Paralegal Certification (CP / CLA) Professional Ethics and Regulation Syllabus

What is the work-product doctrine?

A rule protecting materials prepared by or for an attorney in anticipation of litigation or trial from discovery by opposing parties.

Distinguish ordinary (fact) work product from opinion work product.

Ordinary/fact work product (documents, witness statements, facts gathered) is discoverable upon a showing of substantial need and undue hardship. Opinion work product (an attorney's mental impressions, conclusions, legal theories) receives nearly absolute protection.

What showing must an opposing party make to obtain ordinary work product?

Substantial need for the materials and an inability to obtain the substantial equivalent by other means without undue hardship (FRCP 26(b)(3)).

How does the work-product doctrine differ from the attorney-client privilege?

Privilege protects confidential client communications and is absolute (unless waived/excepted). Work product protects materials prepared in anticipation of litigation, is qualified (fact work product can be overcome by need), and belongs to the attorney as well as the client.

What is a concurrent conflict of interest under Model Rule 1.7?

A conflict arising when representation of one current client is directly adverse to another current client, or when there is a significant risk that representation will be materially limited by responsibilities to another client, a former client, a third person, or the lawyer's own interests.

What is a successive conflict of interest under Model Rule 1.9?

A conflict involving a former client: a lawyer may not represent a new client in the same or a substantially related matter where the new client's interests are materially adverse to the former client's, without the former client's informed consent.

What is the 'substantial relationship' test in successive conflicts?

A test (Rule 1.9) under which a lawyer is disqualified from a matter if it is substantially related to a prior representation of a now-adverse former client, because confidential information could be used against the former client.

When may a lawyer represent a client despite a concurrent conflict (Rule 1.7(b))?

When the lawyer reasonably believes competent and diligent representation can be provided to each client, the representation is not prohibited by law, the clients are not asserting claims against each other in the same proceeding, and each affected client gives informed, written consent.

What is a conflict check?

A systematic search of a firm's records of current and former clients, parties, and related persons performed before accepting a new client or matter to identify any potential conflict of interest.

When should a conflict check be performed?

Before accepting a new client or matter, when a new party enters an existing matter, and when a lawyer or staff member moves between firms.

What information is typically run through a conflicts database?

Names of the prospective client, adverse parties, related/affiliated entities, witnesses, co-parties, and sometimes their principals/family, checked against current and former clients and matters.

What is an ethical wall (also called a screen or Chinese wall)?

A set of procedures isolating a conflicted lawyer or paralegal from a matter so confidential information is not shared, allowing the rest of the firm to continue the representation without imputed disqualification.

What is imputed disqualification under Model Rule 1.10?

The rule that when one lawyer in a firm is disqualified by a conflict, all lawyers in the firm are generally disqualified from the matter, unless the conflict is properly screened or waived.

Name three components of an effective ethical screen.

(1) The screened person is denied access to relevant files/information; (2) the screened person receives no part of the fee from the matter; (3) written notice to the affected former client and prompt, documented screening procedures. (Also: instructing all firm members not to discuss the matter.)

Why are screens especially important when a paralegal changes firms?

A paralegal who worked on a matter at one firm may carry confidential information; screening the paralegal at the new firm can prevent imputed disqualification of the entire new firm under the conflict-of-interest rules.

What is 'informed consent' as defined in the Model Rules?

A person's agreement to a proposed course of conduct after the lawyer has adequately explained the material risks of, and reasonably available alternatives to, the proposed conduct.

What does it mean to obtain a conflict waiver 'confirmed in writing'?

The client gives informed consent to a conflicted representation and that consent is documented in a writing signed by or transmitted to the client, providing a record of the agreement.

Can every conflict of interest be waived by client consent?

No. Non-consentable conflicts include those prohibited by law, those where the lawyer cannot reasonably believe competent representation is possible, and (generally) representing opposing parties in the same litigation.

What is the difference between a current-conflict waiver and an advance (prospective) waiver?

A current-conflict waiver consents to an existing, identified conflict; an advance waiver consents in advance to future conflicts. Advance waivers are more likely enforceable when the client is sophisticated and the waiver is specific.

What is the duty of candor toward the tribunal under Model Rule 3.3?

A lawyer must not knowingly make false statements of fact or law to a court, fail to correct a prior false statement, offer evidence the lawyer knows is false, or fail to disclose controlling adverse legal authority not disclosed by opposing counsel.

Under Rule 3.3, must a lawyer disclose adverse legal authority?

Yes. A lawyer must disclose legal authority in the controlling jurisdiction known to be directly adverse to the client's position if opposing counsel has not disclosed it.

What must a lawyer do upon learning that a client or witness has offered false material evidence to the court?

Take reasonable remedial measures, including, if necessary, disclosure to the tribunal—even if doing so requires revealing otherwise confidential information (Rule 3.3 overrides Rule 1.6 here).

What is IOLTA?

Interest on Lawyers' Trust Accounts—a program in which pooled interest earned on client trust funds (that are nominal in amount or held short-term) is remitted to a state fund, typically used to support legal aid for the poor.

What is the cardinal rule for handling client funds under Model Rule 1.15?

Client funds must be kept separate from the lawyer's own funds in a designated client trust account; commingling of client and lawyer money is prohibited.

What is commingling and why is it prohibited?

Commingling is mixing client trust funds with the lawyer's personal or business funds. It is prohibited because it endangers client property and obscures whether funds have been misappropriated.

What is the difference between commingling and conversion (misappropriation) of client funds?

Commingling is improperly mixing client and lawyer funds in one account; conversion/misappropriation is actually using or taking client funds for the lawyer's own purposes. Conversion is far more serious and often results in disbarment.

What records must a lawyer maintain for a client trust account?

Complete records of all trust account funds and property, including ledgers for each client, deposit/withdrawal records, and regular reconciliations, retained for a set period (often five years after termination) under Rule 1.15.

What is the general rule on attorney advertising after Bates v. State Bar of Arizona (1977)?

Truthful, non-deceptive attorney advertising is protected commercial speech under the First Amendment; states may regulate but not ban it. False or misleading communications about a lawyer's services are prohibited (Rule 7.1).

What does Model Rule 7.3 restrict regarding solicitation?

It restricts live, in-person, telephone, or real-time electronic solicitation of professional employment when a significant motive is the lawyer's pecuniary gain, especially from non-lawyers the lawyer has no prior relationship with.

What is the distinction between permissible attorney advertising and prohibited solicitation?

Advertising is a general communication to the public (TV, print, web) and is broadly allowed if truthful; solicitation is targeted, live contact with a specific potential client and is restricted because of the risk of overreaching and coercion.

What is the general rule on fee splitting with non-lawyers under Model Rule 5.4?

A lawyer or firm generally may not share legal fees with a non-lawyer, and may not form a partnership with a non-lawyer if any activities consist of the practice of law—this protects the lawyer's independent professional judgment. (Note: some jurisdictions like Arizona/Utah have created exceptions.)