Archive for November, 2010

NYCPA

Tuesday, November 30th, 2010

A while back I was invited to join the New York City Paralegal Association Advisory Committee. Thus far I have been of little assistance to the group. However, while in NYC last week I did have the pleasure of meeting with four members of the NYCPA Executive Board: Mariana Fradman, President, Cynthia Bynum, Vice-President, Nicole DeMent, Treasurer, and Channet Jusino, Secretary.  These Board Members reflect the NYCPA as a whole: remarkably diverse, knowledgeable, competent, and professional. And they pretty much cover the range for the paralegal profession, including a single attorney law office, a very large law office, corporate in-house counsel office, and a “hybrid.”  While the purpose of the meeting was to discuss the association’s involvement in access-to-justice programs, I also learned a lot about NYCPA. I was impressed.

This relatively new paralegal association appears to exemplify the best of professional associations. The creation of a nation-wide advisory committee is just one example. The association also provides CLE programs designed to meet the needs of the membership – no small task given the diversity of the membership, networking events, newsletters, and the other standard benefits of a professional association. This association also goes further providing pro bono opportunities through NYC Housing Court and immigration access-to-justice programs. It also has entered into at least one international agreement with the goal of establishing standards for paralegal practice. 

Thanks in particular to the contribution of one of the members of the Board, the association also seems to have a unique sense of branding. I left the meeting with one example, a notebook/pen set bearing the NYCPA logo.

 All-in-all the group seems to be admirably living up to its Mission Statement:

New York City Paralegal Association, Inc. (NYCPA) primary objectives are education: providing members with career guidance and Continue Legal Education (CLE) seminars; network opportunities; global, national, and state proficiency standards; and Professional recognition. The NYCPA is dedicated to promoting the professional growth of paralegals and the advancement of the paralegal profession. Our vision is to develop a strong association that encourages interaction among students, entry-level and experienced paralegals to facilitate the exchange of insightful information, advice, and guidance to build successful careers.
One final note. There are some virtues of an association that cannot be easily ascertained from the websites, event lists, and other indicia of accomplishment. The members of the Board with whom I met exhibited a level of personal interest in and support of each other, as well as their profession, that is really the bedrock of any successful organization.

Paralegal Honored as Advocate for Low-Income People

Friday, November 19th, 2010

According to the Florida Times Union at Jacksonville.com, Jacksonville paralegal Virgina MaCabe is among those honored by Jacksonville Area Legal Aid as this year’s recipients of the Award for Outstanding Pro Bono Services. Congratulations to Virginia. This kind of service benefits not only the people served, but the paralegal profession.

I’d like to see a more organized approach to the utilization of paralegals as part of the resolution of access to justice issues in the United States, but until such a system is in place, paralegals like Virginia help bridge the access to justice gap while honoring their ethical obligations to the community, the legal system, and the profession.

Paralegals Help Prevent Dustbunnies

Thursday, November 18th, 2010

Chancery Judge Larry Primeaux has another excellent post today entitled, “Sweeping Dustbunnies.” I’m reposting it here because I think you need to read the whole thing to get the full picture and the judge as previously indicated he doesn’t mind me lifting his material. I recommend that any paralegal interested in understanding practice before a court to put his blog on their RSS. It is worth it for the checklists alone.

My only contribution will be this foreword to the post, partly addressed to attorneys and partly to paralegals:

Attorneys: A good, professional paralegal can save you a lot of grief. They are not maids, butlers, super-secretaries, who clean up the office. But as an effective member of the legal team they can greatly assist in preventing dustbunnies of the type depicted by the judge. For this to happen it is important that you understand, respect, and properly use the special skills a good paralegal brings to the legal team. Support your paralegals in this regard by providing them with the time and means to obtain appropriate CLE and membership in professional associations. Talk to your paralegals about what can be done to improve their skills in this regard, to improve the office to more effectively utilize those skills, and to improve the working relationship of the legal team. Together you can make a plan to manage the chaos.

