The Empowered Paralegal

I recently posted about my needing to learn to tweet. I fully intend to do so over the winter break at Ole Miss. However, more important than simply learning what to tweet is knowing what and when to tweet! Consider this from  ABAJournal.com:

A research lawyer for a Kansas appeals court has been suspended pending an investigation into her critical tweets about the state’s former anti-abortion attorney general during a supreme court ethics hearing.

The lawyer, Sarah Peterson Herr, posted tweets calling former Attorney General Phill Kline a “naughty, naughty boy” and criticizing his facial expression, report the Associated Press, the Topeka Capital-Journal and WND. “Why is Phil Klein [sic] smiling?” she wrote. “There is nothing to smile about, douchebag.”

Herr predicted Kline would be disbarred for seven years as a result of charges claiming he or his subordinates misled others during an investigation of abortion providers. WND describes Herr’s tweets as “snarky” and “self-satisfied.”

True this is about a lawyer, not a paralegal, but paralegals are often in the same position and the same seemingly irresistible temptation. There was a time when yielding to such temptations was limited in scope, at least, to those time when one was off-guard, perhaps having had a cocktail too many at a social gathering, so the damage was also limited to a degree. But with today’s social media there is almost literally no end to the ripples that are set in place when one drops a pebble – or in this case a number of rocks – into the water. This is just one of the many perils of social media. (Leading me to create the new “Social Media” category.)
As many of you may have noticed though there is an even larger issue here as illustrated by one of the comments on the original ABAJournal.com post:

Herr should have keep her thoughts to herself at the least until after the matter was concluded.  The fact that her remarks became public is not what makes her conduct wrong.

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Yes, it’s been a while, but No I’ve not been back in the hospital. Thanks to all those who asked. I’ve been traveling to conferences and back to Maine and, thus, getting further and further behind in my regular work, so I’ve not been blogging in order to catch up. I’m just now getting to reading email and postings on other blogs from the last few weeks.

One topic that caught my eye was a pair of posts regarding misconduct by legal professionals. Normally when I spot a story regarding embezzlement by a paralegal I go on a bit of rant about the failure of the supervising attorney to supervise the paralegal. After all, the paralegals are not supposed to work independently. I felt somewhat vindicated in this position when I read the ABA Journal post on an attorney who was reprimanded for failing to supervise his own brother, even though he reported his brother’s embezzlement:

Peter J. Galasso, a New York lawyer, should have been his brother’s keeper, the New York Court of Appeals found Tuesday.

Anthony Galasso was the office manager at the firm that was then known as Galasso & Langione, and Peter Galasso told authorities that his brother embezzled millions of dollars from client funds, Newsday reports. Nevertheless, the state’s high court found that Peter Galasso did not properly supervise the work of his brother, who spent the money on Barbra Streisand tickets and a Mercedes-Benz, among other things.

So naturally I was ready to go on another tear when I saw this headline: “Paralegal pleads guilty to embezzling $311,000 from elderly client,” especially since it involved financial abuse an elder client – another area that easily rankles me (See Elder Clients and Elder Law category.)

But this one is a bit problematical. The paralegal was working at a law firm, but “Blood, 56, a paralegal at Hiscock & Barclay’s Buffalo offices … took on the task for the widow as a side job,” and began writing out checks from the widow’s accounts to herself. It’s not clear how this “side-job” came about. Certainly if the 77 year-old widow was a client of the firm and the side-job was known to the firm, a case could be made that there is still an obligation on the part of the firm to make sure its employee was not ripping off the client, but it is not a clear-cut case. The firm , “told The Buffalo News that the thefts from the heiress “occurred outside her employment” at the law firm. They also said she is “no longer employed by the firm.”

In the end, I have to agree with the widow: Trust, but verify,’ ” she said. She urged people who entrust others to keep track of their finances, even if they’re family members, to keep tabs on what’s going on. “Look at me,” she said. “I’m not a stupid bunny.” However, many elderly are not able to verify and do not have trusted family members to do it for them. So one can’t help but wonder whether the firm should have done more verifying in this case. I like to hear from anyone who knows more about the facts of this case and, of course, from any one who has a reasoned opinion on the issues it raises.

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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.

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ABA Journal.com recently posted an article entitled, “Staff of Reclusive Heiress Coerced Her Out of $44M in Gifts, Executor Says,” regarding an action brought against nurses, doctors, a hospital, a lawyer and an accountant for reclusive heiress Huguette Clark claiming they coerced or influenced her out of more than $44 million in gifts. I know nothing more about the facts of the case and whether or not Clark was unduly influenced by these people. However, the article raises some issues addressed here previously and at least one that has not yet been the focus of a post here, although it is discussed extensively in The Empowered Paralegal: Working with the Elder Client.

One previously discussed issue is the role of a paralegal as a “watchdog” both in general and with regard to practices within ones own law firm. That is, it is incumbent upon the professional paralegal to see can be seen and sometimes notice what is not there to be seen, make an appropriate record and when necessary “do the right thing.” Another is how a paralegal should handle ethical violation on the part of an attorney.

