Archive for September, 2010
Today is the official release date for The Empowered Paralegal: Working with the Elder Client. Despite my Oxford, Mississippi, connection, the release party will not be of the John Grisham variety. We start with the Philosphy Forum Series on the OleMiss Campus for a lecture entitled “The Authority of Empathy,” then one of the local establishments for a quick pint and other nourishment with the local bar association followed by the 6th Annual Japan Foundation Film Series: Japanese Films of the 1960’s event showing “The Fort of Death.” Feel free to join in the fun
Or you could spend your time productively by ordering a copy of the book. (I know this is simply blatent self-promotion, but what’s the point of having a blog if I can’t plug my own stuff.)
The Empowered Paralegal: Working with the Elder Client
by Robert E. Mongue
2010 • $38.00 • 328 pp • paper • ISBN: 978-1-59460-795-0 • LCCN 2010025542
Order now with 10% Internet Discount
Elder law is a dual-natured creature and in many ways is quite unlike any other area of law. Substantively the law is law – statutes, cases, rules, and regulations – all of which must be researched, analyzed, understood and applied. Unlike any other type of law, however, elder law is not about something a client is going through, such as a divorce, bankruptcy, a real estate transaction, or even a criminal charge. Elder law is about whom and what the client is – an elderly person. The Empowered Paralegal: Working with the Elder Client enhances understanding of elder law clients, the laws applicable to them, and the issues they face.
The Empowered Paralegal: Working with the Elder Client examines the many influences on elder clients and their families, the deeply personal perspectives which result from those influences, and how they affect the decisions elder law clients make. It focuses on awareness and understanding of the elder client, explaining in clear language the dual nature of the elder client, the physical and psychological changes that occur as we age, and the practicalities of accommodating these changes when working with elderly clients. It also examines:
- Issues surrounding competency, as well as the need for and methods of documenting competency in the file.
- Dealing with the client’s family, including conflicts of interests, confidentiality and undue influence.
- Perspectives, many culturally or religiously based, on aging, death, and dying.
- Intestacy, estate planning basics, and the use of basic estate planning tools to meet client goals.
- Advanced directives and other means of planning for end-of-life decisions.
- Social Security, SSI, Medicare, Medicaid and other public benefit programs and laws directly affecting the elderly.
- Elder abuse and the conflicts that may arise between the attorney/client privilege and mandatory reporting statues.
- Ethical dilemmas faced by the professionals who work with the elderly.
“Mongue’s book does not cover the ho and the hum of regular ‘how-to’ paralegal books. In fact, what he covers should be taught in every school regardless of specialty, profession or even age. Here, Mongue deals with our feelings about aging and the myths, stereotypes, cultural prejudices and extrapolations to the general population based upon personal experience. He draws you in as he explains behavior and the aging process and teaches you how to react as a result. As it turns out, much of what we think about the elderly is wrong, wrong, wrong.” — Chere Estrin, Editor-in-Chief of KNOW, The Magazine for Paralegals and SUE, For Women in Litigation; Chairperson of the Board, The Organization of Legal Professionals (OLP)
“[A]n insightful guide that any legal professional who works with an older population will find extremely useful. Mongue brings his extensive expertise both as a practicing lawyer and a paralegal instructor to the table, and illustrates his points with interesting examples. He discusses the complexities of the law in regard to aging in a clear, direct style that readers of all experience levels will appreciate. This book is a must-read and a valuable desk reference for anyone who interacts with elder clients.” — Lynne J. DeVenny, Co-Author of Workers’ Compensation Practice for Paralegals and blogger at Practical Paralegalism
Inside Counsel (“Business insights for law department leaders”) in a story mention in aManufacturing.net post, honors Dupont’s corporate legal department as “innovators in corporate legal departments.” According to the story, one of the DuPont Legal Model’s “secret weapons is its incorporation of paralegals. DuPont’s legal department historically had employed paralegals, and with an increase in litigation in the early ’90s it saw a greater need for more, so it bulked up its paralegal staff. This influx of paralegals coincided with the development of the department’s new model. Department management thought it would be a good idea to place more focus on these employees and created the DuPont Paralegal Utilization Model as part of the DuPont Legal Model.”
