Chapter 2 Hypotheticals

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Apr 3, 2024

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Chapter 2 Hypotheticals (#’s 4 -7) 4. Joan Johnson is a paralegal for a large law firm that handles corporate and securities work. The lawyer for whom Joan works always introduces her to clients and encourages clients to call her for updates on matters. Joan enjoys this work and is good at it. One day a client, Ken Kaplan, calls her about a new corporate entity he is forming. He explains what the corporation will do and asks whether it would be better to incorporate in New York or in Delaware. Can Joan answer? What should she do? What are the consequences of the different actions she might take? ▪ Joan can answer but she should not. She should consult with her attorney first before relaying the advice to Ken. Consequences of UPL can be a misdemeanor in more than 30 states, she can receive an injunctive relief, or she may be liable for negligent performance, unenforceability of the contract for legal services, court dismissal, and voiding of a judgement which a nonlawyer represented the prevailing party. 5. Laura Lane is a business litigation paralegal for a firm that handles construction litigation. A prospective client comes in to see an attorney, Mary Moore, who is tied up in court and asks Laura to interview the client. The client, Natalia Allende, tells a story about the faulty construction done on the remodeling of his kitchen. He asks Laura, “Do I have a good case?” What should she say? He also asks: “Can I handle this myself, or do I need an attorney?” Laura is certain that Mary will want to take the case and that Natalia will get some compensation for damages. How should Laura answer each of Natalia’s questions? Can Laura get Nathan to sign an agreement for Mary to represent him? Can Laura get Nathan what kind of fee agreement Mary would normally make with a client in a case like this? What ethics rules are implicated? Does it make any difference if Laura and Nathan are friends? ▪ Laura should not say anything because she is just a paralegal, she would have to speak with her attorney. She should explain to Nathan that she is not allowed to give legal advice because she is just a paralegal. Laura cannot get Nathan to sign an agreement for Mary to represent him, Mary must be directly involved in making the decision to undertake the representation and in making the arrangements with the client including the fees to be charged for the work. It should not make a difference if Laura and Nathan are friends, she should be professional about her work. 6. Owen Wilson, a paralegal in a personal injury firm handles a lot of negotiations on cases. One day, an insurance adjuster, Peter Paul, calls to discuss a new case. After a few minutes, the adjuster says, “What if we just settle this for $20,000 right now?” What should Owen do? What if Owen knows that the client is willing to settle for $15,000? After more discussion, Owen realizes that Peter believes that Owen is a lawyer. Should Owen do anything about this? If so, what? ▪ Owen should relay the adjuster’s settlement to his advising attorney, even if he knows the client is willing to settle for less. He is in under no circumstance able to represent the client on their behalf. Owen should inform the adjuster that he is just a paralegal and disclose that he is not licensed to practice law, but he will give his statements to his advising attorney.
7. Carlos Castillo has been practicing law for 30 years. His office has an associate, a secretary, and an intern, and his work focuses on criminal defense and civil rights. Paul McAfee is a law school graduate who has not passed the bar examination but is knowledgeable about employment discrimination and has appeared before the state commission against discrimination for a reputable civil rights non-profit. Carlos allows Paul to share office space with his firm and utilize the firm’s support staff so that t hey can build the new practice area of employment discrimination cases before the state agency and the Equal Employment Opportunity Commission (EEOC) with Paul working as a paralegal. Carlos agrees to pay Paul two-thirds of any fees collected and to retain one- third. Paul is listed on the firm’s letterhead and business cards as a paralegal. Carlos has little or no experience in discrimination cases. No one in the office is assigned to supervise Paul. Paul told Carlos that he was not required to be a member of the bar to practice before the state commission. Carlos gave Paul written authorization to sign his name to appearance forms, administrative complaints, and other filings before the state commission and the EEOC. Paul identified prospective clients by r eviewing the commission’s list of pro se complaints and sent each a letter on firm letterhead asking practice and exercised sole discretion in deciding to accept discrimination cases. He determined fee arrangements, executed fee agreements, and collected fees. Paul filed complaints, drafted pleadings, conducted discovery, counseled clients as to their legal rights, settled cases, and performed all other legal work on the cases. Is there anything wrong with this arrangement? What ethical rules are implicated? What is likely to happen if Paul makes a mistake in representing a client before the sate agency? Does it make a difference that nonlawyers are allowed to appear before the state agency? What are the consequences to Carlos and to Paul? ▪ This arrangement is wrong and unethical. For instance, Carlos should assign a supervising attorney for Paul, and Paul should have never determined fee arrangements, execute the fee agreements, and collected the fees, and he should have not settled cases, and perform other legal work that requires attorney supervision. Ethical rules that are implicated are the UPL, the Code of Ethics and Professional Responsibility/Model Code of Ethics and Professional Responsibility, and the Model Guidelines for the Utilization of Paralegal Services. If Paul makes a mistake in representing a client before state agency, he can be taken to court for malpractice. Yes, it makes a difference when non lawyers are allowed to appear before the state agency, because they could be there as a messenger. The consequences given to Carlos are disbarment, suspension, probation, and be reprimanded. Carlos can also be prosecuted criminally, and he must take full responsibility for Paul. Paul may get a fine, revocation of paralegal license, and loss of job.
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