Archive for August, 2009

What should a paralegal do when an attorney deletes research given by paralegal prior to giving information to judge?

Monday, August 31st, 2009

One visitor to this blog arrived through the Google search “what should a paralegal do when a attorney delete research given by paralegal prior to giving information to judge.” Several posts here have discussed ethical questions that arise for a paralegal when they discover that an attorney is engaged in unethical acts. However, it is unclear in this case that the attorney is engaged in any unethical conduct. While the attorney does have an obligation not to commit fraud or other dishonesty with regard to the court, it is not necessarily required that she provide the court with all of the information discovered during research of an issue. There are often strategic or tactical reasons for an attorney not to include research in a memorandum or brief filed with a court that do not violate any ethical obligation owed by the attorney to the court.

The main thing a paralegal should do in this circumstance is to make sure there is a record showing that he did his work, found the information and provided it to the attorney. The attorney is always the final arbiter of what is and is not included in documents filed with the court. They must sign those documents and in civil proceeding in federal court are subject  to sanctions under Federal Rule of Civil Procedure 11. Additional information would be necessary to assess whether in any particular case the paralegal should do more.

Often the paralegal is frustrated because, after hours of research and preparation, the attorney does not seem to be applying the resulting work to the project at hand. I discuss this in The Empowered Paralegal in the context of trial tactics:

One key to managing your relationship with your attorney is a mutual understanding of what each of you does as part of the legal team. Understanding your attorney’s use of trial tactics is also an essential tool to assisting in building a better trial with that attorney. Often the paralegal is frustrated because, after hours of research and preparation, the attorney does not seem to be applying the resulting work to the trial. However, trials are more than just the application of rules of procedure, rules of evidences, statutes and case law to a set of facts.

Just as important as knowing the rules and law is knowing how and when to employ them in the context of a particular trial. While knowledge of the rules of evidence will tell the attorney she can object to a question, she must use your preparation and her judgment to determine whether to object.  At each opportunity to object she must determine instantly

  • whether an objection is likely to succeed because an unsuccessful objection may create the wrong impression in the jury’s mind,
  • whether repeated objections, even if successful, will cause a jury to think her client has something to hide,
  • whether a successful objection will later prejudice her ability to use similar evidence favorable to her case,

and many other potential ramifications.

The trial attorney must make tactical use of all the weapons available. This can only be done if the case is thoroughly prepared; the facts, law and rules all known and the evidence all available. There are several excellent books devoted to effective trial tactics, a topic which cannot be covered comprehensively here. However, there are several general tactical considerations which will be helpful to you in understanding what your attorney is doing and how you can most effectively assist the attorney.

A Day of Educational, Professionalism and Networking Benefits in Michigan

Sunday, August 30th, 2009

Today The Empowered Paralegal gives a “Tip of the Hat” to The Michigan State Bar Paralegal/Legal Assistant Section which publishes a very good newletter. The most recent issue reports on “Day of Education 2009,”

The 2009 Paralegal/Legal Assistant Section’s Annual Day of Education kicked off in an exciting way. The event began Thursday evening as an intersection between paralegals, litigation support professionals, and a variety of vendors at the Crush Nightclub located in the B.O.B in Grand Rapids. This intersection was spearheaded and hosted by ALSP and provided attendees an opportunity to catch up with old friends and colleagues and also allowed for a fantastic atmosphere for making new contacts in the legal arena…
The following morning …. Aggressive tracks of sessions were offered, in which there were a total of 15 topics during the course of the day. These topics included Legal Research, Constitutional Law, E-Discovery, and a look at the Michigan Court Rules as they deal with ESI….[I]n celebration of Paralegal/Legal Assistant Day in Michigan (May 3), Marcy Jankovich provided everyone with a truly enjoyable and entertaining keynote speech on the history of legal assistants/paralegals and the history of how May 3 became Paralegal/Legal Assistant Day in Michigan….All in all, it was an event that provided a lot of educational, professional, and networking benefits.

