Archive for March, 2011

What Is a Qualifying Education?

Thursday, March 24th, 2011

Michelle Parris is off to a remarkable start of her career as an attorney. According to The New York Times:

Even before she graduated from Stanford Law School in 2010, Michelle Parris knew she wanted to help people with psychiatric disabilities and take a holistic approach to defense law. She designed a project with that in mind and received a two-year Equal Justice Works fellowship and an assignment at the Bronx Defenders. Still in the early stages of her fellowship, which began in September, she already has a caseload of 40 clients facing issues like homelessness, lack of access to health care, addiction, deportation and the ultimate nemesis of her project, criminal recidivism.

But what, you may ask, makes this a matter for a post on this blog? It’s this statement in from the article:

I thought I wanted to be a doctor … But when I went to college and took chemistry and calculus, I realized being a doctor was probably not going to happen. I majored in history and graduated in 2004 not sure of my career path.

I wanted to get some exposure to what being a lawyer would be like, so for two years after college I was a paralegal in the litigation department at Davis Polk. There was a lot of sitting in an office in front of a computer, and it just wasn’t the right fit for me.

Here’s my problem: While I have no doubt that Davis Polk gave Michelle the title of “paralegal,” it seems virtually impossible that she actually performed paralegal tasks. While I concede that there continues to be a lot of disagreement and confusion regarding the qualifications for being a paralegal, almost everyone agrees on the ABA definition of what a paralegal is:

A legal assistant or paralegal is a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.

While the details are sketchy, there is nothing in Michelle’s background that indicates training, experience, or education that would qualify a person to perform substantive legal work. (While chemistry, calculus, and history may all be helpful to a paralegal, none qualify as the requisite education.)

A recent discussion on the AAfPE listserv regarding proposed legislation in Florida that would regulate paralegals (see The Paralegal Mentor’s post on this legislation here) ended with this comment:

I just want to jump in here.  As a paralegal since 1981, I would LOVE to see some licensing and regulation, if for no other reason, than to make educational standards across the country for the profession.  I am so tired of reading about “runners” in the newspaper who get caught, and then tell the reporter that they are “paralegals!”  I think it would bring a lot of credibility and respect to the profession, which is always welcome.   Just my two cents. 

While Michelle career path reflects well on the paralegal if indeed she was one as defined by the ABA, it does seem that this comment makes a valid point.

NFPA Scholarships

Friday, March 11th, 2011

The National Federation of Paralegal Associations, Inc. group on LinkedIn provides this announcement:

* Subject: Announcement from National Federation of Paralegal Associations, Inc. – SCHOLARSHIP APPLICATIONS NOW AVAILABLE

It’s that time again — NFPA is happy to announce that the 2011 Thomson Reuters’ Scholarship Application is available at http://www.paralegals.org/associations/2270/files/2011content/2011_Thomson_Reuters_Scholarship_Application.pdf

This year’s essay topic is:

“The economy has had a strong impact on the practice of law. As a paralegal student, who will soon be graduating, describe the current legal job market in your community, and how your paralegal education can give you an advantage in securing paralegal employment.”

The scholarships are $3,000 and $2,000, and include a stipend for the winners to travel to the 2011 Annual Convention to be personally recognized by NFPA and Thomson.

Theresa A. Prater, RP
NFPA Vice President and Director of Profession Development
Posted By Theresa A. Prater, RP

Liking Latin and Lawyers II

Friday, March 11th, 2011

Way back in September of 2009 I did a post referring readers to posts by Melissa H. at Paralegalese about lawyers being too intelligent to be liked in “Nobody Likes a Know-It-All” and Vicki Voison, The Paralegal Mentor, who wrote an ode to the study of Latin and put together a compilation of many of the Latin terms and phrases that form a good part of the legal lexicon. Both were (and are) worth the read and, I contend, the two are likely connected. In my post and in an exchange of comments with Vicki I cautioned against over use of Latin terms and phrases when speaking with or corresponding with clients, who are not likely to understand the phrases:

I have heard clients told “Tomorrow we voir dire the jury,” and that their attorney would be “admitted pro hoc vice.” For awhile I kept a running list. Others I’ve heard or seen in written correspondence to clients without explanation are respondeat superior, quantum meriut, res ipsa, in rem, ad litem, corpus delecti, de jure, forum non convenviens, mens rea, in situ, per stirpesand ultra vires. One even ventured outside of Latin to French with cy pres. This one was somewhat humorous because I got the distinct impression that the attorney using the phrase did not really understand what it meant!

