I am drawn out of summer vacation haze by a post on Above the Law by Alex Rich entitled, “Lawyer Applies For Paralegal Position. What Happens Next Will Surprise You.” Basically Alex is complaining because a lawyer was not considered to have the minimum requirements for a paralegal position. While Alex may be surprised I, regular readers of this blog, and practicing paralegals are not. The fact is that lawyers and paralegals are trained differently for markedly different roles. Alex’s surprised is based on the common misunderstanding of attorneys of what paralegals do and how they do it. I’ve addressed this extensively in some early posts, so I won’t go over it all again here, but here’s a link for those who have interest in hearing more. It is unfortunate that a quality blog like Above the Law perpetuates this misunderstanding.
Archive for the ‘What is a “Paralegal?”’ Category
Lay Advocates will be in California’s future if Barbara Liss is correct. She makes a good argument for them in an email to Chere Estrin, part of which is posted by Chere on The Estrin Report. Since I’ve provided a link to the full post, I won’t re-post it here. As a teaser, I’ll just post her conclusion:
Once a journeyman, however, a full-fledged paralegal may often be as able as a lawyer in many aspects to provide considerably beneficial direct services to the public and has great potential to significantly diminish the existing gap in access to justice in California. I look forward myself to being soon able to contribute my own services in that way when I am able to test and obtain a limited license as a California Lay Advocate.
No, the New York Navigators are not another sports team. A colleague on the AAfPE Board of Directors provided us with a copy of New York Chief Judge’s State of the Judiciary Address. Here’s where the navigators come in:
Our efforts to find ways for non-lawyers to be of assistance begin in the courthouse. As of this month, specially trained and supervised non-lawyers will begin providing ancillary, pro bono assistance to unrepresented litigants in Housing Court cases in Brooklyn and consumer debt cases in the Bronx and Brooklyn. These are courts and case types in which virtually all defendants are unrepresented and are facing serious personal consequences as a result of litigation. It is shocking that in this day and age, over 95 percent of defendants in these critical cases are currently unrepresented. The new court-sponsored projects will offer an array of assistance to eligible pro se litigants ranging from general information provided at help desks and written material to one-on- one assistance, depending on the needs and interests of the litigants. This kind of one-on-one assistance will include providing informational resources to litigants and helping them access and complete court do-it-yourself forms and assemble documents, as well as assisting in settlement negotiations outside the courtroom.
Most significantly, for the first time, the trained non-lawyers, called Navigators, will be permitted to accompany unrepresented litigants into the courtroom in specific locations in Brooklyn Housing Court and Bronx Civil Court. They will not be permitted to address the court on their own, but if the judge directs factual questions to them, they will be able to respond. They will also provide moral support and information to litigants, help them keep paperwork in order, assist them in accessing interpreters and other services, and, before they even enter the courtroom, explain what to expect and what the roles are of each person in the courtroom.
Clear guidelines govern what a non-lawyer can and cannot do to ensure that they do not cross the line into the practice of law. They will receive training and develop expertise in defined subject areas. When these non-lawyers confront situations where the help of a lawyer is crucial, they will have access to legal service providers for help and referrals. (Emphasis added.)
This are not practitioners of the same nature as Washington State’s LLLTs, but they are another way for well-trained non-lawyers to help resolve the access to justice problem. They do sound a bit like a paralegal don’t they?
I received an email from Andrew Deen (who I don’t know other than from this email) steering me to an infographic produced by George Washington University. I am familiar with GWU online Masters of Paralegal Studies program and know the Associate Dean in charge of that program. One of the programs graduates contributed an article to The Empowered Paralegal Professionalism Anthology.” So, I’m pretty confident that the information contained in the infographic is accurate. Certainly its basic premises that the paralegal profession has evolved significantly over the last few decades (although some members of the bar have not evolved in their thinking about the paralegal profession) and continues to evolve. In any case, Andrew says it’s OK to share the infographic with my readers, so I am:
The January 28, 2014, post on The Estrin Report is a guest post by Terese Cannon, J.D., entitled, “The Future of Paralegals: Why Waiting for the Future to Arrive is a Career Buster.” It is a very good post that summarizes the current state of flux for the legal profession in general and paralegals in particular, including synopsis of recent publications on the topic. This is of particular interest to me as a member of the Board of Directors of the American Association for Paralegal Education. At our meeting later this week I plan to propose creation of an AAfPE task force on this topic. Here’s the first couple of paragraphs which set the matter up quite well:
We are entering a era of major, perhaps even revolutionary, shifts in law practice, legal education, and the role of both lawyers and nonlawyers who deliver legal services. Already in motion but accelerated by the economic meltdown five years ago, these shifts have already resulted in significant downsizing and reorganization in large law firms, decreased demand for legal services affecting large and small firms alike, and high under- and unemployment of lawyers.