This kind of event does indeed provide many benefits for the professional paralegal and those striving to gain or improve their professionalism. They also illustrate the importance of professional associations. This particular event also struck me as an illustration of what can happen when the members of an association are active participants in that association. These events do not just happen, the members and leaders of the organization make them happen. As discussed previously, the professional paralegal honors their obligation to improve their profession by volunteering to assist in producing both these kinds of events and the newsletters that report them.

Paralegals and Vampires

Saturday, August 29th, 2009

I am not aware of any actual relationship between paralegals and vampires but I am told that in today’s market it is important to work in vampires on a fairly regular basis. Certainly there will be times when even the most paralegals will confront clients and attorneys that the paralegals will referred to as “blood-sucking so and so’s” or worse. The danger is in when and how this reference is made.

For example, if an attorney practices long enough it is almost inevitable that she will face ethical and malpractice complaints, many, if not all, of which will be unjustified. It is important that there be adequate and comprehensive records to document the client file. A client may allege that they called twenty times in two weeks with no response. A telephone call log showing he called three times, each of which received a response within twenty-four hours even if the responsive phone calls resulted only in repeated busy signals not only deflates that claim but cast doubt on any other complaint they make.

Written memos to the file are also important. Even though such memos, like emails, are informal, each such memo and email must be written with an eye towards the possibility that it could be read by a judge or jury in a malpractice case, by Bar Counsel or the next attorney to handle the case. Be especially careful what you say about your client. Convey the fact that your client is a confrontational, uncooperative, stubborn and drunk moron, but be careful and diplomatic about how you do it.

Waiting out Danny

Saturday, August 29th, 2009

For those of you on the east coast looking for good reading while waiting out tropical depression Danny, when you are done here I recommend new posts by Lynne at Practical Paralegalism – “The New Frontier for Sexual Harassment at Work: Sexting” and Melissa at Paralegalese, “Team Work at the Law Firm” and “Does Nonlawyer=Incompetent.”

OLP E-discovery Certification

Friday, August 28th, 2009

In a previous post discussing the value of advanced paralegal certifications I indicated I would have more to say about the Organization of Legal Professionals (OLP). Here it is from OLP itself:

OLP’s PURPOSE: To promote the common business interest of the legal community, establish guidelines and standards for legal professionals on e-discovery and other topics, evaluate compliance with same, and serve as a resource on quality certification.

The OLP is a non-profit organization establishing guidelines and standards for legal field, with an emphasis on e-discovery. The organization:

Evaluates compliance with the standards;
Recognizes organizations and programs which demonstrate compliance
Serves as a resource on quality certification;
Certifies educational providers that meet OLP’s standards.

OLP’S VISION: OLP is an administratively independent resource recognized as an authority on standards for professional certification of individuals and organizations providing services and products to the legal industry.

It’s the end of the week and I’m slowing down a bit, so I’m also going to let Chere Estrin of The Estrin Report and Know: The Magazine for Paralegals, give a further explanation of the reasoning behind OLP. This is from one of her communications on the topic:

Today’s screaming for qualified e-discovery professionals has reached an unprecedented volume. Recently, Socha-Gelbman published an overview of the results of their annual survey on the Legal Technology News site. ( http://www.lawtechnews.com/r5/showkiosk.asp?listing_id=3296867 ).

One of the most important single observations from it is the shortage of expertise in the market-place with providers, law firms and corporations reported as “fighting each other for the few people who actually understand what is involved in handling electronic documents”. That is significant because the lack of qualified professionals can only grow as a problem. Predictions of 20% or 25% growth in the field does not guarantee that a generation of skilled and knowledgeable people are simply going to pop up. …

…As a result of this crying need from judges, law firms and vendors alike, a new non-profit organization, The Organization of Legal Professionals (www.theolp.org) has been formed for the purpose of providing an exacting and tough certification exam to establish core compentencies. This organization has assembled a stellar Board of Governors and Advisory Council to assist them. The names of these legal icons are the best in the nation and beyond.