It is, of course, the “Paralegal Utilization Model” that caught my attention. Dupont has packaged the model as “Dollars and Sense of Paralegal Utilization: The DuPont Paralegal Utilization Model,” a publication that “offers best practices for using paralegals to their fullest potential.” It’s available for purchase, but I’m not willing to purchase it just to see what its like, so I have no knowledge of the details and am not endorsing or plugging the publication in any way. However, I do endorse its premise as stated by its creator, Marybeth Davies, manager of the Dupont paralegal program:
“At DuPont, we’ve created a culture where paralegals are partners with the business people as well as colleagues and partners to the lawyers with whom they work,” Davies says. “In this economy, we have to do more with less, and paralegals are really stepping in to fill that gap.”
Of course the primary motivation behind my endorsement of the premise is that it is the same premise on which I base much of my writing and my posts here!
If any of my reader have personal knowledge of this program, I’d like to hear from you.
An blog post entitled, “Time to recognise paralegals and reform regulation of their role” is circulating through the AAfPE listserv. Its basic contention is that “As more non-lawyers provide legal services, it is only right that paralegals be offered a clear routemap for professional progress.” Here’s the beginning of the post, while it refers to current events in Scotland, much of which will sound as familiar to paralegals in the U.S. as to those in Scotland:
They are the legal profession’s underclass. Nobody can say exactly what they do, or exactly how many of them there are. But they are set to become ever more central to the delivery of legal services. They are paralegals.
In a first for the UK, this week the Law Society of Scotland, in association with the Scottish Paralegal Association (SPA), formally launches its “registered paralegal” scheme, introducing across-the-board competencies and adherence to a code of conduct for paralegals working with solicitors.
Read more here.
The post also notes events in the rest of Great Britain and in Ontario, both of which have been discussed here several times. (See the “Canada” and “International Paralegalism categories.):
The issue is also important in the context of the debate sparked by my previous blog on the imbalance between the number of law students and available training contracts and pupillages, as many of those unable to progress their legal training are instead taking paralegal roles.
Though in essence they are people doing legal work without a full legal qualification, a core problem is that there is no accepted definition of what a paralegal is. This is why nobody knows how many there are, but applying a broad definition there are probably an awful lot, because many roles have a legal advice element. While the Scots are focusing on paralegals employed by solicitors, perhaps of greater concern are paralegals flying solo and unregulated in areas of legal practice that are not reserved for qualified lawyers. Will-writers, for example, are in effect paralegals.
In Ontario, Canada, the government has forced the provincial law society to take on the regulation of paralegals. They only need a licence if appearing before a court or tribunal, but it sets an example that Finland – the most liberal jurisdiction on earth in terms of who can provide legal services – is to follow. Neither the Ministry of Justice nor the Legal Services Board has yet to really address the issue here, and there is no sign of them doing so.
There is some solace in the notion that the paralegal profession is facing the similar challenges in many countries and there is much to be gained by following developments in each of these countries. However, there is also much to be gained by taking the lead rather than waiting. I have previously suggested that a joint commission of the ABA, AAfPE, and the major paralegal associations be established to deal with issues such as certification. This joint effort of the Scottish Paralegal Association and the Law Society of Scotland indicates there is some merit to that suggestion.
I have just gotten to reading the most recent edition of The East Coast Paralegal, a magazine for paralegals published in Nova Scotia, Canada, where paralegal practice is on a different basis from that in Ontario, which has been the subject of many posts here because of its experiment in licensing paralegals through the Law Society, the same body that oversees attorneys. The magazine, sent to me by Ann-Marie Allen, Editor-in-Chief, is well worth the read. In particular, there is an article entitled, “DE-STRESSING YOUR LAW FIRM BY DE-STRESSING YOUR LEGAL STAFF” that consists of answer to questions posed by ECP to Estelle Morrison M.Ed. C.W.C., Director, Health Management Ceridian Canada Ltd. 5th, who recently wrote an article on de-stressing law firms for The Lawyer’s Weekly.
I’ve written frequently about diminishing the stress associated with the paralegal (and legal) profession, so I’m always interested in solutions proposed by others. I’m particularly taken by Morrison view that de-stressing the law office must include being aware of, and doing what can be done to decrease, the stress placed on the legal staff, most especially the paralegals.
