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¶ … difficult conflicts anyone in the legal profession can experience is a conflict between ethics and the obligation to zealously represent one's client. No where is this tension more apparent than in a situation where one obtains privileged information belonging to the opposing party. There are three options facing a legal professional confronted with such a situation; using the privileged information without notifying the opposing party how it was obtained, notifying the court and opposing counsel that privileged information has been obtained and that one intends to use it, or not using the privileged information. None of the solutions is perfect, but only one solution allows a paralegal to reconcile ethical obligations with the duty to zealously represent the client; informing the court that privileged information has been obtained and will be used.
If a paralegal uses the privileged information without informing the opposing party of their mistake, the paralegal has satisfied his duty to his client. After all, the client should be provided with the best representation possible. However, the paralegal also has to ensure that his attorney is working within the ethical parameters and standards established by their Bar Association. Depending on the jurisdiction, some Bar Associations would consider it an ethical violation for an attorney to use an opponent's privileged information. Therefore, using this option would leave a paralegal, and his law firm, open to possible disciplinary action.
On the other hand, if a paralegal chooses not to use the information in his research, the paralegal may be helping his firm commit malpractice. After all, an attorney and his staff are obligated to zealously represent their clients. Failing to use helpful information, whatever the source, could be doing the client a serious disservice. In the event that the case was eventually decided against the client, such a failure could provide the client with grounds for a malpractice lawsuit. Therefore, the paralegal should not simply decide not to use the information.
The only situation that resolves the tension between ethics and duty to a client is the one that involves the court in the decision. By informing the court, and opposing counsel, that opposing counsel has erroneously...
By informing opposing counsel of the mistake, the paralegal and the law firm do not make secret use of privileged information. At that point, opposing counsel has the option of asking the court for relief which would bar the use of the information. At that point, the attorney can argue for reasons that the privileged information should be admissible. Even if the court decides the issue against the client, the attorney has satisfied his obligations to the client, thereby escaping malpractice liability. In this way, the court is left to resolve the tension between ethics and legal duty.
Question 2
In order to demonstrate to the law firm that a paralegal can be a source of revenue, rather than simply an expense, the first thing that I would do is to show them how much of my work is clerical, versus how much of my work relates to legal research and writing. In addition, I would look up the applicable state rules regarding what types of fees can be charged by attorneys for research work done by paralegals in their employ. Most states provide ethical, although not numerical, limitations on those fees. By choosing a number well within those guidelines, I would demonstrate to the attorneys how the time I spend in legal research and writing could be used to make money for the firm. I would also stress that clients should not be charged for my services as a paralegal when I am performing strictly clerical functions, such as making copies, taking phone calls, or faxing information.
In making my presentation to the attorneys in my firm, I would use one case as an example. For that case, I would document the time spent in clerical vs. paralegal functions. Then, using my chosen rate of compensation, I would demonstrate how revenue the firm would have obtained had they charged the client for my paralegal services, versus how much money they actually spent for those services, without being compensated. In this way, I would demonstrate that the work I perform as a paralegal could actually provide revenue for the firm, and take care of paying for work that I perform in a clerical capacity.
To determine…
The second most authoritative resource would be the 1990 Kansas Court of Appeals decision, with facts similar to the client's facts, in which the defendant was found guilty of manslaughter (lesser offense). Unless there have been major changes in the legislation or the interpretation of the legislation, such decision would help the court determine how prior courts have decided to interpret the statutes in question. Learning the reasoning behind the 1990 decision would help the court decide why it should choose not to follow the third most authoritative resource, which would be the 1980 Kansas Supreme Court decision, with facts similar to the client's facts, in which the defendant was found guilty of murder. Any state Supreme Court decision interpreting a state statute that has not been overruled would usually be the most authoritative resource; however, the passage of time, and a contrary Court of Appeals decision indicate that the courts have chipped away at the reasoning behind the 1980 case.
In order to support the claim that changing theories of law or views in society account for the differences in the 1980 and 1990 results, I would then turn to the fourth, fifth, and sixth most authoritative resources. The fourth most authoritative resource is the case is the article from American Jurisprudence, 2d, explaining the differences between murder and manslaughter cases. This is authoritative because it attempts to capture the essence of the difference between murder and manslaughter, from the point-of-view of America as a whole. To support the conclusions drawn in the article, I would suggest the fifth most authoritative resource: the 1989 law review article that surveys all of the murder statutes in all the 50 states. Although Kansas can choose to define murder and manslaughter differently than they are defined by other states, it is likely that the court will look at what other states are doing, in order to determine the difference between manslaughter and murder. To shore up that argument, I would provide the sixth most authoritative resource: the Illinois Supreme Court position. Illinois is only one state, and therefore its decision is less authoritative than a survey of the position of the various states. However, due to its proximity to Kansas, what is happening in Illinois may actually be more likely to convince the court than the resources that should be considered more authoritative.
Finally, if there were jurisdictional or procedural l issues or questions, I would present the information from the A 2004 Kansas supreme Court decision on breach of warranty in automobile sales. While a recent state Supreme Court decision would generally be considered more authoritative than the other sources listed, the fact that the decision appears to have little to do with the topic of murder or manslaughter indicates that it is not very authoritative. However, if the client were charged with murder based on a breach of an automobile warranty, or other issue that played a prominent role in the 2004 Kansas Supreme Court decision, I would actually choose to present that decision as the most authoritative.
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