referral service esfablished, sponsored, and operated in accordance - - PDF document

6/22/70L3

What Every Paralegal Should Know

sbout Ethics but ij Afroid to A:sk!

racilitatld by

Brent D,, Rose, M.P$cctg. (Tax), J.D. Managing Director df BEST AovlsoRs

(949) 838-4423 wwwlinkedin.com/inlbrentdros*e I brentdroseattorney@juno,com

What is a PAnnLEGAL? . Held out as a PRnereeRr (rn]ee mruce, tNDEeENDENI

Corurnlcl Vrnrunl), LrcnL o[ ArroRrury Assrsrnrur

. Qualified br11of the follotjuing:

• 1) Education - approved Penfilecnr- program
• 2) Training - bachelor's degrpe'+ 1 year supervised or
• 3) Work Experience - high s[hool + 3 yrs supervised

Suprnvlsiolrl BY CA ATToRNEy wIJH > 3 YEARS PRACTICE

. Not Legal Document or Urilawful Detainer

Assistant nor provide Legall Services directly

Business & Professions Code $ections 6450 & 5455

What Tasks May a P

ANY if Properrly Delegated

Attorney, who is ulti Client & for the Work P

. Requires "lndependent

(rendered to Client, not

. Direct Relationship with

• Ex. Fact Gatl.iering, Legal

Interviewing or

Business & Professions

cal Perform?

Supervised by an ly Responsible to the uct, UruLrss Task lJudgment" ient or Control ents, Research, ing Clients?

6122/2013

a a a a a

What Can't a PRRRlrcal Do

Provide "LEGAL ADVIcE" - Urunwrul Pnaclcr? Lrenl Docuurrut Assrsrnrul except to Attorney

Rururue n or CRpprR -'Ambulance Chaser"

CorurnRcr with or Evpr-ovro by Noru-ArroRNEY Itrtoucr lruvrsrve ru1 FtruRructRl PRopucr or SERvtcE, Tnnrusncrtoru for lrucovte or PRortr EsrReLtsH Fres - Discuss, Quote, Admin Court?

Business & Professions Code Section 5450(b)

What is Unlawful or lllegal?

. ANY Services for a CorusuMER, unless Under the

Direction & Supervision of an Attorney (64s1)

. Label or ldentify anyone as a PRnRleeRt, LrcRL

• r ArtoRruev AsststRrur who is NOT Qualified
• Includes Verbal, Advertisement, Letterhead,

Business Card, Sign, etc.

&/or Without the Name of the Attorney, Law Firm, Corporation or Agency the PnnnlrcnL is employed

by or has a contract with (64s2)

Business & Professions Code Sections 6451 & 6452

What a re the Conseq uences? . Civil Compensation

• ANY Violation of B&P Code Sections 6450 to 6456
• lnjunctive Reliel Restitution & Damages plus

Attorney Fees to Injured Consumer - 6455(b)

. Criminal Conviction

• Violation of Services (64s1) or Marketing (6+s2)
• L,t Violation - Infraction = $2,500 Fine for. each
• Thereafter - Misdemeanor - Fine &/or 1 year Jail
• Plus Restitution

Business & Professions Code Section 6455(b) &6452

2

6122/?.01,3

Why lmportantlto ComplV?

. lt is the Law & part,of W$at you Do

• Role of a Pnnnlecnl is to Hplp others find Justice

through, Uphold & Enforcp the Law

Attorneys are Vica rio uslyl Li a b te fo r PnRelrcRl

• WRrur ro Krrp youn Joe?