I can’t reprint the entire article here, but the first exchange will give you a good idea of the approach:
ECP: What specific areas can lawyers improve on to help destress their staff?
EM: One of the most important areas for lawyers and other professionals to be concerned with is workload and worklife balance. This issue has become critical in recruitment and retention efforts, employee engagement and of course, employees’ personal experience of stress. Understanding what is appropriate in terms of job demands, time frames, setting reasonable expectations for hours of work and supporting efforts to set boundaries between work and home are some of the ways that Lawyers can foster healthy work environments and working conditions.
Where possible, encouraging staff to exercise control over their work or have input into decisions is another way to reduce stress and elevate job satisfaction. Rewarding and/or recognizing efforts or accomplishments at work, even if only verbally, can send the message to staff that their efforts are noticed and their hard work is appreciated.
Depending on the nature of the practice, the legal work environment can be pressured and laden with negative interactions. Many clients seeking legal services are doing so for situations that may involve significant stress, conflict, fear or sadness. To offset the heaviness that this can bring to the staff, lawyers should find ways to bring a sense of fun or playfulness, where appropriate, into the workplace.
The primary premise of The Empowered Paralegal series is that paralegals can, and should, take control of their work, their work place, and their career. I believe that this kind of empowerment must come from within and can be developed through implementation of techniques that enhance management of time, workload, calender, docket, workplace, clients, and relationships with attorneys. However, this is not to deny that law firms can, and should, provide an environment that encourages paralegals to take that control and internalize that empowerment. It is not just a matter of respect (although that is a large factor.) Doing so de-stressing paralegals, which de-stresses the law firm, which increased both the quantity and quality of productiveness by the entire legal team.
On accepting his appointment as Senior Counselor for Access to Justice in the Department of Justice where he will lead a newly launched initiative aimed at improving access to civil and criminal legal services, Laurence Tribe stated, “Access to justice for all is at the core of our nation’s values.” The DOJ initiative recognizes a need to “enhance the delivery of legal services to the poor and middle class, and identify and promote alternatives to court-intensive and lawyer-intensive solutions.”
One alternative to lawyer-intensive solutions is the effective utilization of paralegals. The attractiveness and efficacy of this alternative is evidenced by the recent proliferation of paralegal-intensive access-to-justice programs by bar associations, legal clinics, and educational institutions. These programs exist throughout the country. Examples include:
• In South Florida, Catholic Charities Legal Services enlists pro bono paralegals to hold free Friday walk-in clinics to help Haitians apply for temporary protected status after the recent hurricane.
• Lake County, Illinois, where the local bar association uses specially-trained paralegal studies students to assist in providing free legal services for people petitioning the court for guardianship of a minor child.
• The New York City Paralegal Association provides pro bono services for the Safe Horizon Domestic Violence Law Project.
Each of these programs demonstrates how access to justice can be improved through wise utilization of paralegals. Since one attorney can supervise several well-trained paralegals, more people gain access to legal services and justice.
If you have participated in a program like the ones mentioned above or just know of such a program, I would like to hear from you either by way of comment or email.
I’ve previously noted several cases involving “paralegals” involved in crimes, I’ve avoid doing so of late, in part because there are so many of such stories in the papers. As I’ve written there are many issues surrounding these crimes – lack of attorney supervision, paralegals becoming part of a lawyer’s conspiracy (perhaps unwittingly at first) rather than reporting them, the effects such publicity has on the public’s perception of paralegals as a profession, the fact that the profession is often tarnished by people who are not really professional paralegals because just about anyone can call themselves paralegals, and the inability of the profession to “screen out” bad apples. Today’s post focuses on the last of these issues because the first line of a report in the Daily Record is so striking in that regard:
A paralegal from Parsippany with a criminal history of thefts was offered a plea bargain Wednesday of 18 months in state prison to resolve a charge of posing as her daughter to get a credit card.
I do not know if this person was actually working as a paralegal at the time of the events leading to these charges, but she does have a history of working for lawyers as a paralegal because she has a history of stealing from those attorneys:
Yturbe was sent to prison in 2004 for stealing $35,900 from a Montville lawyer who employed her as his paralegal. She was released after serving nine months of a four-year sentence. She also has a previous conviction for stealing $3,220 in 2001 from an attorney in Morristown.
