The California Litigator
A Look at California Rules and the Impact on Attorneys and Paralegals
February 22, 2012
By Barbara Haubrich-Hass, ACP/CAS
As published in The Bottom Line of the Law Practice Management & Technology Section of the California State Bar Association, MCLE On-Line Ethics Credit
Since the birth of the paralegal profession in the 1960s, it has evolved into an essential component of every successful legal team. The role of a paralegal is fundamentally shaped by the legal ethics that he or she must follow. When considering the ethical use of a paralegal, one criteria is to determine whether the paralegal is working in the capacity as an “employee” or a “virtual” paralegal. Once the attorney has determined the capacity of the paralegal, the attorney is able to consider the ethical boundaries for the utilization of that paralegal.
Globally, every California attorney and paralegal shall adhere to Business & Professions Code (BPC) §§6450 through 6456. There are no exceptions. There are additional ethical considerations for an attorney when contracting with a virtual paralegal. This article will discuss BPC §6450, and the ethical use of “employee” and “virtual” paralegals.
A. Why it is Important to Comply With BPC §6450
First and foremost, it is the law. BPC §6450 defines the role of a paralegal and attorneys are required to comply with it. BPC §6450 also provides consistency with respect to the qualifications, restrictions, and continuing legal education for paralegals providing legal support to California attorneys.
Although BPC §6450 does not establish a governing body, it does make violations of BPC §§6451 and 6452 a crime enforceable by the courts and allows consumers to bring a cause of action against an individual who violates this law. [BPC §6455] BPC §6452(b) implies that attorneys are vicariously liable for any harm caused as the result of the paralegal's negligence, misconduct, or violation of BPC §6450 et seq.
Additionally, there are financial penalties imposed against attorneys for a paralegal’s failure to comply with BPC §6450. The California courts regulate compliance with §6450 through striking paralegal fees. California Rules of Court Rules 7.703 and 7.754 require that a paralegal must comply with BPC §6450 if they provide legal support to an attorney for fiduciaries in decedents’ estates, conservatorships, and guardianships in order for the attorney to be eligible for reimbursement of paralegal fees. These rules are the first of what is expected to be many statutes and case law that will require attorney and paralegal compliance with BPC §6450.
B. Overview of BPC §6450
BPC §6450 can be broken down into four broad categories:
- Required Qualifications of a Paralegal;
- Duties a Paralegal May Perform;
- Duties a Paralegal Shall Not Perform; and,
- Continuing Legal Education Requirements.
Required Qualifications of a Paralegal: A paralegal is a person who is qualified by education, training, and/or work experience, who either contracts with or is employed by an attorney, law firm, corporation, governmental agency, or other entity, and performs substantial legal work under the direction and supervision of an attorney. [BPC §64A paralegal is required to have minimum qualifications to perform paralegal services, and to utilize the title “paralegal.” A paralegal providing legal support services to a California attorney is required to possess one of the following minimum qualifications:
- A certificate of completion of an ABA approved paralegal program;
- A certificate of completion of a paralegal program at, or a degree from, a postsecondary institution that requires the successful completion of a minimum of 24 semester, or equivalent, units in law-related courses and that has been accredited by a national or regional accrediting organization or approved by the Bureau for Private Postsecondary and Vocational Education;
- A baccalaureate degree or an advanced degree in any subject, and a minimum of one year of law-related experience under the supervision of an attorney; or,
- A high school diploma or general equivalency diploma with a minimum of three years of law-related experience under the supervision of an attorney prior to 2003. [BPC §6450(c)]
Duties a Paralegal May Perform: BPC §6450(a) provides a list of tasks that a paralegal may perform. However, a paralegal is typically allowed to perform any task that is properly delegated and supervised by an attorney, so long as the attorney is ultimately responsible to the client and assumes complete professional responsibility for the work product. [National Association of Legal Assistants, Code of Ethics and Professional Responsibility, Cannon 2] Paralegals may perform services for an attorney provided:
- The services performed do not require the exercise of independent professional legal judgment;