The benefits to law firms, legal departments and vendors alike are tremendous. Just a few include the delivery of higher level quality services; better adherence to risk management; lower malpractice rates; and assured competencies in a new profession that at present, has no barriers to entrance.

In the interest of full disclosure I should mention that I am a member of the OLP Advisory Council, so I am doing so.

Does it matter that it is cheaper to hire a paralegal to handle your divorce?

Thursday, August 27th, 2009

Is it cheaper to hire a paralegal to handle your divorce? That is the question asked in today’s Living/Family Relationship section of SanLusiObisco.com in a storyabout Amy Wishart of DoItYourselfDocuments. First of all, hat’s off to Amy for generating such a favorable piece of publicity. She also handled her comments in the article well. Of course, I am principally interested because of the timing of the article in relation to the discussion here and at Paralegalese on the issue of “independent” paralegals.

Here are some points made by Wishart:

For Wishart, being a paralegal means knowing and understanding the legal processes.

“A paralegal can do everything an attorney can do except give legal advice or step inside a court,” she said.

There are two types of paralegals. Wishart is an independent paralegal that prepares documents for individuals who retain her services. There are also paralegals that work for attorneys and can therefore speak on behalf of their employer, Wishart said.

She, like Mr. Martin, who has been quoted on this blog, is careful not to “cross the line”

Because paralegals are not legally allowed to provide their clients with advice, Wishart said many independent paralegals avoid direct contact with their customers. “Somebody who prepares documents can’t give advice, but they have the knowledge,” Wishart said. “It’s a very fine line that cannot be crossed.”

To avoid crossing that line, Wishart, as with many paralegals, has her clients fill out and submit a questionnaire. She then uses the information provided to fill out the appropriate court documents, she said.

“I use the questionnaire to avoid asking questions,” she said.

Perhaps most interesting in terms of where we left this issue in the last post, the story also quotes Amy and another independent paralegal with regard to these problems:

According to Therkildsen, using a paralegal service has its pros, but potential clients should be cautious. “The good thing about paralegal services is the price,” she said. “But anyone can claim they are a paralegal. It is kind of a buyer beware situation.”

Therkildsen recommends starting the hunt for a paralegal with an Internet search. “You want to know if it’s a legitimate business,” she said. “What are their qualifications, experience? Are they licensed with the state?”

Both Therkildsen and Wishart also suggest checking with the Better Business Bureau to ensure there are no complaints against the company. Even if you use an online service, call and talk to someone at the service,” Wishart said. “There are a lot of unscrupulous people out there.”

Therkildsen said finding a qualified paralegal is extremely important. She has seen cases of individuals posing as paralegals who will take their client’s money and nothing more. Other supposed paralegal services simply sell the documents needed to file for bankruptcy and mail the blank forms to the client.

“My pet peeve is people who claim to be a paralegal and sell the documents you can get off the state’s Web site for free,” Therkildsen said.

This last harkens back to the discussion of the many sorts of people out for the most they can possibly get for the least they can possibly do.

Volunteering During the Recession – It Can Be Good for Your Career

Thursday, August 27th, 2009

The New York Times reports ” Volunteering Waning in Recession, Report Says:”

By STEPHANIE STROM   Published: August 26, 2009
As the recession took hold, most Americans cut back on volunteer work and other civic activities, according to a survey conducted for the National Conference on Citizenship.

That finding undercuts anecdotal reports of volunteers’ flooding nonprofit groups as unemployment has increased and suggests the challenges faced by the Obama administration, Congress and foundations working to encourage greater volunteer service and civic participation.

“They’re not saying they’ve stopped volunteering, but they are cutting back on the time spent on volunteering and civic engagement,” said David Smith, executive director of the National Conference on Citizenship, which conducted the survey as part of a study titled America’s Civic Health Index,

It is quite understandable that in a recession people tend to “hunker down.” When times are tough, especially for those without a job, even the costs of gas or bus fare to the volunteering site must be considered. But I would argue that cutting back on volunteering is exactly the wrong thing to do for professionals looking for work. As discussed in a previous post, for example, volunteering can provide excellent opportunities for networking and fulfilling ethical obligations.

