Archive for April, 2011

Reduce the State Budget: Hire Paralegals

Thursday, April 28th, 2011

Every state and local government is looking for ways to reduce costs while maintaining services. None needs to do so more than California. In today’s Capitol Weekly: The Newspaper of California Government and Politics,” Malcom Maclachlan asks “Should AG hire more paralegals?” and pretty much answer the question affirmatively in an article that makes a good case for the effectiveness and efficiency of professional paralegals.

Maclachlan notes,

But there appears to be one cost-cutting trend in the legal industry that the AG’s office has not kept up with: hiring more paralegals. These are lower-cost employees who can do much of the support work for attorneys, including some tasks that are often carried out by attorneys.

“There has been a push, and clients have forced the push, starting in the early or mid ’90s to lower the costs of their legal bills and use as many lower-level, inexpensive people as they can,” said Tom Chase, owner of Chase Legal Professionals Inc. in Folsom.

“Paralegals are definitely part of that process,” added Chase, who is not an attorney but has managed four different law firms. He also taught a course on law firm management at the University of the Pacific’s McGeorge Law School from 1989 to 2004.

Maclachlan also addresses explanations (excuses) given by AG spokespersons, e.g., “The spokesperson for the AG also said that the litigation-heavy nature of their work limits the numbers of paralegals they can use. Many law firms do most of their work outside of court—filing real estate or tax documents, or other work that does not involved the inside of a court room.   But Chase says the law firms that hire a lot of paralegals are often the same ones that do a lot of litigation. Paralegals often sit in on depositions and summarize them, or organize exhibits for trial.”

It is a good sign for the paralegal profession that reporters like Maclachlan recognize and report on the role paralegal can play in the delivery of legal services regardless of the sector in which that service is delivered – something that you, I, Dupont, and the ABA have known all along!

How to Write – Forms, Format, Formulaic

Wednesday, April 27th, 2011

This is actually about a post on another blog entitled “How to Write a Statement of the Standard of Review in Five Simple Steps.” While the post give great step-by-step instructions for writing a statement of the standard of review, the approach is applicable to almost everything a paralegal is charged with drafting. In particular it comes with this advice,

Adding boilerplate language or copying and pasting from other appellate briefs does nothing to aid the court and can damage your credibility. The best practice is researching and specifically tailoring the statement of the standard of review to your case.

In short, forms and formats are fine, but being formulaic is not. Cut-and-paste works only if it is proceed and followed by sound thinking and judgment. Check out this and other fine posts at Vodzaklegal.

I Wouldn’t Recommend It

Tuesday, April 26th, 2011

I was recently ask whether it was ethically proper for members of the legal team to recommend appraisers, surveyors, doctors, etc., assuming no kick-back is involved. If a kick-back is involved then there is a clearly a problem, but I see a potential problem even when there is no kick-back. ABA Model Rule of Professional Conduct 2.1, “Advisor” states

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

I read this as charging us to act in the best interest of our clients. Therefore, the recommendation should only be made if we believe it is in the best interest of our clients (as opposed to the best interest of our fried the appraiser, our network building, etc. I have to be making the recommendation because I believe there is a good reason to do so for this client – not necessarily that the appraiser is the “best,” but the best for a reasonable cost, knows the area best, is familiar with this particular type of property, will be most acceptable to the bank, etc.

A recent discussion on the New York City Paralegal Association LinkedIn discussion board raises a related issue: “Are there tax or other ethical considerations when accepting gifts from court reporters?” By Jan Ballman, a Registered Professional Reporter and a Certified Manager of Reporting Services,  President & CEO of Minnesota’s largest court reporting agency, Paradigm Reporting & Captioning. While I might have deleted the term “other” in the title so as not to imply that tax issues are a type of ethical issue, it makes sense in the context of the article. Here are just some of the questions raised by the posting with regard to gift cards offered by court reporters as “Thank yous” for using their service:

Who ends up with the gift card? Would it go to the attorney who has noticed the deposition or should it go to the scheduling secretary or paralegal? If you have more than one assistant working on the case, who gets the gift card? Shouldn’t it really be going to the client of the law firm, since they’re paying the court reporter’s bill? And is anyone bothering to check to see if the “gifting” court reporting agency is charging more than the reporting agency being canceled? Is there a chance that accepting gift cards might be consequential to the law firm from the standpoint of ethical codes or perhaps legal advisory opinions surrounding the practice? Does it pose any potential tax ramifications to the law firm? Are law firms even aware that this is happening? Does anybody really know what’s going on? Does anybody really care?

