Archive for the ‘Ethics’ Category

Sloppy or Misleading

Wednesday, November 18th, 2015

I’ve posted several times about judicial reprimands for sloppy work. Indeed, there’s a “Consequences of Sloppiness” category. Above the Law notes a recent “benchslap” for sloppiness on the part of government in a post entitled, “Judge Loses Patience With Government’s Sloppy Work.” However, the article makes it clear that the judge’s concern went beyond mere sloppiness. She writes that the government exhibited a pattern of “sloppiness” that “in sum” the sloppiness “represents a systematic pattern of the Commission picking the wrong conclusion from the evidence.” If this is the case, the problem goes well beyond sloppiness to a matter of serious ethical concern.

There used to be a commercial in which the tag line was “It’s not nice to fool Mother Nature>” The fact is that most judges are fairly intelligent. It’s not nice to attempt to fool them in this way and they are not likely to be fooled by it. The consequences may go well beyond the consequences of mere sloppiness.

Tale of Two Former Paralegals

Wednesday, June 17th, 2015

For the last couple of days, my news feed has featured two artifices with “former paralegal” in the headline. The first say, “A former paralegal welcomes children into Heaven’s House.” The second is entitled, “Former paralegal who stole nearly $600,000 get 20 years in prison.” The point here is none too subtle. I’d prefer that most paralegals become “former” only by retiring after a long career of being a fantastic paralegal. But, in the end, everyone – regardless of their chosen career – has to decide what kind of person they want to be. Fortunately, by far most of current paralegals are more like the first former paralegal than the second former paralegal. The best that can be said of the second is that she is a former paralegal. Perhaps a good way to decide on a day-to-day basis what we should do and how we should do it, is to ask ourselves whether we want to be remembered as the first former paralegal is remembered or the second.

The Researching Paralegal: “This Is So Wrong on So Many Levels”

Monday, April 6th, 2015

I’ve often posted here about attorneys’ obligation to supervise paralegals, arguing that they owe that duty to the paralegals as well as the public. So, I’ve been intending to write about the story of a paralegal and lawyers involved in the case of Bubba the Love Sponge Clem, but have not found the time and energy to do so. Fortunately, my procrastination has paid often as Celia E. Elwell, The Researching Paralegal,” has not only posted a link to Tom Feher’s good post about the story, but has added commentary that raises both the supervision issue and the need for ethical education of paralegals. She also gave her post a title that I could use here, making my job even easier. So here’s the basics of the the story from Feher’s post on Lexology.com, “Florida lawyers face disciplinary charges after representing ‘Bubba the Love Sponge Clem’”:

Reports at the time suggested that, on the evening after the media-focused defamation trial started, the defense firm’s paralegal spotted plaintiff’s counsel at a local bar near his home. She contacted lawyers at her firm, returned to the bar with a friend, and sat down next to opposing counsel. Over the next two hours, the paralegal is reported to have lied about where she worked, flirted with opposing counsel and ordered drinks, including buying defense counsel a vodka cocktail and shots of Southern Comfort. She also stayed in touch with the three lawyers from her firm, sending them more than 90 texts and emails over the course of the evening. Later, opposing counsel’s lawyer stated that it was clear that the paralegal was in an undercover role and was making sure “all the parties knew exactly what was transpiring virtually every minute.”

Shortly after she first reported what was going on at the bar, a call was made by one of the lawyers to an acquaintance in the police department and an officer was posted outside the bar to wait for the plaintiff’s lawyer’s departure. When he eventually left, the paralegal convinced him to drive her car several blocks from a parking garage to a new parking space. As he did, he was arrested for DUI. The next morning, defense counsel touted the arrest to the media. Bar charges (a disciplinary complaint, not the tab for cocktails) accused the three lawyers of being involved in what appeared to be using the paralegal to set up opposing counsel.

The attorneys’ ethical violations didn’t end there as you can discover with a full reading of Feher’s post via the link provided above. But out focus is on the paralegal. That’s where I’ll let Elwell take over with an excerpt from her commentary “This Is So Wrong On So Many Levels:”

There has been a long, ongoing discussion in our profession about whether paralegals should have a certain level of paralegal education or whether it is sufficient to have experience alone. This article makes a good argument that, one way or another, in-depth education in legal ethics is critical for paralegals and all support staff. This subject deserves, and needs, special attention.

