The Empowered Paralegal

This is another “ditto for paralegals” post, i.e., a post that riffs on a post from another blog originally intended for attorneys, but which I feel applies as well to paralegals. This one is another excellent post by Judge Larry Primeaux whose excellent blog as a Chancery Judge has been the basis for several posts here. Judge Primeaux writes about the phenomenon of vicarious  traumatization as experienced by attorneys who “see almost every conceivable form of mankind’s capacity to be inhuman … violence and its physical and emotional scars, financial coercion, verbal cruelty, sexual abuse, use of children and other family members as weapons, defamation, and on and on in a breathtaking, seemingly inexhaustible panorama of brutality that seems almost limitless in the scope of its imaginative cunning.” Of course it is not only attorneys who endure such experiences, but each member of the legal team. Indeed, in many instances the paralegal has the more direct experience, acting as a shield between the attorney and the client – taking the phone calls, doing the initial interviews, managing the client as the legal team prepares to ADR or litigation.

Because I am 99% certain he won’t mind I’m copying his entire post here, but encourage you to follow this link and troll through his many useful posts:

Lawyers who represent people see almost every conceivable form of mankind’s capacity to be inhuman. We see violence and its physical and emotional scars, financial coercion, verbal cruelty, sexual abuse, use of children and other family members as weapons, defamation, and on and on in a breathtaking, seemingly inexhaustible panorama of brutality that seems almost limitless in the scope of its imaginative cunning.

Over time the exposure takes its toll. Some lawyers develop a defensive cynicism that effectively shields them from their clients’ pain, but also prevents them from empathizing. Other lawyers experience burnout that makes them ineffective. Still others experience sleeplessness, irritability, sadness, loss of concentration, difficulty in intimacy, depression, and a panoply of other symptoms. Your clients’ problems too often intrude into your own life and can come perilously close to becoming your own problems.

All attorneys who represent people experience stress. Even extreme stress. Some deal with it in a healthy way. Too many others self-medicate with alcohol, drugs or toxic behavior.

There is research that dubs this phenomenon “Vicarious Traumatization.” It is the process by which a lawyer who comes into contact with the client’s traumatization can become traumatized himself or herself.

Here is a link to a paper published by the American Bar Association entitled Secondary Trauma and Burnout in Attorneys: Effects of Work with Clients Who are Victims of Domestic Violence and Abuse, by Andrew P. Levin, MD.

A lawyer is quoted in the article:

“It actually feels good to hear that I am not the only one who feels depressed and helpless and that these issues are worth studying. Fortunately, the stress has decreased with experience and time for me, but I still have vivid memories of quite traumatic experiences representing victims of domestic violence who were so betrayed that it was difficult to continue to have faith in humankind.”

Read the paper and see whether you recognize yourself there.

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In a series of posts on handling unethical conduct by the attorney for whom you work, I’ve emphasized the advisability of reaching out to others rather than attempting to handle the situation on your own. While other paralegals and paralegal associations can be quite helpful, I’ve advised getting legal advice from an attorney outside of your firm (indeed, I’d shoot for attorneys that do not even deal with your firm on a regular basis.) One advantage of going to an attorney is that you are protected by the attorney/client privilege.

In those posts I’ve pointed out that there may be some protection in “Whistleblower statutes.” A recent post on ABAJournal.com</em>illustrates how nebulous that protection can be and how important it is to get competent, objective, outside advice. The story itself involves an attempt to use whistleblower status by an attorney, but the principle of the case would apply to paralegals as well:

A federal judge has dismissed a suit by an associate who claims he was fired from his personal injury law firm for refusing to participate in an unethical referral scheme.

An illegal discharge claim can’t be premised on a violation of legal ethics rules, according to the Dec. 29 opinion by Judge John Heyburn II of Louisville, Ky. The ABA/BNA Lawyers’ Manual on Professional Conduct summarizes the decision.

…Heyburn said the allegations did not support a claim of illegal discharge. Employees in Kentucky can be fired at will, and the state allows a public policy exception based only on constitutional or statutory provisions, he said.

Gadlage had said his firing violated the public policy against lawyer conflicts of interest expressed in Kentucky Supreme Court rules. But a public policy from a court rule is insufficient to support a wrongful discharge claim in Kentucky, Heyburn said.

