Archive for the ‘Relationship with Attorney’ Category

How Long Does It Take to Whistle?

Sunday, September 30th, 2012

ABAJournal.com has a post entitled, “Paralegal Blows Whistle on Ex-Boss, Says Cash Went in Book on Shelf; Lawyer Suspended for One Month,” that is interesting for a number of reasons all of which relate to an issue which has been a frequent topic here recently – paralegals dealing with unethical conduct on the part of the attorneys for whom they work. (In fact I’ve now made it a sub-category of its own, “Whistleblowing” under “Ethics.”)

In this instance the conduct was fairly clearly unethical:

The paralegal was a witness for the prosecution in the attorney discipline case, testifying that Kersenbrock didn’t deposit a number of client retainers into her trust account when she worked for the attorney between 2005 and 2010. Instead, Kersenbrock put retainer checks into her law firm operating account and put cash retainers into a drawer or in books on her bookshelf, then spent them when she needed money, the paralegal testified.

While I like to use these reports as lessons for paralegals, it appears the real lesson here is for attorneys. This is because the paralegal did not “blow the whistle” until after she was no longer employed by the attorney. While there is not nearly enough information in the story (or in the court’s opinion) to justify being judgmental, it does take some of the luster out of “doing the right thing.” It begins to look like the whistle is being blown only as retribution against an attorney who sacked the paralegal. In this instance, the paralegal not only testified against the attorney, but actually filed the complaint that lead to the ethical investigation of the attorney. It maybe, however, that the sacking was the result of the paralegal’s objections to the attorney’s unethical action, but that does not appear likely. According to the Court’s opinion:

Anderson worked for Kersenbrock as a paralegal from 2005 to 2010. Anderson testified Kersenbrock received retainers in most of her cases. She stated Kersenbrock did not deposit any retainers into the client trust account early on in her employment. About fifty to fifty-five percent of the retainers were checks, and forty-five percent were made by cash.

Just to be perfectly clear, if the conduct is unethical in 2010 after the employment ended, it was unethical in 2005 – 2010 while the employment continued. The decision on whether to blow the whistle on attorney ethical violations is a whole lot harder to make when one’s job is still on the line.

 

Dealing with Diva -or Divo – Attorney

Tuesday, July 31st, 2012

ABAJournal.com posts a “law office worker” who wrote to a newspaper advice column (I hope this is not becoming a trend) who “worked for three male “diva” lawyers…Each expects the staff to bump the other two lawyers’ work for their projects and throws a snit fit when he needs something done and those of us ‘here to serve’ can’t make ourselves immediately available .” I suspect many of you will recognize the situation. At times this sounds like a description of the typical law office!

Here the situation got out of hand, however, according to the writer, ” one of the lawyers, “John,” became enraged after the worker said “no can do” to his new rush project that needed to be completed by noon. The worker was already swamped with two other rush projects. “Before I could explain, John lunged toward me cursing loudly,” the worker writes. “He had his fists raised and was almost on top of me with one fist an inch from my nose. I panicked, jumped out of my chair and headed for the door. John got between me and the door and pointed at the desk, yelling, ‘Sit down and do it!’ ” John retreated when the office manager walked by with two clients.

The advice columnist, advised that the worker could sue the lawyer for, e.g., assault. I suspect that the “law office worker” already knew that (he or she almost certainly did if he or she was a paralegal), but was asking for advice on whether, as her friends suggested, he or she would be “out of her mind” for doing so. The writer was astute enough to know that being able to sue does not necessarily mean one ought to sue. (A concept client often have difficulty grasping.)

Handling difficult attorneys can indeed be difficult and at times we can all be difficult! Managing the attorney/paralegal relationship is the topic of an entire chapter of The Empowered Paralegal: Effective, Efficient, and Professional. Suing the attorney or the law office is not an option discussed there because the goal is to preserve and nurture the relationship. Here though it appears the situation is beyond managing, especially since the worker received no support from the office manager, and the worker rightly terminated employment at the law office. Certainly the attorney’s conduct is reprehensible and my initial inclination is that somebody should do something about that conduct. Still it is not necessarily in the worker’s best interest to be that somebody.

