Archive for August, 2011

Kentucky Paralegal Association Certification

Wednesday, August 31st, 2011

Vicki Howard, the Public Relations Chair for the Kentucky Paralegal Association (KPA) and the 2010 President,  noted that the KPA was not listed under the local associations in my links page for paralegal associations and sent me the KPA information and a link to the association’s website. So, KPA is now on the list! I’m happy to hear from other state paralegal associations. If you exist and are not listed, please let me know.

Vicki also informs me KPA began Certified Kentucky Paralegal (CKP) testing on ethics in November of last year and will test again at its Annual Conference this Fall. 

ABA President Stuck in 20th Century

Wednesday, August 31st, 2011

I was quite disappointed in the comments of the current ABA president as reported in this from ABAJournal.com:
 
ABA President: Allowing Nonlawyers to Practice Law Isn’t Solution to Justice Gap
Posted Aug 31, 2011 7:44 AM CDT
By Debra Cassens Weiss 

ABA President Wm. T. (Bill) Robinson III agrees the poor need more legal help, but says deregulating law practice is not the answer.

Robinson outlines the ABA’s views on legal aid for the poor in a letter to the editor of the New York Times. His letter responds to a Times op-ed last week that suggests the “justice gap” could be addressed by allowing nonlawyers “into the mix” who could handle easier matters such as uncontested divorces. A Wall Street Journal op-ed by two Brookings Institution fellows, also published last week, made a similar point.

Robinson disagrees. “A rush to open the practice of law to unschooled, unregulated nonlawyers is not the solution,” he writes. “This would cause grave harm to clients. Even matters that appear simple, such as uncontested divorces, involve myriad legal rights and responsibilities. If the case is not handled by a professional with appropriate legal training, a person can suffer serious long-term consequences affecting loved ones or financial security.”

Robinson offers another solution: more funding for the Legal Services Corp. He also points out that the ABA supports lawyer pro bono and legal aid funding provided by Interest on Lawyers Trust Accounts.

Of course I agree that we should not “rush to open the practice of law to unschooled, unregulated nonlawyers.” But it appears that Mr. Robinson is unaware that many paralegals are very well schooled, many in programs that have been approved by the ABA itself! In addition, many have received advanced certificatification from associations such as NFPA, NALA, NALS, OLP, and other organizations every bit as professional as the ABA. 

And the regulation comment is a definite red-herring. If the problem is a lack of regulation, then propose some regulations – the ABA is no stranger to that process, having adopted Model Rules for just about everything to which model rules would apply and is well-versed in lobbying legislatures to get legislation adopted. Worse comes to worse, the ABA might be able to crib some of the basic from Canada.  (See the “Canada” category for posts on the system of licensing paralegals to work independently for attorney in limited areas in one Canadian province.) If the ABA cannot handle this on its own, there are hundreds of members of paralegals associations that can help them get the job done – just as they help attorneys get the job done in offices across the country.

Unfortunately, Mr. Robinson’s comments have an air of simply “protecting the turf.” However, as discussed in several posts here (see “Access to Justice” category), this is not turf that needs protecting. The problem is that many people simply cannot afford an attorney and attorneys will not provide the services these people need. Licensing and regulating trained paralegals will fill a gap in the turf that lawyers simple do not cover, not take the turf away from lawyers.  To suggest that this problem can be handled by more funding for Legal Aid when Congress is focused only on cutting, not adding (the Republican leader is presently insisting that a dollar be cut from programs like and likely including Legal Aid for every additional dollar need to aid victims of Hurricane Irene and otherwise fund FEMA), indicates that Mr. RObinson is simply detached from the many of the realities of access to justice and funding in the 21 Century!