. NO Reimbursement for PhnnlreRt Fees for

Fiduciary's Attorney in Esftate, Conservatorship & Gua,rdianship Proceedi

Business& Professions Cdde Section 6452(b) & Californla Rules of Cobrt 7.703 & 7 .754

• certified br7 Supervising A

. CRrrroRuA RUrEs or Pnor

• applicable only to Attor
• UwRulnoRrzED PRAclcE oF
• PnRtruERsHrp WmH Nolr-
• FrrunrucrnL AnnRue Evrrurs w

Are There Other

. Continuing Ed Reqs - 4 E

• Aovrnlrsrr.rc & Soilctrartoru

Business & Professions http rllrules.calba r.ca.gov/Ru

• 6450(d)
• lrtRl Cotrtoucr

W - Rule 1-300 - Cases

R - Rule 1-310 - fees? :

thical Rules?

ics&4Other,2Yr,s

Non-Lnwyrns - Rule 1-320

Rule 1-400 - No Prior or Family Section 6450(d) & lesof Professiona lConduct

What Concerns a

Email & Soci ' EMATL

• Signature line with Pnnnl
• NOT Responding with
• Client's Employer. or E
• Do NOT Connect, Post, U
• Discoverable, Embarrassi

ABA Standing Committee on Ethics

• Disclosing or Attaching

Privileged Documents an

' SoctRL MrorR {ex. Linkedtn,

Formal Opinion 11-459 & CA

ng, Confidential or

• r Information

e there with

Media?

y to All" Email - discoverable ad or Attach for Work

rflvacy vlotailontsj

Professiona I Responsibility Civil Proc. Sec. 2034.270

k, Twitter)

6t21t13

ffit$"tiual ffiuldelines

i::eb 0t'I Posled by [*arrbara Haubvi*lr in *thics

Replrblished from the P*ralegnI Juncti*n Sy Barbara Hass, ,{CPlfAS

DoGood, yGU Are

Ethical Guidelines fcr Potential NeryClient lnquiry- The California tlitigator

fsr Fst*:ntEal New #lient $ffiqulry

Most law firms have E-zuggdg1e-to fotlow concernjng lega inquiries from a potentiaI ttew

• st likety nr:t going to atrswer the
• clierrt. Hven with a solo to smatl lawfirm, the attorney is

.J.nSgnUg-cAJL to obtai n the general i nformation surroundi

g a potentiaL new client's legal

for obtaining the basic facts fcr

• inquiry. The legal strpport staff wilf typicatly be responsi

the attcrn*y. There are ethical guidetines to fol,low when peaking with a potsntial new

• ciient. These guidetines include, but are not t'imited to:
• 1. A parategal has a duty during any professionat contact

an attorney. When a polenttal:new client calls, a non-atlo

• clarify that the paralegai is not

ney should always begin the conversatjon by.$troducinqJhenildyq -.!he.lr joF ce

• citv. You never want a catler to

think that you are an attorney. [National Association of L

and Gu'ide['ines for Utilization of Paralegals, Grrideline 1] gal Assistants, ModeL Standards Example: Good morning. My nome is Sally Smith and I am the paralegal for Attorney Jomes

I need 10 to 15 minutes of your time to obtain some preliminary informatlon regarding the legol inquiry that cal[ing about. Do you have 1A b 15 minutes to go over your tegal motter al this fime?

• 2. A parategat is absotutety Arohipirgd from p]royi dj!g glJl4nion on the merits of d potentiat case or providlng iegal
• advice. [Catifornia Business ]o prolessrons cooe s oq:u(o)tTl-N;E;;;m;;;iatiofr of Legat ,Assistants, Modai

Standards and Guidelines {or Utilization of Faralegals, Guideline 2l i Fxample: lf asked for an opinion on ihe merits of a potentia[ case or for tegol advile, simp[y say something like: I am not permitted to comment on that. l am mere[y gothering information for Mr. Qo6ood's review, l/r. Do6ood will answer all of your questious when he cantacts you to discuss yaur matter.

• J. A paralegal js absolutely prohibited from quoting legal fees or estabtishing the fees to charge a client. IBusiness

a'rd Professions Code 5 6450 tbJlST; NEtionat Associitio-n oi]l$t Assi stants,-Modet Standards and Cuidetines for Utiiization of Paralegals, Guidetine 2l f,xampte: if askedwhat the attarnsy chargss far this type af matter, ta tliscuss lvlr. Da6ood's Cegaf fees with yau. lv1r. DaGoad wf I{ go aver discuss vour matter.

