Archive for September, 2009

What Is Adequate Supervision?

Wednesday, September 30th, 2009

A situation reported in the New Haven Independent looks to be a case of inadequate supervision of a paralegal by an attorney. The setup is sort of complicated but here’s the short version. A paralegal is acting as an “advocate” for a teacher at a termination hearing in front of a local board of education. The teacher accessed school records over the internet to obtain allegedly confidential student information “to give to her paralegal for use in her case” thereby perhaps violating federal privacy law. (I know something about these laws, but this is not the place for my opinion on that issue, so I’ve included the standard waffling language.) According to the report,

The disclosure that the Farina legal team had the confidential test information from fourth-grade students at the Murphy school came from Mica Notz, Farina’s paralegal, who is acting as her advocate at the hearing. Notz, who is not an attorney, has sought the data for months.

But that’s not all:

A subpoena had been issued but not properly served, Rose said. So the matter was in legal limbo when Farina went into the data base…

As the afternoon session began, Notz created more pandemonium when she declared that Connon, whose role is equivalent to an administrative judge, had personally interviewed 14 teachers at the Murphy school as potential witnesses for the school district. Connon said he had done no such thing and that she had accused him wrongly.

Attorney Rose, who represents the district, immediately told the committee he was the interviewer. Logically he would have to be; he is calling witnesses and presenting the evidence for termination. But even after Rose openly declared he had gone to the school to interview these witnesses, Notz did not believe him. She said she had an email from a state union official who identified the lawyer as Connon. She would not step back from her belief until she checked further, she said….

Nor was it clear if Notz would face investigation. The actions of the paralegal raise questions.

I agree that these events raise questions, but I’m not so sure that Notz’ conduct is what should be investigated – at least not that conduct alone. Here is where the real questions arise:

At this hearing the firm’s leader, Eugene Axelrod, was not at her side. On Friday a young attorney named Robert Mollen sat at the table. Mollen did not intervene as Axelrod has. Nor did he try to keep Notz in check as Axelrod has. She was on her own. (Emphasis added.)

I’ve posted recently on a paralegal’s right to adequate supervision. One difficulty is the confusion among the bar regarding what a paralegal is and what a paralegal can do, a topic that has been discussed here often. (It may be that in this instance there was also inadequate supervision of the young attorney.)

Many problems that arise from a law office’s use of paralegals could best be avoid through adequate training not of the paralegals, but of the attorneys. The attorneys need to know what the role of a paralegal is, what the attorney’s duty of supervision is, other ethical issues that can (and do) arise from utilization of paralegals, and how attorneys and paralegals work together as a legal team.

“Paralegal…offers free legal advice…”?

Tuesday, September 29th, 2009

I have to assume there is more, or perhaps less, to this story than what WHSV TV in Waynesboro, Virginia, is reporting on its website:

As baby boomers near retirement, many communities will find their senior citizen population doubling in size….

To prepare, a meeting was held Monday to address the issue and make senior citizens aware of available services. It was also to assure residents the elderly community not be overlooked.

Local senior citizens and area businesses gathered to discuss what the Valley has to offer. Augusta Health, Avante Rehabilitation Center and Blue Ridge Legal were in attendance to hand out fliers and discuss their services.

Paralegal Anne See, who offers free legal advice for lower income seniors, discussed her abilities in aiding the elderly.

She says, “Someone might be eligible for Medicaid but having difficulty getting transportation paid by Medicaid. These are the kind of things that we would help them with.” (Emphasis added)

It seems to me that it must be that paralegal Anne See is a paralegal who works at Blue Ridge Legal Services under the supervision of an attorney. If not, there appears to be a significant UPL problem here, unless Virigina has a different UPL standard than that with which I am familiar.  If any of you know the answer, please let us know through a comment or email.

More on Having a Plan, Stan.

Monday, September 28th, 2009

Melissa H. of Paralegalese has a guest post at Legal Practice Pro entitled “The Paralegal’s Role in Managing the Law Firm,” which would be great except for the fact that she posted it there instead of here. Nonetheless, you should read it.

And you should troll through other posts on the Legal Practice Pro blog, especially “Managing Chaos.” You’ll note that Jay says stuff you’ve heard before. In fact you’ve heard it here! But he says it well, so I’ve lifted some of it for inclusion here:

You see, the fires erupt only when you’re not in control of your surroundings. Sure, there will always be unexpected issues that arise. But when you’re in control, you can handle the issues as they come up because you’ve got a plan in place for dealing with these sorts of things.

Control is attained only by having a plan, and a system for dealing with every facet of your practice. How a client file flows through the office, where things get put, how phones get answered. I’m not talking about some amorphous theory of picking up the phone when it rings, I”m talking about scripting out the entire dance. Yes, the entire dance.

I call it a dance because, well, it is one. For a business to operate properly, all players must move in perfect harmony at all times. Fred and Ginger were never caught on film stepping on toes, were they? So, too, must your business glide effortless from place to place on the dance floor.