Paralegals: It is, indeed, part of your role on the legal team to use effective and professional time, workload, workspace, docket, and client management skills, to prevent the accumulation of dustbunnies. Use examples such as this case to do a self-assessment and an assessment of your office systems. How many of these dustbunnies would have been prevented in your office and how many would likely have begun gathering in the small spaces between the files piled on the legal team members’ desks? Talk to your attorneys about what can be done to improve your skills in this regard, to improve the office to more effectively utilize those skills, and to improve the working relationship of the legal team. Together you can make a plan to manage the chaos.

OK, homily over, here’s the judge’s post:

Have you ever noticed that mistakes and missteps seem to pile up in some cases despite your best efforts, just like those dustbunnies that pile up under that buffet in your dining room no matter how hard you try?

The case of Estate of Bellino v. Bellino, decided by the Court of Appeals on November 2, 2010, is one of those “dustbunny” cases, and it merits your attention. For ease of following this, we’ll mark the dustbunnies as they accrue with the international dustbunny symbol: ¤.

Stephen and Margaret Bellino were married in 1974. During the marriage, Stephen inherited $200,000 and opened a securities account with A. G. Edwards (AGE). In 1995, he and Margaret executed a joint account agreement declaring the account to be a joint tenancy with right of survivorship.

Alas, the marriage foundered, and the erstwhile blissful couple faced off in court. Their marriage ended May 2, 2006, with entry of a final judgment of divorce.

And that is when the discombobulating deluge of dustbunnies (¤) began to develop.

It seems that the divorce judgment made no mention of the AGE account. That would be the first ¤.

Stephen became aware of the problem when he tried to make a withdrawal and was refused by AGE, which took the position that it could not allow any withdrawals until the court addressed the ownership issue. Another ¤.

Stephen filed an MRCP Rule 59 motion to alter or amend the judgment to address the oversight. Only problem is that he waited until May 15, 2006. That would be a major ¤ because it was filed more than ten days after entry of the judgment, and so the motion was time-barred.

In all the hubbub surrounding the issue, Stephen never got around to changing ownership of the account. This is one of those ¤’s that spawns lots of other ¤’s.

Before the issue could be resolved by the judge, Stephen died on June 18, 2006. Regrettable as it is, this development was also a ¤.

Stephen’s estate was duly opened in July. There is no mention of the estate being substituted as a party in the divorce action under MRCP 25. Probably a ¤.

In November, the attorney for the estate approached the chancellor and, without any notice to Margaret or her attorneys, obtained an order directing AGE to pay the funds to the estate. No question this was a ¤.

To compound matters, the attorney for the estate never filed the order (or, it appears, any motion therefor) in either the estate or divorce file, and never served it on Margaret’s attorneys. That would be ¤ ¤ ¤.

They’re beginning to pile up, aren’t they?

At this point the attorney for the estate realized that the dustbunnies were getting out of hand, so he started trying to sweep them up. The problem is that when you sweep dustbunnies it tends to scatter them and they seem to proliferate, which is exactly what they did.

The attorney for the estate filed an appeal. Now, this is really a dustbunny because the issues are fairly straightforward and not really in doubt. Score another ¤.

Right off the bat the court of appeals criticized the attorney for the estate for not filing a statement of issues after being asked not once but several time by the appellate court to do so. That would be another ¤ ¤ ¤. The court even thought about not considering his brief, which is, of course a ¤.

The court of appeals ruled that Margaret got the money because Stephen never changed the account and it was hers by survivorship. A predictable ¤.

Stephen’s estate will be stuck with the cost of cleaning up all these dustbunnies, and will have nothing to show for it. That’s a ¤ right there. In the alternative, the estate could insist that its attorney bear the cost of the appeal, which would be his own personal ¤.

So there you have it. Too many dustbunnies and before you know it you have a mess too big to clean up.

When the Ethical Firewall is Breached

Wednesday, November 17th, 2010

Thanks for the email wondering why my posts have been sparse recently. There’s nothing major wrong, just a particular busy time professionally and personally. Great for discussion over a beer, but nothing pertinent for discussion here. (Other than the distinct possibility that I will be going to South Africa to consult on setting up a paralegal program at a major university there, which I will discuss here later.)