I especially encourage paralegals to drop Latin (an other legal jargon) when speaking to clients. Sure, the use of such phrases between the paralegal and attorney act as good shorthand, allowing quick and effective coverage of complex topics. But the client is quickly lost when slogging through a swamp of legal jargon and Latin phrases. This is one of many barriers to client understanding and full participation on the legal team. If you must use a Latin legal phrase, remember that it has an English translation that might actually be understood by a client, making client management easier. The paralegal can, and should, use the English translation or explain the Latin phrase when speaking to the client, acting literally as a interpreter between the attorney and the client. Melissa puts the point well:

Knowledge and education are wonderful things when they serve clients’ needs, and therefore the firm’s needs. But empathy, understanding, and the ability to communicate on the client’s level are also necessary parts of meeting these goals.

All this was brought to mind by an email from Julia Watson at OEBd.com (Online Education Database) regarding an article entitled, “50 Common Latin Phrases Every College Student Should Know.”   I know nothing about OEBd other than the email and the article, and do not take a position here regarding online education in general or that referenced by OEBd.com, but the article is a good collection of Latin phrases with explanations. The 50 phrases are broken down into categories such as “Legal,” “Business,” “Arguments and Logic,” and “Must Learn Terms.” (The phrases are each linked to their Wikipedia entry. As my students know I do not condone use of Wikipedia as an reference authority in papers or briefs as it’s entries have contained errors.) If nothing else it make a good reference for giving understandable explanations of the terms to clients.

It being Friday, it is likely that the phrase most likely to apply to college students and many members of legal teams across the country is “In vino veritas.”

 

Improving the Dog and Pony Show

Thursday, March 10th, 2011

In The Empowered Paralegal: Effective, Efficient, and Professional I state that when it comes to a trial “the best dog and pony show wins” meaning that often it is the best prepared case that wins, not necessarily the best case. The best prepared case is not simply the case with the most information, but the case in which that information is organized and set for presentation to the jury in a way the jury can understand it. Today’s post “Show Me the Money!” from Judge Primeaux on his blog illustrates this point as it applies to any factfinder, including those wearing a black robe:

As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast  that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late.  Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.

Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided. 

The post includes other suggestions and the questions necessary to lay a foundation. I cannot emphasize enough the importance of the role of this kind of preparation is for a successful trial and the importance of the paralegal’s role is in preparing a well-done trial notebook. For more on this see Judge Primeaux’s blog and Chapter 7 of The Empowered Paralegal: Effective, Efficient, and Professional.

Rambling Writing

Thursday, March 10th, 2011

I’ve posted before about the importance of writing right. My students know that I frequently and repeatedly (perhaps incessantly) discuss the importance of being able to writing clearly and concisely, pointing out the word and page limits on filings in Federal Courts. The results (in terms of the papers and pleadings I receive) indicate that they do not take these admonitions seriously. So this from ABAJournal.com is for them (and any working paralegals of the same ilk):

7th Circuit Zaps Lawyer for Exceeding 14K Word Limit in Brief, Summarily OKs Lower Court Decision

n a blistering opinion (PDF) today, a federal appeals court not only stated or implied that a lawyer had been untruthful in his certification that a brief met the 14,000-word limit but criticized his “rambling” writing.

Then, saying that any further effort by appellant attorney John Caudill to file a brief that complied with the 7th U.S. Circuit Court of Appeals rules would be pointless, a three-judge panel summarily affirmed the district court decision in the case.

While it did not dismiss the appeal as a sanction for Caudill’s certification that the brief was within the word limit, it has the power to do so, the court said in a six-page ruling authored by Judge Richard Posner:

“The flagrancy of the violation in this case might well justify the dismissal of the appeal: let this be a warning. But in addition it is plain from the briefs that the appeal has no merit. To allow time for the appellants to file a compliant brief and the appellees to file a revised brief in response, and to reschedule oral argument, would merely delay the inevitable.”

