Code of Ethics and Professional Responsibility of Paralegals: Canons
The term "canon" is used to refer to rules, standards of conduct, and general maxims that are accepted as fundamentally binding in a particular field or group. There would be no need for laws if all people were innately honest and just. This is not the case, as a significant number of individuals in our society are motivated by selfish desires and conduct themselves in destructive ways. However, people can be constrained from acting in harmful or irresponsible ways by social expectations, as well as by authoritative or governmental bodies that impose and enforce laws, rules, and regulations.
For example, professional groups such as the American Bar Association establish methods of disciplining themselves. These disciplinary standards applied to legal professionals are higher than those applied to the general population, because professionals believe that they must be held to a higher standard. Professional disciplinary boards impose a variety of disciplinary measures and sanctions against practitioners who violate the applicable professional code of ethics. A lawyer who violates the ABA Professional Rules of Conduct may be disbarred or lose his license temporarily or permanently. Disciplinary boards and codes of ethics can also be used to help members of the profession improve. Many organizations, including the national and state bar associations, offer and require members to complete courses in ethical training and continuing legal education. Members who breach these codes of ethics may be required to complete additional ethics courses. In this way, professional disciplinary mechanisms serve as an internal policing system.
The canons of ethics set forth by the National Association of Legal Assistants, Inc., are a general guide intended to aid paralegals and attorneys. A paralegal must abide by the accepted standards of legal ethics and to the general principles of proper conduct. Paralegal performance is evaluated pursuant to these canons so that the integrity and goals of the profession can be attained.
II. What are the nine canons?
Canon 1. Maintain integrity and competence.
A. A lawyer has the responsibility to represent every client with integrity and competence.
B. As a paralegal, I must provide competent assistance to the attorney, ensuring that I have adequate legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of the client. If I were representing defendant Simmons in the case of Simmons v. State, 288 S.W.3d 72 (2009), I would assist the attorney in doing whatever intestigation, pretrial workup and legal research necessary to advocate on Simmons' behalf.
Canon 2. Make legal counsel available to those in need.
A. As much as possible, a lawyer should attempt to provide legal services to all who need it, regardless of ability to pay. Lawyers should aspire to provide legal aid at no fee or a significantly reduced fee to people with limited means.
B. As a paralegal, I will volunteer my time to provide paralegal services to those who cannot afford it, through community organizations, churches, and legal aid groups. It is unknown in the case of Simmons whether the defendant paid for private counsel or whether he had a public defender or a court appointed attorney at no charge. The United States Constitution provides that all criminal defendants are entitled to a lawyer, and to effective assistance of counsel. If I were the paralegal assisting the defense lawyer representing Simmons, I would invest my best effort regardless of Simmons' ability to pay.
Canon 3. Preventing the Unauthorized Practice of Law.
A. Lawyers should actively prevent the unauthorized practice of law. This includes the lawyer practicing outside the lawyer's bar jurisdiction, presenting himself as being able to practice law outside his jurisdiction, or allowing nonlawyers to practice law on his behalf.
B. As a paralegal, I will not engage in the practice law or advise any clients as to the law, including setting fees or establishing attorney-client relationships. This is strictly the job of the supervisory lawyer. However, I can provide law-related services, which are not the same as providing legal representation or advice. There are no facts in Simmons suggesting that any UPL took place by the lawyers involved.
Canon 4. Preserve client confidentiality
A. The lawyer should preserve the confidences and secrets of a client. A lawyer shall not reveal information learned in the course of representing a client unless the client gives informed consent, or the disclosure is made in order to prevent reasonably certain death, substantial bodily harm, or fraud that will result in substantial damage to financial interests.
B. As a paralegal, I would not disclose questionably confidential client information, but would defer to the lawyer's judgment as to what communications fall within the exceptions. Whatever information Simmons disclosed to his attorney in the course of representation in his case would be confidential. But we do know that Simmons was initially detained on reasonable suspicion that he littered, and it could be that Simmons wanted his lawyer to disclose the fact that the papers he littered were simply a torn bus ticket, which would seem to lessen the severity of the littering. Of course, since the court ruled against Simmons on his motion to suppress, the fact that his crime of littering was a mere shredded bus ticket was not enough to make the police search and seizure unreasonable.
Canon 5. Avoid conflicts of interest.
A. Lawyers must avoid adverse influences and conflicting interests. Lawyers have to reveal any conflict of interest to their clients. The representation of one client cannot be directly adverse to another client. In addition, the representation of a client should not significantly limit the lawyer's responsibilities to another client, a former client, a third person, or to the personal interest of the lawyer.
B. As a paralegal, I must disclose to my supervising lawyer or employer any pre-existing client or personal relationship that may conflict with the interests of the lawyer's representation of his clients. In the Simmons case, no conflict of interest issues were presented.
Canon 6. Represent clients competently.
A. Lawyers must be diligent and prompt in attending to legal matters, engage in adequate communication with the client, be punctual when appearing before courts, and stay updated on current law through continuing legal education.
B. As a paralegal, I must also respond diligently and promptly to lawyer requests, communicate with the client as instructed by the lawyer, and continue my education and training throughout my career in order to keep current with new legal and technological developments. Being educated about the law will enable me to provide more advanced assistance to an attorney.
In Simmons, there is no issue raised as to the competency of Simmons' lawyer. However, Simmons' lawyer certainly made some major mistakes. He failed to make certain legal objections at trial, so the higher court refused to address these issues on appeal, because "[t]o preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. A defendant's appellate contention must comport with the specific objection made at trial. An objection stating one legal theory may not be used to support a different legal theory on appeal." One of the grounds on appeal of Simmons' conviction was a lack of accreditation of the forensic lab. At trial, defense counsel made a chain-of-custody objection, not a lack of accreditation objection, to the state forensic chemist's testimony. The appellate court would not entertain argument on appeal regarding the lack of accreditation issue, because defense counsel's trial objection as to chain of custody was not sufficient to preserve the lack-of-accreditation complaint on appeal. This calls into question Simmons' lawyer's competence, although the standard for finding ineffective assistance of counsel is extremely low.