One of the most important rules of ethics that lawyers must abide by is not communicating with the opposing parties who are represented by counsel. The American Bar Association’s Model Rule 8.4 unconditionally extends this ban to paralegals as it prohibits lawyers from asking other legal professionals to do something that they’re not supposed to.
But are paralegals allowed to communicate with an opposing attorney? If so, are there any restrictions?
If you’re a paralegal who is trying to efficiently navigate opposing counsel communications, this handy guide has you covered.
Here’s how to properly talk to the opposing counsel.
Let’s get started!
Keep Model Rule 8.4 Top-of-Mind
The initial part of the American Bar Association’s Model Rule 8.4 is pretty straightforward. It states, “It is professional misconduct for a lawyer to (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”
While this rule does not prohibit an attorney from communicating with the opposing counsel, many unethical lawyers will ask a paralegal to do the immoral tasks for them. For instance, an attorney working at a personal injury law firm might ask a paralegal to impersonate a local reporter to obtain important information the lawyer couldn’t otherwise get from the opposing counsel.
The American Bar Association’s Model Rule 8.4(c) prevents attorneys from participating “in conduct involving dishonesty, fraud, deceit, or misrepresentation.” If a lawyer cannot talk to the opposing counsel under false pretenses, then they shouldn’t find a loophole by asking a paralegal to do their dirty work.
If you’re a paralegal who finds yourself in this position, always say no.
Don’t Trust the Opposing Counsel
Some court cases have the potential to last for years. During this time, the opposing law firms might develop a relationship through their continuous interactions. Some lawyers might even go as far as asking for “professional courtesy” between the two firms. This is a huge red flag because these are often the same lawyers who would take advantage of that civil relationship.
In the legal industry, knowledge is power. An unethical attorney may reach out to the opposing counsel’s paralegal in an attempt to bypass the other lawyer. In instances like this, the attorney will call the paralegal and act extremely laid back and casual, easing them into a false sense of security.
It’s crucial that the paralegal does not fall under the smooth-talking attorney’s spell. It doesn’t matter how much respect they have for the attorney or how much they like them. They should never send them any information without the direct permission of the supervising lawyer.
Understand the Unauthorized Practice of Law
Most legal professionals know that Canon 3 of the NALA Code of Ethics bans paralegals from being involved in the unauthorized practice of law. While this rule is simple to comprehend in writing, it can become difficult to navigate when it’s applied to abstract real-life scenarios, such as communicating with the opposing counsel.
Let’s say the opposing lawyer can’t get a hold of a paralegal’s supervisor and asks them to extend the deadline on filing a reply brief. Can the paralegal approve that extension?
As a paralegal, it’s essential to protect yourself on matters involving communications with the opposing counsel. If you are unsure of something, always discuss your concerns with the lead attorney at your firm.
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