There should be an element of courage ingrained in an individual who chooses to pursue a profession of advocacy, as it is the most onerous and exacting among all other professions. The tradition of the profession is public service, where one may charge and receive payment for the services rendered, but is only an incident of it. It is not a commercial venture and one cannot adopt commercial methods to attract business.
A businessman may advertise his wares or solicit customers but a legal professional cannot do either. It will be a professional misconduct if one does so. Again touting is something to which a lawyer should not resort to. In other walks of life it is not considered objectionable, let alone a moral wrong, to pay a person who fetches for you a portion of the gain that you make through his help.
But in the legal profession it is positively prohibited, because the time-honored tradition of the legal profession is that an advocate must not seek business but business should seek the advocate. The acts of Susie to have approached Terry on behalf of the law firm and the subsequent act of Potter to have promised Susie a bonus are in gross defiance of the professional ethics, to be followed by a legal professional since they qualify as being, acts of advertising and touting respectively.
It has been clearly mentioned in the fact file that Susie was a paralegal in the firm of Potter and Planter. The term paralegal should be understood in its true sense so that it does not create any misconception. A paralegal (1) is a person who is the legal assistant of a lawyer and who is competent of assisting the lawyers in the practicing of their services. These paralegals are not at all eligible to provide any kind of legal advices to the people who need some legal services. The consumers of the legal services should only rely on the advice given by a lawyer or the attorney. But violating this rule, Susie, as a paralegal had dared to provide advices to Terry in his matter. It was a very unlawful and unethical behavior of Susie.
Moreover it was unethical and immoral on the part of Potter to ask Susie to draft the court brief knowing that Susie is just an assistant to him in his firm and not an authorized practicing attorney. The National Federation of the Paralegal Association (NFPA) (2) has strictly made it a rule that unauthorized practice of law will not be tolerated. It has stated in its rule that the paralegals should not perform the functions of an attorney and should not engage themselves in the unauthorized practice of law.
Susie’s behavior had been very unethical and immoral violating these rules and providing a misconception to Terry that she was an Attorney as he used to discuss about his matter only with Susie, as he was directed to do so whenever he had called up the firm. Susie had also been professionally very immature and it was really very unwise of her to assure Terry that the likelihood of success is very high when Terry had confessed that he was partly responsible for the damage done to the deck. She has no right to discuss such things with Terry, as only a paralegal. It was the duty of the attorney to talk about it and it was further more the responsibility of Susie to tell Terry the truth that she was just a paralegal and not an attorney.
The profession of advocacy is mostly a profession for a public service and therefore requires the highest standards of integrity and honesty. An advocate owes a duty of trust and transparency towards his client. Misrepresentation and misstatement in order to allure clients are the last things, which lawyers should resort to.
The act of Susie to elicit Terry to believe that she was a lawyer and the subsequent act of Potter to have not pointed out this fact to Terry are acts, which may be stared at, as major professional misconduct. It may be magnified here that in spite of several occasions where Potter had reasons to believe that Terry was carrying a misconception that Susie was an attorney, Potter ignoring his duty to clarify this point to Terry, instead allowed Susie to continue her liaisons with Terry.
Potter reached the brim of his misconduct of professional ethics when he asked Susie to prepare a final draft of the brief, which was contrary to the interests of his client, since preparation of a final draft of a brief, requires years of experience and professional expertise and Susie being only a paralegal was inapt to draft such a final brief. The above delinquencies of Potter lead to an obvious deficiency in the drafting of the final petition, which provided ABC Construction Company an opportunity to file a claim to dismiss the petition of Terry.
A lawyer when entrusted with a brief is expected to follow the norms of professional ethics and try to protect the interests of his client, in relation to whom he occupies a position of trust. It is not in accordance of professional etiquette for an advocate to hand over his brief to another to his place to handle the brief or conduct the case as if the latter had himself been briefed, unless the client consents to this course being taken. Counsel’s paramount duty is to his clients.
The act of Potter to allow Susie to handle the case in his absence and worst of all to file the answer to the motion under her signatures (who is not even enrolled as lawyer) are acts of serious professional misconducts which stares on the face. The misconduct is more magnified when one considers the fact; it was done at the cost of breach of trust of Terry, who was under the bona-fide impression that his case was being handled through a legal professional of a law firm, in which Potter held the responsible post of an attorney.
Adherence to correct professional conduct in discharge of one’s duty as an attorney is the back bone of any legal system. Any laxity thereto would undermine the confidence of the litigant public resulting in the collapse of the legal system.
1. Background and Definition. What is Paralegal?. October 20, 2006. http://www.nala.org/whatis.htm
2. Model Codes of Ethics and Discipline. Paralegal Ethics. October 20, 2006. http://www.paralegals.org/displaycommon.cfm?an=1&subarticlenbr=359