Client Communication – It’s an ethical obligation

Friday, January 10th, 2014

Matthew Brody posted a poll on The Paralegal Group’s listserv asking how important good client communication is to a law firm, with responses running from “not important whatsoever” to “it’s what keeps my firm running.” The answer should be the latter. However, the importance of client communication lies not just in the fact that effective client communication keeps a firm running smoothly. It is an ethical obligation under the Rules of Professional Conduct in every jurisdiction of which I am aware. (I deal extensively with ways to make communication effective in The Empowered Paralegal: Effective, Efficient, and Professional.) Here, for example, is ABA Model Rule 1.4:

Rule 1.4: Communications
Client-Lawyer Relationship
Rule 1.4 Communication

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

If you run “communication” through the search box here, you’ll come across posts on removing barrier to communicating with elder clients, handling the barriers to communications raised by diversity, and other topics.

Another Paralegal Blowing a Whistle

Tuesday, December 17th, 2013

While I’ve not had time to finish the ongoing discussion with Clifford Smith regarding my post, “Can Doing Right Be Wrong,” regarding the “paralegal” who gave confidential client documents to the opposing side’s attorney, it is clear that this issue is one that is faced from time to time by paralegals – or at least paralegals allege it has happened. According to the Tri-City Herald, “A former CH2M Hill paralegal says she was fired after she accused the company of purposely withholding documents from prosecutors investigating timecard fraud at Hanford,” but there is no indication that she did anything other than make the accusation (i.e., she did not, as the tobacco whistleblower did, simply take the withheld documents and give them to the other side:

She was assigned to search and locate documents for the Department of Justice in an earlier case, a 2010 investigation of fraud linked to CH2M Hill purchasers at the Hanford tank farms. She had concerns then that CH2M Hill was withholding information about hundreds, if not thousands, of stored boxes of Hanford records and Hanford databases and that Hanford staff were hiding or destroying potentially damaging records, according to her legal complaint.

Later that year, CH2M Hill received a subpoena for documents related to timecard fraud allegations. The company is accused of billing DOE for more overtime than was worked to induce employees to accept overtime shifts.

… CH2M Hill initially produced a limited number of documents related to timecard fraud for the Department of Justice, which then notified CH2M Hill in May 2011 that it was not satisfied.

But Randazzo was told to remain silent about documents she either knew or suspected still existed at Hanford, according to the legal complaint. If CH2M Hill Hanford Group did not search the stored boxes of Hanford records and databases, then it should at least let the Department of Justice know it existed, Randazzo argued. ..

After Randazzo raised concerns, she began to be harassed to get her to quit and then was fired in October 2011, she said in court documents. She believes she was fired in retaliation for refusing to mislead the Department of Justice.

CH2M Hill vigorously denies all of this, which is neither here nor there on the issue important here – exactly how can and should a paralegal handle situations like this.
Interestingly, Craig Simonsen posted a link on NFPA’s LinkedIn discussion board to his article announcing that OSHA has launched on online form for submission of whistleblower retaliation complaints under OSHA investigatory jurisdiction. It is unlikely that OSHA would have jurisdiction over cases like the one under discussion here, but perhaps the courts should consider establishing a similar vehicle for complaints of this nature or for confidential disclosure of the fact that evidence is being improperly withheld (like the “hotlines” set up to report abuse and neglect of vulnerable people.

Can doing right be wrong?

Friday, November 29th, 2013

The AP is reporting that the paralegal who supplied documents in fight against tobacco companies died in Mississippi last week.  As reported in the Star Tribune:

He worked for a Kentucky law firm representing the then-Brown & Williamson Tobacco Corp. and leaked thousands of pages of internal memos and studies concerning smoking and health that provided newfound ammunition to tobacco opponents.

The information made national headlines. News organizations reported the information showed Brown & Williamson executives knew decades earlier that nicotine was addictive and that they funneled potentially damaging documents to lawyers to keep them secret.

A few years later, the tobacco industry agreed to a massive settlement with the states over smoking-related health costs.

The paralegal, Merrell Williams, said of himself, “”I think to a lot of people Merrell Williams is a hero,” he said of himself in the interview. “I haven’t done anything wrong.”  Certainly Williams isn’t the only one who regards him as a hero. What he did changed a lot of lives and may even have saved some. Still it is difficult to say he didn’t do anything wrong. He was after all a paralegal. Persons who take on that role assume the same obligation of confidentiality as the attorneys for whom they work.  Words like “leaked” and “whistleblower” are euphemistic words that tend to obscure the fact that what he did almost certainly violated that obligation. It is wrong to violate that obligation.

