Archive for December, 2011

The Paralegal Contract

Thursday, December 29th, 2011

My last post was a set of 10 New Year Resolutions for Paralegals. Number two on the list is “Join a professional association.” I am, in general, a big fan of professional associations as anyone who checks out the “Professional Associations” category can attest. When run effectively they provide benefits to the individual members, to the public, and to the profession itself. In this “guest post” Clifford Smith argues that the ABA and most paralegal professional associations have made the profession into one that is subservient rather than independent, thus curtailing rather than enhancing its historical roll. [Clifford also contributed an article on Independent Paralegals to The Empowered Paralegal Professionalism Anthology.] When I contacted Clifford for permission to re-publish his “The Paralegal Contract” article, he informed me that there is now a Part II to “The Paralegal Contract.” Only Part I is reprinted here, but Part II can be read by clicking this link.

Here is Part I:

The Paralegal Contract
By Clifford C. Smith*

If the philosopher Jean-Jacques Rousseau were alive today, what would he have to say about paralegals? 1 Would he say paralegals are born free and everywhere they are in chains? Perhaps not such a dramatic statement, yet at the heart of his central work, Du contrat social ou Principes du droit politique, there is an underlying premise of freedom.2
Here, The Paralegal Contract briefly describes the evolution of the independent paralegal movement and the organizations that have emerged around paralegals, vying for control of the paralegal profession through certifications, regulations and educational guidelines. Ultimately, The Paralegal Contract encourages all paralegals to act from a deeper center of awareness, as opposed to the subservient support role that has been endorsed by paralegal organizations and advanced by the ABA’s Standing Committee of Paralegals. In many ways, law and its application has become separated from the higher principles of equality and social justice, resulting in unhappiness among many members of the legal profession, from paralegals to lawyers.

Much of the legal work being performed today is extrinsically motivated and revolves around personal financial outcomes, rather than on the intrinsic motivation to deliver legal services to those who need it the most – poor people with no access to justice.3 With the present global economic crisis, the way law will be delivered and practiced is being transformed, as consumers look for affordable solutions to legal problems that don’t involve traditional aspects of law delivery. In effect, corporations and small business will continue to slash their budgets and look for legal solutions through self-help resources, interactive legal software, internet-based law solutions, alternative dispute resolution, and online mediation. Paralegals have an opportunity to be at the forefront of this major transformation and shift, while also challenging and expanding their present roles in the legal workplace.

Paralegals – A Brief History
There are two distinct paralegal groups that emerged around the same time – one was the legal assistant who worked for a lawyer or law firm – and the other was the independent paralegal, which evolved out of the self-help law movement driven by the countercultural movement of the 1960s. Both took rather different paths. For the most part, the legal assistant was not a mainstream concept in the 1960s or 1970s, since most legal assistants worked behind the scenes and little was known about their actual function in the law office. On the other hand, the self-help legal movement was driven by a California based publisher known as Nolo Press, and by non-lawyers who provided self-help legal services directly to consumers.4 Gradually, these self-help providers became known as “independent paralegals,” and many of them operating self-help law clinics were unjustly targeted and shut down, because they were competing with lawyers.

Thus, it was through controversy that independent paralegals gained media recognition and the term “paralegal” stuck in the minds of consumers looking for affordable solutions to their legal problems. It was also through consumer trust and an affinity towards paralegals that propelled the name into mainstream consciousness. It was much later that the term paralegal was incorporated into what was generally referred to as the legal assistant working for a lawyer or law firm. Even magazines like the Legal Assistant Today, years later changed its name to Paralegal Today.

The National Federation of Paralegal Associations (NFPA) is the only national organization that incorporated the word paralegal in its name from its inception in 1974.5 It was founded by eight local associations, some of which later changed their names to incorporate the term paralegal:

Atlanta Association of Legal Assistants (Georgia Association of Paralegals); Minnesota Association of Legal Assistants (Minnesota Paralegal Association); Rocky Mountain Legal Assistants Association (Rocky Mountain Paralegal Association); and San Francisco Association of Legal Assistants (San Francisco Paralegal Association).