In addition, doing good for others makes you feel better about yourself. The decision to do something beneficial to others with your time puts you in charge of that time rather than letting your circumstances be in charge of you. These two “attitude adjustments” will go a long way towards helping you find employment or retain the employment you have.  After all, other factors being equal the employee with the professional attitude is more likely to be retained than the one with out.  These attitude adjustments will also take some of the sting out of the unemployment period.

Which to Chose: Masters of Paralegals Studies or CP/PACE Registered Paralegal Certifications

Wednesday, August 26th, 2009

Megan M. has contacted me asking:

I’ve recently read several posts on your blog site, and was wondering if you could provide your thoughts on the following subject:

 

For a recent graduate from a Bachelor’s program in Paralegal Studies (ABA Approved program), do you believe it would be more beneficial for said student to next pursue NALA certification or instead pursue a Master’s degree in Paralegal Studies?

The current economy has created a limited number of jobs,  and I wonder which “add-on” would help distinguish a Paralegal in a large pool of candidates?

 

Your thoughts would be appreciated, either directly or via your blog.

I would like to hear from practicing paralegals before giving a final answer on this as they are more likely to have relevant data on this than an academic, even one who practiced law for three decades. However, my initial thought is “it depends.”

Certifications such as CP or CLA by NALA, PACE Registered Paralegal by NFPA, and PP (Professional Paralegal) by NALS are less expensive and faster to obtain than a Master’s, so they are more likely to “add-on” to your marketability in the economy as it exists now. No one knows what the economy will be like by the time you finish a Master’s.

However, unfortunately there is a great deal of confusion among the Bar over what these certifications mean. Although the ABA has recognized these certifications, many attorneys have not yet become knowledegable about them. As I pointed out in a previous post, many attorneys are confused as to exactly what a paralegal is and can do in general. The present status of paralegal education is no less confusing to many attorneys. What is the difference, in terms of the work the paralegal can perform between a paralegal certificate, an associates degree in paralegal studies and a bachelors degree in paralegal studies? What does it mean to be certified? Is being certified the same as having a certificate? Who does the certification?

Certificates of completion of a paralegal program can mean nothing more than that a person completed a few courses, but they are often confused with a person being a “Certified Paralegal.”  As NALA points out,

Occasionally, paralegals call themselves “certified” by virtue of completing a paralegal training course, or another type of preparatory education. Although a school may award a certificate of completion, this is not the same as earning professional certification by an entity such as NALA. In this instance the school’s certificate is designation of completion of a training program.

Most attorneys, on the other hand, are familiar with Master’s Degrees and are impressed by them, so a Master of Paralegal Studies may draw more attention to your resume than a CP or PACE Registered Paralegal designation. Also, you are likely to be able to obtain the CP or PACE Registered Paralegal designation fairly easily by the time you complete the Masters simply because you will have mastered the material necessary to take the exams and thus have both “add-ons.”

Your state or local paralegal association may be able to give you information regarding the prevalence of CP, PACE RP, or PP paralegals in the area and the general awareness among the local bar of their significance. You may also check websites for law offices that list their paralegal staff and see how many have the CP, PACE RP, or PP designation. A firm with several CPs is more likely to recognize the value of the certification. In general the more sophisticate the attorneys in your area are, the more likely they are to understand the significance of NALA, NFPA or NALS certification

By the way, there are advanced certifications for specific areas over and above the general CP certification. NALA, for example, offers Advanced Paralegal Certification in a number of competencies. There is also a new organization, The Organization of Legal Professionals, which is developing certification in e-discovery. (More on the latter, later.)

Is There a Role for Independent Paralegals?