Jay speaks in terms of law office operation, but what he says applies to all aspects of professional life, especially paralegal practice.  I’m looking forward to more from Jay on taking charge through planning. It’s not just that great minds think alike (as they do in this case), but this stuff works and works well! It is, in many ways, the foundation of The Empowered Paralegal.

Incomprehensibly Unprofessional Follow-up

Monday, September 28th, 2009

In a previous post I tried to draw some lessons on professionalism from a judge’s reaction to a motion filled with typographical, punctuation and grammatical errors. I don’t think I can do the same with this one from Legal Writing Prof Blog

The New York Law Journal is reporting (subscription only) that a New York state judge dismissed the plaintiff’s complaint because it was stapled in such a negligent manner that it caused physical injury to all who handled it.

“[T]he poor stapling of the papers was so negligent as to inflict, and did inflict repeatedly, physical injury to the court personnel handling them,” Supreme Court Justice Charles J. Markey wrote in Jones v. Fuentes, 29865/2008. “Such negligence on the part of counsel shows a lack of consideration.”

Long Island plaintiff’s attorney Jeffrey Hirsch told the NYLJ that in the more than 5,000 cases he has handled, the court has never before criticized his stapling skills. However, a spokesperson for the judge said that the staple in question was dangerous enough to draw blood, twice.

Certainly I stand by my statement in the previous post that professionalism requires attention to detail. The danger of staples is well known. Many courts require, for example that briefs bound with staples have the staples covered with heavy tape. However, without knowing the back story on this one, it’s hard to justify dismissal of a motion based on the stapling! Be that as it may, be forewarned – professionalism requires attention to details and apparently those details include staples.

Planning for Happiness: The Happiness Project

Sunday, September 27th, 2009

This weekend I returned to  a post on ABAJournal.com entitled, “For Happy Life, Do What You Want to Do; Lawyer Explains How.” It caught my attention because during the course of my career I’ve run into a lot of unhappy attorneys. As the post notes about attaining happiness, “It isn’t easy to do so, though, especially when money and prestige pull you in one direction and your own interests take you in another.” As students in my class know, I put a high premium on setting goals, making plans and maintaining key principles, such as those advocated by Gretchen Rubin in her book The Happiness Project and her Happiness Project Blog.

The process of setting goals, making plans, managing time and workload, seem themselves like a lot of work. As noted by Rubin, it can also be scary at times, “It’s painful to acknowledge a dream, because as soon as you acknowledge it, you also acknowledge that you might fail.” After one goal setting and planning exercise in my professionalism course, a student noted that acknowledging her goal for three years down the road and starting to plan for it, felt like a commitment and realizing what she had yet to do to achieve that goal was somewhat overwhelming.

Yet, I think that if you being a professional paralegal is what you want to do, implementing the techniques of professionalism will lead not only to professionalism but happiness. Much happiness comes from achieving goals and you are much more likely to achieve goals if they are clearly identified and there is a plan for reaching the goal. If you want to get to NYC, you are far more likely to get there is you set a date and map out a route than if you just wander aimlessly in the general direction of NYC.

Goal setting and planning when combined with time, calendar and workload management have another benefit. You can plan for, and free up time for, the other “good things” in life, whatever those things are for you – time with your family, time away from your family, blogging or just no pressure knitting. In any case, take a few minutes to check out Rubin’s blog and The Happiness Project Toolbox.

That’s all for me today. I’m heading out to work in the garden and go to an Ole Miss soccer game. Hope to see you there or wherever you want to be doing what you want to do!

The Chicken or the Egg

Friday, September 25th, 2009

In The Empowered Paralegal I make a case for the proposition that one way for the paralegal profession to advance as a profession in light of the confusion within the bar is for paralegals to be more professional. Admittedly there is a “chicken or egg – which came first” problem here. More than one paralegal has written making statements to the effect of one received yesterday, “I am degreed, but it’s difficult for me to push for education when any attorney can simply walk in and call his secretary a paralegal one day.”

There is no simple answer to this question. The professionalization of paralegals (or legal assistants in some of the earlier literature) has been the subject of discussion among paralegal scholars for decades. In 1990, Green, Snell, Corgiat and Paramanith wrote in the Journal of Paralegal Education and Practice of the three stages of professionalization: Identity, Maturation States and Goal Attainment, and a year later Jolee Farinacci addressed the problem that, while the paralegal profession is “truly as ancient as the legal profession itself,” paralegalism had just recently been recognized as a profession in its own right and did not have an identity. Still it is understandably frustrating for practitioners that the profession still appears to be struggling with the Identity stage at the same time it is attempting to work through Maturation States.

Viewing the profession from a position in academia and on the lawyer side of the bar, I tend to take heart in the tremendous progress that has been made since I started practice in 1976. The fact is that professional associations are not only celebrating 25th anniversaries, but growing and serving the profession. The profession has several wonderful voices on the internet such as Lynne DeVenney at Practical Paralegalism, Vicki Voison, The Paralegal Mentor, and Melissa H. at Paralegalese, and in publications such as Know: The Magazine for Paralegals. The profession is being recognized more often by state bars and state governments. I’ll leave aside the controversy over efforts to establish regulatory and certification programs in the various states and point out that the fact such efforts recognize the separate role of the paralegal alone is progress for the profession.