Judge Shoots Down Extra “n” in Canon

Wednesday, August 24th, 2011

Just yesterday I encouraged by students (it was the first day of all my classes) to check out the “Consequences of Sloppiness” category here as a way of emphasizing the necessity to cross-check our work for grammar, punctuation, spelling, sentence structure and the like. I tend to focus initially on the misuse of apostrophes, which I find particularly irksome. Apparently the judge in this story from ABAJournal.com is particularly irked by the misspelling of “canon:”
Judge Scolds Levi Aron’s Lawyers for Inexperience, Facebook Posts and Misspelled Word
By Debra Cassens Weiss
A Brooklyn judge presiding over the murder prosecution of Levi Aron showed impatience with the defense lawyers on Tuesday.

Judge Neil Firetog grilled the lawyers “about their legal chops” and expressed concern that they don’t have the experience to try such a complex case, the New York Daily News reports. …

Firetog scolded the lawyers for complaining about press coverage of the case after giving media interviews and posting comments on Facebook. He even chastised the lawyers for misspelling “canon” in a reference to ethics, the Times says. “Two N’s means a cannon that shoots at something,” he said.

Given the seriousness of the charge in this case and the apparent concerns over whether the defense attorneys have the needed expertise to provide a defense, it does seem odd that the court would focus on the misspelling of one word. However, for my students and for practicing paralegals the lesson is that, even in the midst of very important matters, judges do notice even small errors and (apparently) can be adversely affected by them. Just another illustration of the importance of writing right.

Paranoid clients: Whose reality is real?

Tuesday, August 23rd, 2011

Paranoia is a difficult topic to address in the client context. It is, as you likely know, a disorder in which a person is very suspicious and distrustful of others. MedlinePlus, an informational website provided as a service of the National Library of Medicine and the National Institute of Health, describes the symptoms in this way:

People with paranoid personality disorder are highly suspicious of other people. They are usually unable to acknowledge their own negative feelings towards other people.

Other common symptoms include:

 

  • Concern that other people have hidden motives
  • Expectation that they will be exploited by others
  • Inability to work together with others
  • Poor self image
  • Social isolation
  • Detachment
  • Hostility[1]

 

There is also a type of lesser distrustful behavior that lacks the more psychotic persecutory elements of delusional paranoia. This type is called “functional paranoia” because it serves the function of reducing the sense of vulnerability that often accompanies the loss of independence and control experienced by the elderly. In essence, functional paranoia is a coping mechanism. However, the “distrust, suspiciousness, and blaming of others can take on an angry quality that certainly can be aggravating for others.”[2]

A paranoid client is problematic for legal professionals in at least two respects, (1) they mistrust just about everyone, including the legal professionals who are attempting to help them, and (2) it is difficult to separate out the reality from the unreality of the information they provide. To a great extent the empowered paralegal will already be prepared for dealing with the first of these problems, because the paralegal will already be communicating fully with clients. When the client’s paranoia is functional, full communication can empower the client and diminish their feelings of vulnerability. However, even though functional paranoia fulfills a rational purpose, the paranoia ideation itself is not rational; the definition of paranoia is irrational suspicion. You cannot expect someone for whom paranoia is a coping mechanism to suddenly stop the ideation simply because you are in fact very trustworthy and have only the client’s best interests in mind.

Paranoia is subject to treatment. Counseling in which “an individual focuses on changing negative, self-defeating beliefs or misconceptions, may be useful in treating paranoid older adults who often attribute causality to external factors (e.g., the belief that someone took their pocketbook, that they themselves did not misplace it)”[3]may enable that individual to redirect those beliefs. However, we as legal professionals cannot make it our role to counsel or treat paranoia. Rather, we best perform our role when we understand the paranoid client and use that understanding to better work with the client.