The article notes that “In March this year the National Court Reporters Association added some clarity by amending their Code of Professional Ethics, Prov. 8: “nothing offered in exchange for future work is permissible, regardless of its value.” While this clarifies the matter when the “gift” is in exchange for future work, it seems that even “Thank yous” for past work remain problematical for the paralegal receiving the “Thank you.”  The full article is available here.

Man paid paralegal $5,500

Monday, April 18th, 2011

The scam artists who take advantage of people losing their homes through foreclosure during the recession are scoundrols at best. Unfortunately there are some members of the legal profession that walk on the wrong side of the line that separates those who use their legal knowledge to help the disadvantaged and those who use it to take advantage. Then there are those who take advantage of the vagracies in the term “paralegal” to include themselves in the lagal profession while scamming.

What brings this on? A story in the Scaromento Bee that begins bad and end up worse:

Sacramentans struggling to keep their homes increasingly are suing their lenders for fraud, even though judges rarely rule in their favor.

Desperation has led some of these homeowners to pay thousands of dollars to people who are not lawyers to help prepare their cases. Others hire attorneys in lawsuit mills that aggressively solicit for clients.

“It’s the new scam,” said Tom Layton, an investigator for the State Bar of California.

Of most concern for purposes of this blog is the example given to as an instance of a homeowner paying thousands of dollars to people who are not lawyers:

Sacramento resident Charles Ratliff is among those going it alone. He paid a Southern California paralegal $5,500 to prepare a complaint against IndyMac and others.

He filed his complaint in January. A judge denied his request for an order to stop the foreclosure, saying he was unlikely to win his case. The bank repossessed his house in March. …

He said he was introduced to the paralegal, Camilla Williams, by Sacramento real estate agent Kathleen Petroff, who was working with him on a short sale.

Petroff said she also introduced another one of her clients, Bay Area resident Clifton Constantine, to Williams, but never vouched for the paralegal’s services. She said she took a one-time payment of $200 from Williams but turned down an offer from Williams to pay her $500 per referral. …

Even with an initial discount, Constantine said he wound up paying Williams more than $20,000 for his case in San Francisco Superior Court. The judge issued a preliminary ruling for Constantine’s lenders, but has given him a chance to amend his complaint.

Jim Towery, the State Bar’s chief trial counsel, said people without a law license should not be preparing lawsuits. “It is illegal,” he said. “It falls under the category of the unlicensed practice of law.”

In a brief phone interview, Williams declined to answer questions about her business, including how many clients she has or where she received paralegal training.

“I haven’t done anything illegal,” she said.

When informed of Towery’s comments, Williams said, “I’m not even aware of any law like that.”

OK, there seems to be no end to what is wrong with this scenario and I do not want to minimize any of it, but I do want to focus on the fact that the paper, apparently being subject to the same confusion as many in the general public, refers to this Williams as a “paralegal.” There appears to be no justification for this other than the fact that Williams calls herself a paralegal. While doing what she did appears to be UPL in any state, in most states there is nothing preventing her from calling herself a paralegal. Would the paper have referred to Williams as a lawyer if she claimed to be one but never attended law school, passed the bar, or was licensed?

