Malik is a paralegal who works for Lily, a family law attorney in the state of Utopia. In the Dangerfield case, Malik’s employer represents the husband in a divorce matter. One day early in the case, the husband calls Malik and asks him to have a subpoena issued to Statewide Cellular Telephone. The husband wants to use the subpoena to request copies of his wife’s text messages because he believes they will help prove that his wife has been having an extramarital affair. Malik knows that, in Utopia, marital infidelity is not grounds for divorce and will not be considered in dividing the marital estate. From the following answer choices, which describes Malik’s best approach?
Explanation
Answer: D - Tell the husband that he cannot arrange for a subpoena unless Lily instructs him to do so, and that proof of an extramarital affair will have no legal effect on the husband’s case. Here, the husband has asked Malik to obtain a subpoena and have it served. Since subpoenas are considered court orders, Malik’s best approach in this situation is to state that he needs Lily’s authorization to proceed with obtaining the subpoena (unless Lily has given other instructions or authorization to Malik). In some situations, clients may not understand the law or the effect of a law, and a paralegal can help the client understand something like a subpoena or a procedural matter. But the paralegal must be careful to explain only substantive or procedural matters that the paralegal clearly understands and that do not exceed the scope of authority implicitly or expressly authorized by a supervising attorney. Answer A is not the best approach because encouraging the husband’s interest is not a good approach if proof of infidelity has no legal effect on the divorce proceeding. Answer B is not the best approach because it attempts to avoid the issue. Answer C is not the best approach because a decision to divorce or reconcile rests solely with the client.
