Print Version
Previous PageFile uploaded: 10/9/2018

Rule 1.0. Terminology.

(a) "Belief" or "believes" denotes that theperson involved actually supposed the fact in question to be true. A person'sbelief may be inferred from circumstances.

(b) "Confirmed in writing," when used in reference tothe informed consent of a person, denotes informed consent that is given inwriting by the person or a writing that a licensed paralegal practitionerpromptly transmits to the person confirming an oral informed consent. Seeparagraph (f) for the definition of "informed consent." If it is notfeasible to obtain or transmit the writing at the time the person givesinformed consent, then the licensed paralegal practitioner must obtain ortransmit it within a reasonable time thereafter.

(c) "Consult" or "consultation" denotescommunication of information reasonably sufficient to permit the client toappreciate the significance of the matter in question.

(d) "Firm" or " licensed paralegal practitionerfirm" denotes a licensed paralegal practitioner or licensed paralegalpractitioners in a partnership, professional corporation, sole proprietorshipor other association authorized to practice law; or licensed paralegalpractitioners employed in a law firm, a legal services organization or thelegal department of a corporation or other organization.

(e) "Fraud" or "fraudulent" denotes conductthat is fraudulent under the substantive or procedural law of the applicablejurisdiction and has a purpose to deceive.

(f) "Informed consent" denotes the agreement by a personto a proposed course of conduct that is within the scope of the licensedparalegal practitioner?s licensure after the licensed paralegal practitionerhas communicated adequate information and explanation about the material risksof and reasonably available alternatives to the proposed course of conduct.

(g) "Knowingly," "known" or "knows"denotes actual knowledge of the fact in question. A person's knowledge may beinferred from circumstances.

(h) "Partner" denotes a member of a partnership, ashareholder in a licensed paralegal practitioner firm organized as aprofessional corporation, or a member of an association authorized to practicelaw.

(i) "Reasonable" or "reasonably" when used inrelation to conduct by a licensed paralegal practitioner denotes the conduct ofa reasonably prudent and competent licensed paralegal practitioner.

(j) "Reasonable belief" or "reasonablybelieves" when used in reference to a licensed paralegal practitionerdenotes that the licensed paralegal practitioner believes the matter inquestion and that the circumstances are such that the belief is reasonable.

(k) "Reasonably should know" when used in reference to alicensed paralegal practitioner denotes that a licensed paralegal practitionerof reasonable prudence and competence would ascertain the matter in question.

(l) ?Rule? refers to the corresponding Rule of Licensed ParalegalPractitioner Professional Conduct.

(m) "Screened" denotes the isolation of a licensedparalegal practitioner from any participation in a matter through the timelyimposition of procedures within a firm that are reasonably adequate under thecircumstances to protect information that the isolated licensed paralegalpractitioner is obligated to protect under these Rules or other law.

(n) "Substantial" when used in reference to degree orextent denotes a material matter of clear and weighty importance.

(o) "Tribunal" denotes a court, an arbitrator in abinding arbitration proceeding or a legislative body, administrative agency orother body acting in an adjudicative capacity. A legislative body,administrative agency or other body acts in an adjudicative capacity when aneutral official, after the presentation of evidence or legal argument by aparty or parties, will render a binding legal judgment directly affecting aparty's interests in a particular matter.

(p) "Writing" or "written" denotes a tangibleor electronic record of a communication or representation, includinghandwriting, typewriting, printing, photostating,photography, audio or video recording and electronic communications.A "signed" writing includes an electronic sound, symbol or processattached to or logically associated with a writing and executed or adopted by aperson with the intent to sign the writing.

 

Comment

Confirmed in Writing

[1] If it is not feasible to obtain or transmit a writtenconfirmation at the time the client gives informed consent, then the licensedparalegal practitioner must obtain or transmit it within a reasonable timethereafter. If a licensed paralegal practitioner has obtained a client'sinformed consent, the licensed paralegal practitioner may act in reliance onthat consent so long as it is confirmed in writing within a reasonable timethereafter.