There has been much discussion on listservs and blogs regarding recent proposed legislation in Florida that would restrict who could be called a paralegal with some people arguing that there is no reason for paralegals to support the legislation because it does not allow paralegals to do anything they are not already doing. This appears to be both short-sighted and to smack of way too much self-interested analysis. One purpose of such legislation is to protect the public. Another is to protect the profession from being tainted by bad apples who are not really even member of the profession’s barrell. The paralegal profession needs to act agressively to educate the public and especially the media regarding the profession to minimize the extent to which people doing bad things are grouped together with true paralegal professionals. This will be difficult to accomplish as long as just anyone can call themselves paralegals.

Two caveats:
1. I have not yet had time to read and analyze either of the proposals being consider in Florida so this post should not be taken as an endorsement of those particular proposals.
2. I realize that this happened in Califoria where there is already someregulation in place. While it has not fully accomplished its purposes, as stated here, it has helped.

The Paralegal: “This profession did not choose me, I chose it.”

Thursday, April 14th, 2011

Recent posts here have focused on the inappropriateness of expecting an  unemployed attorney to perform paralegal functions. As similar problem is that of people viewing paralegals as people who couldn’t or didn’t make it in law school or who are simply in a holding pattern while waiting to get into law school. This is a common misconception. It is disappointing how many people still hold it – people who ought to know better. The quote in the title of this post is from a post on “The Paralegal” brought to my attention by Lynne Devenny at Practical Paralegalism, as part of her weekly list of recommended reading. (It may take me awhile, but if Lynne says to read it I eventually do.)

I can’t do justice to “The Paralegal’s” post by using an excerpt here, so in case you missed the link above, here it is again. Take a moment or two and read the whole post, “Why Am I a Paralegal?”

Elderly Legal Professionals Vulnerable as Other Elders

Thursday, April 14th, 2011

Regular readers of this blog are aware that my interest in Elder Law issues lead to The Empowered Paralegal: Working with the Elder Clientrather than the reverse. Of special importance to me is the unique role the legal team has in spotting elder abuse. Relating this particularly to paralegals I’ve noted their unique position to intervene especially when that abuse is caused by an attorney. Today’s post relates, however, to the vulnerability of the elderly that exists even when the elderly person is an attorney.

I have no information in that regard that a paralegal could have noticed or done anything to prevent the events on which this post focuses, but I include it today nevertheless primarily because it illustrates the point that members of the legal team are not exempt from the vulnerability that comes with aging:

Man Gets 46 Years in Elderly Ex-Lawyer’s Slaying, Expected to Testify Against Ex-Client Co-Defendant

Keith Allen said he held Carl Kuhn’s wrist until he could no longer feel the 82-year-old man’s pulse as a trusted ex-client, Terry Bratcher, allegedly held a pillow over the former Illinois criminal defense attorney’s face in his suburban Chicago home one day in 2009.

That was enough to support the 22-year-old Allen’s first-degree murder plea earlier this year, for which he was sentenced Monday to 46 years in prison, according to the Chicago Tribune.

Allen is expected to cooperate and potentially testify in the state’s case against Bratcher, 44, who is awaiting trial. Authorities say he and Bratcher went to Kuhn’s home near Barlett to steal firearms from his gun collection, but suffocated him to death when he refused to give them the code for his locked safe.

Earlier coverage:

ABAJournal.com: “Ex-Client Charged With Killing Lawyer; Death At First Thought Natural”

Fair warning to students in my fall class, “Law and Aging:” you will benefit from reading all posts in the “Elder Clients and Elder Law” category!

Professionalism and Wikipedia

Thursday, April 7th, 2011

Despite the title to this post, there is NO connection between professionalism and Wikipedia when it comes to legal or academic research. When I point this out to students or practicing paralegals I generally get responses indicating that the listeners are somewhat stunned by the comment, but they are not all the same. The “stunning” seems to be of two types: those who are stunned because they cannot believe anyone uses Wikipedia to do research and those who cannot understand why I am opposed to its use for these purposes, i.e., they don’t believe anyone really cares if you get your information from Wikipedia. I get similar responses on the issue of citing authority: Some can’t imagine that any legal professional would fail to cite authority and some who c do not believe anyone really cares.

