|Paralegals are expected to perform competent legal research, not only because your employers will insist upon it, but also because ethical standards demand it. Paralegals, like lawyers, must comply with legal ethics rules. Paralegal associations have established their own ethics codes. The National Association of Legal Assistants (NALA), the National Federation of Paralegal Associations (NFPA), and the American Association for Paralegal Education (AAEPE), have all set out codes and competencies for ethics requirements. In addition, paralegals are bound by the same ethics rules applicable to lawyers and are bound to comply with their states’ adoption of the American Bar Association Model Rules of Professional Conduct (ABA Model Rules). See ABA Model Guidelines for the Utilization of Paralegal Services. In regard to legal research under the ABA Model Rule 1.1 and Canon 6 of the NALA Code, the word ‘competence’ is paramount and permeates through the top ten tips featured below. I am not going to take up space citing to the various code sections with associated language in this short piece, you can peruse the aforementioned listed codes yourself. Instead I am going to offer the types of conduct and practice that will reflect following the rules and, just as importantly, following your moral compass, as you display your expertise as a competent, thus ethical legal researcher.
Tip One. To be considered competent, paralegal certification requires that a paralegal be knowledgeable, able and timely in conducting legal research in state and federal codes, statutes, digests, legal encyclopedias, court reports, procedures, and updating citation services.
Tip Two. To be considered competent, paralegal certification requires that a paralegal be knowledgeable and understanding of relevant Latin phrases and legal terms.
Tip Three. As a practical matter, in order to be competent, a paralegal should know and understand procedures and how to find the law relevant to the area(s) of practice in which her supervising attorney is working, including developing and maintaining excellent legal research skills in those area(s).
Tip Four. When conducting legal research, the paralegal must be cognizant of the limits and conditions of the legal research. For example, the paralegal may be asked to research a novel legal theory. It is not the paralegal’s role to determine whether the theory is frivolous or not. That will be the responsibility of the supervising attorney.
Tip Five. While it is not necessary that a paralegal has knowledge of all legal research software and databases used in every law firm or legal department, she must be a wise consumer, knowledgeable in utilizing the most cost-effective databases at their access and conducting the most time efficient research strategies.
Tip Six. Paralegals must understand that zealous advocacy for their client’s position must be secondary to their ethical obligation and that harmful precedent uncovered in their legal research must be disclosed.
Tip Seven. Legal research does not fall under the unauthorized practice of law as long as it is preparatory in nature and it merges with the work of the supervising attorney.
Tip Eight. Always make certain, as a paralegal, that you update all of the sources you are researching. For example, failure to check pocket parts and supplements while using a print annotated code or not using a citator when researching case opinions online, is a breach of your ethical duty.
Tip Nine. Legal encyclopedias are meant to be an introduction to an area of the law. The cases to which the encyclopedias cite and footnote many times won’t exactly match the same propositional ramifications of the facts and issues confronting your client. You are therefore obligated to go beyond the cited cases in the encyclopedia to search other materials, at a minimum the primary legal materials.
Tip Ten. When researching form books keep in mind that drafting a form requires much more than finding a form in your research that fits and then filling in the blanks. A form must be modified to comply with your specific facts, issues, law and jurisdiction. If you use an outdated and outmoded form without doing the additional research to bring it up-to-date legally and thus modifying it to fit your client’s situation, it may be malpractice. Also, be aware that documents created at law firms or corporations, may include non-apparent metadata naming prior parties and issues. Many firms and corporate legal departments are now using electronic scrubbing programs to protect against such confidential breaches.