For now, I’ve barely been able to keep up with reading other people’s blogs, much less writing for my own. Today I’m going to cover myself a bit by relying on a post in the ABAJournal.com blog. Most paralegals are aware of the ethical wall that must be built between themselves and a new firm when a case being handled by the new firm creates a conflict for the paralegal because of their work for a previous firm. Unfortunately, sometimes those walls are accidently breached. A professional paralegal must be mindful of their professional ethical obligations when such a breach occurs. The following post relates to an attorney, but provides an appropriate warning to paralegals as well:

Because lawyers in the Lake County public defender’s office often handled both sides of guardian ad litem matters, representing children thought to be in need of protection and indigent parents, the office was set up in a manner intended to keep information confidential from attorneys not entitled to see it, explains an opinion yesterday by a hearing board panel of the Illinois Attorney Registration and Disciplinary Commission. And there was a policy that lawyers there weren’t supposed to look into each other’s files, it notes.

However, when Scott Andrew Wineberg fortuitously found on the office copy machine one day medical record information that he had been seeking to discover through normal channels, he admittedly copied it for his own case, in which a hearing was planned the next day. Then, even after he was called to account both in his own office and before the ARDC hearing board for doing so, he contended he had done nothing wrong.

Wineberg disclosed to the judge in the case at issue that he had the three pages of medical record information and it was eventually produced to him in discovery, too, the opinion recounts.

However, calling his conduct in taking the three pages for use in his own case “dishonest,” the panel recommended that he be censured for doing so.

The rest of the post is available here.

A Louisville Legal Aid Slugger

Wednesday, November 10th, 2010

Believing that paralegals are a big part of the solution to the access to justice issue in the United States, I like to track and spotlight projects using the unique skill sets of paralegals to assist in providing legal services to people who would otherwise not have access. Today’s example is the Louisville Legal Aid Society as reported in the Louisville Courier-Journal:

Last week we sat in on a foreclosure clinic at Louisville’s Legal Aid Society. The free clinics are held twice a week and provide homeowners with a timeline of foreclosure proceedings and possible alternatives. Paralegal Andrea Hunt led the clinic, walking participants through terms like short sale — selling your home for less than you owe — and forbearance agreement — when your bank allows you to suspend payments temporarily. She also offered the good news that because Kentucky law requires lenders go to court in order to have your home sold, the process takes longer than in states that don’t have that requirement.

While paralegals cannot provide legal advice,* they can provide legal information in terms laypersons can understand, a skill well-demonstrated by Andrea. A tip-of-the-hat to Andrea and the legal aid society for recognizing and capitalizing on this opportunity to provide increased access to justice.

*It is my current position that specially trained paralegals should be allowed to give legal advice in the areas of the special traning in certain circumstances.

There’s More to Canada than Ontario

Saturday, November 6th, 2010

I tend to focus here on paralegalism in Ontario because that province has a regulatory scheme for paralegals, allowing them to act independently of attorneys in some instances. However, as I’ve noted previously, there is a lot more to Canada than Ontario. Paralegals from across the country belong to the Canadian Association of Paralegals (CAP), a thirty- year old organization which held its Atlantic conference last month in St. John according to the Telegraph Journal.

The announcement of the conference in this report shows the similarity of the paralegal profession and professional associations in Canada to those in the United States, including networking and an issue regarding professional identity similar to that being discussed currently on the Paralegal Today listserv:

“It’s a really wonderful opportunity for networking,” says Heather Tait, vice-president Atlantic provinces and board member of the national organization.

The conference is aimed at paralegals, law clerks and legal assistants and will be held at the Delta Brunswick Hotel. The “paralegal” designation is intended to standardize various designations, including legal assistant, legal technician, technical clerk, law clerk, etc., and to facilitate international exchange with paralegal associations in other countries.

CAP is a non-profit national organization dedicated to the professional development of its paralegals across Canada.

I found this to be of particular interest and look forward to hearing more about it:

Earlier this year, it oversaw the creation of a non-profit organization called Paralegals Without Borders Quebec, an initiative of CAP and its directors whose role is to contribute and actively participate in projects that respect and protect fundamental rights.

Paralegal UPL in Canada

Friday, November 5th, 2010

Licensing of paralegal does not, apparently, entirely eliminate the concern regarding UPL by paralegals, but may shift that concern to paralegals performing activities that go beyond their license as indicated by this report:

A disciplinary panel has reserved its decision to a later date whether to grant a former North Bay councillor her licence to continue practising as a paralegal.