Aside from the many documented instances of Wikipedia being wrong, e.g., reporting Senators Kennedy and Byrd as dead long before the actual events and Rush Limbaugh being hoaxed via Wikipedia today’s ABAJournal.com passes on a story from Legal Blog Watch in a post entitled “Judge Warns Defense Lawyers in Pitino Extortion Case: Don’t Crib Law Discussion from Wikipedia” in which it is clear that some people do care. This is especially important to legal professionals when the “someone” is a federal judge:

A federal judge has issued a legal writing warning to lawyers who sought a new trial for a woman convicted a trying to extort money from University of Louisville basketball coach Rick Pitino.

The defense should not have copied its discussion of ineffective assistance from Wikipedia, U.S. District Judge Charles Simpson of Louisville wrote in a February opinion (PDF). His concerns are outlined in footnote 4 of his opinion denying a new trial for the defendant, Karen Sypher, Legal Blog Watch reports.

“The court notes here that defense counsel appears to have cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia website,” Simpson wrote.

“The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. The court also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to ‘engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ …

“Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.”

Legal Blog Watch credits Legal Writing Prof Blog for noting the footnote

Professionals do not rely on Wikipedia.  Professionals cite their sources in work submitted to courts. Period.

It could be worse…

Wednesday, April 6th, 2011

Several posts here concern the conditions under which paralegals work, the respect they receive (or do not receive), their relationships with their employers, and the like. While some paralegals are happy where they work, others are not. Today’s story of an unhappy employee comes from Lowering the Bar and does not involve a paralegal. So just file it under, “it could be worse,” unless of course it already is:

A Brief Research Memo Concerning a Simulated Chicken Head

Question Presented

Did the judge correctly rule that an employee was entitled to workers’ compensation because the work-related events she experienced were the “predominant contributing cause of [her emotional] disability”?

The Facts

Mr. Grillo agreed to provide [medical] insurance [only] if the employee would agree to wear the “chicken head.” This was part of a costume consisting of a cloth depiction of a chicken that was worn over the head like a mask. The employee . . . was not in on the “joke” that someone had the chicken head in their office and on occasion it was brought out as a prank usually for being on the losing end of a bet. The workers at this office consider themselves to be quite a fun loving group and often socialize with each other after hours. There was a meeting at headquarters that the employee attended on February 27, 2007 with her young daughter. She was shown the chicken head at that time and declined to wear it. The employee was horrified at the possibility of wearing the chicken head and refused.

* * *

In another e-mail, forwarded to the employee that day, Grillo wrote “[n]o head, no payment.” The employee became depressed and stopped working.

Brief Answer

Yes.

Citation

Capello v. DTR Advertising, Inc., Board No. 026109-07 (Mass. Dep’t of Indus. Accidents Mar. 23, 2011).

The Value in Critical and Analytical Thinking

Tuesday, April 5th, 2011

It’s been a while since I posted. I appreciate the emails asking whether I still exist! I do, but I’ve been quite busy. I’m teaching extra courses this semester, weekends have been taken up with projects such as teaching Constitutional Law to reserve and part-time police officers. In addition, I’m attempting to complete my Masters in Philosophy and had the opportunity to present a paper at a recent annual conference of the Mississippi Philisophical Association.

Normally when I find myself in such a situation, I fill in gaps by relying on posts that incorporate ideas or actual posts from other blogs or emails that I’ve received, but I even seriously behind in reading the many items backlogged in those two categories. However, I have spent some time reading over the last couple of days and will be working off these materials for posts until I can find time for truly original work.

I’m starting with a post from Judge Larry Primeaux’s blog on “THE VALUE OF THINKING LIKE A LAWYER.” That post itself features an article by Professor Harner of Univsersity of Maryland School of Law, which “begins by accepting some of the premises offered by Ribstein and Susskind: that forces are at work changing the legal profession; that the legal profession is becoming commoditized and generic; and that survival as a lawyer, and indeed, survival of the legal profession, will demand evolution in the way lawyers offer and market services.”  But I focused more on Judge Primeaux’s opening words,

In law school we were taught not so much the law as how to think like lawyers.  That is, we were taught to think analytically, to break complex issues into comprehensible components, and to bring creative solutions to bear using the framework of the law.

