Archive for November, 2011

Drug Lords’ Paralegals: Not So Professional

Tuesday, November 29th, 2011

In October of 2009 I did a post entitled, “Drug Lord’s Paralegal: “I have to be professional” about a paralegal’s effort remain professional while offering “company and conversation to convicted drug lords serving time:

Lulu makes a point of visiting on holidays. She’s careful never to be late. And she abides by ADX’s rules prohibiting her from showing cleavage or wearing skirts that fall above the knee. After all, she says, “I have to be professional.”

“These aren’t my boyfriends. I can’t be flirting or anything like that. They videotape our visits. There are a lot of eyes on me when I’m at my job,” she says.

Now the Miami New Times reports: “Miami’s Federal Jail Overrun With Strippers Posing As Paralegals, Lawyers Say.” Apparently these “paralegals” are not making many efforts to even pretend they are professional – or at least not professional paralegals:”

Multiple attorneys interviewed by Riptide say the FDC visitor rooms have been taken over by South American pole dancers posing as paralegals for wealthy drug lords inside. Lawyers hired by the accused narco dons allegedly list the scantily clad women as “legal assistants,” and the FDC lets them in. Meanwhile, attorneys who refuse to go along risk losing their clients to lawyers with busty beauties on staff.

“They take off their tops and let the guys touch them,” veteran defense attorney Hugo Rodriguez says. “The majority of these young, very attractive women are noncitizens brought in exclusively for the purposes of visiting the FDC. Any lawyer can sign a form and designate a legal assistant. There is no way of verifying it. The process is being abused.”…

Among the offenses allegedly committed by so-called paralegals: smuggling in a Playboy, feeding alcohol to an inmate by slipping a straw through a grate, and sneaking in $3,000 inside a purse.

In a scene straight out of a porno, one woman was caught on video stripping for an inmate in the jail’s Special Housing Unit, attorneys say.

As noted in the original posts, these people are not actually the drug lords’ paralegals, but the attorneys’ paralegals, if they are paralegals at all. The problem is that there are no regulations establishing who qualifies as a paralegal or what qualifies as a paralegal function. The ABA definition of paralegal does refer to “substative legal work” but leaves the final designation of titles to “supervising” attorneys. If this story is true, it is an indication that more is needed, as some attorneys cannot handle that responsibility.

The Legal Process Relationship to Trial Presentation

Monday, November 28th, 2011

This Wednesday I’ll be trying something new: part of a live video webcast presented through the Organization of Legal Professionals. I’ll be presenting Part B: The Legal Process.

Part B: The Legal Process
The Legal Process Relationship to Trial Presentation
Effective Assistance in the Presentation
of Evidence

Learn how each stage of trial presentation relates to
the actual trial.

This insightful course will guide you in your courtroom trial presentation assignments by exploring various stages of the trial process and how it relates to your trial presentation. Learn from a seasoned trial attorney and Associate Professor of Paralegal Studies

WHAT YOU WILL LEARN:

  • Find out how to apply the legal process directly to your trial presentation
  • Understanding and communicating basic concepts: facts, evidence, and proof
  • Obtain practical tips for the handling of evidence
  • Understanding the role of causes of action in:
    Interviewing
    Investigaton
    Pleadings
    Discovery
    ADR
    Dispositive motions
    Pretrial preparation
    Trial
  • The Rules of Procedure as a Guidebook to Successful Litigation
  • Effective Assistance in the Presentation of Evidence
  • Ethical considerations in trial presentation
  • Identify the most common mistakes in trial presentation
  • Learn psychological tips to convince the jury

While Peter Phaneuf, President of TrialTek Consulting, LLC Washington, D.C., a trial consultant with 23 years of litigation experience will present Part A:

Part A: The Lab
Trial Technology in Today’s Courtroom
Using Trial Director

 
 More and more litigation support professionals along with paralegals and other legal professionals are asked to use electronic trial presentation software to present evidence in court. If done well, the exhibits can improve the odds of winning a case. Poorly presented evidence, however, can risk both the case and your career.

 As courtrooms adopt new technologies, IT professionals, courtroom personnel, and trial presenters can find a wide range of equipment available in each new situation. Being organized and knowing how to work both old and new systems are your two best strategies.