In the end though, I take heart from the professional attitude of many of those now entering the field. Consider this from one of my students who as worked in a law office for a couple of years now:

It is time for more people to be educated on what a paralegal really is.  We need to set higher standards for ourselves and not tolerate being labeled as a glorified assistant.  We’re so much more than that!  …  Some like to say that paralegals are people who couldn’t or wouldn’t go to become an attorney so they settled for working for one.  Once again this is false.  Both are necessary part in a working team in the office and neither can truly be productive without the other.

I get so angry when I hear fellow students or paralegals bad mouth our profession.   The most common thing when they are asked what a paralegal does, or is, I hear “we are the attorneys slave”, “we do all the work and attorneys get the credit”, or “we do the same job and get paid a fraction of what attorneys make”.  For the ones who think this, please change your profession and/or get a new job.  We as paralegals need to do what ever we can to educate ourselves as much as we can, be professional and love what we do.

I continue to believe that if paralegals take charge of their own profession and their own professionalism, the bar and the public will follow where the profession leads.

“Practical Paralegalism” Provides Practical Practices

Thursday, September 24th, 2009

Lynne DeVenney of Practical Paralegalism focuses today on “Paralegal Practice Tips: Evaluation & Acceptance of Workers’ Compensation Cases” from her book “Workers’ Compensation Practice for Paralegals.” The practice tips she gives, however, are applicable (some with adjustment for topic) to any type of practice. Students in my Wills and Estate Administration class would do well in particular would do well to modify these as necessary for estate planning client interviews:

  • Use pre-prepared intake forms and releases to avoid missing key information.
  • Obtain and review all documentation the client has regarding the claim, injury and employment.
  • Gather as many details as possible about how the injury or occupational disease occurred.
  • Obtain sufficient information to thoroughly understand the injured worker’s job duties.
  • Obtain complete background information about the injured worker, including a medical and employment history, criminal record (if any) and prior injury claims and pre-existing conditions (if any).

Check at the link given above for more.

Good Person to Know – Melissa H.

Thursday, September 24th, 2009

Melissa H. at Paralegalese has now done two posts on “Good People to Know,” one regarding probate personnel and another for court clerks. She implies more will be coming in these series. I certainly hope there are. Her points cannot be emphasized enough and she makes them well.

I make knowing and understanding the clerk’s office personnel a good part of every presentation on “Understanding the Court System.” Indeed, knowing them is not enough. A mutually respectful relationship should be the goal. Do not abuse, take advantage of, be dishonest with, be rude to, or look down upon the even the lowliest member of the court house staff. First of all, such conduct is below you has a professional. And there is no doubt that bad court house, probate office, registry of deeds, etc., karma will eventually result in your own misery. As the Buddists say, you make your own heaven and you make your own hell. Following Melissa’s lead in this regard will make your trips to the courthouse, if not heavenly, at least a lot less hellish.

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.

Incomprehensibly Unprofessional

Tuesday, September 22nd, 2009

ABAJournal.com has a post entitled “Judge Labels Lawyer’s Motion Nearly Incomprehensible, Marks Up Errors” about

A federal judge irked at grammatical and typographical errors in a motion for dismissal has blasted the Florida lawyer who filed it and ordered him to copy his client on the criticism.

U.S. District Judge Gregory Presnell denied the motion to dismiss without prejudice, saying that it was “riddled with unprofessional grammatical and typographical errors that nearly render the entire motion incomprehensible.” … Above the Law has the story.

….

The judge’s marked-up version of Glasser’s motion pointed out these problems:

–Several examples of excess spacing.

–Incorrect use of apostrophes.

–Typographical errors (using the word “this” instead of “thus” and the word “full” instead of “for”).

–Incorrect placement of periods and commas outside of quotation marks.

–Incorrect capitalization.

–Wrong word use (using the phrase the plaintiff “had attended on filing” this action, instead of saying the plaintiff had “intended” to file an action).

–One very long sentence.

As an educator I “harp” on these points incessantly attempting to make my students understand how important the “small things” are in a law office. We all make mistakes, especially in informal setting such a blog, and many, taken individually, go unnoticed or are quickly forgiven and forgotten. But enough of those small errors over time (in some cases a very small time), can be quite damaging even when they do not result in actions such as that described above. Judges and juries can perceive consistent sloppiness as reflecting a poor case, one in which you have so little confidence that you do not care enough to proofread your work. Small mistakes in wording can make a sentence or paragraph meaningless. Judges do not have the time to try to figure out what you meant, so the opportunity to make your point is lost. And sometimes people will conclude that if they cannot trust you on the easy stuff, they would be foolish to trust your legal analysis and interpretation, case citations, etc.

Use spell check and grammar check. There is no excuse for simple misspelling of words in pleadings, letters to clients and the like. However, do not let spell check replace careful proofreading. “Trail” is spelt correctly, but that is unimportant if the correct word is “trial.” The same is true of “council” when the word you meant to use was “counsel.” (Both of these occur frequently.)

Remember, to a large degree professionalism is in the details.