Roles for paralegals are changing, requiring a re-envisioning of what paralegals can and should do and a concomitant rethinking of paralegal education. The idea of nonlawyer practice has reemerged as a compelling subject of discussion within the ABA and the influential State Bar of California, and is ever closer to becoming a reality in the state of Washington. This renewed interest is related to the disruption of models for delivery of legal services and has spurred serious nationwide discussions about how to reform legal education and requirements for entry into the legal profession. This cluster of concerns together with the continuing challenge of providing access to legal services for low- and middle-income Americans has commanded the attention of legal commentators, educators and the bar.
The rest of the post is well worth reading. The remaining posts in the series will, I suspect, also be.
In general, the winds of change for the paralegal profession and the paralegal education profession are blowing hard. If these professions do not catch that wind they will find themselves blown about or left adrift in the horse latitudes. As a member of one of those professions I intend to do what I can to see that it takes the right tact.
Jamie Collins Founder of The Paralegal Society, Savvy Litigation Paralegal, Legal Columnist & Inspired Writer as posted “An Ode to the Paralegal Gladiators, a/k/a, Litigation Paralegals” on the Paralegal Society‘s website. It’s much too long to reprint here, especially since I have not asked permission to do so. Here’s the start and finish. To read the rest, which you really ought to do, just click on the link::
One day about a year ago, I received a call from the courthouse. It was the kind of call a busy Litigation Paralegal looks forward to, but doesn’t receive all too often. One that occurs when other attorneys in your firm outside of your immediate circle call upon you (the reliable, makeshift ninja standing deskside) from the midst of a jury trial to request a piece of critical information or evidence for purposes of impeachment. …
So push that paper, field those calls, put out those fires, scribble down those notes, organize that file, and attempt to save the other half of your sanity, along with his, as you always do. You are a Litigation Paralegal. You are proud. You are prepared. You are ready. REMEMBER the dream.
Take your seat, and live it.
Even within the United States “paralegal” means different things to different people, leading to confusion even within the bar. However, within the United States there is overall agreement that paralegals assist and are supervised by attorneys. This is not the case in many other countries. In much of Canada and in Great Britain, there appear to be two categories of paralegals: those that work in supportive roles with attorneys and those who practice independently, representing clients in some limited capacity (limited in comparison to attorneys.) In Great Britain, for example, it appears paralegals have much greater leeway based on a common law right of British citizens to select there representatives. I have met with a paralegal who runs an independent office where he supervises other, less experienced and educated, paralegals. In one Canadian province, the second category of paralegal is licensed and regulated. (See the “Canada” category on this blog.)
According to a story on allAfirca.com, entitled, “Tanzania: Paralegal Training Vital for Justice Execution,” Tanzania appears to have been working more on the British model since the concept of paralegals was introduced in the 1990s:
COMPREHENSIVE training for paralegals if well utilised will facilitate the implementation of government’s ambitious plan to enhance access to justice to all.
Quality, effective, efficient and professional legal aid provision will remain a dream if it is not supported by well-organised and strategic training of paralegals, who play a significant role in the provision of legal aid in Tanzania.
This is because legal aid provision is a dynamic and demanding undertaking that requires practitioners to have requisite legal skills and education. It’s true that in the past, paralegal training was not given priority due to, among other things, a limited number of legal disputes, underdeveloped socio-economic, political settings and illiteracy among Tanzanians.
This resulted in having a number of uneducated and non-trained paralegals, who are still operating at the moment. Keneth Sudi, an experienced paralegal practitioner, said “accommodation of unskilled paralegals in legal aid provision stemmed from a huge gap, which existed due to high demand for paralegal services.” (The full story is interesting and well worth the read, but too long to be repeated here.)
The common thread in all jurisdictions is the sense that somehow paralegals can be a significant part of the solution to access to justice problems. In the United States that has generally taken on two aspects – (1) the use of paralegals in traditional law offices to reduce charges to clients from those that would be charged if lawyers charged their hourly rate for all work that must be done on a case and (2) utilization of paralegals in projects specifically designed to meet the needs of those who cannot afford attorneys.
