Ethics Roundtable

Reporting Unethical Conduct

By Therese A. Cannon, Nancy B. Heller, RP, and Stacey Hunt, CLA, CAS

January/February 2006 Table of Contents

Question:

A question was recently posed at my local paralegal association meeting as to whom a paralegal should contact if the powers that be at a law firm don’t take action on unethical behavior by one of their paralegals (such as fraudulent billing or the unauthorized practice of law). What steps should be taken in reporting violations beyond the law firm? Is the disciplinary authority the American Bar Association, the individual state or local bar associations or some other agency? Is there a way to anonymously report violations, or does the paralegal doing the reporting have to reveal his or her name?

Hunt: Reporting your firm to outside authorities for ethics violations is a very serious step. Before you do so, make certain you have exhausted all avenues within the firm to correct the problem. If you get nowhere, your next step is to contact the disciplinary agency for attorneys in your state. This will vary from state to state. In Arkansas, Hawaii, Indiana, Iowa, Kansas, Missouri and Nebraska, for example, the state Supreme Court handles attorney discipline. In states such as Illinois, Louisiana and Michigan, there is a separate disciplinary or grievance commission. In other states, including California, Florida, Georgia, Kentucky, Mississippi and Nevada, the state bar handles attorney complaints. To locate the reporting agency for your state, go to the ABA’s Web site at www.abanet.org and click on the “Public Resources” section.

Once you locate the appropriate agency for attorney discipline in your state, the next step will vary, depending on that agency. The State Bar of California has a complaint form that can be downloaded from the bar’s Web site, filled in and returned. There also is a toll-free number to report problems with an attorney. Although the process is set up for a client to make a complaint, I telephoned the toll-free number and was told that a third party, such as an employee, also can make an anonymous complaint, as long as it’s in writing and is specific as to the person who allegedly is committing the ethics violation (i.e., you can’t name the entire firm). The complaining person must have proof documenting the unethical behavior.

Heller: First, I applaud you for recognizing your professional responsibility to report unethical behav­ior. As paralegals, reporting unethical behavior outside the law firm is complicated because we belong to an unregulated profession. Most ethical codes include canons that address unethical behavior by para­legals along with a lawyer’s responsibility to ensure that a para­legal’s behavior is both professional as well as ethical. This is where the lawyer and paralegal are tied together because the lawyer assumes ultimate responsibility for the paralegal’s work, which would presumably relate to the alleged unethical behavior or UPL.

The ABA Model Guidelines for the Utilization of Paralegal Services defines a lawyer’s responsibility for a paralegal’s behavior and conduct in Guideline 1: “A lawyer is responsible for all of the professional actions of a paralegal performing services at the lawyer’s direction and should take reasonable measures to ensure that the paralegal’s conduct is consistent with the lawyer’s obligations under the rules of professional conduct of the jurisdiction in which the lawyer practices.”

The National Federation of Paralegal Associations’ Model Code of Ethics and Professional Responsibility and Model Disciplinary Rules provide principles for ethics and conduct and rules for their enforcement, both of which every paralegal should aspire to. Canon 1.2 of the Model Code states, “A paralegal shall maintain a high level of personal and professional integrity.” The ethical considerations that fall under that canon address specific behaviors and practices to which you refer. A complete copy of the Model Code and Model Rules can be downloaded for free at www.paralegals.org.

Regarding remaining anonymous, I think that depends on the process of the disciplinary or regulatory body where the complaint is made. If there is any sort of formal hearing of the charges, the accused most likely will be entitled to know his or her accuser. While this might cause some ill will and bad relations, you have a professional and ethical responsibility to report unethical behavior or UPL violations.

Cannon: Both Nancy and Stacey advocate reporting to an outside agency; however, some states, including Cali­fornia, don’t have an ethics rule that would require a lawyer to report unethical conduct. And if lawyers are not required to report it, paralegals, who are not subject to direct regulation, are not required to report it either.

