Term
UNAUTHORIZED PRACTICE OF LAW (U.P.L.) |
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Definition
Giving legal advice, if legal rights may be affected, by anyone not licensed to practice law. 1. The practice of law is regulated by state government and court rule to protect the public from incompetent and unscrupulous practitioners. 2. The profession of law, in most cases, requires taking a qualifying examination after proving the required educational background has been obtained. |
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Term
| ABA MODEL RULES OF PROFESSIONAL CONDUCT |
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Definition
A recommended set of ethics adn professional conduct guidelines for lawyers, prepared by the American Bar Association, originally released in 1983; prior release was Model Code of Professional Conduct. |
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Term
The Paralegal and Licensing. |
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Definition
1. With few exceptions, no state licensing requirements exist for paralegals. 2. Some states have enacted legislation establishing licensure to perform certain paralegal functions. |
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Term
| Non-lawyers can represent parties legally when: |
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Definition
They are before the Social Security Administration, the Patent Office and other agencies. Remember, these are Federal Agencies, not state. |
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Term
| What are the penalties for the Unauthorized Practice of Law? |
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Definition
| The specific conduct the courts hold to be the practice of law varies from state to state, including the penalties, which may include criminal prosecution ranging from misdemeanors to felonies. |
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Term
Define Practice of Law (this definition is a direct quote from the yellow handout we received during our first class) |
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Definition
"Practice of the Law" in Mo. 484.010.1 RSMo. The appearance as an advocate in a representative capacity or the drawing of papers, pleadings or documents or the performance of any act in such capacity in connection with proceedings pending or prospective before any court of record, commissioner, referee or any body, board, committee or commission consituted by law or having authority to settle controversies. |
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Term
Define Law Business (also direct quote from the yellow handout we received the first day of class) in Missouri 484.010.2 RSMo. |
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Definition
| The advising or counseling for a valuable consideration of any person, firm, association or corporation as to any secular law or the drawing or the procuring of or assisting in the drawing for a valuable consideration of any paper, document or instrument affecting or relating to secular rights or the doing of any act for a valuable consideration in a representative capacity, obtaining or tending to obtain or securing or tending to secure for any person, firm, association or corporation any property or property rights whatsoever. |
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Term
3 Disclosures a Paralegal Must Make to a Client |
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Definition
1. I am a paralegal, not an attorney 2. I cannot give you any legal advice. 3. All of our communications will be confidential and relayed to the attorney. |
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Term
| Avoiding UPL: Holding Oneself Out |
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Definition
Parties with whom the paralegal has contact must know the limited role the person plays on the legal team as a paralegal. |
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Term
| Avoiding UPL: Giving Advice |
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Definition
A paralegal cannot give a legal opinion or give legal advice. If legal rights may be affected, it is probably legal advice. |
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Term
| Avoiding UPL: Filling Out Forms |
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Definition
| UPL may consist of a nonlawyer who explains, recommends, advises, and assists in the selection, completion, and corrections of errors and omissions of legal forms. |
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Term
| Avoiding UPL: Representing Clients |
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Definition
| 1. Some jurisdictions and administrative agencies do permit those who are not licensed or admitted to practice to appear in court or before administrative law judges or referees on behalf of clients. 2. No uniformity of rules exists outlining when nonlawyers may represent parties or the specific agencies or courts before which nonlawyers can appear. Any appearance before a court must be approved carefully. 3. The presentation of a request for continuance of a case may be considered by some courts to be the practice of law. 4. Some federal agencies specifically permit nonlawyers to appear. Most notable are the Social Security Administration and the U.S. Patent Office. |
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Term
Avoiding UPL: Guidelines Guideline 1 of 3 |
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Definition
Legal assistants should: 1. disclose their status as legal assistants at the outset of any professional relationship with a client, other attorneys, a court or administrative agency or personnel thereof, or members of the general public. |
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Term
Avoiding UPL: Guidelines Guideline 2 of 3 |
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Definition
Guideline 2
Legal assistants should not: 1. establish attorney–client relationships; set legal fees, give legal opinions or advice, or represent a client before a court, unless authorized to do so by said court; nor 2. engage in, encourage, or contribute to any act that could constitute the unauthorized practice law. |
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Term
Avoiding UPL: Guidelines Guideline 3 of 3 |
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Definition
Guideline 3