Anyone who practices as a legal professional for over three decades will likely run into circumstances that make honoring that obligation very difficult. I certainly have. I recall many sleepless nights struggling with the implications of being bound by rules of attorney-client confidentiality. Each time the obligation to maintain confidentiality won that struggle. I honestly cannot say what I would have done in Williams’ position. But if I chose the path he chose I would not be able to shake the feeling that in order to do something right I had done something quite wrong.

Supervising Paralegal Sexual Relations

Wednesday, September 25th, 2013

Back in 2009 I made the statement, “Certainly both attorneys and paralegals must refrain from becoming engaged in an intimate relationship with a client during the course of the professional relationship” in a post on whether a paralegal see client socially after legal relationship ends. Of course one makes such statements never thinking that someone might ask you to back them up with law. Sure enough, four years later I’ve been asked to do so by an attorney who had pointed out that another attorney’s paralegal appears to have formed a relationship with a client. The attorney responded by saying something like, “I wasn’t able to spend as much time on research as I would have like, “What she does outside the office is no business of mine.” A response to the first attorney’s question could not be general, i.e., based on the Model Rules of Professional Responsibility because each state has its own set of rules. I did not have time to fully research the question, but here’ what I came up with over the weekend. What are your thoughts?

Your exchange with _________ raises two issues. One is the basic issue of whether the paralegal’s possible involvement with a client is unethical, but he also claims that the relationship is “none of my business.” It is best to address each of these issues separately. Both are a bit more difficult to address in California than in some other jurisdictions because of the way the California Rules of Professional Responsibility are written.

The California Rules do not have a specific rule that clearly states an attorney’s responsibility for the conduct of his employees such as that in the Model Rules:
Rule 5.3 Responsibilities Regarding Nonlawyer Assistance
With respect to a nonlawyer employed or retained by or associated with a lawyer:

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or …
However, the Legal Information Institute at Cornell University School of Law makes this comparison of the California Rules to the Model Rules:
Although California does not have a direct counterpart to MR 5.1, CRPC 1-120 and CRPC 3-110 impose certain supervisory duties on lawyers and partners. CRPC 1-120 provides that “[a] member shall not knowingly assist in, solicit, or induce any violation of these rules or the State Bar Act.” Moreover, CRPC 3-110 prohibits a member from “intentionally, recklessly, or repeatedly fail[ing] to perform legal services with competence.” “Competence” means “to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” The Discussion to CRPC 3-110 specifies that “[t]he duties set forth in rule 3-110 include the duty to supervise the work of subordinate lawyer and non-lawyer employees or agents.” Although CRPC 3-110 is a prohibition against acting incompetently, inferentially it imposes a duty of competent performance.

When comparing the rules as to liability, CRPC 3-110 can be read to impose greater liability than MR 5.1…. For example, California courts have imposed liability on lawyers with supervisory duties whether or not the lawyer had knowledge of the specific conduct and whether or not the lawyer could take remedial action. See, e.g., In the Matter of Hindin (Review Dept. 1997) 3 Cal. State Bar Ct.Rptr. 657 (involving the failure of an associate to file appellate papers and another associate leaving a courtroom prior to the court calling and hearing the motion); Trousil v. State Bar (1985) 38 Cal.3d 337, 211 Cal.Rptr. 525, 695 P.2d 1066 (secretarial errors delay the mailing of a settlement check); Crane v. State Bar (1981) 30 Cal.3d 117, 177 Cal.Rptr. 670, 635 P.2d 1163 (lawyer’s staff contacts individuals represented by another lawyer). [Emphasis added.]
Indeed, an attorney’s duty to supervise and educate legal staff is fairly well engrained in California law:
The attorney is the professional responsible for supervising the work of his or her legal assistants. (Vaughn v. State Bar (1972) 6 Cal.3d 847, 857, 100 Cal.Rptr. 713, 494 P.2d 1257.) “[E]ven though an attorney cannot be held responsible for every detail of office procedure, he must accept responsibility to supervise the work of his staff.” (Ibid.; see also Spindell v. State Bar (1975) 13 Cal.3d 253, 260, 118 Cal.Rptr. 480, 530 P.2d 168 [“An attorney has an obligation to adequately supervise his employees….”]; ABA Model Rules Prof. Conduct, rule 5.3, com. [“A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product”].) Thus, Valdez was responsible for supervising Lui’s work and is responsible for Lui’s work product, including his mistake in calendaring the OSC hearing. (Cf. Zamora v. Clayborn Contracting Group Inc. (2002) 28 Cal.4th 249, 259, 121 Cal.Rptr.2d 187, 47 P.3d 1056 [assuming error of legal assistant attributable to counsel]; Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 276, 274 P.2d 930 [assuming error of secretary attributable to counsel].) Hu v. Fang, 127 Cal. Rptr. 2d 756 (2002.)