The judge’s comments and the post in general are, of course, directed to attorneys, but I belive the judge’s comments (at least) are applicable to paralegals, especially in the context of an ongoing discussion on the Paralegal Today listserv. One comment there states,

I agree finding a job as a paralegal is extremely competitive and the employers want to pay $10.00 an hour even with a bachelor. Its like they no longer value the cost and effort that you put into getting an education. When I graduated from undergrad four years ago I was told from my professor that becoming certified was not necessary, however, I noticed that more jobs are asking for five to ten years experience and requiring certification for anyone with less experience. I think that the schools should be honest and inform the students about how hard it is to get a job as a paralegal making a decent income with no experience.

To this another responded,

I agree with you that the schools and colleges should be notified of what is really going on out here after we spent all this money and time and can’t find a job because attorneys are taking them, and they only want to pay us $10.00.  The should be telling students that the demand for paralegals is diminishing because there are so many unemployed attorneys.

I agree that paralegals schools should be forthright with students regarding the prospects for obtaining employment (to the extent any of us can predict the prospects of obtaining employment in two or four years based on the market at the time of enrollment), but my thoughts today are on the comment that law firm employers do not value the education paralegals get (through formal education or experience) and that the devaluation is at least in part unemployed lawyers. While there are many indications that this is happening, I am writing once again to propose to those attorneys who read this blog that the use of unemployed attorneys as substitutes for paralegals is a mistake.

This issue has been addressed here before, but I’ll take another shot at it today using the concept of “thinking like a lawyer” as an example. Well educated paralegals are trained to do a number of things like an attorney (not identical to an attorney.) If we things of the capacities of paralegals and the capacities of attorneys based on education and experience as Venn diagrams we see that there are capacities (usually varying in degree), but there are many tasks for which paralegals are trained that attorneys are not. For example:

•PARALEGALS
•Client Communications, Docket Management, Calendar Management, File Management, Legal Research, Legal Reasoning, Critical and Analytical Thinking
•ATTORNEYS
•Client Representation in Court, Legal Tactics and Strategy, Legal Advice, Legal Research, Legal Reasoning, Critical and Analytical Thinking
Quarterbacks and guards are both atheletes and they are both football players. Many of their capacities overlap. It’s a mistake to hire a guard to play the position of  quarterback. It is a mistake to hire quarterback to play the position of guard. Likewise, it is a mistake to hire an unemployed attorney as a paralegal. In practical terms they cannot and will not “block” clients or provide the same protection from a malpractice blitz as paralegals.

As stated previously,

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 Devenny of Practical Paralegalism  summed the training aspect up well :

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 this way,

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. …  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.

UPDATE: After writing the above post I check through the “backstage” data for the blog over for yesterday and found a link for Superlegal Fun, a paralegal blog that contains a post from last Thursday that asks an newly minted attorney who could not find a job as an attorney, “Dear JD: What exactly did you learn in law school?:”
JD is an attorney (hence the nickname JD), but couldn’t find a lawyer job, so he took a job with our firm as a Paralegal.

Today, he asked what ABN and LR meant.

For those who don’t live in a law office, you may not know that those acronyms stand for “associated business name” and “local rule.”

That’s right. He didn’t know LR meant local rule. Oh the humanity, bring me some sticks to draw that man a picture on the wall of his cave!!

No one is expected to know everything about law or law offices freshly out of law school or paralegal school. However, if a law firm is going to spend money giving on-the-job training to someone for a paralegal position, it seems to make sense to start with someone who has the appropriate basic training and will not be constantly looking to move on to another role in the firm leaving the firm to spend the money giving a real paralegal the same on-the-job training!