Legal assistants may perform services for an attorney in the representation of a client, provided that 1. the services performed by the legal assistant do not require the exercise of independent professional legal judgment; 2. the attorney maintains a direct relationship with the client and maintains control of all client matters; 3. the attorney supervises the legal assistant; 4. the attorney remains professionally responsible for all work on behalf of the client, including any actions taken or not taken by the legal assistant in connection therewith. |
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Term
Regulating the Paralegal Profession: State Licensing |
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Definition
| The traditional role of the attorney in advising and representing clients is limited to those who are admitted to practice as lawyers under the applicable state law (here of course, it would be Missouri). Some exemptions do exist that allow nonlawyers to perform certain services under state law. |
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Term
Regulating the Paralegal Profession: Federal Practice |
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Definition
Federal Practice
Under federal regulations nonlawyers may represent parties before the Social Security Administration, the Patent Office, and other agencies. |
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Term
ETHICAL RULES AND OBLIGATIONS ATTORNEY/PARALEGAL |
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Definition
| 1. Lawyers generally need to follow only one set of ethics guidelines. Although it may be a set enacted by the state legislature, it usually is one adopted by the supreme court of the state in which they practice. 2. The most widely adopted is the Model Rules of Professional Conduct. 3. No single source of ethical rules is set out for the paralegal. 4. Absent a single unified body of ethical rules, legal assistants must follow state statutes and conduct themselves in conformity with the rules of professional conduct applicable to attorneys and with the ethics opinions of their professional associations. 5. Case law tells us that the paralegal is subject to the same rules as attorneys. Paralegals, therefore, can look to their state’s adopted set of rules, or code, of professional responsibility for guidance in deciding what is appropriate or inappropriate from an ethical perspective. |
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Term
| Uniformity of Paralegal Ethics |
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Definition
At present, unlike a violation by an attorney of the state-adopted rules that can result in loss of the right to practice (disbarment), no such sanction exists for the paralegal breach of association rules except loss of membership. NOTE: watch this definition - see penalties for the UPL - i.e.: penalties, which may include criminal prosecuting from misdemeanors to felonies. |
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Term
| Two paralegal associations which have ethics codes: |
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Definition
| 1. National Federation of Paralegal Associations, Inc. (NFPA) 2. National Association of Legal Assistants (NALA) |
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Term
What is conflict of interest: |
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Definition
| Conflict of Interest 1. A conflict of interest exists if the representation of one client will be adverse to the interest of another client. 2. Conflicts of interest may arise for paralegals when they change from one employer to another if the previous employer represented a client or handled certain matters for a client during the period in which the paralegal was employed. *NOTE- the ultimate obligation to determine the conflict of interest of the paralegal/staff, rests with the attorney |
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Term
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Definition
| This is an environment in which an attorney or a paralegal is isolated from a particular case or client to avoid a conflict of interest or to protect a client’s confidences and secrets. |
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Term
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Definition
| Freelance or independent paralegals who work for more than one firm or attorney face the potential problem of conflict of interest. |
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Term
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Definition
| This is a duty imposed on the attorney and each member of the legal team working under the supervision of the attorney to enable clients to obtain legal advice by allowing the client to freely and openly give the members of the legal team all the relevant facts without fear of disclosure of these facts except in limited situations, such as to prevent commission of a crime or to defend against a client’s suit. |
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Term
| Attorney-Client Privilege |
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Definition
A rule tht says a client can tell his or her lawyer anything about the case without fear that the attorney will be called as a witness against the Client 1. This privilege is found in the state or federal evidence code and is a rule of evidence that applies in cases where the Rules of Evidence apply: a court of law, a deposition, or other places where a witness is under oath: such as interrogatories, responses to requests for documents or grand jury hearings. 2. The “privilege” belongs to the client not to the attorney. 3. The person claiming the privilege, usually the client, has the burden to establish the existence of the privilege. |
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Term
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Definition
| Privilege is not automatically invoked. The person claiming the privilege - usually the client- has the burden to establish the existence of the privilege |
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Term
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Definition
| A special legal right. (wow ain't that special) |
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Term
| Extension of Attorney-Client Privilege to Others |
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Definition
The efficient administration of justice requires the privilege to extend to agents of the attorney. These would include, legal assistants, accountants and other experts. The person claiming the privilege, usually the client, has the burden to establish the existence of the privilege. |