ABA Model Rule of Professional Conduct 8.3(a) requires a lawyer “who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer” to “inform the appropriate professional authority.” Most jurisdictions have adopted this provision or one close to it, but California has no comparable provision and at least one state, Georgia, uses “should” instead of “shall” in the provision, indicating that the reporting is not mandatory. Note that not all violations of the ethics rules would have to be reported under Rule 8.3. The conduct that you used as examples in your query (fraudulent billing and UPL, which are crimes in most states) constitute pretty serious violations and would likely “raise a substantial question” about the lawyer’s honesty and fitness to practice.

NFPA’s Model Code, which Nancy cites, does contain one relevant Ethical Consideration. EC-1.2(f) states: “A paralegal shall advise the proper authority of non-confidential knowledge of any dishonest or fraudulent acts by any person pertaining to the handling of the funds, securities or other assets of a client. The authority to whom the report is made shall depend on the nature and circumstances of the possible misconduct (e.g., ethics committees of law firms, corporations and/or paralegal associations, local or state bar associations, local prosecutors, administrative agencies, etc.). Failure to report such knowledge is in itself misconduct and shall be treated as such under these rules.” However, there are two important narrowing factors in this standard. First, this “snitch” rule applies only to dishonesty and fraud regarding a client’s assets, so it would not require reporting UPL as mentioned in your question. Second, it requires reporting of nonconfidential information only. It’s hard to imagine how a paralegal would obtain such information in any manner except in the role of the para­legal working on a client matter, which would make it confidential.

A paralegal should report outside the firm only as a last resort. I believe you should raise the unethical or illegal conduct with the paralegal manager or super­visor and, if necessary, move up the firm’s chain of management to get one of the lawyers to rectify the situation and to prevent further misconduct. I recommend reporting to the appropriate state agency only if the conduct is serious, ongoing and harmful to a client. Also, remember that when you report, you are reporting the lawyer who is responsible for the paralegal’s misconduct because the paralegal is not directly subject to the jurisdiction of the disciplinary authority.

If the misconduct continues, you should consider leaving the firm. A firm that demonstrates a pattern of unethical conduct and doesn’t take steps to rem­edy such conduct isn’t a place a good paralegal or lawyer should work.

Therese A. Cannon is the associate director of the Western Association of Schools and Colleges, Senior Commission in Alameda, Calif. She also serves as the educational consultant to the American Bar Association Standing Committee on Paralegals. She is the author of “Ethics and Profes­sional Responsibility for Paralegals” and “A Concise Guide to Paralegal Ethics,” both published by Aspen Publishers, Inc., and is co-author of “Paralegals, Profitability, and the Future,” published by the ABA. She has been teaching and lecturing on legal ethics for more than 25 years.

Nancy B. Heller, RP, has been a litigation paralegal since 1978, and has been employed with the Columbus, Ohio-based law firm of Vorys, Sater, Seymour and Pease for the past 20 years. She has been a frequent seminar lecturer on the topic of ethics and is a co-author of the National Federation of Paralegal Associations’ Model Code of Ethics. Since 1999, she has served on the adjunct faculty for the Capital University Law School Paralegal Program where she teaches Ethics and Law Office Practice and Civil Litigation II: Trial Preparation and Practice. She also is a co-author of the ethics section for NFPA’s Paralegal Advanced Competency Exam Study Manual.

Stacey Hunt, CLA, CAS, is a graduate of the Fresno City College paralegal program and a litigation paralegal with Duggan Smith in San Luis Obispo, Calif. She is the co-author of Evidence Management for the Paralegal (Cengage, 2007), as well as two other paralegal books. Hunt taught legal writing and ethics for the paralegal studies program at California Polytechnic State University in San Luis Obispo. She is a past president of the California Alliance of Paralegal Associations and currently is working on modules for the Commission for Advanced California Paralegal Specialization’s new online program.