Firm

[2] Whether two or more licensed paralegal practitionersconstitute a firm within paragraph (d) can depend on the specific facts. Forexample, two practitioners who share office space and occasionally consult orassist each other ordinarily would not be regarded as constituting a firm.However, if they present themselves to the public in a way that suggests thatthey are a firm or conduct themselves as a firm, they should be regarded as afirm for purposes of these Rules. The terms of any formal agreement betweenassociated licensed paralegal practitioners are relevant in determining whetherthey are a firm, as is the fact that they have mutual access to informationconcerning the clients they serve. Furthermore, it is relevant in doubtfulcases to consider the underlying purpose of the rule that is involved. A groupof licensed paralegal practitioners could be regarded as a firm for purposes ofthe rule that the same licensed paralegal practitioner should not representopposing parties in litigation, while it might not be so regarded for purposesof the rule that information acquired by one licensed paralegal practitioner isattributed to another.

[3] Reserved.

[4] Similar questions can also arise with respect to licensedparalegal practitioners in legal aid and legal services organizations.Depending upon the structure of the organization, the entire organization ordifferent components of it may constitute a firm or firms for purposes of theseRules.

Fraud

[5] When used in these Rules, the terms "fraud" or"fraudulent" refer to conduct that is characterized as such under thesubstantive or procedural law of the applicable jurisdiction and has a purposeto deceive. This does not include merely negligent misrepresentation ornegligent failure to apprise another of relevant information. For purposes ofthese Rules, it is not necessary that anyone has suffered damages or relied onthe misrepresentation or failure to inform.

Informed Consent

[6] Many of the licensed paralegal Practitioner Rules ofProfessional Conduct require the licensed paralegal practitioner to obtain theinformed consent of a client or other person (e.g., a former client or, undercertain circumstances, a prospective client) before accepting or continuingrepresentation or pursuing a course of conduct. See, e.g,Rules 1.6(a), 1.7(b) and 1.9(a). The communication necessary to obtain suchconsent will vary according to the rule involved and the circumstances givingrise to the need to obtain informed consent. In some circumstances it may berequired for a licensed paralegal practitioner to advise a client or otherperson to seek the advice of an attorney.

[7] Obtaining informed consent will usually require an affirmativeresponse by the client or other person. In general, a licensed paralegalpractitioner may not assume consent from a client's or other person's silence.Consent may be inferred, however, from the conduct of a client or other personwho has reasonably adequate information about the matter. A number of rulesrequire that a person's consent be confirmed in writing. See, e.g., Rules1.7(b) and 1.9(a). For a definition of "writing" and "confirmedin writing," see paragraphs (p) and (b). Other rules require that aclient's consent be obtained in a writing signed by the client. See, e.g.,Rules 1.8(a) and (g). For a definition of "signed," see paragraph(p).

Screened

[8] This definition applies to situations where screening of apersonally disqualified licensed paralegal practitioner is permitted to removeimputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18.

[9] The purpose of screening is to assure the affected partiesthat confidential information known by the personally disqualified licensedparalegal practitioner remains protected. The personally disqualified licensedparalegal practitioner should acknowledge the obligation not to communicate withany of the other attorneys and licensed paralegal practitioners in the firmwith respect to the matter. Similarly, other licensed paralegal practitionersin the firm who are working on the matter should be informed that the screeningis in place and that they may not communicate with the personally disqualifiedlicensed paralegal practitioner with respect to the matter. Additionalscreening measures that are appropriate for the particular matter will dependon the circumstances. To implement, reinforce and remind all affected licensedparalegal practitioners of the presence of the screening, it may be appropriatefor the firm to undertake such procedures as a written undertaking by thescreened licensed paralegal practitioner to avoid any communication with otherfirm personnel and any contact with any firm files or other information,including information in electronic form, relating to the matter, writtennotice and instructions to all other firm personnel forbidding anycommunication with the screened licensed paralegal practitioner relating to thematter, denial of access by the screened licensed paralegal practitioner tofirm files or other information, including information in electronic form,relating to the matter and periodic reminders of the screen to the screenedlicensed paralegal practitioner and all other firm personnel.

[10] In order to beeffective, screening measures must be implemented as soon as practical after alicensed paralegal practitioner or law firm knows or reasonably should know thatthere is a need for screening.

Effective November 1, 2018