- The attorney maintains a direct relationship with the client and maintains control of all client matters;
- The attorney remains professionally responsible for all work on behalf of the client, including any actions taken or not taken by the paralegal; and,
- The services performed supplement, merge with, and become the attorney’s work product. [ABA Model Guidelines for the Utilization of Paralegal Services]
Duties a Paralegal Shall Not Perform: Paralegals must not:
- Provide legal advice;
- Represent a client in court (with the exception of representing clients before a state or federal administrative agency if that representation is permitted by statute, court rule, or administrative rule or regulation);
- Select, explain, draft, or recommend the use of any legal document to or for any person other than the attorney who directs and supervises the paralegal;
- Act as a runner or capper;
- Engage in conduct that constitutes the unlawful practice of law;
- Contract with, or be employed by, a person other than an attorney to perform paralegal services;
- Induce a person to make an investment, purchase a financial product or service, or enter a transaction from which income or profit may be derived; and,
- Establish the fees to charge a client for services. [BPC § 6450(b)]
Continuing Legal Education Requirements: A paralegal is required to certify completion of four hours of CLE in legal ethics, and four hours of CLE in either general law or in an area of specialized law every two years. [BPC § 6450(d)] Certification of these continuing education requirements shall be logged with the paralegal’s supervising attorney. The paralegal shall be responsible for keeping a record of their certifications. [BPC § 6450(d)] An easy way to keep track of a paralegal’s compliance is by maintaining a Compliance Log provided by the California Alliance of Paralegal Associations. If the paralegal has an advanced certification, there are additional mandatory CLE requirements to be met through the certifying organization.
C. The “Employee” Paralegal
There are many ethical considerations for an attorney when utilizing “employee” paralegals, including, but not limited to:
Disclosure of a Paralegal’s Professional Status: It is unlawful to label or identify legal support staff as a paralegal who are not in compliance with BPC §6450. [BPC §6452] It is also unlawful to identify a paralegal on any advertisement, letterhead, business card or sign, or elsewhere unless the paralegal satisfies the criteria under BPC §6452. [BPC §6452] Additional areas where a paralegal’s professional status is important include:
- A paralegal should disclose his or her professional status at the onset of every professional communication; [National Association of Legal Assistants, Code of Ethics and Professional Responsibility, Cannon 5]
- In all e-mail communications, a paralegal should have a signature line that is followed by the appropriate designation of the paralegal’s professional status;
- A paralegal may have a business card provided the professional status of the paralegal is designated; [ABA Model Guidelines for the Utilization of Paralegal Services, Guideline 5]
- A paralegal may be included on the attorney’s letterhead provided the professional status of the paralegal is designed; and, [ABA Model Guidelines for the Utilization of Paralegal Services, Guideline 5]
- A paralegal may sign correspondence on the attorney’s letterhead provided the signature is followed by the paralegal’s professional status.
Settlement Negotiations: A paralegal may serve a limited role in settlement negotiations, such as transmitting information and documents between the attorney and client relating to a settlement offer. However, a paralegal is prohibited from:
- Entering into a settlement agreement;
- Negotiating a settlement on behalf of a client; and,
- Making a recommendation to the client regarding the merits of a settlement offer.
Disclosing Confidential Information: The attorney, paralegal, and all legal support staff must avoid revealing confidential information. [ABA Model Guidelines for the Utilization of Paralegal Services, Guideline 6] To avoid the risk of revealing confidential information, case information should be shared with only those who have a "need to know." Below are examples of how confidential information can be inadvertently disclosed:
- Sending a facsimile to the wrong number;
- Attaching the wrong documents to an e-mail communication;
- Responding to an e-mail by pressing “Reply All;”
- Including privileged documents in response to a production request;
- Leaving confidential information in a conference room after a meeting or deposition;
- Leaving confidential documents on a counter in an open area; and,
- Having conversations about a matter in an elevator, rest room, or other open area.