The Law Society of Upper Canada which oversees paralegals and lawyers in Ontario held a four-day good character hearing in North Bay last month to determine if Maureen Boldt should be granted a licence.

Lawyers for the law society and for Boldt gave their closing arguments Tuesday at Osgoode Hall in Toronto.

Boldt started working as a paralegal in 1992 and has three law society convictions for the unauthorized practise of law by performing tasks that only licensed lawyers in Ontario are allowed to do.

The last conviction put her in contempt of court for ignoring an injunction to stop illegally practising law. She was sentenced to four months house arrest and lost her seat on city council when she missed too many consecutive meetings.

The law society began issuing licences to paralegals in 2008 and it has allowed Boldt to continue practising pending the outcome of the hearing.

India aims to create an army of paralegal volunteers

Thursday, November 4th, 2010

As a discussion on the Paralegal Today listserv is currently discussing, the term “paralegal” can take on a variety of meanings. In many parts of the worl paralegals serve a function quite distinct from anything we consider covered by the term. I’ve previously posted on this phenomenon in countries such as Sierra Leone . Here’s an excerpt from recent story from The Telegraph in Calcutta, India:

To the downtrodden and the dispossessed in Andhra Pradesh, paralegal volunteers, sometimes referred to as barefoot lawyers, have proved to be a godsend. Now, four years after the Paralegal Volunteer Scheme was introduced in the state — it was started in Andhra Pradesh in October 2006 — the National Legal Services Authority (Nalsa), a body constituted under the Legal Services Authorities Act, 1987, to provide free legal services to the weaker sections of society, is trying to replicate the scheme across all districts and villages in the country.

Nalsa recently announced plans to provide training to around one lakh paralegal volunteers who will help poor peasants exercise their fundamental rights and make them aware of different government schemes and their benefits.

“Our aim is to create an army of paralegal volunteers who would act as agents of legal awareness and provide legal aid to all sections of people. They are expected to act as intermediaries between the common people and the legal services institutions and help remove barriers to accessing justice,” says Nalsa member secretary U. Sarathchandran.

Click here for the rest of the story.

While I do not see paralegals here in exactly this role, I do consider the profession to be a key to solving the access to justice problem in the United States as discussed in this post.

It is interesting that paralegals in India are being used in this capacity and in a more traditional role, while being a potential outsourcing threat to paralegals in the United States.

When Lawyers and Paralegals Compete

Tuesday, November 2nd, 2010

I continue to watch the Ontario experiment in licensing paralegals with great interest.  It can put paralegals and lawyers as competitors rather than the legal team we have here in the U.S.  My hope is that we may yet find a middle ground where paralegals gain the maximum ability to aleviate the access to justice problem in the United States.

I previously posted on efforts of paralegals there to expand their role in family law. According to the Law Times that fight continues:

The fight between paralegals and family lawyers over the scope of paralegal practice looks set to go to another round at next year’s Law Society of Upper Canada annual general meeting.

In an open letter to paralegals, Marshall Yarmus, who tabled and later withdrew a motion to expand paralegal practice into family law at the law society’s annual meeting in May, said he’s not satisfied with the LSUC’s promise to study the issue and will therefore reintroduce his proposal next year…

He went on to suggest that paralegals have no power in the law society with only three benchers out of a total of 40 at Convocation. Even on the LSUC’s paralegal standing committee, he noted his colleagues are in a minority.

“What is the purpose of having a paralegal chair of the committee if she cannot even set the agenda for the meetings?” Yarmus asked.

For more on this issue, see “Paralegals call truce over law society motion.

But there is a brand of competition here in the United States also. Take, for example, this exerpt from a post on the Paralegal Today listserv:

[T]he problem for our profession NOT addressed here is the fact that there are TOO MANY law schools, churning out TOO MANY new lawyers who can’t get jobs and who are looking for paralegal positions as the alternative – just to be able to pay their bills.  This, I believe, is the future problem for our profession and one we need to address so that new law school students don’t dilute our profession over the next few years.

