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 included privileged information in with legitimate discovery materials, the attorney and the paralegal shift responsibility onto third parties. 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.
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…