Despite a recognized need for solutions to the access to justice problem and some fairly wide ranging proposals for a national model for access to justice, there have been few systematic, comprehensive attempts to use paralegals in the way Tanzania, Ghana, and others. The Washington state effort to legalize and license legal professionals who are not attorneys is really the closest we have. As yet that program is limited to only domestic relations cases and is really a “paralegal plus” program, working off a base of formally educated paralegals in the traditional sense, but adding additional law school provided training and examinations. (Most law schools require 90 semester credit hours to graduate. The ABA requires 83 semester credit hours to accredit a law school. The additional training for LLLTs in Washington is only about 10% of that.) I hope to write more soon about this LLLT program and will certainly monitor its progress in Washington state. I remain hopeful that my prediction that the paralegals profession (in some form) will end up being an essential and substantial part of the access to justice problem in the United States.
A story on WFTV’s website reports “A Brevard County woman is accused of stealing thousands from a 92-year-old woman with dementia and a retired teacher who lives in a nursing home,” with the headline, “Brevard paralegal accused of stealing from elderly female clients.” This story raises a number of issues that are the subject of frequent comments here including the role of legal personnel in preventing elder abuse(and here,) the danger of legal personnel committing elder abuse, and the role of a supervising attorney in supervising (or the failure of the attorney to supervise) legal staff who embezzle from law firms or from clients.
In this instance my focus is once again on the tendency of the public (especially mass media) to refer to any person who works for an attorney as a “paralegal” without regard to the role that person plays in the law office or the qualifications of that person for classification as a paralegal. This problem derives from and at the same time perpetuates the difficulty the paralegal profession continues to have in establishing a professional identity. Efforts such as Florida’s Registered Paralegal program should help in this regard, but this story emanates from Florida.
At first the story states, “Jenine Black was the office manager for an attorney of Estate Planning and Elder Law Center of Brevard.” Clearly a person can be an office manager without being a paralegal and a paralegal without being a manager. But later the story pegs her as both office manager and paralegal:
The attorney who owns the office, Robin
Petersen, first noticed money missing from his accounts.
“At the time, it was close to
$200,000. Now we estimate it’s over $200,000 taken from him personally,” Sgt. Michael Casey of the Indialantic Police Department said.
Police said perhaps more outrageous is that the
longtime office manager and paralegal is accused of targeting elderly clients.
The woman with dementia and the retired teached are each missing around $20,000, police said.
“She was actually taking it straight from their accounts and she was writing checks out of their accounts,” Casey said.
There is, of course, no indication as to the basis for that designation. It’s a shame. The paralegal profession, like all professions, has its share of “bad apples.” It does not help to the profession to also be pegged with responsibility for acts committed by persons who a re not really part of the profession.
I don’t normally so blatantly based the title of my post on the title of another person’s article, but this time it seems appropriate. Mianne on the NFPA LinkedIn discussion board posted a link to an article on law.com from the Legal Technology News page on law. com entitled, “We May Not Be Lawyers, But We Are Professionals” by Jeffrey Brandt.
I’m going to sign-on to most of what Jeffry says and suggest you read the entire post. Here are two parts that I found particularly well stated,
But last time I looked, in addition to the lawyers, law firms required technologists, Help Desk staff, library specialists and researchers, litigation support teams, marketing personnel, financial experts, paralegals, secretaries, human resource staff, and other administrative experts in order to run. Merriam-Webster defines “nonprofessional as “being such only for recreation” or “lacking or showing a lack of expert skill.” It offers up synonyms of amateur and unskilled. It goes on to define professional as “relating to a job that requires special education, training, or skill.”
So here’s a cheer for all the dedicated professionals that work with lawyers day in and day out to ensure their needs are met and that their clients have the best experience possible. We may not be lawyers, but we are professionals.
Of course since paralegals are professionals, the must act as professionals, which is the point of this blog and The Empowered Paralegal series of books.
I am currently outlining a book tentatively entitled, “The Empowered Paralegal Guide to ADR,” so stories about mediation tend to catch my attention. Professional Liability Matters’ article, “When a Settlement Unhinges: Failure to Document a Mediated Agreement” (brought to my attention by a post on the Franklin & Marshal [my alma mater] is a good example. While the story emphasizes the likely consequences of failure to document a settlement, an important lesson for attorneys, I view it as another example of the value of a good paralegal. Paralegals have many roles in the ADR process, not the least of which is assisting in ensuring that agreements do not become “unhinged.” They do so by helping the client understand the process and the agreement, helping the attorney and client communicate so that the client does not agree to something by which they will not abide and many other ways. Most apropos to the linked story is the ability of a good paralegal to assist in drafting a written document that can be signed by the parties before leaving the scene of the agreement. If the paralegal takes good notes during the course of the mediation, tracking agreed items and language on a separate sheet of paper (albeit an electronic sheet of paper), the resulting document can fairly easily be converted into a signed document confirming the agreement. It helps to have a stockpile of boilerplate language on hand to cut-and-paste into the agreement when and as appropriate.