One of the first proprietary schools for paralegals was the Paralegal Institute, Inc., which was formed in 1972, in New York. The founder, Carl E. Person, is a Harvard Law School graduate and attorney, who brought an antitrust action against the ABA in connection with its Guidelines and Procedures for Approval of Legal Assistant Education Programs. 6 Person’s contention was that the ABA’s paralegal school accreditation program violated antitrust laws and that it was designed to eliminate competition and restrict entry into the market for the recruitment, training and placement of paralegals. That it was unreasonable when applied to proprietary schools such as the Paralegal Institute. Little did Carl Person know that years later the Department of Justice would bring an antitrust lawsuit against the ABA for numerous violations and anticompetitive practices. 7

The 1980s and 1990s saw the widespread expansion of paralegal educational programs and paralegal organizations marketing memberships and certifications, while enacting a variety of guidelines to oversee the paralegal field. In 2000, Governor Gray Davis signed AB 1761, a bill that defined and regulated paralegals under California law. It is important to note, however, that prior to the adoption of the bill, that it was paralegals who were providing self-help law services directly to consumers and with the passage of AB 1761, they were forced to trade in the designation “paralegal” or “independent paralegal” for Legal Document Assistant (LDA). Yet, it was those pioneers who popularized the term paralegal and put it on the map, along with the many independent paralegals working in other states, such as New York, Florida and elsewhere.8
This important point often gets blurred following the consolidation of the title paralegal by national and local paralegal organizations. Even the ABA itself changed from “The Standing Committee of Legal Assistants” to “The Standing Committee of Paralegals.” Younger paralegals entering into the field, today, may be unaware of this blurring of the term paralegal.

What we now have is control over the title so that paralegals are placed into a one size fits all definition of the profession, when historically it was not.

The Pioneers
The pioneers who propelled the paralegal self-help movement to the forefront were notably different from the legal assistants who worked for lawyers and law firms. It was the latter group that converged around NALA and the NFPA, where both organizations played a
part in shaping much of what we have in the way of restrictive ideology and of paralegals working under the supervision of lawyers. 9
Yet both organizations have failed to advance independence on the part of paralegals and in many respects, have become miniature extensions of the American Bar Association and its relegation of paralegals to working under the supervision of lawyers, which is at the heart of the ABA’s definition of a legal assistant or paralegal.
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.
Despite those qualifications of education, training or work experience, paralegals now find themselves micromanaged by a variety of organizations and inescapably locked into support roles, while being controlled along each step of the way.

Epilogue
The Paralegal Contract is about remaining true to the higher principles of equality and social justice, rather than being defined by any one professional organization or regulatory body desiring control over a group through use of its collective power.
The consolidation of the paralegal profession by paralegal organizations and the American Bar Association has created a tragic situation where paralegals are prevented from realizing their full potential and growth, as independent professionals. Thus, figuratively, they have traded their freedom for a form of paralegal servitude.
That even though paralegals must enter into social contracts with lawyers and the organizations overseeing them, in doing so, they should not lose sight of their fundamental vision of freedom and inner recognition of independence.
For a true association of paralegals to exist, there must be the unanimous consent of all its members.