 Attending the Trial Presentation Professional Workshops will enable you to stay at the top of your game by recognizing what to present and how to present it. Experience in trial presentation and familiarity with trial presentation software is a plus for this program, but certainly not a requirement.

 Learn the inside secrets to presenting trial exhibits that can persuade judges and juries to decide in your favor.

How your trial exhibits are presented to the judge and jury in this highly visual day and age, can cause you to win or lose your case.

This valuable course shows you how to effectively utilize Trial Director to maximize the effect of your trial exhibits. Taught by one of the top Trial Presentation Consultants in the country.

WHAT YOU WILL LEARN:

  • Options for evidentiary presentation in trial:
    A discussion about the range of your
    options from boards to full tech support.
  • Creating concepts for demonstrative evidence
    development;
    Evaluating the evidence. Discussions include how to
    present options for presentation based upon factors such
    as type of case or the legal argument to be made.
  • Audio and video facts that affect your presentation of
    evidence.
    A discussion of how to set up the courtroom.

Although I’m Part B, I go first with a two hour session on Wednesday, then alternating with Peter for the rest of the six week course. More info here.

Ontario Law Society Quandry: Does Disbarred or Suspended Attorney Have the “Good Character” to be a Paralegal?

Monday, November 28th, 2011

One aspect of the Ontario experiement in licensing paralegals that I posted about favorably here is the “good character assessment.” Commenting on an unusual case before a Law Society Appeal Panel, I noted,

The scary part is that there is nothing to prevent our own Nics from calling themselves paralegals here in the United States. We are hopeful that UPL laws will prevent them from operating independently, but depend on law firms to do the character assessment and background checks to keep Nic and his ilk out of the legal system. Unfortunately, this procedure all too often fails. Indeed, some paralegals are so un-reviewed and unsupervised that they are able to embezzle huge sums from the law firms themselves. One managed to grab $1.7 million before being caught!

Indeed, there is a concern that persons found unfit to be an attorney could become paralegals under our system, a concern I addressed in “If he smells bad there, he’ll smell bad here.” As noted in that post, it seemed that a paralegal licensing program that included a good character assessment would prevent corrupt attorneys from becoming paralegals after disbarment.

A recent article in the Law Times though makes it clear that not just any licensing regulations will do:

The Paralegal Society of Ontario says it’s “seriously concerned” about Law Society of Upper Canada regulations allowing disbarred and suspended lawyers to apply for paralegal licences, an issue that culminated in Mississauga, Ont., lawyer David Robert Conway’s successful appeal of his disbarment this month.

“As an organization, we’ve made it perfectly clear to the law society that we highly object to a lawyer applying to serve as a paralegal when they’ve been suspended or disbarred,” says Janet Wigle-Vence, treasurer of the paralegal society.

According to Wigle-Vence, while paralegals serve clients in a limited scope compared to lawyers, the regulator should hold both types of practitioners to a similar standard of character.

“If they can’t pass the test to serve as a lawyer, it doesn’t make sense that they would be allowed to serve as a paralegal,” she adds.

The problem lies in the particular way the regulations are written. They include “grandfather” and hearing provisions that do allow disbarred attorneys to have a hearing on a paralegal license application which could, in theory, find that they do not have the “good character” to be an attorney, but do have the “good character” necessary to be a paralegal!

The article implies, however, that this is more of a theorectical problem than a practical problem, noting through a statement by Harry Kopyto, himself a disbarred attorney, a subject of posts on this blog, and occasional communicator with this blog, few attorneys have been successful in taking this route back into legal practice precisely because of the good character requirement. Nonetheless, it seems odd that this would even be an option. The regulations should make it clear that disbarment or suspension as an attorney is itself sufficient indication that the applicant lacks the good character required to be a licensed paralegal.

TEP in the news

Friday, November 25th, 2011

UM Professor Publishes Third Book in Series for Professional Paralegals
November 23, 2011 By Taylor Coombs

A University of Mississippi professor has published the third in a series of books aimed at improving the professionalism and sharpening the skills of paralegal professionals.

