Most of the time we know the answer…. but is it ethical????

I have been a paralegal for well over 15 years.  Today I was reminded of something that I tell all the new paralegals.  “Under no circumstances are you allowed to give legal advice.”

From the minute I walked into the office this morning the phone did not stop ringing and the emails just kept on coming.  Keep in mind that I am at the office at 7:30 a.m. London was calling at 7:45 and before then I wanted to make sure I sent some information over to our affiliate in Australia (maybe I could still find him awake and get a response).  There were post-its on my desk of tasks I needed to complete before the day really got crazy (my attorneys like to leave “love notes” written on post-it notes.  They really love me, I get lots of them).

My voice mail light kept blinking “yelling” at me that I had messages that needed to be pick up.  It just felt like I was never going to have a moment to breath.  In the midst of all this chaos I received a call from a client who had called twice the day before asking me a question about a QDRO (Qualified Domestic Relations Order). A “qualified domestic relation order”  is a domestic relations order that creates or recognizes the existence of an alternate payee’s right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a retirement plan, and that includes certain information and meets certain other requirements.  Reference: ERISA § 206(d)(3)(B)(i); IRC § 414(p)(1)(A)

The client wanted to know how he could go about taking the money out of the account to give it to his ex-wife.  I knew how… after all,  I was looking right at the QDRO and it was specified right there, in black and white, in paragraph 6… the amount and the way to do it.  I almost told him how to go about doing it and how he could accomplish this task the “easiest way” possible.  It would have been so easy to just get this one thing off my plate.  There were so many files I could not close and so many started projects that just remained on my desk waiting for one of the attorneys to have a chance to review and give me the final go ahead to complete my work so I could close the file and consider it done.  This was one of those times, when all I needed to do was give a simple answer and get things done and move on to the task.

I have to be honest.  A part of me wanted this client to know that I knew what to do.  I wanted to feel validated and feel intelligent.  I wanted… Ohhh I’m sure most of you have been in this place.  I stopped myself.

Instead of telling the client what to do, I listened to the question (again) and advised the client that I was in possession of the QDRO and I was reading the same paragraph he was reading but I was going to have to review the file with an attorney and I, or the attorney, would get back to him within the next day or so and give him the information he needed.

Why did I take this route?  Well, had I given the client the information he was seeking I would have been giving the client legal advice.  I would have been instructing the client how to proceed legally.  That could have been considered unauthorized practice of law and it would have violated ethics rules.

As paralegals we handle the same type of cases day in and day out and most of the cases are very similar.  It’s very easy to cross that line at times.

One thought on “Most of the time we know the answer…. but is it ethical????

  1. Of course you did the right thing, and of course it would have been unethical to do anything else.
    There is no way to protect clients and lawyers other than to draw a hard line here. Presuming you had the information and understood it perfectly—that you really could have answered the question as well as any lawyer—the next time a similar situation occurred, it might be a trickier statute,or something the paralegal did not understand as well as he or she thought they did. This happens to lawyers too—the difference is that this would be a mistake they are certified to have the opportunity to make. By giving a client advice, the paralegal is misleading the client about the level of trust they can attach to the answer.

    And if you give advice once, feel intelligent and useful, and nothing bad happens, you are likely to do it again…and again. We could argue whether lawyers should be licensed at all, whether “the unauthorized practice of law” should even exist, but it does, and remember, your employers and supervisor are held accountable if you violate the rule. That alone makes the act unethical.

    Good post. I’m certain every good paralegal feels like this, and frequently.

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