Archive for the ‘Whistleblowing’ Category

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.

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.

 

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.

More Follow-up on “Handling Unethical Attorney Conduct: An Example”

Friday, December 9th, 2011

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.

Paralegal v Lawyer

Wednesday, January 19th, 2011

No, this is not another post on the dangers of lawyers doing paralegal jobs when it is abundantly clear that paralegals are trained to do that job and are thus much better at it than lawyers. It is the actual citation name for a 1992 case out of Pennsylvania, Paralegal v Lawyer ,783 F.Supp. 230 (1992). The court notes the reason for using the generic terms rather than the names:

Because this case devolved from disciplinary proceedings, yet pending, and unresolved before the Disciplinary Board of the Supreme Court of Pennsylvania, and because such proceedings are generally to be adjudicated in private, Pennsylvania Rules of Disciplinary Enforcement, Rule 402 Confidentiality, see, e.g., In re Anonymous No. D.B. 88, 5 Pa.D. & C. 4th 593 (1989), the names have been changed to protect the presumptively innocent. Although the case number is public record, I would hope that the news or legal reporters would see fit to exercise similar restraint, at least until verdict. Of course, I in no way so order, being mindful of Amendment One.

The case is interesting not just because of the name, but because it deals with an issue which has been a frequent topic here recently – paralegals dealing with (alleged) unethical conduct on the part of the attorneys for whom they work. Here’s the basics, which may sound all too familiar, but are really from 18 years ago:

This is a diversity case, governed by Pennsylvania law and asserting wrongful discharge from employment. Defendant moves for summary judgment, essentially averring that the discharged plaintiff, a paralegal employed by the defendant, a lawyer, has no cause of action because of the virtually impervious employment-at-will doctrine in Pennsylvania, see Hall v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990), and because, asserts defendant, plaintiff did not perform her job to his expectations, to say the least.

Plaintiff counters that she was, in today’s parlance, a whistleblower, fired in retaliation for calling evidence of her employer’s alleged misdeed to the attention of her employer’s attorney in a matter brought against her employer-lawyer, then pending before the Disciplinary Board of the Supreme Court of Pennsylvania. She 231*231 argues that a retaliatory dismissal in the context of a profession such as the law, which is licensed and regulated by the state, falls within the public policy exception to the at-will doctrine. In fairness to the defendant lawyer, it must be said that he vigorously denies her charges, and claims that she is mentally unbalanced, vindictive, and perjurious. It is fair to say that he speaks ill of her and she of him.

In any event, more fully, plaintiff avers that the reason for her firing was that she had notified her employer’s lawyer in the disciplinary matter that her employer had submitted to the Disciplinary Board a back-dated letter to the complainant in the disciplinary proceeding, thus fabricating a false record. Plaintiff states that the defendant told her over the phone, while she was in the hospital, that he had authored and typed the letter himself. The apparent purpose of the letter, according to plaintiff, was to deceive the Disciplinary Board into thinking that he had earlier communicated with his client, thus thwarting a disciplinary complaint.

Upon receiving this letter, the lawyer’s lawyer immediately wrote defendant about it, and sent him a copy. The very next day, the defendant placed plaintiff on suspension, and shortly thereafter he terminated her. Plaintiff asserts that this falls within the clear public policy exception to the at-will doctrine. For purposes of this Rule 56 summary judgment motion, I agree.

The full case is here.

Handling Unethical Attorney Conduct: An Example

Monday, December 13th, 2010

From time to time I’ve done posts here on the dilemma paralegals face when working for an attorney who is engaged in unethical conduct. Often a certain amount of judgment is required as to whether the conduct requires the paralegal to report the conduct. I write about this in The Empowered Paralegal: Effective, Efficient, and Professional. There I emphasize,

If you do decide to report, I do suggest obtaining legal advice first from an attorney outside of the one in which you work. Remember that attorney has a firm obligation to keep what you tell her confidential. That attorney can advise you regarding protections to which you may be entitled, the proper authority to which you should report and the correct procedures for reporting. Generally, you will receive immunity from being sued by your employer for slander and libel, and you may be entitled to certain protections against on-the-job retaliation under “Whistleblower” laws. She will help you analyze the situation to determine whether you have the necessary facts, have properly interpreted the facts and validate your decision regarding the proper balancing of interest and integrity.

In fact a paralegal is well advised to seek independent legal advice from an outside attorney in determining whether to report.

I write about this again now because of a proceeding brought against six attorneys in Maine by the  Board of  Bar Overseers. Having practiced in Maine for over thirty years, I am familiar with many of the player in this drama, but the reason I am writing about it here is that the matter involved the theft of $300,000 from an elderly client (of particular interest to me because of the recent publication of The Empowered Paralegal: Working with the Elder Client, wherein I discuss such dangers) which theft was discovered by the attorney’s legal secretary who may very well have been a full paralegal.

The attorney (a member of one of the largest and most prominent firms in Maine) who stole the money has been disbarred for life and served two years in federal prison. The present proceeding is against six members of the firm’s executive board. The Board of  Bar Overseers is alleging they failed to properly supervised and report with regard to the incident. The full story is reported in the Portland Press Herald here and here. However, this is the allegation most pertinent to this post:

According to Davis [Bar Counsel representing the  Board of Bar Overseers – Hi, Scott!], Warren should have begun a thorough investigation of Duncan’s billing practices immediately after his legal secretary came forward with concerns about suspicious checks. Instead, Davis alleges, Warren accepted a false explanation from Duncan and told secretary Ellie Rommel not to seek legal advice from her private attorney.