* Cliff is a writer and holds an advanced paralegal credential. He is also a graduate of Duke Continuing Studies.
1 Jean-Jacques Rousseau was born on June 28, 1712 in Geneva, Switzerland. Rousseau’s philosophical writings have greatly influenced modern philosophy.
2 Rousseau’s work, The Social Contact, describes the relationship of man with society. Rousseau argued that no social contract can exist without the unanimous consent of all its members, resulting in a true association, instead of an aggregation, which has no validity. The framers drew from Rousseau when drafting the U.S. Constitution.
3 “Intrinsic motivation” refers to motivation that is driven by an interest or enjoyment in the task itself; and “Extrinsic motivation” refers to the performance of an activity in order to attain an outcome, which then contradicts intrinsic motivation. See Ryan, M. R., & Deci, L. E. “Self-Determination Theory and the Facilitation of Intrinsic Motivation, Social Development, and Well-Being,” American Psychologist, 2000
4 Nolo Press was formed by two lawyers, Charles (Ed) Sherman and Ralph (Jake) Warner, both of which had worked for legal aid in the late 1960s. Seeing a need for affordable legal services, they began publishing self-help law books and training non-lawyers to assist consumers with uncontested divorces through the Wave Project. More and more independent paralegals began using Nolo resources to assist consumers in self-help law. See “Nolo History” at .
5 See THE HISTORY OF THE NATIONAL FEDERATION OF PARALEGAL ASSOCIATIONS at
6 Paralegal Institute, Inc. v. American Bar Association, 475 F. Supp. 1123 (1979).
7 In 1995, the Department of Justice brought an antitrust action against the American Bar Association. The lawsuit alleged numerous violations under the ABA’s law school accreditation process, along with other anticompetitive practices. See
8 See Ralph Warner, et al., Independent Paralegal’s Handbook, 6th Ed., California: Nolo (2004) (Provides a historical background on the self-help law movement and independent paralegals working throughout the United States).

9.The ABA’s Standing Committee sets out a variety of guidelines on how paralegal services can be utilized to the benefit of lawyers. See the “ABA Model Guidelines for the Utilization of Paralegal Services,” and “Economic Benefits of Paralegal Utilization” available at <http://www.americanbar.org/groups/paralegals.html>

Law.com’s Top 10 Paralegal Resolutions

Friday, December 23rd, 2011

Law.com  posts Christine M. Flynn’s list of Top 10 New Years Resolutions for Paralegals. Christine is a defense litigation paralegal at Swartz Campbell with more than 20 years of experience in the field and President of the Philadelphia Association of Paralegals as well as chair of the litigation committee. I’ve re-posted the items from the list here. Check out the article for the reasoning behind her suggestions. Do you have anything you’d add or change?

1. Get a checkup.

2. Join a professional association.

3. Learn something new.

4. Take the Paralegal Advanced Competency Exam and obtain your PACE RP credential.

5. Join your local bar association. Some paralegals will read this and ask why. Well, there are numerous reasons.

6. Participate in pro bono/community service.

7. Mentor, mentor, mentor.

8. Manage stress.

9. Use GoodSearch.

10. Identify a weakness.

Christine ends with this reminder:

As we turn the page from 2011 to 2012, we should keep in mind the words of the poet Edith Lovejoy Pierce, who said: “We will open the book. Its pages are blank. We are going to put words on them ourselves. The book is called ‘Opportunity’ and its first chapter is New Year’s Day.”

So take a few moments today to seize the opportunities to enhance your professional status in 2012. Best wishes for a safe, happy and healthy new year.


About That Year-end Bonus….

Thursday, December 22nd, 2011

Above The Law today posts “A Shout-Out to All The Legal Types Getting a $0 Bonus This Holiday Season” addressing primarily paralegals and other support staff:

While many associates complain about greedy partners who won’t share the wealth with their associates, there are few associates who are willing to take less so there is more bonus money left over for staff. Laments one paralegal reader:

Take it from me, no one feels more screwed during bonus time than the secretaries and paralegals that bust their asses all year long and that have remained loyal to a law firm to only get a bonus that barely covers their parking bill for the month.

The article references primarily BigLaw firms, but it is likely that smaller firms are feeling – or claiming to feel – the same pinch. It is, however, more difficult I think for smaller law firms where the attorneys and support staff work together as a more intimate team to hold back on bonuses. Each of the small firms in which I was a partner (I talking really small here from 1-3 attorneys) made an extra-effort to pony-up for bonuses at the end of the year, even when it meant the attorneys taking home less than expected. This occurred even in the early 1980’s recession.