“This is not a pretty business that Mr. Gadlage has seen and fought against in his own way,” Heyburn wrote. “Unfortunately, Kentucky does not afford him a legal remedy in these circumstances.”

While this may not be the last word on the topic, even in Kentucky, the analysis seems valid based on the law in several states I’ve reviewed.

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I’ve posted here from time to time about bar associations integrating paralegal professionals into their meetings and membership, and about court recognition of the role and value of paralegal professionals, each such instance being an advancement for the paralegal profession as well as the individual paralegals involved. Today, an additional step – a paralegal appointed to Washington State Bar’s Practice of Law Board. Here’s the announcement from Theresa Prater of NFPA from the NFPA LinkedIn group board:

Congratulations to NFPA Member Sue Beichley, Appointed to the Washington Practice of Law Board!

Sue Beichley, a paralegal at Injury at Sea in Seattle, WA, a member of the Washington State Paralegal Association, was recently appointed to the Washington State Bar’s Practice of Law Board. She attended her first meeting last week in Olympia.

This is a great stride for the paralegal profession — courts and lawyers who value input from our profession.

More information on the Practice of Law Board can be found at http://www.wsba.org/Legal-Community/Committees-Boards-and-Other-Groups/Practice-of-Law-Board.

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A lot has happened during my recent period of incapacitation. I doubt I’ll be able to catch up on it all, but should be at least post more regularly for awhile. One development I do want to mention is the return of Melissa to her Paralegalese blog. Interestingly, the return seems to have been precipitated by a message from her former  boss in which he acknowledges that “But, 22 months later (and moving on to my 5th paralegal since she left, by the way), I could not shake the feeling that I never properly said goodbye, or how much Melissa was appreciated while she was here (and even worse, how much she was unintentionally underappreciated).” I feel this is all too often the case. Many posts here have been addressed to law firms encouraging them to find real ways to learn and show appreciation for (mainly in terms of respect) the value of their paralegals as members of the legal team. I suspect, however, that since this is a “paralegal” blog (although not written by a paralegal) few attorneys ever hear my calls and I end up “preaching to the choir.” For those attorneys who do read this blog, please do also “A Message From the  Boss.” It could help keep you from being in that boss’s position.  It is true: all too often we do not know what we’ve got until it’s gone – http://www.youtube.com/watch?v=xWwUJH70ubM (Sorry Counting Crows fans, Joni’s version is still the best.!)

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My last post was a set of 10 New Year Resolutions for Paralegals. Number two on the list is “Join a professional association.” I am, in general, a big fan of professional associations as anyone who checks out the “Professional Associations” category can attest. When run effectively they provide benefits to the individual members, to the public, and to the profession itself. In this “guest post” Clifford Smith argues that the ABA and most paralegal professional associations have made the profession into one that is subservient rather than independent, thus curtailing rather than enhancing its historical roll. [Clifford also contributed an article on Independent Paralegals to The Empowered Paralegal Professionalism Anthology.] When I contacted Clifford for permission to re-publish his “The Paralegal Contract” article, he informed me that there is now a Part II to “The Paralegal Contract.” Only Part I is reprinted here, but Part II can be read by clicking this link.

Here is Part I:

The Paralegal Contract
By Clifford C. Smith*

If the philosopher Jean-Jacques Rousseau were alive today, what would he have to say about paralegals? 1 Would he say paralegals are born free and everywhere they are in chains? Perhaps not such a dramatic statement, yet at the heart of his central work, Du contrat social ou Principes du droit politique, there is an underlying premise of freedom.2
Here, The Paralegal Contract briefly describes the evolution of the independent paralegal movement and the organizations that have emerged around paralegals, vying for control of the paralegal profession through certifications, regulations and educational guidelines. Ultimately, The Paralegal Contract encourages all paralegals to act from a deeper center of awareness, as opposed to the subservient support role that has been endorsed by paralegal organizations and advanced by the ABA’s Standing Committee of Paralegals. In many ways, law and its application has become separated from the higher principles of equality and social justice, resulting in unhappiness among many members of the legal profession, from paralegals to lawyers.