If Rommel had listened to that advice, Davis alleges, “Duncan’s misconduct would have remained hidden, covered up and never properly reported by any of the firm’s board members as they were required to do.”

But Rommel continued to blow the whistle and consulted with attorney Daniel Lilley, whose interaction with Verrill Dana forced the firm to bring in outside auditors, Davis wrote.

Hence my modification of my original advice: a paralegal in this position should consult an outside attorney not only if they decide to report, but in determining whether a report should be made. This case, whether or not the allegation is true, demonstrates the folly of seeking that advice within the firm.

Paralegal Tells Tales Out of School

Monday, August 30th, 2010

According to UPI.com:

A former paralegal for a New York lawyer says his star client, heiress to a copper fortune, once gave his granddaughter a $10,000 dollhouse.

Cynthia Garcia told the New York Post that Huguette Clark was so generous to Wallace Bock her gifts became a joke at his law firm. She is also said to have donated $1.5 million to build a bomb shelter in the Israeli community where one of his daughters lives.

Staffers once created a phony will making him Clark’s major beneficiary and gave it to him at a holiday party.

Clark is now 104. She now lives at Beth Israel Medical Center and has not seen in her 42-room apartment in Manhattan or her houses in California and New Canaan, Conn., for decades.

The Manhattan District Attorney is investigating whether Bock and accountant Irving Kamsler have cheated the heiress.

Garcia told the Post that Bock recently telephoned her after several years without communication and asked her not to talk about his relationship with Clark.

“What they’re doing to her is horrible,” Garcia said.

Clark’s father, William Clark, was a onetime school teacher who made a fortune in copper. He represented Montana in the U.S. Senate for a single term and died in 1925.

Now if any of these allegations are true, I have absolutely no sympathy for the attorney and hope he is prosecuted to the fullest extent of the law as well as disciplined by the proper bar authorities.  I do, however, have a problem with a paralegal, ex- or not, discussing this information with a newspaper.

I do not oppose, in fact I encourage, whistle-blowing for this type of activity. But whistle-blowing consists of reporting misfeasance or malfeasance to the proper authorities. Giving this kind of information to a newspaper is not just unprofessional vis-a-vis the attorney, but a violation of the  client’s right to confidentiality. Assuming the statements are true, can the paralegal truly believe that Bock or her family would want this story plastered in the Post? Even if she does truly believe it, she does not have the right to make that decision. That is what confidentiality is about.

The possibility that it may all come out as a result of an indictment or trial is of no weight. If that should happen, the disclosure will be the result of a court proceeding, not a unilateral decision on the part of a person who once took on the weighty role of a member of a legal team committed to the confidentiality of client information. The rules of ethics allows the former, not the latter. Whistle-blowing to the authorities at the risk of losing one’s job is an act of integrity. Telling tales to the press when there is no risk to you, is most definitely not an act of integrity or professionalism.

Paralegal Whistle Blower? – An update

Friday, October 2nd, 2009

Multiple sources are reporting on the U.S. Office of Special Counsel’s action regarding a whistleblower complaint by former USDoJ paralegal Tamarah Grimes, a case previously discussed here. This report is from the Associated Press through the Anniston Star:

MONTGOMERY — The U.S. Office of Special Counsel says complaints brought by a U.S. Department of Justice paralegal in the prosecution of former Gov. Don Siegelman were unsubstantiated. Tamarah Grimes, who worked on the team prosecuting the corruption case against Siegelman and HealthSouth founder Richard Scrushy, filed a complaint in 2007 under whistleblower protection laws.

She accused prosecutors of mismanagement, failure to report improper contact with jurors and initiating a criminal investigation against her in retaliation for filing an Equal Employment Opportunity complaint.

 A DOJ investigation rejected the accusations. In a Sept. 29 letter to President Barack Obama, Associate Special Counsel William E. Reukauf said the findings appeared to be reasonable, and the office has closed the case.

Grimes has called the DOJ report on her complaint one-sided and incomplete.

Of course, I have no special knowledge about this matter, so I can only report what I read. This certainly would not be the first DOJ report that was one-sided and incomplete, especially when the report reflects on DOJ or related agencies.

I suspect we will be hearing more on this. In any case, it is a good case to spark discussions on the difficulties paralegals face when confronted with unethical conduct by attorneys.

Paralegal Whistleblower

Wednesday, September 23rd, 2009

By now most of you likely know the story of Tamarah Grimes, a Justice Department paralegal, who according to Andrew Kreig, 

has repeatedly stepped forward to allege misconduct by her colleagues on the Siegelman prosecution team. Grimes, a Republican paralegal with a quarter century experience in legal support, began alleging years ago that the Republican U.S. Attorney Leura Canary remained active in overseeing Siegelman’s prosecution despite Canary’s public claims that she was recused from the case since 2002 because of her husband’s longtime opposition to Siegelman, Alabama’s top Democrat.

The paralegal was fired in June and cut off from health benefits a week after writing a 10-page letter to Attorney Gen. Eric Holder documenting the problems, as I reported for Huffington Post July and at greater length this month for the national paralegal magazine Know.

This is a remarkable story on several levels and, if the facts are as stated, Tamarah is a remarkable person and paralegal. This blog has discussed the difficulties of working for a dishonest attorney in several posts. Tamarah and her story should be read and seriously considered by every paralegal. So, if you have not already read the article in Know, please click the link above and do so now.