 

 

 

Mississippi Legal Love Triangle

Wednesday, March 9th, 2011

From time to time search terms used on Google or another search engine bring viewers who here who are not really looking for anything here. So it can make you wonder “What on my blog matched that search?” and “What was the inspiration behind that search?” Twice in the last three hours “Mississippi Legal Love Triangle” has shown up in this way, apparently drawn by these pages which provides the answer to the first question. For the moment I taking the position that I’m just as well off not knowing the answer to the second question.

When the client marries at age 85 and in ill health…

Wednesday, March 9th, 2011

A number of posts here lately have dealt indications that our elderly clients are being abused and the paralegal’s role in being aware of those indications. The most recent post noted that on occasion the issue arises out of conduct of the attorney with regard to the client. As if to emphasize my point, there’s this from Legal Profession Blog today:

A story posted today at SFGate.com describes a recent California disciplinary action:

A veteran Pacifica attorney is facing disbarment for allegedly duping an 85-year-old client into giving her $339,000, entering into a sham marriage with him and ignoring his will by having him cremated after his death.

Linda Lowney “took advantage of a lonely, sick old man” and thwarted his intent to transfer his estate to his nieces, Judge Pat McElroy of the State Bar Court said Friday.

She ordered the immediate suspension of Lowney, who has practiced law since 1978 and had no disciplinary actions on her record. The disbarment could be appealed to the state Supreme Court, but Lowney’s attorney, Jonathan Arons, said Tuesday he had little hope that such an appeal would succeed, despite his disagreement with the ruling.

“I think they (the court) misunderstood the relationship,” Arons said. “This was a marriage.”

The attorney was 54 when she married a man who was “85 and in poor health.”

According to SFGate:

Lowney also sued for a share of Tollefsen’s estate. A state appeals court ruled against her in 2009, suggested “financial abuse of elders” was involved and referred the case to the State Bar.

While I have no knowledge other than this, I suspect a paralegal was a witness in these matters!

h/t ABAJournal.com who notes:

Back in 2002, Linda Lowney drafted a will for her client, Thor Tollefsen, that provided for his estate to go to his sister and two nieces in Norway.

But by 2005 the 54-year-old California attorney had become involved with Tollefsen, 85. He gave her $339,000, with his nieces’ consent, and the two got married in January 2006, using a confidential license, reports the San Francisco Chronicle.

Paralegals as Answer to Access to Justice Issue in Ontario

Wednesday, March 9th, 2011

The Law Society of Upper Canada continues to consider changes in its experiment of paralegal licensure and regulation to assist in remediating access to justice issues. At the moment there is controversy brewing because the LSUC is beginning its discussion of expanding the scope of permitted paralegal activity based on “a decade-old report that backed paralegal calls to practise in that area as the basis for a promised review of the scope of their practice.”

Here’s some of the back-and-forth as reported by Law Times:

Marshall Yarmus, the paralegal whose motion at the annual general meeting last year sparked the commitment to a review, says Cory’s report is a “good starting point.”

“In terms of family law, we’re looking for things beyond what he suggested because paralegals used to be allowed to make appearances in the family court for certain matters,” he says.

“But at least it also addresses other issues like wills, real estate, and other areas of law where paralegals are not currently allowed to practise and [that] he recommended.”

Chris Surowiak, president of the Paralegal Society of Ontario, welcomes the law society’s action on the scope of paralegal practice.

“The public needs assistance within many aspects involving family law and the public can only benefit in using the professional services of a paralegal in this area,” he says. “Expanding our scope of practice can be a win-win for lawyers, paralegals, and ultimately the public.”

But Cynthia Mancia, co-chairwoman of the Family Lawyers Association, isn’t so sure.
“The biggest underlying theme of justice Cory’s [report] was access to justice, and I think it’s a mistake to equate expanding the use of paralegals as an answer to the existing well-documented access-to-justice [issues] that exist,” she says.

“There is a perception out there that paralegals can provide the same services that lawyers provide but more cheaply. The fear family lawyers have is that that perception isn’t grounded in reality.”

