Difficult Conflicts Anyone in the Legal Profession

¶ … 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.

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 rate that I would suggest my firm charge for my services, I would perform another type of investigation. The first thing I would do is to consult with paralegals in firms of similar size and similar structure, to determine at what rate they bill their paralegals' work. Second, I would investigate the billable rate for the attorneys in my firm and compare those rates to what attorneys charge in similar firms. From that information, I would suggest a rate that reflected a similar proportion of paralegal to attorney cost as found in the rest of the community. I imagine that work performed in my capacity as a paralegal could be billed at slightly less than half the rate of the attorneys in my firm. Therefore, if the attorneys in my firm charged $150/hour for their services, I would suggest billing $70/hour for my services. In this way, the firm is making money when I expend my expertise, but the client can remain comfortable knowing that the attorneys billed at more than twice the rate of the paralegal.

Question 3

A Kansas state statute defining murder and manslaughter is the most authoritative source because a statute reflects the legislature's determination of what constitutes murder and what constitutes manslaughter. If there was a recent case interpreting the modern statute, it would be more authoritative. However, in absence of a recent interpretation, the legislation itself provides the most authority.

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.