Not previously discussed and thus the focus here is the danger that legal professionals might unduly influence their clients without intending to do so. Consider this excerpt from Working with the Elder Client:

Avoiding unintentional undue influence by the legal professional

The importance of the various methods of making advance decisions is that the client can make the decision that best suits their own beliefs. Having a living will or an advanced health care directive does not compel a client to choose an approach in opposition to their own beliefs. It simply allows them to make the decision rather than leave it to someone else, someone who may not share their beliefs. Establishing a “fair” estate plan, must be done using the client’s conception of fairness, not ours.

We must be careful in discussing these options with clients that we do not judge their decisions or let them feel we do not approve of their decision. As noted previously, the elderly, especially those who are seriously ill, can be particularly vulnerable to outside influences. While many people become less concerned about what others think of them as they grow older, some others suffer from loss of a sense of self that can make them more susceptible to such influence. Our role is to assist the client in determining and effectuating their wishes, not to judge, shame, or persuade the client to our way of thinking.

It is often difficult to gauge our own prejudices and the way they affect our demeanor and approach to client. It is important that we reflect carefully on our own preferences. For example, it is my belief that options for making decisions regarding end-of-life healthcare can be arranged in a descending order, i.e., that the first is better than the second, the second better than the third, and so on.

I view these options as belonging to one of three categories. In the first, the client makes as many health care decisions for himself in advance as he can and designates someone to make only those decisions which were not anticipated in advance. In the second, the client makes no decisions in advance except the designation of the person or persons who will make necessary decisions on her behalf. Finally, there is the option of taking no action. In this instance, the client should understand that taking no action is itself making a decision. The client decides to allow someone designated by state law to make the decisions on her behalf. However, throughout the discussion we must keep in mind that the paralegal’s role is to inform (and for the attorney to advise), not to convince or persuade, a client even unintentionally…

As discussed extensively in Working, it is often difficult to tell when a client is being unduly influenced by outsiders. It can be even more difficult when we ourselves are involved, even when that involvement is nothing more than the very provision of legal services for which our clients have turned to us.

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Two posts in a recent edition of ABAJournal.com News , directed at lawyers, seem of equal importance to paralegals. Apparently Mark Hansen has been attending the ABA Techshow as he reports on two presentations whose initial lines seem to be contradictory: “Hot Topic: Keeping Data Secure at the Coffee Shop” that warns “freedom to access the Internet practically whenever and wherever we want carries risks from thieves, hackers and nosy neighbors—a possible ethical violations of client privacy” and “Don’t Let Fear Block Your Mobile Versatility” that states, “lawyers can reasonably protect sensitive data by taking a few fairly simple precautions.”

However, the theme is really consistent – and important: The mobility technology on which we are all coming to rely more and more presents great opportunities, but also some risks. The key to take advantage of the opportunities, but take steps to manage the risks. The theme of The Empowered Paralegal: Effective, Efficient, and Professional” is such management. The point is to identify a problem, survey and develop options for resolving the problem or at least managing its effects, deciding on a plan for addressing the problem, implementing the plan, and assessing the results. The principles are applied to time, work space, workload, client, attorney, and litigation management, but can – and should – be applied to management of the use and risks of that use of technology, especially mobile technology. Perhaps I’ll cover the topic in the next edition, but since a new edition is not even in the works at the moment, take a few minutes to read the ABAJournal.composts by clicking the links above.

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As frequently discussed here (see “Volunteering” category) pro bono work, of course, benefits the persons receiving the services and the public, but provides just as much if not more benefits to the paralegal performing the services in the form of experience, networking, fulfilling ethical requirements, and just plain feeling good about doing good as well as benefiting the paralegal profession. So I please to re-post this announcement posted by Theresa Prater on NFPA’s LinkedIn discussion board:

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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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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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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.

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According to ABAJournal.com (in a story brought to my attention through the KNOW: The Magazine for ParalegalsLinkedIn Group forum) the ABA Standing Committee on Ethics and Professional Responsibility has issued an opinion that under the ABA Model Rules of Professional Conduct if a client is emailing his or her lawyer from a work computer or an employer’s electronic device, there’s a good chance that the communication could be intercepted by the employer. This in turn may impose a duty on the lawyer to warn the client “of the potential confidentiality concern.”

This opinion is, of course, only an opinion and it is based on the Model Rules, which may not be applicable to your state. However, it appears well reasoned. While the opinion and the rules themselves apply directly only to the attorney member of the legal team, this is of particular concern for paralegals because in many instances the paralegal is the primarly liason between the client and the law office. This means it will be the paralegal, not the attorney who will have the primary indication that the client is emailing from her workplace and should be warned of the confidentiality implications.

When this happens it is likely that the paralegal will have an inclination to so warn the client. However, “warn” appears to be a form of “advise” and paralegals cannot give legal advice. So, the correct step would be for the paralegal to bring the matter to the attention of the attorney. Alternatively, the law office could have a standard policy together with standard language to address this issue. If would be best to inform the client of the potential problem at the intial interview and request that all email be done through non-work devices and servers. In the event that the client “forgets” there can be a standing direction from the attorney to the paralegal to remind the client via the standard warning language.

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