Much of the legal work being performed today is extrinsically motivated and revolves around personal financial outcomes, rather than on the intrinsic motivation to deliver legal services to those who need it the most – poor people with no access to justice.3 With the present global economic crisis, the way law will be delivered and practiced is being transformed, as consumers look for affordable solutions to legal problems that don’t involve traditional aspects of law delivery. In effect, corporations and small business will continue to slash their budgets and look for legal solutions through self-help resources, interactive legal software, internet-based law solutions, alternative dispute resolution, and online mediation. Paralegals have an opportunity to be at the forefront of this major transformation and shift, while also challenging and expanding their present roles in the legal workplace.

Paralegals – A Brief History
There are two distinct paralegal groups that emerged around the same time – one was the legal assistant who worked for a lawyer or law firm – and the other was the independent paralegal, which evolved out of the self-help law movement driven by the countercultural movement of the 1960s. Both took rather different paths. For the most part, the legal assistant was not a mainstream concept in the 1960s or 1970s, since most legal assistants worked behind the scenes and little was known about their actual function in the law office. On the other hand, the self-help legal movement was driven by a California based publisher known as Nolo Press, and by non-lawyers who provided self-help legal services directly to consumers.4 Gradually, these self-help providers became known as “independent paralegals,” and many of them operating self-help law clinics were unjustly targeted and shut down, because they were competing with lawyers.

Thus, it was through controversy that independent paralegals gained media recognition and the term “paralegal” stuck in the minds of consumers looking for affordable solutions to their legal problems. It was also through consumer trust and an affinity towards paralegals that propelled the name into mainstream consciousness. It was much later that the term paralegal was incorporated into what was generally referred to as the legal assistant working for a lawyer or law firm. Even magazines like the Legal Assistant Today, years later changed its name to Paralegal Today.

The National Federation of Paralegal Associations (NFPA) is the only national organization that incorporated the word paralegal in its name from its inception in 1974.5 It was founded by eight local associations, some of which later changed their names to incorporate the term paralegal:

Atlanta Association of Legal Assistants (Georgia Association of Paralegals); Minnesota Association of Legal Assistants (Minnesota Paralegal Association); Rocky Mountain Legal Assistants Association (Rocky Mountain Paralegal Association); and San Francisco Association of Legal Assistants (San Francisco Paralegal Association).

One of the first proprietary schools for paralegals was the Paralegal Institute, Inc., which was formed in 1972, in New York. The founder, Carl E. Person, is a Harvard Law School graduate and attorney, who brought an antitrust action against the ABA in connection with its Guidelines and Procedures for Approval of Legal Assistant Education Programs. 6 Person’s contention was that the ABA’s paralegal school accreditation program violated antitrust laws and that it was designed to eliminate competition and restrict entry into the market for the recruitment, training and placement of paralegals. That it was unreasonable when applied to proprietary schools such as the Paralegal Institute. Little did Carl Person know that years later the Department of Justice would bring an antitrust lawsuit against the ABA for numerous violations and anticompetitive practices. 7

The 1980s and 1990s saw the widespread expansion of paralegal educational programs and paralegal organizations marketing memberships and certifications, while enacting a variety of guidelines to oversee the paralegal field. In 2000, Governor Gray Davis signed AB 1761, a bill that defined and regulated paralegals under California law. It is important to note, however, that prior to the adoption of the bill, that it was paralegals who were providing self-help law services directly to consumers and with the passage of AB 1761, they were forced to trade in the designation “paralegal” or “independent paralegal” for Legal Document Assistant (LDA). Yet, it was those pioneers who popularized the term paralegal and put it on the map, along with the many independent paralegals working in other states, such as New York, Florida and elsewhere.8
This important point often gets blurred following the consolidation of the title paralegal by national and local paralegal organizations. Even the ABA itself changed from “The Standing Committee of Legal Assistants” to “The Standing Committee of Paralegals.” Younger paralegals entering into the field, today, may be unaware of this blurring of the term paralegal.

What we now have is control over the title so that paralegals are placed into a one size fits all definition of the profession, when historically it was not.

The Pioneers
The pioneers who propelled the paralegal self-help movement to the forefront were notably different from the legal assistants who worked for lawyers and law firms. It was the latter group that converged around NALA and the NFPA, where both organizations played a
part in shaping much of what we have in the way of restrictive ideology and of paralegals working under the supervision of lawyers. 9
Yet both organizations have failed to advance independence on the part of paralegals and in many respects, have become miniature extensions of the American Bar Association and its relegation of paralegals to working under the supervision of lawyers, which is at the heart of the ABA’s definition of a legal assistant or paralegal.
A legal assistant or paralegal is a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.
Despite those qualifications of education, training or work experience, paralegals now find themselves micromanaged by a variety of organizations and inescapably locked into support roles, while being controlled along each step of the way.

