THE PARALEGALS’ ETHICAL CONSIDERATIONS
IN THE COVID 19 PANDEMIC
Even before the Covid-19 pandemic, private firms as well as government agencies were encouraging their employees to work from home. Agencies such as The National Aeronautics and Space Administration, The Department of Health and Human Services, Department of Defense, Department of the Navy and The Justice Department, Department of the Army Homeland Security and the Department of Veterans Affairs offer remote employment. [1]
Private law firms as well had been trending toward work at home. [2]
This work at home trend has been vastly accelerated by the pandemic and subsequent government and business shut down orders of all non-essential businesses across the country. Even in the new environment, when working at home paralegals must always be vigilant on their duties of legal ethics.
The cannons and guidelines of paralegal ethics and professional responsibility from the National Association of Paralegal Associations (NEFPA)[3] and the National Association of Legal Assistants (NALA)[4] cover all aspects of the ethical obligations of paralegals.
Paralegal Ethics of Work From Home
All aspects of the paralegal ethics code are important and must be adhered to, however two areas of ethics referenced in both organizations’ ethical code deserve special attention when a paralegal is not tethered to the confines of an office environment. These are the Unauthorized Practice of Law (UPL) and the obligations of client confidentiality. UPL includes giving legal advice, representing a client in a court of law and signing legal pleadings such as a complaint, answer or preliminary objections. Many states classify UPL as a misdemeanor. A paralegal can of course prepare legal documents, interview clients and witnesses and conduct legal research all under the supervision of an attorney. The process of obtaining that supervision can be challenging when the paralegal and the attorney are not in the same office.
A paralegal can transfer legal information and principles to the client, which originated with the attorney but the paralegal working remotely must not transfer legal information to the client that is based on the paralegal’s independent analysis in applying legal judgments to a set of facts that a client may present. Procedures must be in place to ensure adequate communication between the supervising attorney and the paralegal to avoid UPL, in a work from home environment.
Confidentiality is another paralegal ethical obligation that paralegals must maintain. A lawyer or paralegal must not reveal information relating to representation of a client. The rule on confidentiality is broader than the attorney client privilege and applies even to non-litigation and non-court proceedings. The rule covers any information relating to the representation even public information the client wants to be kept confidential. An exception would be if the client authorizes the disclosure. The work product rule is especially important for paralegals working in civil litigation. In civil litigation, the discovery rules allow for broad disclosure of information from both sides as long as the request for the information is relevant to the case or could reasonably lead to discoverable information. Generally, materials prepared in anticipation of trial such as legal research, mental impressions, strategy, conclusions and opinions representing the value of a case are protected from disclosure. This is known as the work product rule and the paralegal must not make any disclosures that are the result of work product.
Basic Tips to Work from Home
When working at home the paralegal should have a private work space where documents and client files are secure. When on the phone, the paralegal must ensure that the conversation is not overheard by other members of the household. Secure that laptop at all times. Resist the temptation to discuss with anybody information learned on the job. If in public, be aware of your conversations in elevators, hallways and restrooms.
No doubt, the trend to working at home will continue beyond the pandemic. Following the rules of not engaging in UPL and securing the confidentiality of the client will serve well the paralegal, client and supervising attorney in this new work environment.
[1] https://www.telework.gov/reports-studies/reports-to-congress/2019-report-to-congress.pdf
[2] https://www.flexjobs.com/employer-blog/law-firms-embracing-flexible-work/
[3] https://www.paralegals.org/files/Model_Code_of_Ethics_09_06.pdf
[4] https://www.nala.org/certification/nala-code-ethics-and-professional-responsibility