• 4. A paraiegat must be on constant guard againsl a breach of confidentia tity. Any information a potentiat new chent

provides to you js confidentiat. The hard and fast rule of not discussing client mattbrs with third parties applies. When it comes to confidentiality, it is always better to err on the side of caution.

i

• 5. lt is important to tell the potential new client the g€neral turn-around time for 4 return tetephone cali from the
• attorney. This provides the calter with a timeline for a return catt.

Example: Pleose hold while I transfer your call to llr. Do6ood; or, Mr. DoGadd wi[4 return ydur catl by the end of the day; or, Mr. Docoad wlll return yaur cal{ with.in z4-hours; or, Any other timetine d(signoted by your supewising

• tiurnuy.

Finatly, it is always important toJ(lle lgluljl[ of the information that a potentiaf 1ew ctient provides to you so that an accurate summary can be pr&i?ET16-[6iattorney. Always follow the attorney's instructions on how to conduct an )nrtjat intervjew so that the attorney is prepared to speak with the potential new cqent wirh ease.

20r3

T ags: ilr:t*ntial N*w Clierrt Inqr"riry; $iew C;il!er; N*v,, Cli*nt; Hthi**l Guid*lines P rirrt

simply soy soinefhing fike; ! rsm not permiffed hfs fees withlyau when he conrocrs you fo

thecalifornialitig ator.cor#easyblog/ethical-g t-tidelines-for-potential-ne\+clieni-inquiry.htn{?print= 1&tnpi=corqrcnent 1t2

Statel Bar of California Rules of Professional tConduct.

Rule 1-320 Financial Arrangements With Non-LaWyers

(,n,.) Neither a member rlor a law firm sha1l directly or indirectly share iegal fees 'uvith a person

who is not a lawyer, except that: (1) An agreementibetween a member and a law firm, partner, or associate may provide for the payment of rnoney after'the member's death to the member's estate or to one or more specified persons over a reasonable period of time; or (2) A member or l1aw firm undertaking to complete unfinished iegal business of a

deceased memberlmay pay to the estate of the deceased member or othel person legally

entitled thereto th4t proportion of the total compensation which fairly represents the services rendered pV tt " deceased member: or (3) A member or'!aw firm may include non-member employees in a compensation, profit-sharing, or retirement plan even though the plan is based in whole or in part on a profit-sharing arraingement, if such plan does not circumvent these rules or Business and professions Code pection 6000 et seq.; or (4) A member nlay pay aprescribed registration, referral, or parlicipation fee to a lawyer referral service esfablished, sponsored, and operated in accordance with the State Bar of California's Mini4rum Standards for a Lawyer Refenal Service in California.

(B) A member shall not compensate, give, or promise anything of value to any person or entity for the purpose of recomnrending or securing employment of the member or the member's law firm by a client, or as a rQward for having made a recommendation resulting in ernployment of

tlre member or the mernbgr's law firm by u client. A member's offering of or giving a gift or

gratuity to any person or gntity having made a resommendation resulting in the empioyment of

the member or the memb{r's law firrn shall not of itself violate this rule, provided that the gift or

gratuity was not offered Qr given in consideration of any promise, agreement, or understanding that such a gift or gratuil.y would be forthcoming or that referrals would be made or encouraged in the future. (C) A meinber shall not compensate, give, or promise anything of value to any representative of

the press, radio, televisio$, or other communication medium in anticipation of or in return for pr-rblicity of the mernber, lh" law firm, or any other member as such in a news item, but the incidental provision of fopd or beverage shall not of itself violate this rule. Discussion: Rr.rle i -320(C) is not intended to preclude compensation to the commlrnications media in exchange for advertising the member's 01' law firm's availability for professional employment.

State Bar of Californ'ia Rules of Professional Conduct

Rule 1-400 Advertisfing and Solicitatiori

NOTE: Operative January I, 20 .2, Business & ProJessionts Code secfioln 6010 provides that {he

State Bar is governedby aboardknov,nas theboardof trustees of the State Bar andthat any

pro v-ision of lau, re.ferring to the " board oJ' governors " shall be deemed fio refer to the " board o1'

trustee,s. " In accordance vtith this lav,, references to the " board of goverinors " included in the cLtr^rent Rules' of Pro.fessional Conduct are deem.ed to refer to the "board of trustees."