Attorney-Client Privilege and the Paralegal’s Role in Avoiding Waiver of the Privilege: In California, the attorney-client privilege is waived when the client discloses a significant part of the communication, if anyone has consented to such disclosure, or if the client places in issue the contents of the communication with its attorney. [Terrebonne, Ltd. Of California v. Murray (1998) 1 F. Supp.2d 1050] Paralegals play a key role in avoiding a waiver of this privilege by being diligent with the protection of confidential information.
One of the easiest ways to waive the attorney-client privilege is by e-mailing the client at the client’s employment e-mail address. The American Bar Association, Standing Committee on Ethics and Professional Responsibility, provided Formal Opinion 11-459 stating that the confidentiality of these communications may be jeopardized in certain circumstances. For example, when the client uses an employer’s computer, smartphone or other telecommunications device, or an employer’s e-mail account to send or receive e-mails with counsel, the employer may obtain access to the e-mails. Moreover, other third parties may be able to obtain access to an employee’s electronic communications by issuing a subpoena to the employer.
E-Mail Communications: The attorney may want to consider guidelines for all staff concerning e-mails. When you send an e-mail, that communication is out of your hands forever. The following are my suggested guidelines:
- When communicating with opposing counsel, keep it professional and to the point. You never know when your e-mail communication will be attached as an exhibit to a motion;
- When communicating with an expert, remember that the expert’s file, including e-mail communications, are discoverable and will be produced pursuant to CCP § 2034.270;
- Before you begin e-mail communications with a client, be sure to get the client’s permission that this is an acceptable form of communication, and that no one else has access to the client’s e-mail address;
- Always insert a disclaimer of privileged information at the bottom of every e-mail.
- Do not “Reply All.”. This provides case information to others that do not need to be included in the communication;
- Always identify your name, contact information, and capacity at the bottom of every e-mail; and,
- Avoid discussing confidential information in an e-mail.
Hiring Paralegals: An attorney should consider my suggestions below when selecting a paralegal for a new position.
- Require the paralegal to produce his or her current Compliance Log. This will confirm for the attorney that the paralegal is in compliance with BPC §6450;
- The attorney should perform a conflict check with the paralegal’s former employers to confirm whether the retention of that paralegal would create a disqualifying conflict too costly to the law firm; and,
- Require the paralegal to complete an ethics test to assess his or her level of ethics knowledge.
Ethical Wall: An attorney should take reasonable measures to prevent conflicts of interest resulting from a paralegal’s other employment or interests. Additionally, a paralegal has a responsibility to notify the attorney if a conflict of interest exists between the paralegal and a client. [ABA Model Guidelines for the Utilization of Paralegal Services, Guideline 7] If a conflict of interest does exist, then the attorney must implement an "ethical wall" between the paralegal and any work related to that client. An ethical wall is a common method to protect a client and the professional from a conflict, or any appearance of a conflict. An ethical wall prohibits the paralegal from having any connection with or access to the client's case, including any discussions with or the transfer of any tangible items or information relating to the client or of the case.
Social Media: There are ethical boundaries as to social media that an attorney should consider implementing with his or her paralegal. The following are my suggested guidelines:
- A paralegal must not connect on any social media with a client, opposing party, or witness. This would expose the paralegal to any number of ethical violations;
- A paralegal must not post case related facts on any social media website, even if the client’s name is not mentioned and the information appears ambiguous. This violates the attorney’s duty to safeguard information relating to the representation of a client;
- A paralegal must not post any negative comment on any social media website about his or her attorney or law firm. I have read so many “Dear Attorney” comments that should have been kept private. Any personal opinions relating to an attorney can damage that attorney’s reputation; and,
- A paralegal must be precluded from downloading any photographs, or other medium, relating to a client or attorney that has not been approved by the attorney. A client may feel that his or her privacy was violated if a photograph appears on Facebook of the victory celebration after a verdict. An attorney may not want the Christmas party photographs on his or her paralegal’s Facebook page. Therefore, to be safe, all work related photographs should be approved for posting on any social media.