This echoes a post by Lynne DeVenney at  Practical Paralegalism entitled, “Paralegals, Watch Your Backs! Out-of-Work Lawyers Want Your Jobs ” that was the subject of posts here some months ago. While some responses to the Paralegal Today listserv post took the position that this was simply a matter of competition, e.g.,

Everyone needs to work. If I couldn’t find a job as a paralegal, you can bet I’d be taking away a secretary’s job. If I was a secretary, and couldn’t get a job as a secretary, I’d be hopping on receptionist jobs. I just can’t take the position that the paralegal profession is some kind of specialized, elite group whose duties should only be performed by someone who has a specific degree from a specifically approved school with specific accreditation and with a specific type and amount of specific experience. From my own perspective, if you can do the job and someone will hire you… hey… have at it.

The point of my previous posts, however, is that for the most part lawyers cannot do a paralegal’s job. 

It is not just a matter of protecting paralegal turf. The fact is that lawyers and paralegals are trained differently for different roles.

However, that territory was covered quite well by Lynne in a comment she posted on a blog post on law.com – Should You Work as a Paralegal if You Can’t Find a Job as a Lawyer?.  Carolyn Elefan, who did the post answered in the negative stating,

In general, lawyers are either over-qualified or under-qualified for many of the available non-lawyer positions. For example, one firm that advertised for an administrative assistant was inundated with lawyer résumés. But the firm declined to hire a lawyer because it felt the candidate would simply leave once a better job came along. In general, lawyers are either over-qualified or under-qualified for many of the available non-lawyer positions. For example, one firm that advertised for an administrative assistant was inundated with lawyer résumés. But the firm declined to hire a lawyer because it felt the candidate would simply leave once a better job came along.

The point is not, however, that the lawyer is over-qualified. The lawyer is simply not qualified by training or experience to do what paralegals do. For example, the paralegals role in client management is quite different from that of an attorney.

Lynne summed the training aspect up well in her comment to Elefan’s post:

While lawyers’ training is usually a three-year immersion in case study and analysis, many paralegals have undergone two to four years of specific paralegal training which is much more practice-oriented and very different from most law schools’ current curriculum.

Chere Estrin, Editor-in-Chief of Know: The Magazine for Paralegals handles the experience issue in another comment,

Besides differences in training – lawyers are trained in the practice of law while paralegals are trained in procedures and processing – few lawyers have the on-the-job experience to be a paralegal. In fact, while lawyers can delegate a paralegal assignment, very few can execute it. The awarding of a law degree does not guarantee knowledge of the finite and detailed responsibilities of paralegals.

And Melssa H. from Paralegalese, who I have previously quoted in an encouraging sequel on the topic “Does Your Attorney Understand What You Do?” makes an point that may be even more important:

Also, we need to stop tiering in the legal world. When we say that paralegals and attorneys are trained differently for different jobs, we are not saying that the attorney’s job requires a smarter or more capable person. We are saying the attorney’s job requires a person with a law degree and license to practice, while the paralegal’s job has other requirements (which I personally feel need to be more uniform as we move forward). If I were a lawyer, I would want the most capable, intelligent person I could find to assist me in my practice. After all, if the paralegal is doing work that, absent the paralegal, would be done by the attorney, I would hope the paralegal is at least as competent as the person who chose to go to law school would be.

I am so thankful I have an attorney supervisor who views me and my education as valuable resources to his firm. While technically, he is the boss and controller of the work product, he places a ton of faith in my abilities. At some point, when I have a few more years under my belt, I expect he may even trust me more than he will trust himself in some areas. This says nothing negative about his own abilities and intellect. It just means that our daily jobs are slightly different, and I come into contact with some situations more often than he does. Over time I will develop a more detailed knowledge of some parts of the legal field that do not require a licensed attorney. Rather than a viewing this as a problem, I like to compare it to the different jobs nurses and doctors do. The doctor may be fully capable of performing the duties of a nurse in a technical sense, but the nurse’s experience and training probably make him better at the job.

The attorney and paralegal are parts of the legal team. The attorney, like a quarterback, directs that team.  Except in exceptional circumstances, the quarterback is not expected to play the role of the other team members – primarily because he is not trained or experienced enough to perform those roles. No one want the quarterback responsible for protecting against a 300 lb defensive lineman. The same applies to the protection a paralegal gives from many clients through skillful and professional client management.