Robert Mongue, assistant professor of legal studies, is the editor of “The Empowered Paralegal Professionalism Anthology” (Carolina Academic Press), which is the third in a series. His “The Empowered Paralegal: Effective, Efficient, and Professional” and “The Empowered Paralegal: Working with the Elder Client” were published in 2009 and 2010, respectively. In 2012, he plans to publish “The Empowered Paralegal Cause of Action Handbook.”The Empowered ParalegalFirst recognized in the 1960s, the paralegal profession is a fairly new profession that is still striving for recognition as a profession by lawyers, practitioners and the public. “The Empowered Paralegal Professionalism Anthology” provides articles on identity, regulation, education, qualifications, ethics and court recognition in a volume for practicing paralegals, paralegal educators and the legal profession in general.

According to Mongue, the paralegal profession is in transition, but when fully blossomed will provide an essential part of resolving the access to justice problem in the United States and internationally.

“I view my books as being part of the effort to assist in that transition by increasing the professionalism of individual practitioners, improving the education of prospective paralegals, and addressing issues central to the maturation of the profession in a way that will position it to assist in providing access to justice to the American public,” Mongue said.

The book begins with an overview of paralegal’s professional identity, then goes on to examine each element of that identity, including education, regulation, professional ethics and the attorney-paralegal relationship.

“This important book addresses issues that either are or should be at the forefront of every discussion of the paralegal professional today,” said Toni Marsh, director of the George Washington University paralegal studies program. “Paralegals are beginning to acknowledge the heights they attained, but they have lacked a major scholarly treatise that has examined the profession in a systematic and insightful way. This book provides that scholarly examination.”

“The Empowered Paralegal Professionalism Anthology” combines peer-reviewed and edited contributions from current paralegal educators, with articles from the 1980s and ’90s for historical context, current commentary from paralegal practitioners, materials from and relating to paralegal professional associations, and court cases that are relevant for the studies and for understanding to the paralegal practice.

“This book will provide the intellectual framework for discussions that will take place throughout the professional sphere,” Marsh said.

“The Empowered Paralegal Cause of Action Handbook” is designed to be helpful for any course in civil litigation as a helpful guide for practicing paralegals.

NFPA PCC Exam

Tuesday, November 15th, 2011

Among the exhibitors at the recent AAfPE Conference was Tracy Young, President of NFPA. NFPA has long been a leader in paralegal certification programs focusing primarily on the Paralegal Advanced Competency Exam (PACE) and RP certification. It now offers an exam to certify the competency of entry-level paralegals in core competencies. Not surprisingly the exam is entitled the Paralegal Core Competency Exam (PCC Exam).

NFPA materials state:

The PCC Exam is designed to test the core competencies in early-career and entry-lebel paralegals and takes into account coursework in paralegal programs as well as actual skills considered essential to basic competency in the profession. [I like to think that those two categories are not mutually exclusive – indeed, that they go together.] The exam also covers law office technology and ethics.

This credential would presumably look very good on a resume for someone trying to break into the first-job market dominated by ads citing “at least two years of experience” requirements, since he two years of experience requirement is often inserted to ensure that the applicants have certain core competencies. For more information check out the PCC Exam Candidate Handbook.

AAfPE and ABA

Monday, November 14th, 2011

One task assigned to me in my new position of Secretary of AAfPE is updating the list of our member institutions – over 330 of them-in terms of which have and which do not have ABA approved programs. Since there are only 260 ABA approved programs, it is clear that many AAfPE members are not ABA approved. Yet, my experience has been that AAfPE programs are programs every bit as good as the ABA programs. Certainly it is impossible to distinguish the many Program Directors and faculty members attending and presenting at AAfPE conferences as being from either an ABA approved or a non-ABA approved program.

Many ardent discussions occur on the internet as to whether ABA approval is beneficial to programs as a marketing device or to graduates as a tool for gaining employment. I suspect that the answer depends on more on geography than anything else.  This is not to say that there should not be some firm criteria for assessing a good paralegal program. Indeed, I argue in many posts here for the need for uniform educational standards.  However, it is not at all clear that the ABA should be the organization making these determinations, at least not in isolation. AAfPE does have representatives on ABA committees and does provide members for site review committees, but has little to no control over final decisions by ABA regarding its conception of the proper way to educate paralegals. Within AAfPE (American Association for Paralegal Education) there is some ongoing discussion about whether the ABA is the correct institution to be “approving” paralegal programs: does it make sense to have lawyers rather than educators determining what makes a good educational program, even if the topic being taught it law?