While I still do some consulting and handle individual cases, I can no longer be considered to “have a law office,” so I’m not necessarily aware of what is happening currently in small firms. (Please feel free to let me know.) However, I must echo Above the Law‘s suggestion that all law firms remember and reward their paralegals this year. (Gifts, especially copies of any of The Empowered Paralegal series of books, are, of course, wonderful, but cannot possibly substitute for a bonus that recognizes their contributions to the firm’s bottom line.)

Updated: The Paralegal Handbook

Wednesday, December 14th, 2011

Theresa A. Prater has a post on the NFPA LinkedIn discussion board regarding the new version of The Paralegal Handbook:

The Paralegal’s Handbook – updated

A new edition of The Paralegal’s Handbook has been published and is available on Amazon for a great price. It is a guide to the tasks and responsibilities a paralegal may be asked to undertake. Authors are NFPA past president, Anita Hayworth, RP and past vice president, Leslie Cox, RP. It is a valuable tool to have on your desk for quick reference. If you link to Amazon through the NFPA website, www.paralegals.org, you also help NFPA.

I suppose that in a way The Paralegal Handbook  could be competition for my own The Empowered Paralegal: Effective, Efficient, and Professional, but I see them as complementary, each providing a fine supplement to the other. So, if your are looking help out your favorite paralegal this Christmas, access Amazon through the NFPA website and buy both!

More Follow-up on “Handling Unethical Attorney Conduct: An Example”

Friday, December 9th, 2011

Partly because the case is from the jurisdiction in which I have been licensed since 1976 and I know several of the players, but mostly because it provides an excellent illustration for discussions of how paralegals should handle unethical conduct by their attorney, this blog has been following the saga of ethical charges against Verrill-Dana, one of Maine largest law firms. According to ABAJournal.com today, Maine’s highest court has ruled that six partners at Verrill Dana violated ethics rules by failing to have procedures in place to monitor a lawyer after questions arose about his handling of a client account, but upheld a finding that the six partners didn’t violate ethics rules by foot-dragging in reporting misconduct.

The intricacies of this ruling are interesting in their own right, but only marginally so for this blog which is more concerned with how the saga started:

A paralegal and a secretary were first to discover the problem, according to the opinion. The paralegal noticed in late 2006 that Duncan had prepared a check register for a client showing a payment to Verrill Dana, but the check had been made payable to Duncan. The paralegal brought the matter to the attention of Duncan’s secretary, who investigated and found 14 such discrepancies.

The secretary finally told another lawyer in the firm about the discrepancies in June 2007, spurring Warren to launch an investigation of the client account. When confronted, Duncan said the checks written to himself represented attorney fees, and he offered to resign. Warren spoke to the executive committee about Duncan’s resignation offer; it was declined. Warren did require Duncan to repay $77,500 to the firm, however, and he complied.

The court’s opinion tells the end (or the near end) of the story for the attorneys involved. Check out the previous posts here for the beginning including the story of the paralegal and secretary who “did the right thing” when confronted with an attorney for whom they worked doing the wrong thing.

Paralegal Certification Colorado

Thursday, December 8th, 2011

There is proliferation of website proporting to give information about paralegal careers, educational opportunities, and the like. Unfortunately some, even if well-intentioned, ought not to be relied upon by anyone. For example, one such site (no, I will not give a name or link) states, “Obtaining paralegal certification in Colorado is relatively simple witih some excellent community college and degree programs available to those seeking a paralegal qualification.” Aside from the poor proofreading and editing (yes, I expect more from this type of website than I do of a blog), this is quite misleading and contributes to the general confusion regarding the distinction between obtaining a paralegal certificate and getting paralegal certification.

I do not believe that Colorado as a state requires or provides for certification of paralegals. (Please feel free to forward me the information if I am wrong on this.) In any case, this website provides no information on paralegal certification either as it pertains to Colorado or to certification exams offered by NFPA or NALA. Rather they offer some, not really helpful information regarding some paralegal programs that provide paralegal certificates and degrees.