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Term
Common Interest Privilege |
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Definition
| The purpose of the common interest privilege is to permit a client to share confidential information with the attorney for another who shares a common legal interest |
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Term
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Definition
Work-product doctrine is different from both the attorney-client privilege and the duty of confidentiality. The attorney-client privilege and the duty of the confidentiality relate to the informatio provided by the clients regardless of whether they involve potential litigation. Work Product doctrine provides a limited protection for material prepared by the attorney or those working for the attorney in anticipation of litigation for the trial. |
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Term
| Exceptions and limitations to the Work-Product Doctrine. |
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Definition
Does not cover documents prepared in the normal operation of the client’s business, such as sales reports, data analyses, or summaries of business operations. In other words, the client cannot obtain protection for internal business documents by giving them to the attorney and thereby protect them from discovery by the other side because they are in the possession of the attorney. |
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Term
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Definition
| Third-party documents are documents prepared by a third party in the ordinary course of business that would have been prepared in similar form if there was no litigation. |
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Term
Exception(s) to the Third-Party Document Exception |
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Definition
Courts have made an exception when a lawyer is trying to find out the other party’s strategy by asking about documents already in his/her possession. that would not be protected under the third-party exception. To protect the lawyer's trial strategy, the Court may impose a privilege where it would not otherwise exist. |
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Term
| Governmental Attorney Exception |
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Definition
The attorney-client privilege does not extend to government attorneys. Individuals and corporations are both subject to criminal liability for their transgressions. Individuals will not talk and corporations will have no incentive to conduct or cooperate in internal investigations if they know that any information disclosed may be turned over to the authorities...A state agency however cannot be held criminally liable.. Government attorneys should have no privilege to shield relevant information from the public citizens to whom they owe ultimate allegiance, as represented by the grand jury. |
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Term
| Inadvertent disclosure of confidential information |
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Definition
The admissability of the inadvertently disclosed documents may hinge on the steps the firm takes before and after the disclosure. Having a proper screening policy in place and monitoring this policy may prevent a claim of negligence. The treatment will depend on the individual jurisdiction. The courts follow no single policy. |
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Term
There are three judicial views on handling the inadvertent disclosure of confidential information under the attorney-client privilege 1. Automatic waiver 2. no waiver 3. balancing test Other side is definitions & stuff |
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Definition
| The three judicial views on handling the inadvertent disclosure under the attorney-client privilege are 1. automatic waiver (these cases hold that once the confidentiality is breached, the privilege is therefore waived. 2. no waiver (there can only be a waiver when a client makes a knowing voluntary waiver of the privilege. Therefore, the attorney's inadvertent disclosure does not constitute a waiver. 3. balancing test - The courts using the balancing test looked to the nature of the methods taken to protect the information, efforts made to correct the error, the extend of the disclosure and fairness. Remedies under this test range from unlimited use of the disclosed materials, to court-ordered return of the documents, to disqualification of attorneys who have reviewed the inadvertenly disclosed privileged documents. |
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Term
| Internal Investigations and Evidentiary Privilege |
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Definition
Internal investigations and audits mandated by state and federal regulation create a body of documents, some, or none of which may be subject to evidentiary privilege. Business, and particularly corporations with publicly traded stocks, are under stat and federal requirement to take a proactive approach to determine wrongdoing and identify violations of statutes and regulations. These investigations and "AUDITS" create a body of documents, all, some, or none of which may be subject to evidentiary privilege |
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Term
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Definition
| 1. The demands of employers and courts will dictate that educational requirements be increased as the paralegal becomes a more and more important member of the legal services team. 2. The courts will look to credentials and training in making determinations of who may act and bill for services as a paralegal. |
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Term
| What are the 6 Truths of Life |
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Definition
6 Truths of Life
1. You cannot touch all your teeth with your tongue.
2. All idiots, after reading the first truth, will try it.
3. And discover that the first truth is a lie.
4. You're smiling now because you're an idiot.
5. You soon will forward this to another idiot.
6. There's still a stupid smile on your face.
I apologize about this.
I'm an idiot and I needed company...
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