While the attorneys may all be divas, they will likely band together and “circle the wagons” in the face of a lawsuit. (Note that the worker received no support from the office manager.) Anything and everything bad that can be said about the worker will be said – in a public forum. Even in a large legal community, this sort of dispute makes the rounds real fast. While workers and even office managers in other offices will be quite sympathetic and empathetic, it is also likely that the chances of the worker being hired in another law office will be greatly diminished. Some will wonder who was really at fault, some will recognize that their office is really like the other one and suspect the worker will not be able to handle the attorney there either,  some will not to risk offending the law office the worker left, etc., etc.  Thus while I agree the worker could sue on several grounds (many of which will be covered in The Empowered Paralegal Cause of Action Handbook), I would need to know a lot more about the worker and the situation itself before advising the worker as to whether he or she should sue. What do you think?

On a separate issue can John be a diva? The  traditional definition of “diva” is “a usually glamorous and successful female performer or personality <a fashion diva>; especially : a popular female singer <pop divas>.” Clearly John meets no part of this definition, but the word has taken on a wider connotation in modern usage. However, according to Urban Dictionary, all usages seem to contemplate a female rather than a male.  But there is more. Consider this:

But the distinguishing factor is that her talent permits somewhat uncouth behaviour. A diva is not necessarily difficult to work with, she is just very professional and and has a low tolerance for incompetence. A diva is NOT just some no-talent pop singer who thinks everyone should acquiesce to her every whim, or even worse, some woman who is unecessarily rude, mean, bitchy, and often stupid just because she “knows what she wants” and revels in being high maitenance. These woman do not deserve the title of diva, because they have no redeeming talent or quality. They are simply loud and oboxious bitches. True divas should be treated with respect for their enormous talent and strong will.

Aside from the fact that it appears one need not know how to use a dictionary to get spelling correct in order to make an entry in the Urban Dictionary, the entry makes a good point, at least as I understand the term “diva.” While there is little information provided about John, the assaulting attorney, it seems quite questionable whether he has the redeeming talent or quality to be considered a true diva as opposed to just being “unecessarily rude, mean, bitchy, and often stupid.” Even so, John does not appear to be female. So what, assuming he has some redeeming talent or quality, would be call a male who, if female, would be a diva? Be careful what you chose – it may appear in the pleadings.

Avoiding Missed Deadlines

Tuesday, June 12th, 2012

In his blog post today, Judge Primeaux drew attention to the importance of proper calendar/tickler management, doing an excellent job of describing the system most of used when I started practicing 35 years ago. The point cannot be emphasized enough. If his post was lacking in any respect, it was that it did not make clear the way in which paralegals and attorneys can work as a team to minimize the the problem of missed deadline.

I followed up on his post with this comment:

This is an excellent and important point, one that I emphasize in all my paralegal classes and focus on in my first “The Empowered Paralegal” book [The Empowered Paralegal: Effective, Efficient, and Professional.] There are many intermediate methods for calendar management, including use of the Calendar function in Outlook and most other email program. A few points merit emphasis:

 1. Proper calendar management is a two person function. The paralegal and attorney should coordinate calendars and ticklers frequently, cross-checking each other. The problems avoided by having two persons ensuring timeliness far outweigh the little time it takes each person.;

 2. More than one calendar is helpful if you are using a paper system – the attorney’s calendar with all the entries important to her, the paralegal’s calendar for her deadlines, and a joint calendar for all major dates;

3. The calendar should contain not only deadlines, but intermediate steps – Answers to Interrogatories are due in 30 days, but the calendar should have dates for getting them to the client, getting necessary information from the client, a first draft date, etc.

 4. This type of organization should extend beyond the tickler/calendar to the attorney’s (and paralegal’s) workspace management, file management, client management, and -most importantly- time management.

Evaluating Paralegal Performance

Saturday, June 2nd, 2012

After traveling for a week and relaxing for another here at our cottage in Maine, I’m catching up a bit on my internet browsing. This morning I found a reference to The Empowered Paralegal in a web article entitled “The Strengths of a Paralegal” and followed a link to “What is a Performance Contract for Paralegals.”* The latter article correctly notes that most of the time there is no specific “performance contract” written and signed by the paralegal and the employer. Rather there are a set of documents including a basic employment contract (although often even this is just an oral agreement,) a job description (although there is often nothing in writing in this regard either and often this leads to confusion, misunderstanding, and frustration on the part of both the paralegal and employer – In The Empowered Paralegal: Effective, Efficient, and Professional I recommend creating a specific job description for the job you are actually doing for several reasons,” and some sort of “annual review evaluation form.”

