Professional Responsibility for Non-Lawyers
This material, prepared by the Philadelphia Bar Association's Professional Guidance Committee under the leadership of Katherine Hatton, Esquire, who chaired the committee in 1989, is intended to help legal assistants, paralegals and other nonlawyers working with lawyers understand how the Pennsylvania Rules of Professional Conduct affect them professionally.
Pennsylvania lawyers are required to follow the Rules of Professional Conduct, effective April 1, 1988. The Rules direct law firms and supervising lawyers to make efforts to ensure that the conduct of nonlawyers is compatible with the professional obligations of the lawyer. The supervising lawyer is thus responsible for ensuring that the nonlawyers working under his or her direction act in an ethical and competent manner.
The following guidelines are designed to help nonlawyers understand some basic principles of ethical conduct. The guidelines are not meant to cover every situation; the type of work performed by the lawyers for whom you work undoubtedly will necessitate more specific instructions for handling particular types of matters.
A lawyer is required to maintain the confidentiality of information provided by every client. It is not always easy to recognize what information about your firm's clients or your office is confidential. Moreover, a client of your office might be offended to learn that a lawyer or other law firm employee has discussed the client's business in public, even if the information mentioned is public knowledge. The easiest rule is to consider all work of the office to be confidential: do not discuss the business of your office or your firm's clients with any outsider, no matter how close a friend, at any time unless you are specifically authorized by a lawyer to do so.
When discussing matters related to your office or your firm's clients with other office employees, be careful not to do so in public areas of the office where outsiders may be present (e.g., reception areas, hallways) or in areas outside the office where conversation might be overheard (e.g., elevators, restaurants).
You may, on occasion, have contact with attorneys outside your firm on matters which your firm is handling. In those cases, you should not provide any information (including either disclosing the contents of documents or releasing the documents themselves) or make any agreements unless an attorney from your firm has approved it. If you are not sure, offer to check and get back to the outside attorney.
Some clients of your firm may be public companies whose securities are publicly traded. In the course of representing such companies, the office may obtain information which might be of significance to the securities market but which has not yet been released to the public. Federal law, as well as ethical considerations, prohibit you from disclosing this information and also prohibit you from using such information in connection with any financial transaction including the purchase or sale of any stocks, bonds or other security.
- Unauthorized Practice of Law
A nonlawyer may not sign papers to be filed with the court, ask questions at a deposition or handle court appearances. Questions about limitations on the nonlawyer's role also frequently arise when the nonlawyer has developed rapport with a client of the firm. At this point, the firm's client may begin to ask questions like, How do you think my case is shaping up? or What do you think my chances of recovery are? or Can I reimburse my travel expenses out of the estate? or While my no-fault divorce is pending, what should I do about such-and-such? When a client of the firm begins to seek advice along these lines, refer the questions to the lawyer for whom you work.
A nonlawyer may not in any way represent herself or himself as a lawyer. A letter on law firm stationery signed by a nonlawyer could be misleading. Ask the lawyer for whom you work how to identify yourself on correspondence; you may be asked to use a description such as Secretary or Legal Assistant beneath your signature so that your position in the office is clearly set forth.
- Interviewing Witnesses
If authorized by the lawyer for whom you work, you may interview individuals who are not represented by a lawyer. If the unrepresented person does not understand your role, you should make a reasonable effort to explain who you are and who your office represents. If the person you are interviewing does not have a lawyer and if his or her interests might be in conflict with the firm's client for whom you are working, you cannot give the person any advice except to secure an attorney.
If the opposing party has a lawyer, you cannot talk to that party about the case, nor may you interview persons whose statements are binding on the party. For example, if your office represents a man who is suing his former employer, XYZ Corporation, because he believes his retirement benefits are being wrongly withheld, you cannot talk to the XYZ officer who is in charge of employee benefit programs. There are some exceptions to this rule - if you have questions, talk to the lawyer for whom you work.
You cannot ask or instruct a witness for your firm's client - other than a relative, employee or other agent of that client - not to speak to your adversary. You can say words to the effect: If you talk to the other side, it will not help my case, but you are permitted to do so. If a witness asks for advice in this area, refer him or her to the lawyer for whom you work.
You are required to be truthful when dealing with others on behalf of a client of your office. While you generally have no affirmative duty to inform an opposing party of relevant facts, a misrepresentation can occur if you affirm a statement of another person that you know is false.
- Client's Property
A lawyer will, from time to time, have possession of money or property belonging to a client. It is essential that the client's property or money be kept completely separate from the lawyer's or firm's property or money and that a proper accounting be maintained.
A lawyer may receive a client's money or property in various ways. Some common ways include: (1) as a trustee under a will or trust; (2) as an escrow agent from a client or third party to be used in closing a business deal; or (3) as a settlement check for litigation (often made payable to both the lawyer and client). The lawyer or the firm should have procedures for handling clients' property, including provisions for escrow accounts to hold a client's funds. Any time you are asked to handle the property or funds of a client of your office, make sure you are aware of the proper procedures and the appropriate accounts for deposit. This is a very important area of the Rules, so if you have any uncertainty, ask the lawyer.
The Rules of Professional Conduct provide guidance, but not clear-cut answers, to the ethical questions faced by both lawyers and nonlawyers. Bear in mind any potential ethical problems that arise in what you do. Begin by asking, is it moral and fair? If you have questions, speak to a lawyer. If the lawyer remains unsure of the proper course of conduct, the Professional Guidance Committee of the Philadelphia Bar Association (215-238-6300) is available to answer inquiries from Bar Association members. The committee provides confidential advice about the propriety of conduct proposed to be taken in the course of legal representation of clients.