(A) For purposes of this rule, "communication" means any message or of-fer made by or on

behalf of a mernber concerning the availability for professional employrnent of a tnember or a law firm directed to any forrner, present, or prospective client, includirng but not iimited to thLe following: (1) Any use of firm name, trade name, fictitious narrre, or other prQf'essional designation of

such member or law firm; or

2) Any stationery, letterhead, business card, sign, brochure, or o{hLer comparable written

material describing such member, law firm, or lawyers; or

(3) Any advertisement (regardless of rnedium) of such member or law firm directed to thLe

general public or any substantial portion thereof; or

(a) Any unsolicited correspondence from a member or law firm directed to any person or

entity.

(B) For purposes of this rule, a "solicitation" means any communication:

( 1) Concerning the availability for professional ernployment of a n[ernber or a law firm in

wlriclr a significant motive is pecunrary ga:rn; and (2) Which is:

(a) delivered in person or by telephone, or

(b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication. (C) A solicitation shall not be made by or on behalf of a member or la',av firm to a prospective client with whom the rnernber or law firm has no family or prior professlonal relationship, unless the solicitation is protected fi om abridgment by the Constitution of the United States or by the Constitution of the State of California. A solicitation to a former Or present client in the

discharge of a member's or law firm's professional duties is not prohibited.

(D) A coffrmunication or a solicitation (as defined herein) shall not:

( 1) Contain any untrue statement;: or

(2) Contain any matter,, or present or al'rarlge any matter in a manner 1o,r format which is false, deceptive, or which tends to confuse, deceive, or rnislead the public; gr (3) Omit to state any fact necessary to make the statements made, in the light of circumstances

lunder which they are made, not misleading to the public; or

(a) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation,

as the case may be; or

(5) Be transmitted in arly manner which involves intrusion, coercio,n, duress, compulsion,

intimidation, threats, or vexatious or harassing conduct,

(6) State that a meml5pr is a "certified specialist" uniess the member holds a current certificate

as a specialist issuecl by the Board of Legal Specialization, or any other, entity accredited by

the State' Bar to designate specialists pursuant to standards adopted by the Board of

Governors, and states lthe complete,name of the entity which granted cerlification.

(lr) The Board of Governors of the State lSar shall formulate and adopt standards as to

cclnlrlullications which Will be presulxed to violate this ruie 1-400. The standards shall only be

ttsed as presumptions affecting the burden of prgof in disciplinary proceedings involving alleged

violations of these rulesl. "presumption affecting the burden of proof ' means that presumption defined in Evidence Code sections 605 and 606. Such standards formulated and adopted by the

Board, as from time to f.ime amended, shall be effective and binding on all members.

(F) A member shall retain for two years a true and correct copy or recorcling of any

corxmunication made bll written or electronic media. Upon written request, the member shail make any such copy or rpcording available to the State Bar, and, if requested, shali provide to the

State Bar evidence to support any factual or objective claim contained in the communication.

pPubtisher's Note: Forr4er rule 1-400 (DX6) repeaied by order of the Supreme Court effective

Nfovember 30, 1992, NeW rule 1-400 (DX6) added by order of the Supreme Court effective.lune 1,1991 .1 Stundurds: Pursuant to rule 1-400(E) the Board of Governors of the State Bar has adopted the following standards, effective May 27,1989, unless noted otherwise, as forms of "communication" defined

in rule i-400(A) which a,re presumed to be in violation of rule 1-400:

(1) A "comtnunicatioir" which contains guarantees, warranties, or predictions regarding the

result of the representation.

(2) A "cor,nmunicatiqn" which contains testimonials about or endorsements of a member

unless such commuuipation also contains an express disclaimer such as "this testimonial or etrdorsement does not constitute a gLlarantee, warranty, or prediction regarding the outcome of your legal matter."

l

(3) A "communicatio4r" which is delivered to a potential client whom the member knorvs or

should reasonably kngw is in such a physical, emotional, or mental state that he or she would not be expected to ex{rcise reasonable judgment as to the retention of counsel. (4) A "communicatio$" which is transmitted at tire scene of an accident or at or en route to a hospital, emergency c?re center, or other health care facility.

