, Ms. Doe was questioning a
debtor about a repayment plan and relayed to the debtor and
his attorney what the creditor would accept. The debtor’s attorney
didn’t agree to the creditor’s proposal as relayed by Ms.
Doe and began to “negotiate” other means of settlement. Ms.
Doe promptly reminded the attorney that she was a paralegal
and could not negotiate a settlement, adding that she could
only relay what the creditor would accept.
The attorney became agitated and wrote a letter to Ms.
Doe’s firm and the court demanding that no one other than
attorneys should attend creditor meetings. Ms. Doe and her
supervising attorney decided it would be best if her supervising
attorney attended all future meetings in which that attorney is
to be involved.
As NALA members, we subject ourselves to the American
Bar Association’s Model Rules of Professional Conduct and
NALA’s Code of Ethics and Professional Responsibility. We must
also be aware of any statutes governing the unauthorized practice
of law and non-lawyer conduct.
The CLA Review Manual states the following:
In broad terms, the practice of law is any act that
involves the giving of legal advice or opinions to
others or involves representing others in legal matters.
Generally speaking, legal assistants cannot:
• accept cases;
• set fees;
• give direct legal advice to clients;
• negotiate legal matters on behalf of clients; or
• represent clients in court settings.
Beyond these specific limitations, legal assistants ethically
can perform virtually every other type of legal
task imaginable on behalf of clients as long as three
criteria are met:
1. The legal assistant’s work is properly supervised by a
licensed attorney.
2. The supervising attorney maintains a direct relationship
with the client; and
3. The supervising attorney assumes full professional
responsibility for the work product.
CLA Review Manual, 2 nd Ed. 155 (1997)
In response to the disgruntled attorney’s letter, Ms. Doe’s
supervising attorney reminded him of a ruling handed down
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FACTS & FINDINGS / AUGUST 2003