The fact of the matter is that ABA can often be out of step with advances in education. For example, the Masters Degree program at George Washington University – one of our countries most prestigious institutions (and I think at last count the most expensive to attend) cannot obtain ABA approval because it relies on online education. Yet, it would seem that if online education was in itself bad, GWU would know about it. Many other institutions meet all of the ABA requirements for approval but do not seek it because it is a tremendous drain on resources, both in terms of money and personnel. The costs of obtaining ABA approval are substantial and must be either passed on to students or deducted from other parts of the budget.

I’ve suggested in past posts that perhaps we need for all interested groups to chose a representative to a committee to establish a model act regarding paralegal regulation – ABA, NFPA, NALA, NALS, AAfPE.  It may be there should even be a seat at the table for a group representing “independent” paralegals. It seems that the same may be true for paralegal education.

In any case for those persons seeking a paralegal program, I continue to suggest that they start with AAfPE and see if the program they are interested in is in its membership directory.

Where I’ve Been

Thursday, November 10th, 2011

LEX Graduation Sash

My post yesterday drew some queries as to where I’ve been – some suggesting that I’ve simply been slacking! While there is a modicum of truth to that suggestion, I actually have been busy. Last week, for example, I attended the annual national conference of the American Association for Paralegal Education in Baltimore, MD. It was an excellent conference highlighted (for me) by my election as Secretary of AAfPE and the progress that was made towards establishing an academic journal for paralegal educations by the Scholarly Journal Committe which I co-chair. I am looking forward to serving on the AAfPE Board of Directors.

It is always enjoyable to engage is serious (and some not-so-serious) discussion regarding the many issues facing the paralegal education and practice with faculty from institutions around the country. There were over 300 registrants this year. I will be posting more on some of those discussions and information obtained at the conference in the coming days.

In this post I will just remind paralegal students that AAfPE sponsors the LEX Honor Society. CHeck out the LEX website and check in with your program director to see if your institution has a LEX Chapter.

Cleaning Up Facebook Leads to Sanctions

Wednesday, November 9th, 2011

In a previous post I noted this admonition from an analysis by H. Christopher Boehning and Daniel J. Toal of  a recent article published in the Delaware Law Review, in which attorney Margaret DiBianca ” identified a number of these novel ethical issues:

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. To do so, however, would risk running afoul of Rule 3.4 (a), and incurring sanctions for spoliation of evidence.

Failure to heed that warning (although the events recounted here likely occurred before the warning appeared in the article) has indeed lead to significant sanctions for an attorney (and the attorney’s client) who directed his paralegal to direct his client to “clean up” his Facebook page. The sanctions? Well, they totaled $722,000 (to be paid presumably out of a $5,000,000 judgment the client had obtain against the defendant in the proceeding in which the sanctions were issued. Here’s more:

”According to a September 1 order from Judge Hogshire, the spoliation began in March 25, 2009, when Murray received a discovery request for the contents of Lester’s Facebook account. Attached was a photo of Lester wearing a ‘I [heart] hot moms” t-shirt, and holding a beer can with other young adults.
Murray instructed a paralegal to tell Lester to ”clean up” his Facebook page because, ”we don’t want blowups of this stuff at trial,” the assistant, Marlina Smith, said in a disposition. She emailed that message to Lester the next day.
On March 26, 2009, according to the judge’s order, Murray came up with a scheme to take down or deactivate Lester’s Facebook account so that he could respond that he has no Facebook page on the date the discovery request was signed.
When defense attorneys filed a motion to compel, Murray instructed Lester to reactivate the account. But in a December 16 2009, deposition, Lester denied deactivating the account.
Murray is also accused of withholding the email from Smith instructing Lester to clean up his Facebook page when he was ordered to produce it shortly before the trial began. Murray falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

The rest is here from JDJournal.com, but this is enough to bring me to the second point of this story that is worthy of comment:

 “Murray [the attorney] falsely claimed after the trial that the omission was the paralegal’s mistake, according to the court order.”

On second thought, it is probably not in need of comment as it seems to speak volumes all by itself.