Bottom line – if you want to know about paralegal education go to a well-established, respected source such as the American Association for Paralegal Education. (Disclosure: I am on the Board of Directors) Likewise for paralegal certification: check the websites for NFPA, NALA, and comparable professional associations. FMI: Check out The Paralegal Professionalism Anthology.

The Proper Tone of a Professional Communication

Wednesday, December 7th, 2011

Because paralegals are licensed in Ontario and can engage in limited practice of law without attorney supervision, they are subject to the “Paralegal Rules of Conduct” which can be enforced by the Law Society through the same process as is used to discipline lawyers. When the reports of discipline come out it seems there are far fewer for paralegal than attorneys, but I have no data to confirm that (and, of course, even if it is true there may be as many paralegal disciplinary proceedings portionate to the numbers practicing under each type of license, but those that do come through are generally fairly similar to those for lawyers. Here’s one that is a bit more interesting though:

KIMBERLY LYNN POLLOCK
From: City of Mississauga, Ontario
First hearing: November 21, 2011
LSUC Counsel: Jan Parnega-Welch
Paralegal not represented
Particulars of alleged professional misconduct from the Law Society’s Notice of Application filed June 7, 2011:
1. Contrary to Rule 2.01(2) of the Paralegal Rules of Conduct, you communicated with your former colleague, M.S., in a manner that was abusive, offensive or otherwise inconsistent with the proper tone of a professional communication from a paralegal, including three separate electronic communications on November 3, 2009.
2. Contrary to Rule 2.01(1) of the Paralegal Rules of Conduct, in your communication dated December 7, 2009, you attempted to mislead the Law Society when you unequivocally denied that you posted information about your former employer, C.R.S., on-line, when this representation was not true.

The result of the hearing:        Decision: The Paralegal was reprimanded.

More specifically the Law Society of Upper Canada website reports:

By Decision and Order dated November 21, 2011 the hearing panel ordered as follows:

The Paralegal is to be reprimanded.
The reprimand is to be administered to the Paralegal in person at the offices of the Law Society on December 19, 2011 at 1:00 p.m.
Costs of $1,000 to be paid by the Paralegal within one year of the Paralegal curing her administrative suspension.
Should the Paralegal fail to pay the costs within the one year period, the Panel orders that the Paralegal be suspended until such time as the costs are paid.
Should the Paralegal fail to attend to receive the reprimand on December 19, 2011 at 1:00 p.m., the Law Society shall be entitled to make further submissions as to penalty.

 Further information regarding the details of this matter do not appear to be available and is probably not real helpful anyway. However, I suspect that this rule, if applicable in the U.S., would get quite a workout!

Billable Hour Goals

Wednesday, December 7th, 2011

Good planning can turn obstacles into stepping stones for meeting goals (e.g., I view the Rules of Procedure as a guidebook to litigation, not the pain-in-the-butt many legal professionals characterize them as). So I’m including here this post from Vicki Voisin, The Paralegal Mentor, in its entirety:

Paralegal Practice Tip: Billable Hour Goals? Do the Math!from Vicki Voisin – The Paralegal Mentor with Paralegal Career Strategies by Paralegal Mentor

Most firms set annual billable hour goals for attorneys and paralegal. Reaching those goals is very important for a variety of reasons, the primary one being to demonstrate value to the firm.

If you do not break down the billable hour goals into ‘chunks,’ it’s a good possibility that come December 2012 you’ll find yourself falling short of the goal or scrambling to do two months’ time in one month.

Neither is good, one is virtually impossible. Instead, you need to do a bit of math and some simple planning NOW to be sure you meet your goals eleven months from now.

I’ll be revealing how to do the math and the planning this coming Tuesday, December 13th at 1:00 pm Eastern time when I present Your Big Billable Hour Breakthrough: How to Turn Your Time into a Billable Hour Gold Mine. For more information, follow this link.

Note: This course will provide 1.5 hours MCLE credit. Certificate of Attendance provided to all registered attendees.
As always, I’m dedicated to your success!