(5) A "communicaltion," except professional annolrllcements, seeking professional

empioyment for pecri$iary gain, which is transmitted by mail or equivalent means which does not bear the word "A{vertisernent," "Newsletter" or words of similar imporl tn 12 point print

• n the first page. If slrch communication, including firm brochures, ne'uvsietters, recent legal

development advisorips, and similar materials, is transmittecl in an envelope, the envelope shall bear the word "Advefiisement," "Newsletter" or words of similar import on the or"rtside

thereof.

(6) A "communication" in the fbrm of a firm name, trade name, fictitious name, or other

professional designation which states or implies a relationship between alty rnember in private practice and a government agency or instrumentality or a public or non*profit legal services

• rganization.

(7) A "communication" in the form of a firm name, trade nalrre, frrctitious name, or other

professional designation which states or implies that a member has a relationship to any other lawyer or a law firm as a partner or associate. or officer or shareholder pursuant to Business and professioirs Code sections 6160-6112 unless such relationship in f'act exists. (B) A "communication" which stales or implies that a member or law firm is "of counsel" to another lawyer or a law finn uirless the former has a relationship witlh the Latter (other than ars a partner or associate, or officer or shareholder pursuant to Business and professions Code sections 6160-6172) which is close, personal, continuous, and regular.i

(9) A "communication" in the form of a firm name, trade name, fictitious name, or other

professional designation used by a member or iaw firrn in privatb practice which differ:s materially fiom any other such designation used by such member or th'w firm at the same tiutLe in the sarlle community. (10) A "communication" which irnplies that the member or law firm is participating in a lawyer referral sen ice which has been certified by the State Bar of California or as having satisfied the Minimum Standards for Lawyer Referral Services in Cafiifornia, when that is not

the case.

(1 1) (Repealed. See rule 1-400(D)(6) for the operative language on this subject.)

(12) A "commlurication," except professional announcernents, in the fc,rm of an adveftisement

primarily directed to seeking professional employment primaril'y for pecuniary gain

transmitted to the general public or any sr-rbstantial portion thereoif by mail or equivalent

rneans or by means of television, radio, newspaper, magazine or other form of commercial lnass media which does not state the name of the member responsible for the comn'r.unication. When the communication is made on behalf of a law firm, the communication shall state the name of at ieast one member responsible for it.

(13) A "communication" which contains a dramatizatton unless suchlcomrnunication contains

a disclaimer which states "this is a dramrtizal"ion" or words of similarlimport.

( 14) A "communication" which states or irnplies "no fee without recovery" uniess, such

communication also expressly discloses whether or not the client will lbe liable for costs. (f 5) A "communication" which states or implies that a member is able to provide legal services in a language other than English unless the member carl actually provide legal services in such language or the comrlunication aiso states in the language of tire communication (a) the employrnent title of the person who speaks srich language and (b) tliat

the person is not a member of the State Bar of California, if that is thelcase.

(16) An unsolicited "communication'! transmitted to the general plublic or any substantial

portion thereof primarily directed to seeking professional employmeflt primarily for pecuniary gain which sets fortir a specific fee 01' range of fees for a particular service where, in fact, the member charges a greater fee than advertised in such commllnication witirin a period of 9t0 days following dissernination of such communication, unless such oo'fillrlurication expressiy specifies a shorter period of time regarding the advertised fee, Whdre the communication is publisheci in the classified or "yellow pages" section of telephone, buSiness or legal directories

• r in other media not published more frequently than once d year, the member shall conform

to the adverlised fee for' a period of one year fiom initial fLrrblication, unless such

commllnication expressly specifies a shofier lreriod of time regarding the advertised fee. (Anrended by order of Supreme Court, operative September 14, 1992. Sl.andard (5) amended by tlre Board of Governors, effective May i 1 , 1994. Standards (12) - (16) added by the Board of Governors, effective May 1 1, 1 994. Standard (11) repealed June I , I997)