It is likely ____________l is maintaining that the paralegal’s conduct is none of his business because most of it occurs outside of the office. While my quick research did not turn up law in California that directly addresses this aspect of this issue, logically it makes no sense. The law is clear that the attorney is responsible for seeing that the ethical standards are met because of the connection to the client, not a connection to a particular place or a particular time of day. For example, would he claim it none of his business if his paralegal was posting client confidential information on her person Facebook page from her home after work hours?

Thus, if the paralegal’s conduct is unethical, it is indeed the attorney’s business. Again, this is a bit more difficult to answer in California than in some jurisdictions. There is no separate governing body with disciplinary powers over paralegals. (The major paralegal professional associations each have an ethical code of conduct, but they have no governmentally sanctioned authority to discipline paralegals for violations.) Instead, discipline is handled as indicated in the cases cited above by disciplining supervising attorneys for ethical violations committed by their employees. Thus, we normally look to the standard of conduct imposed on the attorney, it being his obligation to give his assistants “appropriate instruction and supervision” on that standard.

As with the previous discussion, the California Rule is more leans more favorably to the attorney than the rules in other jurisdictions:
Rule 3-120 Sexual Relations With Client
(A) For purposes of this rule, “sexual relations” means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.
(B) A member shall not:
(1) Require or demand sexual relations with a client incident to or as a condition of any professional representation; or
(2) Employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or
(3) Continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently in violation of rule 3-110.
Some of the discussion of this rule seems applicable to any case of a relationship between a member of a legal team and a client, e.g., “Often, based upon the nature of the underlying representation, a client exhibits great emotional vulnerability and dependence upon the advice and guidance of counsel. Attorneys owe the utmost duty of good faith and fidelity to clients.(See, e.g., Greenbaum v. State Bar (1976) 15 Cal.3d 893, 903 [126 Cal.Rptr. 785]; Alkow v. State Bar (1971) 3 Cal.3d 924, 935 [92 Cal.Rptr. 278]; Cutler v. State Bar (1969) 71 Cal.2d 241, 251 [78 Cal.Rptr 172]; Clancy v. State Bar (1969) 71 Cal.2d 140, 146 [77 Cal.Rptr. 657].)”
In general prohibitions on such relationships focus on two perspectives: (1) the possibility that a vulnerable client will be “taken advantage of” by a legal professional, and (2) the probability that the legal professional’s objectivity and judgment on behalf of the client. (This being the logic, it appears, behind Rule 3-120(B)(3).)

This issue has been the subject of an article in the California Bar Journal. That article concludes (as do most other writings on this topic regardless of the jurisdiction,) “Both the California Rules of Professional Conduct and the ABA Model Rules of Professional Conduct prohibit lawyers and clients from engaging in “sexual relations” unless they predated the representation. Even then, however, other ethics rules may apply to the extent that sexual involvement may adversely impact the attorney-client relationship.”

A 2002 panel of attorneys sponsored by the University of Virginia School of Law reinforces this position, stating, sex between a client and lawyer can pose significant dangers to both the client and the lawyer. The client is often the vulnerable person in the relationship and can even personally depend on the lawyer, especially in family law or domestic relations cases. The lawyer “needs a certain amount of emotional distance” to keep his client’s interests in mind as well.
If the paralegal is used as a clerk or secretary, there may not be much risk. However, if the paralegal is used to communicate with the client, conduct legal research, engage in legal analysis, drafting motions or agreements, etc., she is subject to the same probability of lack of objectivity and poor independent judgment as the attorney.

So, the bottom line is that __________ is quite wrong in stating that the paralegal’s involvement with his client is none of his business either in the sense that there is nothing ethically wrong with the conduct or that it is not his responsibility.

It Can Happen to You

Monday, November 19th, 2012

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.

The Supervising Attorney as Brother’s Keeper

Tuesday, October 30th, 2012

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.

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.