D. Virtual Paralegals
The use of virtual paralegals is on the rise and is the next evolution of the paralegal profession. A virtual paralegal works remotely in his or her own office, and does not necessarily reside within the jurisdiction of the attorney or the state of California. A virtual paralegal is particularly cost effective for solo or small law offices, and is often used in bankruptcy, corporate, estate planning, and litigation matters. Of course, virtual paralegals and attorneys are required to comply with the ethical boundaries discussed in this article above. However, there are other unique ethical considerations for an attorney working with a virtual paralegal. Below are my suggestions for attorneys when working with virtual paralegals.
Before the attorney enters into a contract with a virtual paralegal, the attorney should confirm that the paralegal is in compliance with BPC § 6450 by obtaining a copy of their qualification compliance and CLE Compliance Log. This is particularly important if the virtual paralegal resides outside of the state providing legal support services to a California attorney. This is of utmost importance to estate planning attorneys if they are requesting reimbursement of paralegal fees.
Before the attorney enters into a contract with a virtual paralegal, the attorney should require the paralegal to run a conflict check to confirm that the paralegal is not working on related matters for another attorney. Once the attorney has conducted a conflict check and confirmed 6450 compliance, the next point of concern is the ethical obligation of security and confidentiality.
According to Daphne Drescher, sole proprietor of Drescher ProParalegal, reported in her article Virtual Paralegals in Litigation that any lawyer contemplating hiring a remote working paralegal should inquire into the paralegal’s business practices:
- How does the paralegal secure and store paper and electronic files?
- How long are papers and digital copies retained?
- What computer back-up systems are used to ensure that files are not deleted or lost?
- What security measures are taken with computer files, online storage, and back-up files to prevent disclosure?
- Does the paralegal’s computer system have a firewall and secured WiFi?
- Are the cloud or internet based software programs the paralegal uses encrypted?
Drescher goes on to state that security issues can be addressed through a number of software programs available for securely sharing files back and forth between remote locations. The most familiar tool is an FTP client (File Transfer Protocol), which enables the lawyer and paralegal to upload and download large files over the internet. Other software programs provide secure online repositories for documents which provide a secure means of file sharing. Using one of these programs, a remote working paralegal can create a series of folders and sub-folders for storing case documents. These files are accessible via link or password to both the lawyer and the paralegal from any computer or location. In this way, both lawyer and paralegal can store, access or revise any case related materials whenever they need to. Finally, there are software programs that actually create a secure collaborative project management system of sorts online. They enable the lawyer and paralegal to not only store case files and edit documents, but also to design a project, assign tasks to different team members, and track everyone's progress.
The American Bar Association Ethics Committee issued Ethics Opinion 08-451 detailing an attorney’s responsibilities when outsourcing legal work domestically or internationally. The ABA opined that U.S. lawyers are free to outsource legal work if they adhere to ethics rules requiring competence, supervision, protection of confidential information, reasonable fees, and not assisting unauthorized practice of law. The outsourcing lawyer should conduct reference checks and background investigations of non-lawyer service providers. Depending on the level of supervision contemplated by the attorney, it might be necessary to obtain informed client consent before engaging in outside assistance.
Finally, it is important to enter into a contract when working with a virtual paralegal. An agreement protects both the attorney and the paralegal. A good agreement will address many of the points mentioned above. Furthermore, a good agreement will lay out the scope of the virtual paralegal’s work with specificity, and the fees and payment methods.
With the complexities of the ethical boundaries of a paralegal, a good rule of thumb is best taken from the National Association of Legal Assistants, Code of Ethics and Professional Responsibility, Cannon 1: A paralegal must not perform any of the duties that attorneys only may perform nor take any actions that attorneys may not take.
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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this newsletter, or to any other website to which this e-zine/article may be linked.
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DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this website, or to any other website to which this website or articles may be linked.
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Barbara Haubrich-Hass, ACP/CAS
The California Litigator