The article gives a brief list and discussion of some of the strengths that are normally included on the evaluation form. It also included the statement, “Though few employees relish having their work scrutinized, a performance contract based on objective criteria can actually encourage paralegals to assess their own strengths so they can grow professionally.” This is also quite true and a point made here several times. Professional, empowered paralegals should look forward to annual evaluations. Indeed, in The Empowered Paralegal” I “join Vicki Voison, The Paralegal Mentor in recommending requesting more frequent reviews – quarterly or even monthly. Rather than having the attorney/manager evaluating you on a year’s performance with you having no idea what they are thinking or looking for, ask for a copy of the evaluation form and prepare for it.

As I’ve stated previously, I suggest that paralegals request (at least) a quarterly review and, to a great degree, that they take control of the review process. As I point out in The Empowered Paralegal: Effective, Efficient, and Professional, “Empowerment does not come from the outside. It comes from within. It is not granted, it is earned. The empowered paralegal gains that power and the confidence that comes with being professional, and by being a competent, effective and efficient member of the legal team.” Part of that process is going into a review already aware of your own value to the legal team.

Start by recording successes. This has several advantages. It provides a resource for review in preparation for evaluations and it can be useful in re-establishing self-esteem and self-confidence at the end of those (we hope infrequent) bad days. It is good to keep a notebook with copies of CLE certificates, thank-yous or compliments from clients and attorneys, certifications, volunteer activities, professional association activities, and every other honor or recognition you receive during the year (including times when you have patted yourself on the back for a job well done.) Include the plans you have implemented to deal with the “constructive suggestions for improvement” from the last evaluation and records showing the improvement has occurred.

Bring that notebook with you to all your evaluations. Even if you never open it, it will help empower you during the evaluation.

*Other than the mention of this blog on the first page, I have not connection with this site. The reference to it here is not an endorsement of the site or any of its advertisers.

Impressing the Judge

Thursday, May 17th, 2012

Chancery Court Judge Larry Primeaux has a top ten list of tips for attorneys wanting to  impress a judge while in court. The paralegal can play an important role in most of them. Let’s take today’s post as an example:

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #8

Know the law and have it handy.

Know the law that applies in your case. It’s never a bad idea to check on what the appellate courts have said most recently about whatever it is you are getting ready for trial. Even if you are an experienced, battle-scarred litigator, you can get blindsided by a rank, newly-minted lawyer if you don’t keep up. Complacency is stupidity in the guise of arrogance; it is intentional ignorance that often proves embarrasing, or worse.

Read the COA decisions every Tuesday afternoon and Supreme Court decisions every Thursday afternoon. When you run across something pertinent to a pending case, print out the decision, highlight the language you need, and stick the decision in your file. That way you’ll have it handy when you need it at trial. If you are too lazy to make time to read the decisions, subscribe to either the Ole Miss or MC law school briefing service and receive summaries via email after each handdown.

….

If you know that your case will involve an issue that is out of the ordinary, have your authorities copied and ready to give the judge. Don’t just read off a few case cites; have copies of the decisions to hand the judge. Some judges require you to give a copy to opposing counsel. When you have authorities at hand, it not only aids the judge in making the right decision, it also communicates to the judge in not-so-subtle fashion that you know you are on sound ground and have confidence that the law supports your position. Contrast that with the lawyer who, when asked what authority supports his position, replies “Well, I know there’s a case out there on point, judge, and if you give me about 10 days, I might be able to find it.”

Have your trial factors printed out and handy, with case cites. Use them as checklists to question your witnesses.

Implementing this tip will be no problem for the attorney with a good paralegal. In The Empowered Paralegal: Effective, Efficient, and Professional I include an entire chapter on preparing a trial notebook organized around the elements of a cause of action. Each element is supported by the evidence available to prove the facts that meet the requirements of the element. For item of evidence and each witness’s testimony the possible objections are anticipated and the relevant law cited with copies of the pertinent cases included. All element is cross-referenced to the exhibits and testimony; each exhibit cross-referenced to the elements it supports and the witness who will provide the foundation its admission into evidence. With the proper assistance from a professional paralegal, any attorney ought to be able to impress the judge and the jury with their professionalism. Even more important, that attorney is much more likely to win the case!

The really fortunate attorney will be able to bring the paralegal to court. As noted previously the good legal team can work as smoothly as a dance team both in the office and in the courtroom. If you both understand the case and have a well-organized notebook, objections to evidence (for example) are anticipated. The opposing attorney objects. Your attorney quickly explains the basis for admission of the evidence. The court asks for supporting law.  The attorney (trying not to smile to broadly) reaching out her hand and you place into it three copies of the case the judge needs to see – one for the judge, one for opposing counsel, and one for your attorney. Smooth as wet butter!

What, Me Change?