I’m somewhat biased on this as I’ve been arguing for quite some time that paralegals should have an expanded role in plugging the access-to-justice gap.  So it may be no surprise that I take issue with Mancia’s characterization.  It seems to me that it is quite correct to equate expanded paralegal actions with an answer to access to justice issues.  The issue is not whether paralegals can provide the same service as attorneys. They cannot. However, there is no reason paralegals can’t provide some services now provided by attorneys at a lower cost thereby expanding access to justice for those who cannot currently afford any representation.

 The position of attorneys who oppose this type of role for properly educated, licensed, and regulated paralegals are contending that somehow people lacking any legal training at all who cannot afford an attorney are better off confronting the legal system on their own. This position is counterintuitive and I strongly suspect they cannot provide any data to back up the claim.

For more on these issues check out  the “Canada” and “Access to Justice” categories.

The Paralegal as Watchdog

Tuesday, March 8th, 2011

A recent post dealt with the paralegal’s unique position to assist in preventing elder abuse. As I point out in Working with the Elder Client nursing homes, family, and other caregivers are not the only source of abuse. Guardians are often implicated. Although not directly on point an ABAJournal.com post today reminds me that at times even lawyers can be involved in the mistreatment and mishandling of client funds amounting to abuse:

A former Winston & Strawn partner has reached an agreement that could pave the way for a guilty plea in connection with his work for a celebrity money manager.

Prosecutors told a Manhattan federal judge on Monday that the former partner, Jonathan Bristol, has reached an agreement in principle to resolve charges he laundered more than $20 million stolen from celebrity clients by convicted money manager Kenneth Starr, according to the New York Post, the New York Law Journal and the Am Law Daily. The money was allegedly laundered through attorney trust accounts.

I am not by any means suggesting that paralegals become a law office Nancy Drew or Hardy Boy. (A lot of my youth was spent with those books.) Indeed, even the term “watchdog” in the title to this post may be too strong. However, it is incumbent upon the professional paralegal to see can be seen and sometimes notice what is not there to be seen, make an appropriate record and when necessary “do the right thing.” Here’s an example from a previous post.

Client Grief and Paralegal Professionalism

Tuesday, March 8th, 2011

Those familiar with The Empowered Paralegal: Working with the Elder Client are aware that it focuses on the premise that 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 book seeks to enhance understanding of elder law clients, the laws applicable to them, and the issues they and their families face.  One of those issues is the grief felt by family, friends, and even the legal team, when a client dies or is dying. Thus, a understanding of how people view death, dying, and aging, including an understanding of how that people’s perspective differ depending on cultural, educations, religious, and personal backgrounds, is essential to paralegal professionalism for paralegals that work with the elder client and families.

This point was reinforced for me when I browsed through the first issue of Freelancer, a monthly e-zine from the National Association of Freelance Legal Professionals, a new professional association discussed in a previous post. It includes an article by Tina Johnson, a paralegal in a Minneapolis law firm. The article, entitled “The D Factor: Dealing with Death and Clients’ Emotional Up and Downs.” I can’t print the entire article here, of course, but here’s a link and here’s a particularly pertinent excerpt:

Certified grief counselors we are not, but we certainly display professionalism by treating clients with tact, empathy and compassion and by ensuring client confidentiality. Calming fears and soothing worries, paralegals must be prepared to deal not only with the legal aspect of things, but with the relational aspect as well.

It is not surprising to know that many times the paralegal is the go-to person the client contacts when they just need someone to talk to such as the grieving surviving spouse who is going through the mourning process and finds it very difficult to function on a day-to-day basis. In my experience, these clients often do not open mail or follow through on requests made by the law firms as part of the probate administration process. By talking and listening to the client, paralegal can reassure, support and encourage the client and provide as much assistance as the client needs.

So, assuming the link works, take a few moments to read Tina’s article, and a few more to check out the entire issue of Freelancer.

Disclosure: There is a link between the National Association of Freelance Legal Professionals and the Organization of Legal Professionals. I am on the OLP Advisory Council, although frankly the organization seems to do quite well without any assistance from me.