Here are some suggestions for coping with the paranoid client:

  • Do not take his mistrust personally
  • Keep the client fully informed on a consistent, regular basis
  • Speak and write in short, simple, and clear sentences to minimize misunderstanding and misinterpretation
  • While you must check fairly constantly the client’s thoughts and statements against reality, do not constantly confront the client with that reality. Remember, the clients delusions are reality for them. Chose these “battles” wisely.
  • At the same time that you let client statements and ideation pass without openly questioning it, do not indicate that your are accepting or “buying into” the client’s paranoia. Be firm and respectful in protecting and projecting your own reality. (We are, of course, all hopeful that our reality is the reality, but be mindful that each of our realities is, at least, colored by our own biases, prejudices, and suspicions.) Do not see monsters under the bed just to keep the client happy.
  • Be open to the client’s discussion of her mistrust and suspicions. Let her know that she is free to voice them to you. Clarify misunderstandings about your actions or motivations in a non-defensive, non-judgment way.
  • Anticipate events that are likely to give rise to mistrust and suspicions. Explain proceedings and the role of the persons in them well in advance. For example, it is useful for any client to know that a mediator may be meeting with both sides of a dispute privately and that such meetings may not be equal in length, but this is essential information for a paranoid client.
  • Focus on the client as a whole and as an individual. Do not focus on his symptoms.

The empowered paralegal is also well-equipped to separate out legal relevant portions of client reports from the legally irrelevant, and is likely to have considerable practice at separating fact from fiction in the client’s rendition of her side of a case. Our client’s reports to us are always colored by their particular perspective, biases, prejudices, desires, and motivations. Paranoid clients are an extreme form of this. However, they are more than just an extreme form of this phenomenon. Non-paranoid clients, unless they are simply lying, color reality, but do not irrationally misjudge it.

This is a problem for the legal professional because we must make our judgments and recommendations based on the facts. If our clients are showing signs of paranoia, we need to be ever more mindful of our obligation to verify the facts before taking action. Michael Nugent Moore, a paralegal and licensed private investigator located in Boston, commented on this topic in a NFPA LinkedIn discussion thread. He gives this example,

While working as an investigative paralegal, I had a client who was a WW II vet. He believed that someone had stolen stock from him. His mind seemed sharp, but he had bouts of paranoia. I found numerous facts that contradicted his report of the situation and I was informed that paranoia is the initial manifestation of dementia. It was a real strain constantly trying sort out reality.

However, we must also avoid swinging too far in the other direction. There is tendency to discount or even ignore everything a paranoid client says, especially when they are making accusations against people who appear to us to be above such accusations. The sad fact is that all too often an elderly client’s own children, and the nursing home personnel entrusted with the care of the elderly, do steal from, neglect, and abuse those for whom they are providing care. We cannot assume these problems are not occurring simply because the client displays signs of, or even has been diagnosed with, paranoia.

Finally, as is the case with depression discussed previously and dementia discussed in the next section, paranoia provides cause for concern regarding our client’s competency.

 [Excerpted and modified from The Empowered Paralegal: Working with the Elder Client.]


 

[1] Medline Plus, http://www.nlm.nih.gov/medlineplus/ency/article/000938.htm (Last accessed March 17, 2010)

[2] Sheldon S. Tobin, Preservation of  the Self in the Oldest Years, Springer Publishing Company (1999), 14.

[3] Hooyman and Kiyak, 235

Email as a Communication Barrier

Monday, August 22nd, 2011

Thanks to Lynne DeVenny’s I’ve now added to my list of paralegal blogs.

A post from August 19, “I’m Offended” deals with the difficulties that can arise when emails are used to communicate. The blogger notes, “Remember it is difficult to convey and discern tone and emotion in emails.” I discuss barriers to effective communication and understanding extensively in The Empowered Paralegal: Effective, Efficient, and Professional.” Even when communication takes place in person, these barriers range from linguistic and cultural differences to the need to accommodate diminished hearing and sight in the elder client. Just about any organizational administration and management points out that often the sender of a communication actually hinders communication by:

–> Not being clear about what is to be accomplished with the message;
–> Incorrectly assuming that the receiver has the knowledge necessary to understand the message and its intent and does not adapt the meeage to the intended receiver;
–>Using a communication medium not suited for the message, e.g., using email for a communication that really requires face-to-face meeting, and many other means.*

Going back to the Paralegal Ethicspost, the blogger notes, “The originator of the email series was trying her best to gently deliver some news that she expected would disappoint or even anger the primary recipient of the email.” It may be that the basic problem here was not that the originator did not use the correct words, but that he or she used the incorrect medium. News that is expected to disappoint and anger simply should not be delivered by email. While it may initially appear easier because the email acts as a shield between the person delivering the message and the person receiving it, in the long run it is more likely to create difficulties and very likely to increase the inherent difficulties.