Epilogue
The Paralegal Contract is about remaining true to the higher principles of equality and social justice, rather than being defined by any one professional organization or regulatory body desiring control over a group through use of its collective power.
The consolidation of the paralegal profession by paralegal organizations and the American Bar Association has created a tragic situation where paralegals are prevented from realizing their full potential and growth, as independent professionals. Thus, figuratively, they have traded their freedom for a form of paralegal servitude.
That even though paralegals must enter into social contracts with lawyers and the organizations overseeing them, in doing so, they should not lose sight of their fundamental vision of freedom and inner recognition of independence.
For a true association of paralegals to exist, there must be the unanimous consent of all its members.

* Cliff is a writer and holds an advanced paralegal credential. He is also a graduate of Duke Continuing Studies.
1 Jean-Jacques Rousseau was born on June 28, 1712 in Geneva, Switzerland. Rousseau’s philosophical writings have greatly influenced modern philosophy.
2 Rousseau’s work, The Social Contact, describes the relationship of man with society. Rousseau argued that no social contract can exist without the unanimous consent of all its members, resulting in a true association, instead of an aggregation, which has no validity. The framers drew from Rousseau when drafting the U.S. Constitution.
3 “Intrinsic motivation” refers to motivation that is driven by an interest or enjoyment in the task itself; and “Extrinsic motivation” refers to the performance of an activity in order to attain an outcome, which then contradicts intrinsic motivation. See Ryan, M. R., & Deci, L. E. “Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social Development, and Well-Being,” American Psychologist, 2000
4 Nolo Press was formed by two lawyers, Charles (Ed) Sherman and Ralph (Jake) Warner, both of which had worked for legal aid in the late 1960s. Seeing a need for affordable legal services, they began publishing self-help law books and training non-lawyers to assist consumers with uncontested divorces through the Wave Project. More and more independent paralegals began using Nolo resources to assist consumers in self-help law. See “Nolo History” at .
5 See THE HISTORY OF THE NATIONAL FEDERATION OF PARALEGAL ASSOCIATIONS at
6 Paralegal Institute, Inc. v. American Bar Association, 475 F. Supp. 1123 (1979).
7 In 1995, the Department of Justice brought an antitrust action against the American Bar Association. The lawsuit alleged numerous violations under the ABA’s law school accreditation process, along with other anticompetitive practices. See
8 See Ralph Warner, et al., Independent Paralegal’s Handbook, 6th Ed., California: Nolo (2004) (Provides a historical background on the self-help law movement and independent paralegals working throughout the United States).

9.The ABA’s Standing Committee sets out a variety of guidelines on how paralegal services can be utilized to the benefit of lawyers. See the “ABA Model Guidelines for the Utilization of Paralegal Services,” and “Economic Benefits of Paralegal Utilization” available at <http://www.americanbar.org/groups/paralegals.html>

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Law.com  posts Christine M. Flynn’s list of Top 10 New Years Resolutions for Paralegals. Christine is a defense litigation paralegal at Swartz Campbell with more than 20 years of experience in the field and President of the Philadelphia Association of Paralegals as well as chair of the litigation committee. I’ve re-posted the items from the list here. Check out the article for the reasoning behind her suggestions. Do you have anything you’d add or change?

1. Get a checkup.

2. Join a professional association.

3. Learn something new.

4. Take the Paralegal Advanced Competency Exam and obtain your PACE RP credential.

5. Join your local bar association. Some paralegals will read this and ask why. Well, there are numerous reasons.

6. Participate in pro bono/community service.

7. Mentor, mentor, mentor.

8. Manage stress.

9. Use GoodSearch.

10. Identify a weakness.

Christine ends with this reminder:

As we turn the page from 2011 to 2012, we should keep in mind the words of the poet Edith Lovejoy Pierce, who said: “We will open the book. Its pages are blank. We are going to put words on them ourselves. The book is called ‘Opportunity’ and its first chapter is New Year’s Day.”

So take a few moments today to seize the opportunities to enhance your professional status in 2012. Best wishes for a safe, happy and healthy new year.