Tuesday, May 8th, 2012

Because paralegals have a different perspective on ground level operations in a law office they are often in a position to suggest changes that would improve those operations, client services, and the firm’s bottom line. The Empowered Paralegal, afterall, is well-equipped to recognize and analyze problems, identify solutions, and develop and implement plans for effectuating those solutions – everything from establishing procedures for time, docket, workload, and client management to utilizing advancements in technology to improve overall office operations (all discussed in The Empowered Paralegal: Effective, Efficient, and Professional). However, getting the attorneys to pay attention, much less accept and adopt those changes is a frequent source of frustration for paralegals.

The Empowered Paralegal also deals with approaches to dealing with the difficulties of communicating with one’s own attorney and managing the effects of attorney mismanagement. In addition, however, paralegals may take some solace in the fact that they do not suffer this frustration alone. Today’sABAJournal.com includes a post with a headline that will come as no suprise to paralegals: Don’t Underestimate Lawyers’ Resistance to Change, Seyfarth Shaw Chairman Says. The story is about attempts to implement process management, but applies as well to paralegal efforts to effectuate changes as it does to management consultant’s efforts:

Seyfarth Shaw has learned a lot about lawyers and their resistance to change as the firm embraced Lean Six Sigma, a management approach emphasizing process improvement and efficiency in legal work.

Seyfarth Shaw chairman J. Stephen Poor outlines the lessons learned in an article for the New York Times DealBook blog. “Never underestimate the resistance to change from lawyers,” he writes. “Even more likely, never underestimate the ability of lawyers to describe virtual status quo efforts as revolutionary change. Working through a change management process intended to deal with that push-back has been a core element of our challenge for years.”

By the way, I’ve noted before that “In my view process managment is not just about developing efficiencies so paralegals can do more work formerly done by attorneys. Effective use of professional paralegals, who can manage time, dockets, clients and workload is process management. But if they won’t listen to their own chairman, what are the chances they are listening to me? And the chances that the chairman is listening to me is even less!

Maybe they’ll listen to David Bowie:  http://www.youtube.com/watch?v=n8v486aUYu0  or, for those who are a bit older, Jefferson Airplane http://www.youtube.com/watch?v=uOrb0G0tw08:

Life is Change
How it differs from the rocks

The alternative is

Soon you’ll attain the stability you strive for
in the only way that it’s granted
in a place among the fossils of our time.*

From “Crown of Creation” which is largely taken with permission from “The Chrysalids” by John Wyndham(published 1955)

Speaking of changes, it’s about time I learned how to actually embed YouTube videos. If anyone out there actually read this far and knows how to do so, please clue me in!

Seeking Whistleblower Status Based on Ethics Violations May Leave You Blowin in the Wind

Monday, January 23rd, 2012

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.

Don’t Know What You’ve Got ‘Til It’s Gone

Sunday, January 15th, 2012

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.!)

 

About That Year-end Bonus….

Thursday, December 22nd, 2011

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.)

Cleaning Up Facebook Leads to Sanctions

Wednesday, November 9th, 2011

In a previous post I noted this admonition from an analysis by H. Christopher Boehning and Daniel J. Toal of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues:

Upon learning that a client’s social networking site contains information that is potentially harmful to a claim or defense, a lawyer may be tempted to advise the client to remove the harmful content. To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.

Failure to heed that warning (although the events recounted here likely occurred before the warning appeared in the article) has indeed lead to significant sanctions for an attorney (and the attorney’s client) who directed his paralegal to direct his client to “clean up” his Facebook page. The sanctions? Well, they totaled $722,000 (to be paid presumably out of a $5,000,000 judgment the client had obtain against the defendant in the proceeding in which the sanctions were issued. Here’s more:

”According to a September 1 order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester’s Facebook account. Attached was a photo of Lester wearing a ‘I [heart] hot moms” t-shirt, and holding a beer can with other young adults.
Murray instructed a paralegal to tell Lester to ”clean up” his Facebook page because, ”we don’t want blowups of this stuff at trial,” the assistant, Marlina Smith, said in a disposition. She emailed that message to Lester the next day.
On March 26, 2009, according to the judge’s order, Murray came up with a scheme to take down or deactivate Lester’s Facebook account so that he could respond that he has no Facebook page on the date the discovery request was signed.
When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16 2009, deposition, Lester denied deactivating the account.
Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

The rest is here from JDJournal.com, but this is enough to bring me to the second point of this story that is worthy of comment:

 “Murray [the attorney] falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

On second thought, it is probably not in need of comment as it seems to speak volumes all by itself.