The professional approach is to use the correct cummunication medium for creating the best understanding even when the message being delivered is an uncomfortable one.** Thanks to technologies such as Skype, a personal approach can be taken even over great distances.

*Swanson, et. al., Police Administration, 7 ed. 350-1 (Pearson/Prentice Hall 2008)
**

Reviewing and Updating Forms and Form Pleadings

Thursday, August 18th, 2011

Most codes of ethics for legal professionals require the professional to stay up-to-date with the law applicable to their practice – and most of us do. However, simply knowing about changes in the law does not complete the task as illustrated by this from a post today on Judge Larry Primeaux’s blog:

Lawyers are all over the ballpark when it comes to the UCCJEA allegations required by MCA § 93-27-209. Some still use the old and now-repealed UCCJA provisions that have apparently fossilized in their computers. Some omit them entirely. Some use a hybrid. And some even plead the proper provisions.

The problem is that while we know the current law, we use forms and form pleadings that continue to employ old language and citations. It is just another danger of relying heavily on forms and boilerplate. Quite frankly, it is unlikely that the attorney on the legal team is going to catch this. Rather, the good paralegal will review and update forms on a regular basis. Indeed, the review should be conducted everytime the form or form language is used.

Another Problem with Social Networks – Not Using Them Enough!

Wednesday, August 17th, 2011

Through posts from Patti’s Paralegal Page and Lawyerist.comI read “Ethical Bounds of Using Evidence From Social Networks” at Law.com. While much of the article covers well-tred ground (especially by Lynne DeVenny of Practical Paralegalism. But this article by H. Christopher Boehning and Daniel J. Toal includes analysis of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues.” In essence the article points out that given the prevalence of social networking, it may be a violation of an attorney’s ethical obligations of competent representation, diligent representation, and preservation of evidence not to become of aware of evidence available on social network sites for all parties to litigation. For example, they point out, ”

Preservation of evidence. Under Rule 3.4 (a) (1) of New York’s Code of Professional Conduct, a lawyer may “not suppress any evidence that the lawyer or the client has an obligation to reveal or produce.” The duty to preserve relevant evidence — including “computerized information” — attaches upon the reasonable foreseeability of litigation.

Upon learning that a client’s social networking site contains information that is potentially harmful to a claim or defense, a lawyer may be tempted to advise the client to remove the harmful content.[FOOTNOTE 12] To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.[FOOTNOTE 13]

A lawyer cannot, however, attempt to preserve that which he does not know exists. This is yet another reason why lawyers should familiarize themselves with clients’ online activities — to ensure compliance with the rules of discovery.

Since checking the internet for possible evidence is typically a paralegal’s job, take a moment to click through and read the entire article. Then make an addition to your case startup checklist!

Attorneys: Mentor Your Paralegals

Wednesday, August 17th, 2011

Elona Jouben, MPS, Paralegal/Program Assistant at American Association of University Professors has a very good article in Escambia-Santa Rosa Bar Association’s publication, The Summation. The article is addressed to attorneys who sit in their office “frustrated because [they] are not quite getting the quality work product and professionalism [they] want from [their] paralegal.” She notes that that many paralegals have  a “paralegal‘s fervent, but often overlooked, wish – that [the attorney]would do something to enable her to more fully develop the skills” and advises attorneys, “The answer is
simple and may not have even occurred to you. Mentor your paralegal.”