Wednesday, August 26th, 2009

Melissa H. of Paralegalese continues a great dialogue regarding independent paralegals asking of the legal profession, “Where are we going?”and  stating, “When people are willing to forego the licensed professional for the regulated document preparer, it’s time to rethink the status quo.”  In my comment to that post I noted there is a tension between the need to provide legal services at an affordable cost and the legal profession’s desire to monopolize the legal field. If the latter is going to continue, the profession must find a way to achieve the former. My rather preliminary research into legal systems in other countries indicate that lawyers continue to flourish even when others are not excluded.

I believe that paralegals are the answer to this problem. The question is how we protect the public while providing that answer. One way is to insist upon supervision by an attorney who has a license to protect. Another is through regulation. You are correct that the legal profession must ultimately deal with the fact that, “When people are willing to forego the licensed professional for the regulated document preparer, it’s time to rethink the status quo.”

One concern I have is that public may become confused by the existence of both supervised and “independent” paralegals. If “independents” are allowed, they must be regulated for the protection of the public (not the protection of lawyers) and should probably be required to call themselves something other than “paralegals.”

Since reading Melissa’s post and making that comment I’ve run across an article entitled, “THE ROLE OF INDEPENDENT PARALEGALS IN IMPROVING THE QUALITY AND DELIVERY OF LEGAL SERVICES” by Joi Pierce Cregler (which is curiously annotated as “Edited for the Bellow-Sacks Project. This document may be used for discussion purposes only. General distribution prohibited.”) While I am not incomplete agreement with the reasoning or the conclusions of the article, it is worth the read for anyone interested in this issue.

The article references some studies that provide important background for this discussion: “Relying upon lawyers alone to increase access to justice has proven to be inadequate. Currently, fewer than seventeen percent of U. S. Lawyers accept pro bono cases. Moreover, given that there have never been more than four thousand American legal aid lawyers, the federally funded legal aid program is able to serve only a very small percentage of the poor. While legal needs are unmet for low- and middle-income Americans, a majority of U. S. legal resources are utilized to serve the wealthiest individuals and corporations. Left unaddressed, this disparity in access to justice will continue to erode public confidence in the legal system and fuel dissatisfaction with the legal profession.” (footnotes omitted) Thus these studies may provide empirical support for Melissa’s instinctive conclusions.

More surprisingly, the article also notes, “The study also found that individuals often do not seek legal assistance because of their perception that the involvement of a lawyer will not solve their legal problem.”(emphasis added)

The article argues for replacing of UPL laws with regard to independent paralegals with a system of regulation and licensing. In the final section of the paper, Cregler “challenges the assumption that licensing Independent Paralegals will create a group of ‘second-class’ legal services providers.”

Filling a Gap

Tuesday, August 25th, 2009

I’ve spoken often here about the importance of belonging to and participating in paralegal professional associations. Recently I began listing state associations and mentioned that NALA and NFPA have lists of local affiliates on their websites. Still there are some gaps – areas where there are no existing associations or associations that have gone dormant. Don’t let this stop you! As is the case with almost all aspects of your career and your work, be (I dislike this word) proactive – take charge. Here’s an example excerpted from a report on phillyBurbs.com:

Paralegal group fills void in county

By: RACHEL CANELLI

The Intelligencer

In the growing field of paralegals, some Bucks County Community College students believed there was a void. So, they decided to fill it.

BCCC students and alumni recently formed the Bucks County Paralegal Association. The group’s goal is to collaborate and network with other legal support staff.

“There is a real need for it,” said interim association president and BCCC student Kara McClenahan. “People want the organization so they can bounce ideas off each other, to network for employment opportunities and continue their education, and to keep up on the business, legal terms and how the community’s changing.”

The group took shape in BCCC Professor Tracy Timby’s “computers in law offices” class. The students researched the subject, and when they interviewed those in the legal community, they found people wanted such an organization. Timby, a Newtown attorney, is also director of the BCCC paralegal program

Remember when it comes to paralegal professionalism you are seldom alone. In this case you  may obtain assistance from either NALA or NFPA. It is likely there is a paralegal down the street or in the next office thinking the same thing you are.