While these previous convictions (or at least the second given the amount) raise issues regarding attorney supervision, my question is why is it that “A paralegal from Parsippany with a criminal history of thefts,” i.e., how can it be that a person with this history is still allowed to be a paralegal? The answer, of course, is that anyone can be a paralegal. There is no “good character” requirement as there is for attorneys or for paralegals in parts of Canada. It is not likely that a lawyer with this history would have retained a license. At the very least, the Daily Record‘s story would say “a former attorney with a criminal history of thefts,” thus indicating to the public that the profession had recognized the individual as a bad apple and tossed him from the barrel. The paralegal profession does not have this capability and it continues to harm the profession.
The use of the term “paralegal” has been discussed many times on this blog both in the context of the legal assistant/paralegal designation debate, in the context of asking whether just anyone can call themselves a paralegal, and even discussing Australian for “paralegal.” Despite the rather clear depiction of a in the last referenced post, the lack of a clear statement of qualifications for using the terms “paralegal” in Australia appears to have lead to so much abuse of the term by lawyers that the Chief Justice of Queensland, “has called for a national ban on the term “paralegals” to prevent clients being deceived into paying $300 an hour for work done by unqualified clerks and secretaries.”
According to The Australian
The term “paralegal” is interpreted by clients as meaning someone with a legal qualification but in reality it can be the firm’s most junior clerk performing mundane tasks including booking medical appointments and picking up reports.
Chief Justice de Jersey told The Australian that it was “plainly unacceptable” for a law firm to be charging a client $300 an hour for work done by someone not legally qualified.
“We need to eradicate this kind of grasping rapacity,” he said. “It would be a good start to stop the use of the term ‘paralegals’. It is unacceptable and deceptive and it should not be occurring. The term paralegals appears to be designed to suggest these people have a qualification and experience that particularly suits them for legal work.
“It implies that there is a qualification or expertise justifying their involvement in legal work, as opposed to someone who does administrative or clerical work. It is deceptive to present them under that guise and then charge as if they are somehow qualified.
One recent thread on the Paralegal Today listserv has lead to a similar discussion based on a question regarding whether work experience or education is more valuable to a new paralegal. During that discussion, Michelle Boerder of Dallas, Texas, noted:
I worked as a legal secretary while going through a paralegal program 30 years ago. While I had learned a great deal “on-the-job,” like you said, I later understood the big picture, when combining what I learned in my paralegal education and work experience. Just as lawyers have legal education to become lawyers, so should paralegals have paralegal education. (and even lawyers in small towns/small firms go to law school; today, there are many paralegal education opportunities so there is a diminishing excuse that education is not available)
The first is an article in the New York Public Policy Examiner that asks, “Should Paralegals be required to register with The New York State bar?” The article answers the question affirmatively, suggesting that New York follow Florida’s example (an example which may soon change as Florida is now considering a substantial revision of its program. The writer makes his case in part though based on a concern for fairness for banks that write student loans for paralegal degree students, claiming that hiring non-degreed persons “betrays” those banks! A slightly more valid point is “Employers in the State of New York have a hard time understanding what the law considers as “qualified.” In fact, it’s so troublesome, that many employers are sued for discrimination when they overlook an individual’s qualifications. Although a paralegal is not required to register in the State of Florida, employers can determine a paralegal’s qualifications from their registration with The Florida Bar.” However, most employers of paralegals are attorneys and frankly they should know how to determine whether a potential employee has the necessary qualifications.
The more I study the paralegal profession, the more I come to believe some sort of regulatory scheme would help the paralegal profession, the public, and the legal system, as can be seen from many posts here. (See the “Regulation, Certification and Licensing” category. I’m not ready to sign onto paralegal legal registration as a means of protecting banks and attorneys.
that Carolina Academic Press is pleased to announce (and not just because they thought I’d never get it done):
The latest in Bob Mongue’s “Empowered Paralegal” series is now available. This one focuses on elder law issues.
Here are the details:
The Empowered Paralegal: Working with the Elder Client
$38.00 • 328 pp • paper • ISBN: 978-1-59460-795-0
You can read more about it and view the table of contents here:
I’ll be adding some more info to the books page here soon. It is, of course, available through Amazon, Barnes & Noble, Borders, and other outlets.