Mentoring, as Elona points out, ought to be part of every attorney/paralegal relationship. She say, “Mentoring your paralegal begins by simply being willing to take the time to answer questions – not just what and how, but why it is important as well. Opening and encouraging channels of communication and providing constructive feedback on your paralegal‘s work product allows her to understand not only what you want corrected and how, but the all important why behind it.”

The one caveat I’d add is that the mentoring can, and should, go both ways. As I’ve noted here (and in The Empowered Paralegal: Effective, Efficient, and Professional) The keys to an effective, sustainable attorney/paralegal relationship include respect for each others role on the legal team and communication about and within those roles.

In previous posts I’ve discussed, however, the confusion that may exist even among attorneys over the role of the paralegal. That confusion results not only in a less effective legal team, but in frustration and unhappiness on the part of both the attorney and paralegal.

You can help reduce the confusion by being aware of the potential for it, being clear in your own mind about what you can and cannot do, and being willing to talk to your attorney about it in an open, honest and non-confrontational way. This is especially true in obtaining the instructions you need to do your job correctly.

No one benefits from a paralegal spending four hours completing a research project only to find out they did not understand what the attorney was asking. Nor is it beneficial to spend four hours completing a project you do understand if a few clarifying questions would have made it a one hour project. On the other hand, receiving highly detailed instructions or only unchallenging tasks that require little or no instruction wastes the attorney’s time, under utilizes you as a paralegal which wastes the attorney’s money and your competence, and leads to frustration on your part, if not hers.

However, it is not likely that she does this intentionally. More likely, she was simply unaware that more was needed, either because that is her management style, she made faulty assumptions or she has an insufficient understanding of what you in particular or paralegals in general can do. She cannot read your mind, and you cannot read hers.

So you can see that obtaining proper instructions means instructing the attorney. We come back again to basic communication.

In other posts, I’ve discussed some measures you can take to prevent and resolve these difficulties, and improve attorney/paralegal communication in general. Most can be found in the “Relationship with Attorney” category.

Attorney Supervision – Another Point of View

Friday, August 12th, 2011

I’ve often posted here on the attorney’s obligation to supervise paralegals. Superlegal Fun reverses the roles in a post on her blog and examines the need for paralegal supervision of attorneys in a post entitled, “10 things you should never let lawyers do by themselves.” While the list is humorous, speaking as an attorney I can confirm that she is right about enforcing these rules.

For example, “Rule No. 1: 1. Never let an attorney hold an original document without supervision. They WILL write on it, spill coffee on it, or lose it and claim they never saw it before. The “WORKING COPY” stamp is your best friend.” This was an actual rule in my office. I just could not stand the responsibility of having an original document. However, I tried to extend the rule to everyone – the originals were tucked safely away and everyone used “working copies” for day-to-day tasks.

Click the link above to get the whole list and her final advice:

Usually, the older attorneys recognize that they are not allowed/able to do these things. BUT, those attorneys, on occasion, will try to be “helpful” and handle their own crap. Reinforce with those attorneys it is a bad idea and that they have tried to be “helpful” in the past and it ended in disaster.

The list can be filed a number of places, but I’d start with “Stress Management.”

Disclaimer

Thursday, August 11th, 2011

I notice that several new readers of this blog have arrived through links from a website entitled, “Approved Paralegal Programs.” Tracking back the link I find that in November of 2010 someone copied a series of my blog posts and added a picture or diagram to each one. While each post ends with a link that says “View original article here,” there is no attribution of the posts to me, even when the posts begin with “I…”  In fact, the “Disclosure” page states, “This blog is a personal blog written and edited by me,” i.e., the person operating the website, when clearly these posts (at least) were not written by him.

The long and short of it is that I have no relationship to the website and do not in anyway endorse it or the “approved paralegal programs” mentioned there.  Perhaps I should follow the lead of the USOC and have my paralegal make a phone call!?!