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Above The Law today posts “A Shout-Out to All The Legal Types Getting a $0 Bonus This Holiday Season” addressing primarily paralegals and other support staff:

While many associates complain about greedy partners who won’t share the wealth with their associates, there are few associates who are willing to take less so there is more bonus money left over for staff. Laments one paralegal reader:

Take it from me, no one feels more screwed during bonus time than the secretaries and paralegals that bust their asses all year long and that have remained loyal to a law firm to only get a bonus that barely covers their parking bill for the month.

The article references primarily BigLaw firms, but it is likely that smaller firms are feeling – or claiming to feel – the same pinch. It is, however, more difficult I think for smaller law firms where the attorneys and support staff work together as a more intimate team to hold back on bonuses. Each of the small firms in which I was a partner (I talking really small here from 1-3 attorneys) made an extra-effort to pony-up for bonuses at the end of the year, even when it meant the attorneys taking home less than expected. This occurred even in the early 1980′s recession.

While I still do some consulting and handle individual cases, I can no longer be considered to “have a law office,” so I’m not necessarily aware of what is happening currently in small firms. (Please feel free to let me know.) However, I must echo Above the Law‘s suggestion that all law firms remember and reward their paralegals this year. (Gifts, especially copies of any of The Empowered Paralegal series of books, are, of course, wonderful, but cannot possibly substitute for a bonus that recognizes their contributions to the firm’s bottom line.)

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Theresa A. Prater has a post on the NFPA LinkedIn discussion board regarding the new version of The Paralegal Handbook:

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Partly because the case is from the jurisdiction in which I have been licensed since 1976 and I know several of the players, but mostly because it provides an excellent illustration for discussions of how paralegals should handle unethical conduct by their attorney, this blog has been following the saga of ethical charges against Verrill-Dana, one of Maine largest law firms. According to ABAJournal.com today, Maine’s highest court has ruled that six partners at Verrill Dana violated ethics rules by failing to have procedures in place to monitor a lawyer after questions arose about his handling of a client account, but upheld a finding that the six partners didn’t violate ethics rules by foot-dragging in reporting misconduct.

The intricacies of this ruling are interesting in their own right, but only marginally so for this blog which is more concerned with how the saga started:

A paralegal and a secretary were first to discover the problem, according to the opinion. The paralegal noticed in late 2006 that Duncan had prepared a check register for a client showing a payment to Verrill Dana, but the check had been made payable to Duncan. The paralegal brought the matter to the attention of Duncan’s secretary, who investigated and found 14 such discrepancies.

The secretary finally told another lawyer in the firm about the discrepancies in June 2007, spurring Warren to launch an investigation of the client account. When confronted, Duncan said the checks written to himself represented attorney fees, and he offered to resign. Warren spoke to the executive committee about Duncan’s resignation offer; it was declined. Warren did require Duncan to repay $77,500 to the firm, however, and he complied.

The court’s opinion tells the end (or the near end) of the story for the attorneys involved. Check out the previous posts here for the beginning including the story of the paralegal and secretary who “did the right thing” when confronted with an attorney for whom they worked doing the wrong thing.

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There is proliferation of website proporting to give information about paralegal careers, educational opportunities, and the like. Unfortunately some, even if well-intentioned, ought not to be relied upon by anyone. For example, one such site (no, I will not give a name or link) states, “Obtaining paralegal certification in Colorado is relatively simple witih some excellent community college and degree programs available to those seeking a paralegal qualification.” Aside from the poor proofreading and editing (yes, I expect more from this type of website than I do of a blog), this is quite misleading and contributes to the general confusion regarding the distinction between obtaining a paralegal certificate and getting paralegal certification.

I do not believe that Colorado as a state requires or provides for certification of paralegals. (Please feel free to forward me the information if I am wrong on this.) In any case, this website provides no information on paralegal certification either as it pertains to Colorado or to certification exams offered by NFPA or NALA. Rather they offer some, not really helpful information regarding some paralegal programs that provide paralegal certificates and degrees.

Bottom line – if you want to know about paralegal education go to a well-established, respected source such as the American Association for Paralegal Education. (Disclosure: I am on the Board of Directors) Likewise for paralegal certification: check the websites for NFPA, NALA, and comparable professional associations. FMI: Check out The Paralegal Professionalism Anthology.

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